No. 08-205

In The

Supreme Court of the

United States

____________

CITIZENS UNITED, Appellant

v.

FEDERAL ELECTION COMMISSION, Appellee

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Brief Amici Curiae of Seven Former Chairmen

and One Former Commissioner of the Federal

Election Commission Supporting Appellant

on Supplemental Question

____________

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

JAMES MADISON CENTER FOR

FREE SPEECH

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (telephone)

812/235-3685 (facsimile)

Counsel for Amici Curiae
Table of Contents

Table of Authorities. ............................................... (ii)

Statement of Interest................................................. 1

Summary of Argument. ............................................. 2

Argument.................................................................... 3

I. “Proper Disposition” Does Not Require

Overruling Austin or McConnell..................... 3

II. Austin and McConnell Should Be Overruled.. ............................................................... 8

A. Precedent May Be Reconsidered Here.. .... 8

B. “Make No Law” Protects “Political

Speech.”. ..................................................... 8

C. Austin and McConnell Are Unworkable.... 9

1. Austin Spawned Multi-Factor

Entity Tests........................................... 9

2. Austin Spawned Multi-Factor

Speech Tests........................................ 13

3. WRTL-II’s Appeal-to-Vote Test Is

Difficult for the FEC and Courts

to Apply.. ............................................. 15

Conclusion. ............................................................... 19

(i)
Table of Authorities

Cases

Austin v. Michigan State Chamber of Commerce,

494 U.S. 652 (1990).................. 2, 3, 8-9, 11-13, 19

Buckley v. Valeo, 424 U.S. 1 (1976). ......... 3-5, 8-9, 19

Davis v. FEC, 128 S. Ct. 2759 (2007). ................... 3, 9

Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994). ....... 10

FEC v. Massachusetts Citizens for Life, 479 U.S.

238 (1986).............................................................. 9

FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001)............ 10

FEC v. Survival Educ. Fund, 65 F.3d 285 (2d Cir.

1995).................................................................... 10

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652

(2007)..................................... 2, 4, 8, 11, 14, 16, 18

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)

. .............................................................................. 8

McConnell v. FEC, 540 U.S. 93 (2003). . 2-4, 8-11, 13,

16, 19

Minnesota Citizens Concerned for Life v. FEC, 113

F.3d 129 (8th Cir. 1997)...................................... 10

(ii)
National Right to Work Legal Defense and Education Fund v. Herbert, 581 F. Supp. 2d 1132 (D.

Utah, 2008). ........................................................ 14

North Carolina Right to Life v. Bartlett, 168 F.3d

705 (4th Cir. 1999).............................................. 10

North Carolina Right to Life v. Leake, 525 F.3d

274 (4th Cir. 2008)............................................ 5, 7

Real Truth About Obama v. FEC, No. 3:08-cv-483,

2008 WL 4416282 (E.D. Va., Sep. 24, 2008)...... 19

United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948)................................... 10

Wisconsin Right to Life v. FEC, 546 U.S. 410

(2006) .................................................................... 4

Constitution, Statutes, Regulations & Rules

11 C.F.R. Part 104.................................................... 10

11 C.F.R. Part 109.................................................... 10

11 C.F.R. § 100.132. ................................................... 9

11 C.F.R. § 100.29. ................................................... 13

11 C.F.R. § 100.5. ..................................................... 10

11 C.F.R. § 100.6. ..................................................... 10

(iii)
11 C.F.R. § 106. ........................................................ 15

11 C.F.R. § 112.4(b).................................................. 17

11 C.F.R. § 114.5. ..................................................... 11

11 C.F.R. § 114.5(c). ................................................. 18

11 C.F.R. § 114.6. ..................................................... 11

11 C.F.R. § 114.10. ..................................................... 9

11 C.F.R. § 114.15. ............................................. 14, 16

2 U.S.C. § 100.22(b).................................................. 17

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

2 U.S.C. § 441b........................................................... 9

26 U.S.C. § 501(a)..................................................... 15

26 U.S.C. § 501(c). .................................................... 15

26 U.S.C. § 501(c)(4)........................................... 12, 15

26 U.S.C. § 527................................................... 12, 15

U.S. Const. amend. I. ....................................... 1, 9, 19

(iv)
Other Authorities

James Bopp, Jr., Richard E. Coleson & Barry A.

