Supreme Court of the United States

Nos. 02-1674 & Consolidated Cases 

IN THE 

Supreme Court of the United States 

MITCH MCCONNELL, et al., 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, et al., 

Appellees. 

On Appeal from the United States 

District Court for the District of Columbia 

BRIEF OF AMICI CURIAE

THE CATO INSTITUTE AND THE INSTITUTE FOR 

JUSTICE IN SUPPORT OF APPELLANTS 

ERIK S. JAFFE 

Counsel of Record 

ERIK S. JAFFE, P.C. 

5101 34th Street, N.W. 

Washington, D.C. 20008 

(202) 237-8165 

Counsel for Amici Curiae 

July 8, 2003 
TABLE OF CONTENTS 

Pages 

TABLE OF CONTENTS......................................................... i 

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

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

STATEMENT......................................................................... 2 

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

ARGUMENT.......................................................................... 5 

I. THE GOVERNMENT INTEREST IN PREVENTING

CORRUPTION IS ILL-DEFINED AND OVERINCLUSIVE. .................................................................... 6 

A. Influence Over Elected Officials Mediated 

through Speech, Expressive Association,

and Voting Is the Essence of Democracy

and Is Not Corrupt............................................... 6 

B. Eliminating the Mere Appearance of

Corruption Is Not a Compelling

Government Interest.......................................... 11 

II. ALL AVENUES OF POLITICAL EXPRESSION AND

EXPRESSIVE ASSOCIATION SHOULD RECEIVE FULL

FIRST AMENDMENT PROTECTION. ............................... 12 

A. The False Dichotomy between 

Contributions and Expenditures. ....................... 13 

B. The False Dichotomy between “Express 

Advocacy” For or Against Candidates and

Other Forms of Political Speech. ...................... 18 

C. The False Dichotomy between Different 

Forms of Collective Associations...................... 20 
ii 

III. ANONYMITY AND ASSOCIATIONAL PRIVACY

REMAIN IMPORTANT GUARANTORS OF FREE

POLITICAL SPEECH. ..................................................... 24 

IV. APPLICATION OF GENERAL PRINCIPLES TO 

SPECIFIC SECTIONS OF THE BCRA. ............................. 27 

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

TABLE OF AUTHORITIES 

Pages 

Cases 

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

FEC v. Beaumont, -- U.S. --, 

123 S. Ct. 2200 (2003)............................................ 6, 12, 20 

FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986)..................................................... 20, 22 

Greater New Orleans Broadcasting Ass’n 

v. United States, 527 U.S. 173 (1999) ............................... 29 

Hurley v. Irish-American Gay, Lesbian and 

Bisexual Group of Boston, 515 U.S. 557 (1995) ......... 22, 23 

Lebron v. National R.R. Passenger Corp., 

513 U.S. 374 (1995)........................................................... 13 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 

(1995)........................................................................... 25, 26 

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) ................. 17 

NAACP v. Alabama, 357 U.S. 449 (1958)................. 14, 21, 25 

Nixon v. Shrink Missouri Government PAC, 

528 U.S. 377 (2000)................................................. 6, 12, 14 

Republican Party of Minnesota v. White, 

536 U.S. 765 (2002)....................................................... 6, 18 

United States Civil Serv. Comm’n v. National 

Ass’n of Letter Carriers, 413 U.S. 548 (1973) .................. 12 

United States v. Associated Press, 52 F. Supp. 362 

(S.D.N.Y. 1943), aff’d, 326 U.S. 1 (1945) ........................ 10 

United States v. O’Brien, 391 U.S. 367 (1968) ..................... 16 

Watchtower Bible and Tract Society of New York 

v. Village of Stratton, 536 U.S. 150 (2002) ....................... 24 
iv 

West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943)........................................................... 11 

Statutes 

BCRA § 101........................................................................... 28 

BCRA § 103........................................................................... 28 

BCRA § 201........................................................................... 29 

BCRA § 202........................................................................... 29 

BCRA § 203........................................................................... 29 

BCRA § 211........................................................................... 29 

BCRA § 212........................................................................... 29 

BCRA § 213........................................................................... 29 

BCRA § 214........................................................................... 29 

BCRA § 304........................................................................... 29 

BCRA § 307........................................................................... 29 

BCRA § 313..................................................................... 17, 29 

BCRA § 316........................................................................... 29 

BCRA § 319........................................................................... 29 

Other Authorities 

Federalist No. 10, THE FEDERALIST PAPERS

(Rossiter & Kesler eds. 1999)............................................ 24 
INTEREST OF AMICI CURIAE1 

The Cato Institute was established in 1977 as a nonpartisan public policy research foundation dedicated to advancing 

the principles of individual liberty, free markets, and limited 

government. Cato’s Center for Constitutional Studies was 

established in 1989 to help restore the principles of limited 

constitutional government and to secure those rights, both 

enumerated and unenumerated, that are the foundation of individual liberty. Toward those ends the Institute and the Center undertake a wide variety of publications and programs. 

The instant cases are of central interest to Cato and the Center 

because they present issues at the very heart of the First 

Amendment and offer a once-in-a-generation opportunity to 

reexamine comprehensively of the Constitution’s treatment of 

core political speech. 

The Institute for Justice (“IJ”) was founded in 1991 and is 

our nation’s only libertarian public interest law firm. It is 

committed to defending the essential foundations of a free 

society through securing greater protection for individual liberty and restoring constitutional limits on the power of government. IJ seeks a rule of law under which individuals can 

control their destinies as free and responsible members of society. IJ works to advance its mission through both the courts 

and the mainstream media, forging greater public appreciation 

for economic liberty, private property rights, school choice, 

free speech, and individual initiative and responsibility versus 

government mandate. This case involves just such a fundamental clash between freedom of speech and government 

mandates, and thus touches the very core of IJ’s mission and 

ideals. 

1

 This brief is filed with the written consent of all parties. No counsel for 

a party authored this brief in whole or in part, nor did any person or entity, 

other than Amici or their counsel, make a monetary contribution to the 

preparation or submission of this brief. 
2 

STATEMENT 

The First Amendment framework for government regulation of election-related political speech and association has 

been anchored for the last generation by this Court’s decision 

in Buckley v. Valeo, 424 U.S. 1 (1976). That decision declared a compelling, though vaguely defined, government interest in preventing the corruption or the appearance of corruption of elected officials. Buckley also carved out various 

exceptions to the strict scrutiny ordinarily applied to restrictions on core political speech and association. Campaign contributions to candidates were given less protection than independent expenditures for speech in support of a candidate. 

So-called “express advocacy” of the election or defeat of a 

candidate was given less protection than other election-related 

political speech. And corporations and labor unions were 

given less protection than given to other groups for their political speech and association. 

