No. 02-

444444444444444444444444444444444444444444

IN THE 

Supreme Court of The United States 

________________ 

CONGRESSMAN RON PAUL, GUN OWNERS OF AMERICA, INC., 

GUN OWNERS OF AMERICA POLITICAL VICTORY FUND, 

REALCAMPAIGNREFORM.ORG, CITIZENS UNITED, 

CITIZENS UNITED POLITICAL VICTORY FUND, 

MICHAEL CLOUD, AND CARLA HOWELL, 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, ET AL., 

________________ Appellees. 

On Appeal from the United States District Court 

for the District of Columbia

_______________

JURISDICTIONAL STATEMENT 

________________ 

HERBERT W. TITUS 

TROY A. TITUS, P.C. 

5221 Indian River Road 

Virginia Beach, VA 23464 

(757) 467-0616 

Attorneys for Appellants 

*Counsel of Record 

WILLIAM J. OLSON* 

JOHN S. MILES 

WILLIAM J. OLSON, P.C. 

Suite 1070 

8180 Greensboro Drive 

McLean, VA 22102 

(703) 356-5070 

May 30, 2003 

(Counsel continued on inside front cover) 

444444444444444444444444444444444444444444
RICHARD O. WOLF 

MOORE & LEE, LLP 

1750 Tysons Boulevard 

Suite 1450 

McLean, VA 22102 

(703) 506-2050 

GARY W. KREEP 

U.S. JUSTICE FOUNDATION 

Suite 1-C 

2091 East Valley Parkway 

Escondido, CA 92027 

(760) 741-8086 
i 

QUESTIONS PRESENTED FOR REVIEW 

1. Whether the district court erred by dismissing appellants’ 

freedom of the press challenge to various provisions of BCRA, 

and to provisions of FECA amended by BCRA, on the ground 

that, in the area of campaign finance regulation, the freedom of 

the press guarantee in the First Amendment to the United 

States Constitution contains no greater rights than those 

protected by the guarantees of free speech and association? 

2. Whether the district court erred by upholding the statutory 

exemptions in BCRA enjoyed by the “institutional press” and 

other FEC-licensed press activities from the prohibitions 

against, and regulations of, electioneering communications and 

contribution limits governing appellants, on the ground that 

Congress may, regardless of the freedom of the press 

guarantee, grant greater rights to the “institutional press” than 

to the “general press,” only the latter of which appellants are a 

part? 

3. Whether the district court erred by holding that, regardless 

of the constitutional guarantee of the freedom of the press, the 

fall-back definition of electioneering communication in Title 

II of BCRA (as modified by the court) and the accompanying 

prohibitions and regulations, are constitutional as applied to 

appellants as members of the “general press” even though the 

institutional press and other FEC-licensed press activities are 

exempted? 

4. Whether the district court erred by holding that, regardless 

of the constitutional guarantee of the freedom of the press, 

those appellants who are federal officeholders and/or 

candidates for federal office must, as members of the “general 

press,” submit to the Federal Election Commission’s licensing 

power and editorial control as provided for in BCRA Section 
ii 

101(a) (FECA Section 323(e)), including limiting their ability 

to assist candidates and causes they support, whereas members 

of the “institutional press” are exempt? 

5. Whether the district court erred by holding that, regardless 

of the freedom of the press, those appellants who are 

candidates for election to state office, must, as members of the 

“general press,” submit to the licensing power and editorial 

control of the Federal Election Commission as provided for in 

BCRA Section 101(a) (FECA Section 323(f)), if they refer to 

a candidate for federal office and the Federal Election 

Commission determines this to constitute promotion or 

support, whereas members of the “institutional press” are 

exempt? 