Bostrom, Does the United States Supreme Court

Have a Constitutional Duty to Expressly Reconsider and Overrule Roe v. Wade?, 1 Seton Hall

Const. L.J. 55 (1990)............................................. 8

Brief for Intervenor-Defendants Senator John

McCain et al., McConnell v. FEC, 540 U.S. 93

(2003)..................................................................... 3

FEC Advisory Opinion 2004-30................................. 9

FEC Advisory Opinion 2008-15......................... 17, 18

FEC, “Political Committee Status,” 69 Fed. Reg.

68056. .................................................................. 10

FEC, “Political Committee Status,” 72 Fed. Reg.

5595. .................................................................... 10

Statement of Reasons of Commissioners Weintraub,

Thomas and McDonald, FEC Matters Under

Review 5024, 5154, and 5146 (Council for Responsible Government) (Dec. 16, 2003)................ 5

Statement of Reasons of Commissioners Peterson,

Hunter and McGahn, FEC Matter Under Review 5541 (November Fund) (Jan. 22, 2009) 

. ..................................................................... 5-6, 16

(v)
Statement of Interest

1

These Amici Curiae are eight former commissioners

of the Federal Election Commission (“FEC”), with FEC

years and current affiliation indicated: Joan Aikens

(1975-1998, retired); Lee Ann Elliott (1982-2000, retired); Thomas Josefiak (1985-1991, Partner, HoltzmanVogel); David Mason (1998-2008, Visiting Senior

Fellow, Heritage Foundation); Bradley Smith (2000-

2005, Blackmore/Nault Designated Professor of Law,

Capital University); Michael Toner (2002-2007, head

of Election Law and Government Ethics Practice

Group, Bryan Cave); Hans von Spakovsky (2006-

2007, Visiting Legal Scholar, Heritage Foundation);

Darryl Wold (1998-2002, private law practice emphasizing election and political law). All chaired the FEC

during their tenure except for Commissioner von

Spakovsky.

As former FEC commissioners with many years of

experience in interpreting the Federal Election Campaign Act (“FECA”), implementing regulations, devising enforcement policy, and investigating violations,

Amici have an interest in advising the Court of the

complexities anddifficulties of the practical application

of federal campaign finance laws and the First Amendment to political speech and activity.

No party counsel authored any of this brief, and no 1

party, party counsel, or person other than amici or their

counsel paid for brief preparation and submission. The parties consented to the filing of this brief.
2

Summary of Argument

“[T]he proper disposition” of this case does not require overruling Austin v. Michigan State Chamber of

Commerce, 494 U.S. 652 (1990), or the facial upholding

of the electioneering-communication Prohibition in 2

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

case may be decided for Appellant on other grounds.

The application of this Court’s unambiguously-campaign-related (“UCR”) principle would resolve the challenges to both the Prohibition and Disclosure Requirements.

However, it would be appropriate, and in fact desirable, for the Court to overrule these troublesome precedents because (1) both are properly implicated for reconsideration, (2) “Congress shall make no law . . .

abridging the freedom of speech” has special force in

protecting political speech, (3) Austin and McConnell

have proven to be unworkable, having spawned many

complex, multi-factor tests, and (4) the FEC and lower

courts have made the appeal-to-vote test in FEC v.

Wisconsin Right to Life, 127 S. Ct. 2652, 2667 (2007),3

unworkable. Austin and its progeny should be overruled.

Amici follow the Jurisdictional Statement terminology 2

for BCRA §§ 201 and 311 (“Disclosure Requirements”) and

§ 203 (“Prohibition”). See id. at 5.

The opinion by Chief Justice Roberts joined by Justice

3

Alito (“WRTL-II”) states the holding. See Marks v. United

States, 430 U.S. 188, 193 (1977).
3

Argument

I. “Proper Disposition” Does Not Require

Overruling Austin or McConnell.

Overruling Austinand/orMcConnell’s facial upholding of the Prohibition is not required but should be

done. The UCR principle would resolve the challenges

to both the Prohibition and Disclosure Requirements

and would require striking the Disclosure Requirements, if the Disclosure Requirements do not automatically fall with the Prohibition. See Brief for Amicus 4

Curiae Committee for Truth in Politics, Inc. Supporting

Appellant (herein) (“CTP Brief”). Amici make five more

arguments regarding the UCR principle.