The lines defining such exceptions to strict scrutiny, however, were never particularly stable or principled, and thus 

have given rise to considerable litigation attempting to expand 

or contract First Amendment protection for election-related 

speech and association. The result has been a system that neither allows predictable and coherent regulation nor provides 

reliable protection to core First Amendment activities. 

Indeed, the badly fractured opinion of the district court in 

these cases stands as a stark illustration of the inconsistencies 

and confusion that Buckley’s unprincipled lines have wrought. 

Of the three judges seeking faithfully to apply Buckley and its 

progeny, one found cause to sustain virtually all of the challenged provisions of the Bipartisan Campaign Finance Reform Act of 2002 (“BCRA”). Another found cause to invalidate virtually all such provisions. And the third straddled the 

fence, picking and choosing various provisions and even 

separate phrases to sustain or reject. While appellants can 

discuss the particular inconsistencies of reasoning within the 
3 

fragmented opinions below, the larger point is that such fragmentation is, and will be, the inevitable result of a line of 

cases based upon conflicting principles that can be selectively 

used in support of almost any potential result. 

SUMMARY OF ARGUMENT 

1. Buckley v. Valeo erred by recharacterizing the most 

elemental aspects of representative democracy as “corrupt” 

and by creating unprincipled exceptions to the First Amendment protection of core political speech and association. It 

and its progeny should be overruled and replaced with a more 

consistently speech-protective jurisprudence. This Court 

should begin by recognizing that the value of political speech 

and expressive association in getting a candidate elected is 

not an improper source of influence over such candidate. 

That politicians will be responsive to those who support them 

and who, through core political speech, help persuade others 

to do so, is not corruption; it is democracy at its most basic. 

That different speakers will speak more or less according to 

their means and inclination, and will be more or less persuasive to the public according to a myriad of factors, likewise is 

not corruption. It is the freedom of speech at its most basic. 

Genuine corruption of elected officials involves the exchange 

of official conduct for some personal gain. The exchange of 

political speech or association in return for lawful official 

conduct if elected is representation. While combating genuine corruption is indeed a compelling interest, combating political influence mediated through speech and expressive association is not. The essential mechanics of democracy and 

free speech, whatever their pros and cons, cannot be categorized, ipse dixit, as corrupt under our present Constitution. 

And just as attacking misconceived notions of corruption 

is not itself a compelling interest, neither is the attempt to 

eliminate an erroneous public “perception” that such democratic and free-speech fundamentals are somehow corrupt. If 

the public misperceives a corruption of our constitutional sys-
4 

tem, more speech to explain the Constitution, not judicial 

abandonment of that Constitution, is the proper response. 

And if the public nonetheless continues to view our constitutional system as fostering “corrupt” practices, then the only 

permissible response is to change the Constitution itself by 

the means provided therein, not by judicial fiat based upon 

the mere appearance or perception of non-existent corruption. 

2. Replacing the Buckley regime with a more coherent 

and workable jurisprudence also requires eliminating the 

various unprincipled exceptions to full First Amendment protection for core political speech and association. Buckley set 

up a series of false dichotomies between contributions and 

expenditures, between “express” advocacy and other forms of 

political advocacy, and between corporate and union speech 

and speech by other associations. Under a proper conception 

of corruption as involving official action exchanged for personal gain, not merely political support, those dichotomies 

collapse. Campaign contributions are just another form of 

expressive association, can be used only to support expressive 

activities, not for personal gain, and thus any influence they 

may generate is not corrupt. Express advocacy of the election 

or defeat of a candidate is indistinguishable from all other political advocacy and carries absolutely no risk of corruption 

properly understood. And political speech and association by 

corporations and labor unions pose no unique threat of corruption. The restrictions on speech and association by such 

entities are based on the constitutionally improper notion that 

speech by the economically or socially powerful can and must 

be restricted in order to give others a greater relative voice. 

3. A return to core First Amendment principles would 

also require reversal of Buckley’s too-casual willingness to 

force disclosure of the identities of private citizens making 

expenditures or contributions for political speech either directly or in association with other such speakers. Anonymous 

political speech and associational privacy are powerful guarantors of the exercise of free speech, and forced disclosure is 
5 

an equally powerful tool to suppress the speech of unpopular 

speakers or those who would support unpopular views. Any 

legitimate concern with making political influence over government officials more transparent to the voting public can be 

accommodated by requiring the candidates to disclose all 

contributions received, including whether such contributions 

were made anonymously. The public itself then can decide 

whether to be skeptical of candidates accepting or rejecting 

such anonymous support and vote accordingly. Likewise 

with anonymous political speech itself, or associations preserving the privacy of their members or supporters, the public 

can judge accordingly such speech and association, and the 

candidates supported or opposed thereby. Public knowledge 

of the fact of anonymity thus obviates the need to violate such 

anonymity and protects speakers who might otherwise be silenced through forced disclosure. 

4. Replacing Buckley with a more speech-protective regime consistent with the First Amendment would promptly 

resolve most of the specific challenges to the BCRA at issue 

in these appeals. The BCRA provisions restricting softmoney, electioneering communications, campaign contributions, and coordinated expenditures, requiring myriad forms 

of disclosure, and discriminating between well-funded and 

poorly-funded speakers, all would fail strict scrutiny. Absent 

Buckley’s flawed conception of corruption, none of those 

provisions narrowly serve compelling interests. 

ARGUMENT 

The fundamental flaws of Buckley v. Valeo cast a pall 

over any attempt to formulate a coherent jurisprudence regarding election-related speech and association. Both time 

and analysis have demonstrated that various aspects of Buckley are unworkable and indefensible. The current cases present this Court with a vital opportunity to return to core First 

Amendment principles and either eliminate or at least minimize the contradictions in Buckley and its progeny. 
6 

I. THE GOVERNMENT INTEREST IN PREVENTING 

CORRUPTION IS ILL-DEFINED AND OVER-INCLUSIVE. 

Much of the difficulty in recent campaign finance jurisprudence stems from a flawed conception of the government 

interests at stake. The primary government interests asserted 

in support of campaign speech restrictions are the prevention 

of “corruption and the appearance of corruption” of elected 

officials. See Buckley, 424 U.S. at 25; see also, FEC v. 

Beaumont, -- U.S. --, 123 S. Ct. 2200, 2206 (2003) (“ban [on 

corporate contributions] was and is intended to ‘preven[t] corruption or the appearance of corruption’”) (citation omitted); 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 388-389 

(2000) (discussing corruption interest). But as with the asserted interest in judicial impartiality in Republican Party of 

Minnesota v. White, advocates of campaign speech restrictions are “rather vague” about what they mean by corruption 

and yet “[c]larity on this point is essential before we can decide whether” preventing corruption is “indeed a compelling 

state interest, and, if so, whether the [restriction at issue] is 

narrowly tailored to achieve it.” 536 U.S. 765, 775 (2002). 

A. Influence Over Elected Officials Mediated through 

Speech, Expressive Association, and Voting Is the 

Essence of Democracy and Is Not Corrupt. 

Buckley focused on a government interest in preventing 

“the real or imagined coercive influence of large financial 

contributions on candidates’ positions and on their actions if 

elected to office.” 424 U.S. at 25. This Court’s recent decision in Beaumont similarly explained that “corruption” is to 

be “‘understood not only as quid pro quo agreements, but also 

as undue influence on an officeholder’s judgment, and the 

appearance of such influence.’” Beaumont, -- U.S. at --, 123 

S. Ct. at 2207 (citation omitted). The asserted interest in preventing “corruption,” however, fails to differentiate between 

proper and improper influence on government officials. 

Without a principled basis for drawing such a distinction, the 
7 

label “corruption” simply devolves into a generic epithet addressed at any political influence that is contrary to the often 

unspoken preferences of the person applying the label. 

The basis for a distinction between proper and improper 

influence over elected officials necessarily starts with the recognition that democracy in general, and elections in particular, are, by definition, an exchange between candidates and 

the citizens that elect them. Every candidate for office necessarily says to voters: “Give me your vote, give me a job as 

your representative, and I will give you something in return.” 

Different candidates offer different things in exchange for being given their jobs. Some promise to lower taxes, some to 

provide more social services; some promise to fight for abortion rights, others to fight against abortion; some promise to 

bring more public works to their jurisdiction, others to reduce 

“pork” in politics. And every voter says to the candidates in 

turn: “Give me the policies and laws that I desire and I will 

give you my vote for a job as my elected representative. 

Deny me the official actions I desire and I will vote you out 

on your ear.” The exchange of elective office for desired official conduct, and the influence over government officials 

that such an exchange necessarily creates, are the essence of 

representative democracy and neither the exchange nor the 

influence can be characterized as improper without indicting 

our democratic system as a whole.2 

Our constitutional democracy also relies on the core 

premise, endorsed through the First Amendment, that politicians and the public will be influenced not merely by periodic 

voting alone, but also by the political speech of competing 

2

 Even where the exchange of elective office support for desired public 

policy is expressed in terms of an explicit quid pro quo – vote for me and I 

promise to do X; we will vote for you if you promise to do X – there still 

is nothing improper about that exchange. In fact, the exchange is precisely what we want and expect it to be. Voters are entitled to vote for 

candidates responsive to their desires, and candidates are entitled to respond to those desires through lawful official action. 
8 

interest groups and individuals. The influence exerted 

through the exchange of supportive political speech for desired official action is an inherent and desirable element of a 

democracy that relies upon speech and elections, rather than 

force, to change its laws and leaders.3 To indict the exchange 

of political support for official action would brand virtually 

all behavior by elected officials as corrupt and would condemn the Constitution itself. 

In contrast to the fundamental democratic exchange of 

electoral support for desired official conduct, genuine corruption is limited to the exchange of official action for some private advantage. Bribery is the archetype of such corruption: 

“I’ll give you cash for your personal benefit if you vote for an 

upcoming bill.” But the element of private gain inherent in 

the concept of corruption does not and cannot include whatever personal satisfaction and benefit come from being 

elected to public office. And if the benefit of actually being 

elected cannot be deemed corrupting, neither can the potential 

electoral benefit from speech or association in support of a 

candidate be deemed corrupting. While such speech, like 

votes themselves, may well be exchanged for official action, 

such exchanges are the essence of representative democracy 

and may not be redefined, ipse dixit, as “corrupt.” 

The suggestion that corruption can be found in the substantial magnitude of some political influence, rather than in 

its mere existence, is equally unavailing. Characterizing the 

influence of expressive activities as “coercive” or “undue” is 

merely an epithet, not an explanation of how it differs from 

the substantial influence associated with other forms of politi3

 Just as with votes, speech is routinely exchanged for the promise and 

performance of official conduct. A newspaper that says it will only endorse a candidate who pledges to vote for/against abortion rights, a citizens’ group that says it will endorse a candidate that pledges not to raise 

taxes, and a candidate that promises to increase law enforcement in exchange for the endorsement of a respected anti-crime advocate, all are 

engaged in the same exchange embodied in the election process itself. 
9 

cal support or with the need to remain in favor with voters. 

Many things have an influence – indeed, even a coercive influence – on candidates’ positions and actions, yet few would 

be considered improper.4 The mere size or force of influence 

thus is not the measure of whether such influence is corrupt. 

While corruption cannot be found in the mere existence or 

magnitude of political influence, the notion of “undue” influence might be meant to suggest influence out of proportion to 

the person or group wielding it. Any indictment of “disproportional” influence, however, begs the question of how much 

influence any given person or group should have in some idealized construction of the world. While each person has only 

one vote, and hence has limited influence in that sense, we 

have never imagined that the speech of each person or group 

should be equally influential or that the views of politicians 

should be based solely on broad opinion polls. 

Speech having unequal influence on the public, and hence 

unequal value to candidates, comes in many shapes – speech 

by the media, speech by celebrities, speech by religious leaders, and speech by the economically successful. Whether 

through differences in access, quantity, or credibility, the impact of speech necessarily will vary.5 But the falsely egalitarian notion that the speech of persons and groups ought to 

4

 Public opinion is an obvious example of something that might “coercively” influence a candidate – at least any candidate that takes seriously 

his or her role as a representative of constituents and who has any interest 

in being elected or re-elected. Vehement public opposition to a particular 

policy would exert a tremendously coercive influence on candidates considering such a policy. Yet that influence could not be deemed corrupt. 

5

 And if an elected official is more responsive to those constituents that 

have a greater impact in persuading the public to vote for him or her, that 

is not corruption – that is simply politics. Disparities in influence are the 

inevitable consequence of differences in wealth, intelligence, popularity, 

motivation, and a hundred other factors. Such disparities might be addressed through means such as education, economic opportunity, and the 

like, but they can never be eliminated in a free society. 
10 

have influence in proportion to the voting strength of the 

speakers, and the assumption that speech in fact will have influence solely in relation to its quantity, represent fundamental misunderstandings of the principles and predicates of the 

First Amendment. 