First, Intervenors Senator McCain et al. expressly

argued Buckley’s UCR analysis in McConnell, insisting

that the electioneering-communication definition was

a constitutional “adjustment of the definition of which

advertising expenditures are campaign related.” Brief

for Intervenor-Defendants Senator John McCain et al.

at 57, McConnell, 540 U.S. 93. They argued that the

“[d]isclosure rules . . . ‘shed the light of publicity on

spending that is unambiguously campaign related but

would otherwise not be reported.’” Id. at 58 (quoting

Buckley v. Valeo, 424 U.S. 1, 81 (1976) (emphasis added). They urged Buckley’s UCR analysis: 5

This would be similar to the analysis in Davis v. FEC,

4

128 S. Ct. 2759, 2774-75 (2007) (striking disclosure provision implementing level-the-playing field provision).

 They argued that their “standards for defining which 5

ads will be treated as campaign-related squarely serve a

compelling interest in using clear and objective lines to
4

Two general concerns emerge from the Court’s

discussion: Statutory requirements in this area

should be clear rather than vague, in part so

they will not “dissolve in practical application,”

424 U.S. at 42; and they should be “directed precisely to that spending that is unambiguously

related to the campaign of a particular federal

candidate,” id. at 80; see id. at 76-82. Those are

precisely the precepts to which Congress adhered

in framing Title II.

Id. at 62 (quoting Buckley) (emphasis added). So the

Intervenors, the reform community (the Intervenors’

lawyers), and Congress itself recognized that the UCR

analysis identifies regulable communications based on

avoiding vagueness and overbreadth, which McConnell

adopted. 540 U.S. at 191-92.

Second, since McConnell’s upholding of electioneering communication regulation was based on the UCR

“precept,” it would be a bait and switch not to apply the

precept herein.6

frame any rule that affects speech.” Id. (emphasis added).

In Wisconsin Right to Life v. FEC, 546 U.S. 410 (2006) 6

(“WRTL-I”), Chief Justice Roberts identified at oral argument a similar bait-and-switch effort by the reform community: “In McConnell against FEC, you stood there and told

us that this was a facial challenge and that as-applied challenges could be brought in the future. This is an as-applied

challenge and now you’re telling us that it’s already been

decided. It’s a classic bait and switch.” Transcript of Oral

Argument at 25, WRTL-I, 546 U.S. 410. See also WRTLII,127 S. Ct. at 2673 (another bait and switch rejected).
5

Third, this UCR analysis has been expressly recognized by FEC Commissioners. In a Statement of Reasons (Dec. 16, 2003) in Matters Under Review

(“MURs”) 5024, 5154, and 5146 (available at http://

www.fec. gov) (“SOR”), Democrat FEC Commissioners

Weintraub, Thomas, and McDonald noted that Buckley

expressed concern about reporting provisions “that

might be applied broadly to communications discussing

public issues which also happened to be campaign issues,” and so imposed the express-advocacy construction. Id. at 2. “[T]he Buckley Court explained the purpose of the express advocacy standard,” they declared,

which “was to limit application of the . . . reporting

provision to ‘spending that is unambiguously related to

the campaign of a particular federal candidate.’”

Id.(quoting Buckley, 424 U.S. at 80) (emphasis in

SOR). The Commissioners quoted 424 U.S. at 82:

“[u]nder an express advocacy standard, the reporting

requirements would ‘shed the light of publicity on

spending that is unambiguously campaign related

. . . .’” SOR at 2 (emphasis in SOR).

In addition, a January 22, 2009 Statement of Reasons in MUR 5541 (November Fund) by current Republican FEC Commissioners Petersen, Hunter and

McGahn (“November-FundSOR”) emphasized theneed

to “fully incorporate important principles in recent judicial decisions,” including . . . the Fourth Circuit’s persuasive decision in . . . [North Carolina Right to Life v.]

Leake[, 525 F.3d 274 (4th Cir. 2008)],” November-Fund

SOR at 2, and stated that “the Act does not reach those

‘engaged purely in issue discussion,’ but instead can

only reach ‘that spending that is unambiguously re-
6

lated to the campaign of a particular federal candidate’

. . . .” Id. at 5.

Fourth, while WRTL II’s appeal-to-vote test clearly

implements this Court’s UCR principle, the FEC and

courts have made it unworkable. See Brief of Amici

Curiae the Wyoming Liberty Group and the Goldwater

Institute in Support of Appellant(herein) (“WLG Brief”)

(explaining the flaws of the FEC’s implementing rule

and delay and disputes in applying test as interpreted).

If the test is to have meaning, this Court must hold

that a communication may only be interpreted “as an

appeal to vote,” if it contains an express appeal that is

to vote, i.e., a clear plea for action urging a vote. See

CTP Brief at 17-24.

Fifth, campaign-finance law is overly complex and

confusing. The UCR principle, analytically articulated

7

FECA is 244 pages, http://www.fec.gov/law/feca/feca. 7

pdf. The FEC has adopted 568 pages of regulations, http://

www.fec.gov/law/cfr/cfr_2009.pdf. There have been 13 “major” court cases interpreting, modifying or striking FECA or

regulations, http://www.fec.gov/law/litigationmajor.shtml,

366 other court cases doing the same, http:/ /www.fec.gov/

law/litigationalpha.shtml, and 17 court cases yet unresolved, http://www.fec.gov/law/litigationrecent.shtml.

The FEC has adopted 1,278 Federal Register pages of

explanations and justifications for regulations, http://www.

fec.gov/law/cfr/ej_main.shtml, 10 policy statements, http://

www.fec.gov/law/policy.shtml#policy, 1 interpretive rule,

http://www.fec.gov/law/policy.shtml#interpretative, and

1,771 advisory opinions since 1975, http://saos.nictusa.com/

saos/searchao, with 9 more pending.

For lawyers and non-lawyers alike, the FEC has published 17 reporting forms, each with its own instructions,

http://www.fec.gov/general/library.shtml#CampaignGuides,
7

in Leake, provides simplicity and clarity on key points:

(1) the UCR principle “cabin[s]” legislatures, 525 F.3d

at 281-83, (2) this Court has only approved two types

of regulable communications (for entities that are not

political committees (“PACs”)), express-advocacy “independent expenditures” and appeal-to-vote “electioneering communications,” id., and (3) the major-purpose 8

test for PAC status requires “an empirical judgment as

to whether an organization primarily engages in

regulable, election-related speech,” id. at 287. Reaf6 campaign guides, http://www.fec.gov/general/library.

shtml#CampaignGuides, 24 brochures, http://www.fec.gov/

general/library.shtml#CampaignGuides, 1 guide for presidential campaigns taking government money, http://www.

f ec .gov/law/poli cy/guidance/2008_guideline_approved_aug092007.pdf, and 163 monthly issues of The Record, beginning in 1996, http://www.fec.gov/pages/record.

shtml.

If you wish to see how the FEC is really enforcing the

FECA, there are 25 audit reports for authorized committees

for 2006 and more for previous election cycles, http://www.

fec.gov/audits/audit_reports_auth.shtml, 6 audit reports for

unauthorized committees for 2006 and more for previous

electioncycles, http://www.fec.gov/audits/audit_reports_unauth.shtml, and 3 Title 26 audit reports so far for 2008, and

more for previous election cycles, http://www.fec.gov/audits/audit_reports_pres.shtml. Finally one could consult

over 6000 Matters Under Review, http://eqs.nictusa.com/

eqs/searcheqs, which involve resolved FEC complaints.

Only these categories “struck [the proper] balance” and 8

“ensured that potential speakers would have clear notice as

to what communications could be regulated, ensuring that

political expression would not be chilled.” Id. at 284.
8

firming this solid framework would bring much order

to chaos.

II. Austin and McConnell Should Be Overruled.

A. Precedent May Be Reconsidered Here.

Where a decision in one case depends on the decision of another, the earlier case is sufficiently implicated for reconsideration. See James Bopp, Jr., Richard

E. Coleson & Barry A. Bostrom, Does the United States

Supreme Court Have aConstitutional Duty to Expressly

Reconsider and Overrule Roe v. Wade?, 1 Seton Hall

Const. L.J. 55, 59-67 (1990). This as-applied challenge

is premised on this Court’s decision in McConnell,

which was based on this Court’s decision in Austin.

Thus, they may be reconsidered. “It is . . . the . . . duty

of the judicial department,” after all, “to say what the

law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803).