The freedom of speech means that the quantity and substance of speech ought to be determined by private choices, 

not government control. And the First Amendment assumes 

that, so long as government stays out of the way, the eventual 

influence of speech will turn on its substance, not its quantity 

or initial popularity, and that more speech is superior to restricted speech. Through such assumptions the First Amendment places its trust in the public, not government, to sort it 

all out in the end. As classically explained by Judge Learned 

Hand, the First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of 

tongues, than through any kind of authoritative selection. To 

many this is, and always will be, folly; but we have staked 

upon it our all.” United States v. Associated Press, 52 

F. Supp. 362, 372 (S.D.N.Y. 1943), aff’d, 326 U.S. 1 (1945). 

Even if disparities in actual or apparent influence are 

troubling, the government may not attempt to equalize the 

political strength of different elements in society by restricting the voice of some to enhance the voice of others. Buckley, 424 U.S. at 48-49. The First Amendment uniquely and 

especially condones political influence mediated through 

speech and forbids government manipulation of that aspect of 

the political process. However imperfect or worrisome a system built on such influence may be, it is the system the Constitution established, it is better than the alternatives, and it 

may not simply be redefined as “corrupt” in order to avoid the 

First Amendment. 

The exchange of political speech and association for desired official action embodies representative government. To 

have a coherent definition of corruption, the concept must be 

limited to official action exchanged for some private advan-
11 

tage, not simply for the very public advantage of getting 

elected. Any alleged interest based on contrary assumptions 

is not compelling, is not substantial, and is not even valid. 

B. Eliminating the Mere Appearance of Corruption Is 

Not a Compelling Government Interest. 

Absent a demonstrable interest in preventing actual corruption, campaign-related restrictions often are alleged to 

serve the interest of avoiding a public perception of unproven 

corruption – the mere “appearance of corruption,” Buckley, 

424 U.S. at 27 – that might shake confidence in our democratic institutions. But mere public suspicions or misperceptions that the operation of free speech is somehow corrupt are 

no bases for ignoring the constitutional scheme. Rather, the 

proper answer to such misperceptions is either more speech, 

the election of candidates voluntarily practicing the public’s 

notion of virtue, or, ultimately, a constitutional amendment if 

the existing system cannot hold the public’s confidence. In 

no event are public misperceptions a justification for distorting constitutional provisions set out precisely to resist even 

the strongly held desires of a temporal majority. 

The very purpose of a Bill of Rights was to withdraw 

certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and 

officials and to establish them as legal principles to be 

applied by the courts. One’s right to life, liberty, and 

property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may 

not be submitted to vote; they depend on the outcome of 

no elections. 

West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 

638 (1943). 

Maintaining the public’s esteem may be desirable for a 

government deserving of such esteem, but it is not a sufficient 

basis for avoiding constitutional requirements. The government surely could not forbid speech accusing elected officials 
12 

of corruption because they kow-tow to political polls or favor 

the interests of their home states, regardless whether such 

criticism caused the public to believe – rightly or wrongly – 

that elected officials were corrupt.

6 

If the danger from exposing or imagining a corrupt government is so great, then there should be ample incentive for 

more speech to counter such danger. And if more speech is 

insufficient to mitigate the public’s contempt and distrust for 

the government, and to restore its confidence in our constitutional system, then presumably there will be sufficient support and motivation for a constitutional amendment. 

II. ALL AVENUES OF POLITICAL EXPRESSION AND 

EXPRESSIVE ASSOCIATION SHOULD RECEIVE FULL 

FIRST AMENDMENT PROTECTION. 

It is a cornerstone of the First Amendment that restrictions 

on political speech and association are subject to strict judicial scrutiny. Yet Buckley and its progeny apply a lower level 

of scrutiny to restrictions on campaign contributions, on express advocacy of a candidate’s election or defeat, and on 

corporate or union speech than to restrictions on other election-related speech and association. Beaumont, -- U.S. at --, 

123 S. Ct. at 2210; Nixon, 528 U.S. at 386-388; Buckley, 424 

U.S. at 25. Such differential scrutiny is based on non-existent 

or irrelevant distinctions between contributions and expendi6

 The weight given to the appearance of corruption in United States 

Civil Service Commission v. National Association of Letter Carriers involved partisan conduct by non-elected civil service employees charged with administering the law, 413 U.S. 548, 564-65 

(1973), and cannot credibly be translated to the behavior of elected 

officials who make the law, who are necessarily political, and who 

can and should favor the positions of their political supporters. 

Concerns over undue favoritism or unequal burdens are properly 

addressed by the Equal Protection and Takings Clauses, as well as 

by the next election cycle. 
13 

tures and on misperceptions regarding what constitutes corrupt influence. A return to First Amendment fundamentals 

would apply strict scrutiny to all restrictions on political 

speech and association, including restrictions on campaign 

contributions, express advocacy, and corporate or union 

speech. 

A. The False Dichotomy between Contributions and 

Expenditures. 

The BCRA carries forward the prior regime of restricting 

campaign contributions, albeit with some modification in the 

amounts, a prohibition on contributions by minors, and some 

exceptions for candidates with well-financed opponents. See, 

e.g., BCRA §§ 304, 307, 316, 318 & 319. And many of the 

BCRA’s more onerous expenditure restrictions are defended, 

at least in part, as means of preventing circumvention of existing contribution limits and depend upon the supposed validity of such limits. The validity of contribution limits in 

general both is implicated by the challenges to the “minor” 

and “millionaire” provisions, and is “fairly embraced within 

the question[s]” presented regarding the BCRA’s expenditure 

and disclosure provisions. Lebron v. National R.R. Passenger 

Corp., 513 U.S. 374, 379 (1995). 

As Buckley at least initially recognized, both contributions 

and expenditures “operate in an area of the most fundamental 

First Amendment activities,” in which the “First Amendment 

affords the broadest protection” for individual expression and 

the “fundamental” right to associate. 424 U.S. at 14, 25. 

Buckley also correctly recognized that the ability to expend 

money for speech and to associate and pool money for group 

speech were fully protected by the First Amendment. Id. at 

15-19. As with many rights, exercising the right to speak almost always costs money, especially if the speaker intends to 

reach a large audience. The right to speak thus necessarily 

encompasses the right to pay for speech or the distribution of 

speech, just as the right to counsel encompasses the right to 
14 

hire a lawyer and the right to free exercise of religion includes 

the right to contribute to a church. In each of those cases the 

expenditure or contribution is protected not because “money 

is speech” or “money is a lawyer,” or “money is religion,” but 

rather because such targeted use of money is part of the exercise of the right to speak, to counsel, or to free exercise of religion. 

Buckley’s diluted scrutiny for contribution restrictions was 

based on the claims that contributions involve only symbolic 

speech by the contributor, that any further expression is contingent on “speech by someone other than the contributor,” 

and that the burden imposed by contribution restrictions are 

marginal. 424 U.S. at 21-22. Those assertions, however, are 

both wrong and irrelevant to the applicable level of scrutiny. 

More than Symbolic Speech. The claim that contributions involve only the “undifferentiated symbolic act of contributing,” unrelated to the amount of the contribution, 424 

U.S. at 21, is simply incorrect. Even Buckley itself later acknowledged that “[m]aking a contribution * * * enables 

like-minded persons to pool their resources in furtherance of 

common political goals.” Id. at 22. Just as with contributors 

to other advocacy groups, campaign contributors form part of 

an expressive association organized around a favored candidate who is both an object of the collective speech as well as 

a unifying spokesperson or coordinator for such speech. 

Contributors thus “speak” not only through the symbolic 

act of contributing, but also through the speech funded by the 

contribution.7 Such speech will indeed vary in both scope 

NAACP v. Alabama, 357 U.S. 449, 460 (1958) (association “is but the 

medium through which its individual members seek to make more effective the expression of their own views”); see also, Buckley, 424 U.S. at 22 

(role of associations is to “effectively amplify[] the voice of their adherents”); Nixon, 528 U.S. at 415 (Thomas, J., dissenting) (“a contribution, 

by amplifying the voice of the candidate, helps to ensure the dissemination 

of the messages that the contributor wishes to convey”). 

7 
15 

and reach according to the amount of contributions. And 

even if Buckley’s characterization of contributions as only 

undifferentiated symbolic speech were accurate, contributions 

to candidates would be no different from contributions to 

other speakers or groups and thus deserve no less protection. 

Contributions Earmarked for Collective Speech. As for 

Buckley’s disparagement of the contingent and once-removed 

nature of the speech that results from contributions, 424 U.S. 

at 21, such criticism is again wrong and irrelevant to the standard of scrutiny. Unlike gifts or bribes, campaign contributions can be spent only to support campaign-related expression, BCRA § 313, and hence implicate purported government interests only when they are spent to support such expression. Because contributions only have value to a candidate when used to support political speech, both sides of the 

First Amendment balance turn on the same contingency, rendering that contingency irrelevant. And while the candidate 

may do the literal speaking that results from contributions, it 

is emphatically not true that such speech is only that of the 

candidate, rather than the speech of both the candidate and the 

contributors combined. That someone other than the multiple 

contributors utters the final words neither diminishes the expressive interest of the contributors nor distinguishes contributions from other expenditures for speech. 

First Amendment Offense Not Marginal. Buckley’s third 

asserted distinction is that contribution restrictions have only 

a marginal impact on political expression. 424 U.S. at 21-22. 

But that attempted distinction is no more tenable than the previous two. The size of the First Amendment burden imposed 

by contribution limits is not as slight as Buckley suggests and, 

in any event, it is the character, not the magnitude, of a 

speech restriction that dictates the standard of scrutiny applied. Even a trifling speech tax discriminatorily imposed on 

messages critical of the government would be subject to strict 

scrutiny regardless of the size of the burden on such speech. 
16 

Contrary to Buckley’s suggestion, a contribution limit is 

not merely an “indirect[]” burden on campaign speech, “making it relatively more difficult for candidates to raise large 

amounts of money.” 424 U.S. at 26 n. 27. There is nothing 

indirect in conditioning the amount of a candidate’s expression on his ability “to raise funds from a greater number of 

persons,” and there is nothing indirect in “compel[ling] people who would otherwise contribute amounts greater than the 

statutory limits to expend such funds on direct political expression.” Id. at 21-22. Rather, allowing speakers to raise 

and pool money only by bits and pieces, and doing so precisely because such money will be used for political speech, 

quite directly offends the First Amendment and burdens 

speech and association.8 

Whether direct or indirect, however, the burden also is 

substantial, particularly where the aggregation of large 

amounts of money is essential for access to “expensive modes 

of communication” such as television, radio, and other mass 

media, which are “indispensable instruments of effective political speech.” Buckley, 424 U.S. at 19. Requiring a gardener to water a garden with a thimble rather than a pitcher 

plainly would burden the production of flowers, and so too 

with contribution limits and the production of speech. Contribution limits necessarily increase the time and expense a 

candidate must devote to raising money to support speech and 

divert such time and expense from the campaign speech itself. 

And they increase the burden on contributors as well, who 

8

 That the burden is imposed because the money is targeted for 

speech is what distinguishes contribution restrictions from general 

income taxes or similar financial burdens that have only an incidental effect on speech and thus fall within the analysis of United 

States v. O’Brien, 391 U.S. 367, 377 (1968). But a restriction specifically on raising money for speech and imposed precisely because such money will be spent on speech – i.e., because of its 

communicative impact – fails the O’Brien test. Id. at 382. 
17 

must search for less effective means of combining in support 

of a shared message and are likely to find numerous alternative avenues of expressive association foreclosed as well. 

Contributions Are Not Corrupting. The flawed dichotomy between contributions and expenditures regarding the 

standard of review is compounded by the flawed claim of a 

greater threat of corruption from contributions. But neither 

expenditures nor contributions threaten corruption as properly 

understood. The only function of campaign contributions or 

expenditures is to generate political speech and the only value 

to a candidate stems from the prospect that the resulting 

speech will persuade voters and help the candidate get 

elected. If a candidate were to receive contributions for some 

personal use such as buying jewels or fancy cars, that would 

indeed be corruption.9 But contributions that assist the candidate in getting elected through the entirely proper mechanism 

of generating political speech are no different than endorsements or votes. Because the assistance is ultimately channeled through the protected medium of political speech, it 

cannot be deemed corrupt. 

In the end, the speech and association interests are fundamentally identical for expenditures and contributions that can 

be used only to support speech and the jurisprudential line 

separating them is incoherent. Both should be afforded the 

“fullest and most urgent application” of the First Amendment, 

Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971), and 

restrictions on either should be subject to no less than the full 

force of strict scrutiny. Indeed, content-based restrictions on 

such core political speech and association should be per se 

9

 The fundamental line between corrupt and non-corrupt payments 

to candidates is reflected in BCRA § 313, which provides that a 

“contribution or donation described in subsection (a) shall not be 

converted by any person to personal use.” Concern that contributions will be converted to personal use notwithstanding § 313 can 

be handled by audit procedures to enforce that prohibition. 
18 

invalid under the First Amendment, with no further inquiry or 

balancing required. Republican Party of Minnesota, 536 U.S. 

at 793 (Kennedy, J., concurring). 

B. The False Dichotomy between “Express Advocacy” 

For or Against Candidates and Other Forms of 

Political Speech. 