B. “Make No Law” Protects “Political Speech.”

Returning to first principles is particularly urgent

here because “(t)hese cases are about political speech,”

so the First Amendment’s command that “‘Congress

shall make no law . . . abridging the freedom of speech’

. . . put[s] these cases in proper perspective.” WRTL-II,

127 S. Ct. at 2673-74. “In a republic where the people

are sovereign,” it is imperative that citizens freely participate in the “‘free discussion of governmental affairs’” and that “‘debate on public issues . . . be uninhibited, robust, and wide-open,’” Buckley, 424 U.S. at

14 (citations omitted). The Republic requires citizens

free to speak without chill from government regulation.
9

C. Austin and McConnell Are Unworkable.

1. Austin Spawned Multi-Factor Entity

Tests.

Buckley declared that “the concept that government may restrict the speech of some elements of our

society in order to enhance the relative voice of others

is wholly foreign to the First Amendment,” 424 U.S. at

48-49, but that is in essence the impermissible levelthe-playing-field rationale underpinning Austin. See

also Davis, 128 S. Ct. at 2774-75 (leveling rejected).

Yet the First Amendment’s “no law” mandate has asserted pressure for exemptions, resulting in numerous

multi-factor tests.

First, an exemptionformedia corporations has been

carved out from the definition of regulated “expenditures.” See 2 U.S.C. § 431(9)(B)(i). Who and what qualifies for the media exemption have been the subject of

FEC rulemaking, advisory opinions and enforcement

actions, resulting in several court decisions. Media corporations must meet numerous criteria, see, e.g., 11

C.F.R. § 100.132, and movie maker Citizens United did

not qualify, see FEC AO 2004-30.

Second, FEC v. Massachusetts Citizens for Life, 479

U.S. 238 (1986) (“MCFL”) carved out an exemption

from the corporate independent-expenditure prohibition, 2 U.S.C. § 441b, for certain non-profit corporations. 479 U.S. at 263-64. FEC rules require that an

MCFL-corporation receive no corporate contributions

and have no business income, 11 C.F.R. § 114.10, although all federal appellate courts considering the issue have permitted de minimis corporate contributions
10

and business income. McConnell applied this exemp- 9

tion to electioneering communications. 540 U.S. at 211.

Third, membership organizations are entitled to an

exemption for communication to their members. See

United States v. Congress of Industrial Organizations,

335 U.S. 106 (1948). This exemption has spawned additional multi-factor tests. See 11 C.F.R. § 100.134.

Fourth, in carrying out this exempt political activity,theMCFL-corporation or membership organization

must avoid being deemed a PAC, which would subject

it to complex, burdensome, and confusing rules. See,

e.g., 11 C.F.R. § 100.5, § 100.6, Part 104, Part 109.

However, whether an organization is a PAC or not is

subject to the FEC’s own set of complex factors. See

“Political Committee Status,” 69 Fed. Reg. 68056, and

“Political Committee Status,” 72 Fed. Reg. 5595.

Fifth, if an organization does not fall into one of the

exemptions, it may only engage in “political speech”

through a PAC. However, the complexity and burdens

of operating PACs preclude many small organizations

from being able to operate one, MCFL ,479 U.S. at 255

n.8 (plurality opinion) (some organizations “may not

find it feasible to establish such a committee, and may

therefore decide to forgo engaging in independent politSee FEC v. NRA, 254 F.3d 173, 187-93 (D.C. Cir. 2001);

9

North Carolina Right to Life v. Bartlett, 168 F.3d 705,713-

14 (4th Cir. 1999), cert. denied, 528 U.S. 1153 (2000); Minnesota Citizens Concerned for Life v. FEC, 113 F.3d 129,

130-31, 133 (8th Cir. 1997); FEC v. Survival Educ. Fund, 65

F.3d 285, 290-93 (2d Cir. 1995); Day v. Holahan, 34 F.3d

1356, 1363-65 (8th Cir. 1994), cert. denied, 513 U.S. 1127

(1995).
11

ical speech”), and some corporations cannot have a

PAC at all, silencing them altogether. See McConnell,

540 U.S. at 332 (Kennedy, J., dissenting in part)

(ACLU could not have a PAC). It is no wonder then

that WRTL-II declared that “PACs impose well-documented and onerous burdens, particularly on small

nonprofits.” 127 S. Ct. at 2671 n.9 (citing MCFL, 479

U.S. at 253-255 (plurality opinion)).

The complexities and burdens of organizing and

maintaining PACs favor large corporations and unions

over small entities. The cost of establishing, maintaining, and complying with PAC legal and accounting burdens does not vary substantially with size. Additionally, corporate PACs are limited, with rare and highlyconditioned exceptions, to solicitingmanagerial personnel and shareholders. 2 U.S.C. § 441(b)(4); 11 C.F.R.