One manifestation of the incoherence of the distinction 

between expenditures and contributions was its immediate 

abandonment regarding express advocacy of the election or 

defeat of a candidate. Such advocacy, of course, is pure political speech, and “is no less entitled to protection under the 

First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.” 

Buckley, 424 U.S. at 48.10 

Yet despite this Court’s apparent recognition of express 

advocacy’s undiluted First Amendment status, Buckley ultimately denied such election advocacy full protection because 

it was thought to be functionally equivalent to a contribution, 

would be valued similarly by a candidate, and thus could be 

restricted in some instances as a means of preventing circumvention of the contribution limits. 424 U.S. at 43-44 & n. 52. 

And it is precisely that distorted view of political speech as a 

means of circumventing contribution limits that has driven the 

BCRA’s further restrictions on express advocacy and on the 

broader category of electioneering communications. 

Perhaps if Buckley had reasoned in the opposite direction, 

the First Amendment principles at stake would have been 

clearer. Advocacy of the election or defeat of a candidate – 

whether express, implied, or otherwise – is a quintessential 

example of political speech and should be entirely immune 

10 But for that basic protection, it could be made a crime for an individual – not merely a corporation or labor union – to take out a 

small newspaper advertisement that read “Vote for Harry Browne.” 

See Buckley, 424 U.S. at 40. 
19 

from regulation. While a candidate likely will value and appreciate supportive political speech, especially if it is effective in persuading others to support the candidate, that is true 

of all political speech. Valuing such support and being responsive to those who advocate effectively for your election 

is at the heart of being an elected official. From there the recognition of strong similarities between express advocacy for a 

candidate and contributions to that candidate’s campaign fund 

– the very purpose of which is to generate express advocacy 

for the candidate – is cause to fully protect contributions, not 

to create a bigger hole in the First Amendment. 

To instead use contribution limits to bootstrap still further 

restrictions on speech that might influence candidates causes 

the unprincipled exception to swallow the First Amendment 

rule. Effective political speech and association used to influence government are not means of circumventing restrictions 

on supposedly improper influence. Rather, they are the constitutionally favored alternatives for achieving desired ends 

without force, bribery, or other improper means. And even if 

there is some salient difference in the influence generated by 

express, as compared to all other, advocacy, that difference 

should be evaluated under normal strict scrutiny by asking 

whether the interest in suppressing speech-mediated influence 

is compelling and the remedy narrowly tailored.11 

11 Coordinated expenditures are another example of direct speech 

and direct association being grouped with and scrutinized as contributions despite the complete absence of the alleged distinguishing 

features of contributions. Any greater influence such expenditures 

might have does not lower the First Amendment bar, but at most 

increases the governmental interest to be weighed within the existing parameters of strict scrutiny. 
20 

C. The False Dichotomy between Different Forms of 

Collective Associations. 

Another of Buckley’s unfortunate legacies is the inconsistent treatment of multiple forms of collective speech. While 

Buckley and later cases applied strict scrutiny to restrictions 

on speech by private associations in general, this Court has 

given less First Amendment protection to such private associations as corporations and labor unions. See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 252-53, 256-60 

(1986) (“MCFL”). 

This Court’s recent Beaumont decision surveyed the various reasons that have been used to restrict corporations and 

labor unions to a greater extent than individuals or other types 

of expressive associations. The justifications for restricting 

corporate and union speech included the supposed “special 

advantages – such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets – that enhance their ability to attract capital and * * * to 

use resources amassed in the economic marketplace to obtain 

an unfair advantage in the political marketplace”; the interest 

in preventing such wealth from being “converted into political 

‘war chests’ which could be used to incur political debts from 

legislators”; the supposed protection of “individuals who have 

paid money into a corporation or union for purposes other 

than the support of candidates from having that money used 

to support political candidates to whom they may be opposed”; and preventing the use of corporations “as conduits 

for circumvention of [valid] contribution limits” by corporate 

owners or employees. Beaumont, -- U.S. at --, 123 S. Ct. at 

2206-07 (citations and quotation marks omitted). 

Those arguments are not persuasive justifications for reduced scrutiny of restrictions on political speech by business 

corporations and labor unions. Those entities are vital associations based on the shared interests of their members – assuming voluntary purchase of stock by shareholders or payment of membership dues by workers. That those interests 
21 

are largely economic does nothing to diminish their constitutional status. Political advocacy and speech driven by economic perspectives are likely universal and, in any event, are 

no different than speech motivated by less worldly concerns. 

Cf. NAACP v. Alabama, 357 U.S. at 460 (“it is immaterial 

whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters”). 

Claiming that corporations possess an “unfair” advantage 

because they have characteristics that allow them to accumulate significant capital is no more and no less than a complaint 

that they are wealthy and that it is somehow wrong to use 

wealth to support political speech. The notion that corporations can achieve their wealth through special advantages 

hardly distinguishes them from other expressive associations, 

all of which can adopt the corporate form if they so choose. 

Furthermore, the very characteristics that help corporations 

raise money – the liquidity of reasonably priced shares of 

stock and the limited financial risks of stock ownership – also 

facilitate widespread and voluntary association of all types of 

citizens through the medium of a corporation. In any event, 

we do not examine individual speakers to see if their personal 

resources were obtained through some special advantage – 

perhaps ownership of corporate stock – and thus the cause of 

corporate wealth seems irrelevant to whether such wealth can 

be deployed for political speech.12 Calling such wealth a 

12 Laws and regulations targeted at the non-expressive conduct of 

corporations or labor unions that impose incidental burdens on expression would be evaluated under the familiar O’Brien test for 

such mixed-effect laws. Of course, in these cases, the O’Brien test 

is inapplicable because the BCRA is specifically aimed at the expressive consequences of contributions and expenditures for 

speech, rather than at any conduct itself. See Buckley, 424 U.S. at 

17 (“Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet 

the O’Brien test because the governmental interests advanced in 

support of the Act involve ‘suppressing communication.’”). 
22 

“war chest” to be used in return for political favors adds nothing to the analysis and fails to differentiate the wholly noncorrupt political debts incurred in return for all other forms of 

political speech, association, and support. See supra Part I. 

Insofar as the perceived unfairness of corporate wealth being used for contributions or expenditures is premised on the 

notion that corporations can generate speech and influence 

out of proportion to the strength or support behind their ideas 

and hence beyond the amount of speech and influence they 

ought to have, that is the same criticism leveled against all 

large contributions, regardless of source, and begs the same 

question of what is the “proper” amount of speech and influence. Once again, the notion that the wealthy have too great a 

voice is not only inadequate as a justification for lesser scrutiny of corporate speech restrictions, it is a reason itself to invalidate such restrictions. Though failing in its application, 

Buckley at least correctly recognized that government may not 

“restrict the speech of some elements of our society in order 

to enhance the relative voice of others.” 424 U.S. at 48. 

That, said Buckley, is “wholly foreign to the First Amendment,” the protections of which “cannot properly be made to 

depend on a person’s financial ability to engage in public discussion.” Id. at 48-49. Manipulating different groups’ relative ability to speak “is a decidedly fatal objective.” Hurley 

v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 579 (1995). 

The notion that corporate and union speech is somehow 

not a valid reflection of the interests of the shareholders or 

members, MCFL, 479 U.S. at 258, 260, simply ignores that 

such agency issues are inherent to all associations and do not 

diminish the speech interests involved so long as association 

is voluntary. All shareholders and members are free to remain affiliated or not, and do so knowing that the entities are 

authorized to speak in furtherance of the collective economic 

interests that they represent. That individuals may have other 

interests that conflict with their economic interests in a corpo-
23 

ration or union – and hence conflict with a corporation’s or 

union’s speech – simply puts them to the choice of which interests are more important to them and whether to continue or 

terminate their association. That same choice is presented by 

all forms of association. 

The related disparagement of corporations or labor unions 

as being “special,” rather than ordinary, interests – with the 

implication that those interests are somehow less valid – also 

flies in the face of free-association principles. Whatever the 

unifying ideas or interests that motivate a particular association’s expression, the government simply has no power to 

regulate speech on the basis of its satisfaction or dissatisfaction with those ideas or motives. The law “is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however 

enlightened either purpose may strike the government.” Hurley, 515 U.S. at 579. 

Furthermore, the supposedly narrow motives and interests 

of different groups not only fail to diminish the constitutional 

protection for their expressive activities, it is actually a central 

and important assumption of the Framers and a key aspect of 

the checks and balances of our Constitution. Those checks 

and balances are designed to promote a multiplicity of competing factions in order to block domination by any single 

faction. Indeed, Madison’s greatest concern regarding the 

“violence of faction” was not the proliferation of many small 

factions, but the “superior force of an interested majority.” 

Federalist No. 10, THE FEDERALIST PAPERS 45 (Rossiter & 

Kesler eds. 1999). Madison correctly recognized that “the 

causes of faction cannot be removed and that relief is only to 

be sought in the means of controlling its effects.” Id. at 48 

(emphasis in original). The solution is not to replace conflicting factions with a single majority faction of the public, but 

rather to render any potential majority faction “unable to concert and carry into effect schemes of oppression.” Id. at 49. 

Any supposed concern with “special” interests thus misunder-
24 

stands the entire problem of faction as it concerned the Founders. Far from being compelling, a desire to decrease special 

interests is anathema to the “republican remedy for the disease[]” of factionalism. Id. at 52. 

Finally, claiming that corporations will act as conduits to 

avoid individual contribution limits begs the question of the 

validity of such limits and is a problem easily solved by treating corporations the same as individuals and applying the 

same contribution limits. 

In the end, all voluntary associations, whatever their primary motivating concerns and actual or potential wealth, collectivize and amplify the speech of their associates. Corporations and labor unions are no exception. Their expressive activity should be protected equally by the First Amendment. 

III. ANONYMITY AND ASSOCIATIONAL PRIVACY REMAIN 

IMPORTANT GUARANTORS OF FREE POLITICAL 

SPEECH. 

Buckley’s casual approval of numerous disclosure requirements for speakers and contributors is inconsistent with 

the recognition of the right to engage in anonymous speech 

and associational privacy as essential aspects of the freedom 

of speech and association. The BCRA’s numerous disclosure 

requirements build upon Buckley’s error and severely curtail 

the possibility of anonymous political speech and association 

in the election context. 

Forcing speakers to reveal their identities both compels 

and restricts speech – they are compelled to say more than 

they would choose on their own, and they may be deterred 

from speaking at all if, by revealing their identities, they may 

expose themselves to various forms of harassment or retaliation for their views. Because of such concerns, the First 

Amendment protects the rights of individuals to engage in 

anonymous speech. See Watchtower Bible and Tract Society 

of New York v. Village of Stratton, 536 U.S. 150, 166-67 

(2002); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 
25 

(1995). Similar concerns underlay First Amendment protection of the right to associational privacy. As this Court has 

observed, 

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may 

constitute as effective a restraint on freedom of association [as other types of burdens] * * *. This Court has 

recognized the vital relationship between freedom to associate and privacy in one’s associations. * * * Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom 

of association, particularly where a group espouses dissident beliefs. 

NAACP v. Alabama, 357 U.S. at 462. 

Notwithstanding the protection afforded anonymous 

speech and associational privacy, Buckley upheld various disclosure requirements on the grounds that contribution disclosures (1) provide a means of gathering data essential to detecting violations of the contribution limits themselves; (2) 

deter actual corruption and avoid the appearance of corruption 

by publicizing large contributions and expenditures and thus 

discouraging their use for seeking political favor; and (3) provide information to the electorate regarding who supports a 

candidate and thus supposedly reveal something about the 

candidate’s views and about the interests to which he might 

be responsive. 424 U.S. at 66-68. 

Those justifications fail to offer an adequate basis for depriving speakers and contributors of their rights to anonymity 

and associational privacy. First, the interest in enforcing contribution limits might well be a valid concern if, but only if, 

such limits are themselves valid restrictions on speech. Cf. 

Buckley, 424 U.S. at 75-76 (discussing disclosure related to 

invalid expenditure limits). That condition is doubtful given 

proper First Amendment scrutiny, supra Part II(A), and a correct understanding of the quite narrow government interest in 

preventing corruption. And even if contribution limits con-
26 

tinue to be upheld, enforcement concerns are more than adequately addressed by record-keeping and limited disclosure to 

enforcement authorities themselves. Further disclosure to the 

public substantially adds to the speech burden without appreciably aiding enforcement of contribution limits. 

Second, the alleged interest in deterring corruption and 

the appearance of corruption is particularly inapt if contribution limits themselves are upheld. The restrictions are so low 

as to eliminate even the speculative suggestion that the underlying contributions would influence a candidate. In any event, 

even absent such limits, large contributions and expenditures 

for speech simply are not corrupt, regardless of whether they 

are given in exchange for political favor. See supra Part I. 