§§ 114.5-6. Since these donors are limited in what they

can give to the PAC, the result is that small employers

with limited shareholders and managers can rarely

raise enough money to make having a PAC worthwhile. Thus, contrary to Justice Brennan’s concurrence

in Austin, 494 U.S. at 669, for the vast majority of U.S.

corporations, the option to speak through a PAC is no

option at all. There are, in fact, fewer than 2000 corporate PACs in America, see http://www.fec.gov/press/

press2007/20071009pac/sumhistory.pdf, but over 5.8

million active corporations. The odd result is that while

Austin is justified by a need to prevent “distortion” of

debate, in fact the ban on corporate expenditures distorts debates by preventing the participation of only

small business.

But this is just the tip of the iceberg. There are now

unique and complex rules imposed by FECA on 71 dis-
12

tinct entities, much of it justified by Austin: media organizations, MCFL-corporations, PACs, business corporations, corporations without capital stock, labor

unions, trade associations, membership organizations,

unincorporated associations, cooperatives, LLCs, partnerships, sole proprietorships, § 501(c)(4) organizations, § 527 organizations, federal government contractors, federally chartered corporations, national banks,

foreign nationals, separate segregated funds, nonmulticandidate committees, multicandidate committees, affiliated committees, connected committees, nonconnected committees, leadershipPACs, national party

committees (and organizations they establish, finance,

maintain, or control), congressional-party committees

and separately the Democratic and Republican Senate

Campaign Committees, national party officials, major

parties, minor parties, new parties, political-committee

treasurers, political committees with no treasurer, national nominating conventions, state or local conventions to nominate presidential or vice-presidential candidates, state and local party committees, organizations they establish, finance, maintain, or control, state

and local candidates and officeholders, Representative,

Delegate or Resident Commissioner candidates and

their committees, Senate candidates and their committees, campaign committee for national parties, House

and Senate campaign committees for special elections,

Presidential candidates, Vice Presidential candidates

and their committees, federal candidates and officeholders, Presidential primary election campaign committees, Presidential general election campaign committees, draft committees, principal campaign committees, authorized committees, nonauthorized commit-
13

tees, affiliated committees, leadership PACs, conventiondelegate committees, inaugural committees, segregated funds for joint fundraising, segregated funds for

compliance costs, segregated funds for “Levin” funds,

segregated funds for “electioneering communication”

costs, treasurers, vendors, agents, candidates’ personal

funds, bundlers, collecting agents, fundraising representatives, conduits, individuals, volunteers, and

spouses.

This case presents the Court with a glimpse into

the burden and unworkability of current campaign

finance law. The field has become so complex that citizens cannot understand it and experts find it difficult.

The pristine simplicity of the First Amendment’s proscription of any law abridging speech yielded first to

urgent circumstances, but now is replaced by a flood of

complex restrictions. The complexity requires citizens

to hire specialists to speak. Specialists cost money. Errors risk penalties. Core political activity is chilled.

2. Austin Spawned Multi-Factor Speech

Tests.

Austin created the corporate-form “corruption” interest that gave Congress the notion that corporations

could be prohibited from making electioneering communications, upon which McConnell is based. Thus,

the two are inseparable and they have spawned complex multi-factor speech tests.

One is the electioneering-communication definition

itself. See 11 C.F.R. § 100.29. A second is McConnell’s

inherently vague “functional equivalent” formula, 540

U.S. at 206, which some legislatures, enforcement

agencies, and courts have interpreted as a free-floating

test for regulable activity beyond the electioneering-
14

communication context, even after WRTL-II defined

“functional equivalent,” 127 S. Ct. at 2667. See, e.g.,

National Right to Work Legal Defense and Education

Fund v. Herbert, 581 F. Supp. 2d 1132 (D. Utah, 2008).

A third is WRTL-II’s appeal-to-vote test along with

WRTL-II’s instructions for how as-applied challenges

to protect issue advocacy should be brought. See 127 S.

Ct. at 2666-67. A fourth is the FEC’s rule implementing the appeal-to-vote test. See 11 C.F.R. § 114.15.10

But there’s more. The FECA uniquely regulates many

10

forms of speech, including: (1) Contributions to authorized

committees, nonauthorized committees, candidate committees, presidential candidates, vice presidential candidates,

Senate campaigns by the NRSC, DSCC, and national-,

state- and local-party committees, (2) contributions by

multi-candidate committees and individuals, (3) contributions through conduits, (4) earmarked contributions, (5)

contributions solicited by corporations, unions, and their

separate segregated funds, (6) contributions by, or solicited

by, government contractors, (7) contributions in the name

of another, (8) contributions in cash, (9) spending by candidate committees, presidential campaigns, presidential nominating conventions, national-party committees in connection with presidential campaigns, national- state-, and local-party committees in connection with House and Senate

campaigns, (10) spending coordinated with a candidate, a

candidate’s committee, or a candidate’s agent, (11) spending

coordinated with a party committee, (12) coordinated communications, (13) coordinated party expenditures, (14)

party coordinated communications, (15) republished campaign material, (16) spending that is not coordinated, (17)

donations to and spending by inaugural committees, (18)

donations and spending for state or local conventions to

nominate presidential or vice-presidential candidates, (19)
15

3. WRTL-II’s Appeal-to-Vote Test Is Difficult

for the FEC and Courts to Apply.

WRTL-II’s appeal-to-vote test was intended to fix

McConnell’s vague “functional equivalent” formula by

loans received and money spent by candidates, (20) independent expenditures, i.e., communications that expressly

advocate a clearly identified candidate, with different requirements for those from 20 days to 1 day before an election and those more than 20 days before an election, (21)

federal election activity, which includes certain voter registration, voter identification, get-out-the-vote, generic campaign activity and communications that promote, attack,

support or oppose federal candidates, (22) money used to

raise money for federal-election activity, (23) “Levin”

money, (24) electioneering communications, i.e., broadcast

ads that mention federal candidates before federal elections, (25) electioneering communications by 501(c)(4)s and

527s, (26) attribution or disclaimer requirements for communications through broadcasting stations, newspapers,

magazines, outdoor-advertising facilities, mailings, or any

other general public political advertising, (27) fraudulent

misrepresentation of campaign authority by candidates or

their agents, (28) nonfederal money, (29) money in connection with elections for office, (31) donations to 501(a)s and

501(c)s, (30) expenses allocated under 11 C.F.R. § 106 between/among/for: candidates, authorized presidential primary committees, campaign and noncampaign travel, polling, federal and nonfederal activities of national party committees, separate segregated funds and nonconnected committees, party committees other than for federal election

activity, party-committee phone banks,(31) events at public

educational institutions, (32) debates, and (33) office buildings.
16

limiting the use of that formula, although questions

were raised by the Court at the time as to whether it

would work. As it has turned out, McConnell and 11

WRTL-II’s derivative appeal-to-vote test have proven

unworkable, as the FEC and courts disregard its teachings, chilling core political speech.

Analytically, the FEC’s appeal-to-vote-test rule, 11

C.F.R. § 114.15, demoted the actual test to merely part

of a balancing test weighed equally with elements

crafted from the application of the test in WRTL-II’s

specific grassroots lobbying context. See WLG Brief at

17-27.

Functionally, the test as interpreted has been difficult for the FEC and courts to apply. As three current

FEC Commissioners recently declared:

Although we think the legal standard set forth

by Chief Justice Roberts in WRTL is clear . . . ,

it appears that not all share our view . . . . Justice Scalia . . . forewarned of this potential

murkiness, and what Justice Alito anticipated

could happen—that the standard . . . may not

prove to be sufficiently clear and thus could . . .

chill political speech—apparently hashappened.

November-Fund SOR at 6 n.22 (citations omitted) (emphasis added) .

See WRTL II, 127 S. Ct. at 2674 (Roberts, C.J., joined 11

by Alito, J.) (“no occasion to revisit [McConnell] today”),

2674, (Alito, J., concurring) (“if implementation . . . chills

speech . . . we will . . . be asked . . . to reconsider”), 2675

(Scalia, J., concurring) (urging ambiguity elimination by

overruling McConnell).
17

These FEC Commissioners cited the votes and discussionsurrounding the National RighttoLife Committee’s (“NRLC”) advisory opinion (“AO”) request con- 12

cerning whether two “electioneering communications”

it wanted to broadcast were permissible or prohibited 13

electioneering communications or express advocacy.

See AOR 2008-15 (Sep. 26, 2008) (referenced materials

available at http://saos.nictusa.com/saos/searchao?