Third, the information value provided by disclosure is not 

an adequate basis for government restriction or compulsion of 

speech and association. Insofar as disclosure is meant to provide information about the contributors or expenders themselves, control over such information is squarely part of First 

Amendment freedoms. McIntyre, 514 U.S. at 342 (“[A]n author’s decision to remain anonymous, like other decisions 

concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the 

First Amendment.”). And insofar as it is meant to provide 

information about a candidate, that benefit is far too attenuated to impose First Amendment burdens on third parties 

making contributions or expenditures. To obtain information 

about candidates, it is the candidates themselves who should 

be required to disclose contributions, and if a contribution is 

made anonymously, that fact can be disclosed without further 

requiring identification of the donor.13 A candidate accepting 

13 If the contributor revealed his or her identity to the candidate, but 

asked for that information to be withheld, then disclosure of that 

circumstance too could be required without disclosing the contributor’s identity. Of course, a candidate who disclosed having agreed 

to conceal from the public the identity of a known donor quite 
27 

substantial anonymous donations may well be suspect, but the 

public can judge that for themselves and vote accordingly. 

IV. APPLICATION OF GENERAL PRINCIPLES TO SPECIFIC 

SECTIONS OF THE BCRA. 

The previous sections provide an alternative framework 

for evaluating restrictions on campaign-related speech and 

association that is more faithful to the First Amendment. All 

such restrictions should be evaluated under strict scrutiny, and 

the compelling interest in combating corruption should be 

carefully cabined to preventing the offer or acceptance of private gain for official action, and should exclude exchanges of 

political support mediated through speech or association. 

Under such an approach, essentially all of the BCRA violates 

the First Amendment. Almost none of those provisions serve 

an interest in combating genuine corruption, they would not 

survive true strict scrutiny, and in most instances the provisions are affirmatively antithetical to the core premises of the 

Constitution and the First Amendment. 

For convenience, however, Amici will point out several of 

the more troubling BCRA provisions on appeal that would be 

invalidated under the proposed framework’s renewed commitment to core First Amendment principles. 

BCRA Title I: Soft-Money Prohibitions. Because political parties are private expressive associations entitled to 

full First Amendment protection, the restrictions in BCRA 

§ 101 on their collection and expenditure of funds earmarked 

for political speech must be subject to strict scrutiny. Those 

restrictions would fail such scrutiny because the government’s interest is virtually non-existent. 

Disclosure Requirements. The requirement that political 

committees disclose the identities of contributors, BCRA 

likely would lose the trust of numerous voters if the donation truly 

appears corrupt. Concerns regarding such contributions are thus 

self-correcting at the ballot box. 
28 

§ 103(a), impairs fundamental First Amendment rights of 

anonymity and associational privacy without adequate government interest or justification. With contribution limits in 

place, disclosure serves virtually no purpose. And even without contribution limits, any legitimate interest in revealing a 

candidate’s sources of support is adequately served by disclosing the fact of anonymous contributions without disclosing the identities of the contributors. 

BCRA Title II: Restrictions on Electioneering Communications. Disclosure and segregated funding requirements triggered by electioneering communications, BCRA 

§§ 201(a), 211, 212, also impair the rights to anonymity, associational privacy, and expressive association in general. 

That the restrictions are triggered by the content and presumed communicative impact of the speech renders them subject to strict scrutiny. Because electioneering communications are not corrupt, restrictions triggered by such communications serve no legitimate, much less compelling, purpose. 

Coordinated Expenditures. Restrictions on broadly defined coordinated expenditures, BCRA §§ 202, 213 & 214, 

involve direct restrictions on speech and association subject to 

full strict scrutiny. Coordinated speech is not corrupt and restrictions thereon cannot survive First Amendment scrutiny. 

Restrictions on Corporate and Union Funding of 

Speech. Prohibiting business corporations and labor unions 

from engaging in express advocacy and other electioneering 

communications, BCRA § 203, and forbidding other associations from using corporate or labor donations for electioneering communications, BCRA § 201(a), squarely suppress the 

expression of voluntary associations and are subject to strict 

scrutiny. The interests alleged for suppressing corporate and 

labor speech are not compelling and in some instances are 

patently offensive under the First Amendment. 

BCRA Title III: Contribution Limits. The contribution 

limits contained in BCRA § 307, though higher than previous 

limits, nonetheless must be evaluated under, and would fail, 
29 

full strict scrutiny. Because campaign contributions cannot 

be converted to personal use, BCRA § 313, they have no connection to any genuine corruption and the limits thereon further no compelling government interests. 

Wealthy or Popular Opponent Exceptions. The heightened contribution and political party spending limits for opponents of wealthy or popular candidates, BCRA §§ 304, 316 

& 319, must be judged under, and would fail, strict scrutiny. 

The higher limits will most often apply to poorer or less 

popular candidates, who are actually more vulnerable to the 

supposedly corrupting influence of larger contributions. 

Wealthy or popular opponents – still constrained by the lower 

limits – are less vulnerable to such influences.14 The selfevident purpose of such differential limits – equalizing the 

speech of differently funded candidates – is not even valid, 

much less compelling. Buckley, 424 U.S. at 48-49. Furthermore, the differential contribution limits demonstrate either 

that the standard $2,000 contribution limit is unrelated to any 

interest in fighting corruption or that such interest is insufficiently important to be pursued consistently. See Greater 

New Orleans Broadcasting Ass’n v. United States, 527 U.S. 

173, 186-87 (1999) (substantiality of interest in doubt when it 

is “offset, and sometimes outweighed, by countervailing policy considerations,” where policy was “decidedly equivocal” 

towards interest, and where Congress was unwilling “to adopt 

a single national policy that consistently endorses” the interest). Sections 304, 316, and 319 thus undermine numerous 

other provisions of the BCRA. 

14 Compare Buckley, 424 U.S. at 26 (“a candidate lacking immense personal or family wealth must depend on financial contributions from others 

to provide the resources necessary to conduct a successful campaign”), 

with id. at 52 (“the use of personal funds reduces the candidate’s dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act’s contribution limits 

are directed”). 
30 

* * * * * 

Eliminating the errors and inconsistencies of Buckley and 

applying a consistent First Amendment framework to these 

and other challenged provisions of the BCRA will facilitate 

the sound resolution of these current and future cases. Political influence mediated through speech and association is not 

corrupt, and all forms of political speech and association are 

entitled to undiluted First Amendment protection. 

CONCLUSION 

For the foregoing reasons, the decision of United States 

District Court for the District of Columbia should be reversed 

insofar as it upholds the BCRA and affirmed insofar as it 

strikes down the BCRA as contrary to the First Amendment. 

Respectfully Submitted, 

ERIK S. JAFFE 

Counsel of record 

ERIK S. JAFFE, P.C. 

5101 34th Street, N.W. 

Washington, D.C. 20008 

(202) 237-8165 

Counsel for Amici Curiae 

Dated: July 8, 2003.