SUBMIT=continue&PAGE_ NO=-1). The Campaign

14

Legal Center and Democracy 21 submitted comments

opining that both ads failed the appeal-to-vote test and

FEC rule and even contained express advocacy under

2 U.S.C. § 100.22(b). The FEC General Counsel opined

that the first ad was neither express advocacy nor a

prohibited electioneering communication, but the second contained express advocacy under § 100.22(b).

Then-FEC Chairman McGahn submitted a revised

draft advisory opinion that would have found that neither ad contained express advocacy nor was a prohibited electioneering communication. On November 24,

See also WLG Brief (addressing this advisory opinion 12

and unworkability of the appeal-to-vote test).

They concerned a current public debate over the posi- 13

tion of a candidate on the abortion/infanticide issue, in

which the candidate had accused NRLC of misrepresenting

his position and NRLC was defending itself.

NRLC requested an “immediate response” because the 14

issue was hot in public debate, “or at least . . . within the 20

day period provided for” candidate requests in 11 C.F.R.

§ 112.4(b),” asserting that“itis inexcusable thatthis special

benefit afforded to politicians should not also be afforded to

. . . citizen groups.” Id. at 4.
18

long after public interest in the abortion/infanticide

issue had faded and NRLC had lost the timely opportunity to advocate its issue, the FEC issued AO 2008-15,

stating that NRLC could fund the first ad with corporate funds and that no response would be forthcoming

as to the second ad, the requisite four votes being absent to state an opinion. Commissioners disagree on 15

application of the appeal-to-vote test, and the reformers urge an extreme interpretation.

The test’s application problem is evident in the

present case where the FEC could not promptly tell

whether the Questions ad contained an appeal to vote.

This is recounted in the Amended Complaint, which

added Count 4 in response. See Dkt. 46 at ¶¶ 32, 43-45.

It took nineteen days before the FEC conceded that “on

balance” the ad was protected under C.F.R. § 114.15(c).

This inability to readily classify the ad is set out in

Plaintiff’s Memorandum of Law Responding to FEC’s

Motion to Dismiss Counts 3 & 4, see Dkt. 46 at 2-3, and

reveals the unworkability of the FEC’s interpretation

of the appeal-to-vote test.

The FEC and a federal court have even disagreed

about the nature of one ad, with the FEC deciding that

it was not a prohibited electioneering communication

Since the appeal-to-vote test requires that there be 15

“no reasonable interpretation other than as an appeal to

vote,” WRTL II, 127 at 2667, where some (presumably reasonable) commissioners view an ad as not reasonably susceptible to such an interpretation, the ad should not be

deemed prohibited. But that is not the FEC’s approach,

even though WRTL II also required that ties and the benefit

of any doubt go to free speech. See id. at 2667, 2669 n.7,

2674.
19

and the court holding that it contained express advocacy. See Real Truth About Obama v. FEC, No. 3:08-cv483, 2008 WL 4416282 at *7 (E.D. Va., Sep. 24, 2008)

(order denying preliminary injunction).

Another indicator of the unworkability of current

campaign-finance jurisprudence is that the FEC and

state agencies continue to press for, and courts continue to impose, burdensome discovery in First Amendment cases attempting to vindicate the right to associate and speak concerning public issues despite WRTLII’s instruction against such discovery and rejection of

contextual matters and intent-and-effect tests in interpreting communications, 127 S. Ct. at 2666. Furthermore, preliminary injunctions are still often denied,

even though their ready availability is necessary to

make the appeal-to-vote test workable. 127 S. Ct. at

2666.

Conclusion

A central problem with complex multi-factor tests

is that people are forced to “‘hedge and trim,’” Buckley,

424 U.S. at 43 (citation omitted). Citizen speech is

chilled. Where core political speech is involved, that is

intolerable because the Republic relies on free speech,

press, and association. Chill is the current situation.

The sources of the chill are Austin and McConnell.

They should be overruled and the Prohibition, which is

based on them, should be found unconstitutional on its

face. The Disclosure Requirements should fall with the

Prohibition or be held unconstitutional as applied to

communications protected from the Prohibition because they are not unambiguously campaign related.
20

Respectfully submitted,

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

JAMES MADISON CENTER FOR

FREE SPEECH

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (telephone)

812/235-3685 (facsimile)

Counsel for Amici Curiae