6. Whether the district court erred by holding that, regardless 

of the freedom of the press, appellant Congressman and 

candidates for federal office, being members only of the 

“general press,” had no standing to challenge the 

constitutionality of FECA amended by BCRA Section 307(a) 

limiting individual contributions to federal election campaigns, 

and mandating disclosure of contributor identities and 

donations, despite the impact of such limits upon the editorial 

function of their campaigns for federal office, and by 

dismissing appellant candidates’ press challenge to such statute 

limits and requirements? 
iii 

PARTIES TO THE PROCEEDING 

The appellants in this case, who were plaintiffs in Civil 

Action No. 02-CV-781 below before the district court, are: 

Congressman Ron Paul; Gun Owners of America, Inc.; Gun 

Owners of America Political Victory Fund; 

RealCampaignReform.org; Citizens United; Citizens United 

Political Victory Fund; Michael Cloud; and Carla Howell. 

The appellees in this case, who were defendants or 

intervenor-defendants below, are: Federal Election 

Commission; the United States of America; Senator John 

McCain; Senator Russell Feingold; Representative Christopher 

Shays; Representative Martin Meehan; Senator Olympia 

Snowe; and Senator James Jeffords. 

This case was consolidated below with ten other civil 

actions challenging the constitutionality of certain BCRA 

provisions. 

The names of plaintiffs in each of the consolidated cases 

are as follows: 

National Rifle Ass’n v. FEC: National Rifle Association of 

America (NRA) and NRA Political Victory Fund; 

McConnell v. FEC: U.S. Senator Mitch McConnell, former 

U.S. Representative Bob Barr, U.S. Representative Mike 

Pence, Alabama Attorney General William H. Pryor, the 

Libertarian National Committee, Inc., American Civil Liberties 

Union, Associated Builders and Contractors, Inc., Associated 

Builders and Contractors Political Action Committee, Center 

for Individual Freedom, Club for Growth, Inc., Indiana Family 

Institute, Inc., National Right to Life Committee, Inc., National 

Right to Life Educational Trust Fund, National Right to Life 

Political Action Committee, National Right to Work 

Committee, 60-Plus Association, Inc., Southeastern Legal 
iv 

Foundation, Inc., U.S. English d/b/a/ ProENGLISH, Thomas

McInerney, Barret Austin O’Brock, Trevor M. Southerland;

Echols v. FEC: Emily Echols, Daniel Solid, Hannah McDow,

Isaac McDow, Jessica Mitchell, Daniel Solid and Zachary C.

White;

Chamber of Commerce v. FEC: Chamber of Commerce of the

United States, U.S. Chamber Political Action Committee, and

National Association of Manufacturers (Plaintiff National

Association of Wholesaler-Distributors withdrew);

National Ass’n of Broadcasters v. FEC: National Association

of Broadcasters;

AFL-CIO v. FEC: AFL-CIO and AFL-CIO Committee on

Political Education and Political Contributions;

Republican National Committee v. FEC: Republican National

Committee, (RNC), Mike Duncan, former Treasurer, current

General Counsel, and Member of the RNC, the Republican

Party of Colorado, the Republican Party of New Mexico, the

Republican Party of

Ohio, and the Dallas County (Iowa) Republican County Central

Committee;

California Democratic Party v. FEC: California Democratic

Party, Art Torres, Yolo County Democratic Central Committee,

California Republican Party, Shawn Steel, Timothy J. Morgan,

Barbara Alby, Santa Cruz County Republican Central

Committee, and Douglas R. Boyd, Jr.;

Adams v. FEC: Victoria Jackson Gray Adams, Carrie Bolton,

Cynthia Brown, Derek Cressman, Victoria Fitzgerald, Anurada

Joshi, Nancy Russell, Kate Seely-Kirk, Peter Kostmayer, Rose

Taylor, Stephanie L. Wilson, California Public Interest

Research Group (PIRG), Massachusetts Public Interest

Research Group, New Jersey Public Interest Research Group,

United States Public Interest Research Group, the Fannie Lou

Hamer Project, and Association of Community Organizers for

Reform Now; and 
v 

Thompson v. FEC: U.S. Representatives Bennie G. Thompson 

and Earl F. Hilliard. 

The names of other defendants in the consolidated cases 

are as follows: Federal Communications Commission; John D. 

Ashcroft; in his capacity as Attorney General of the United 

States; United States Department of Justice; and David M. 

Mason, Ellen L. Weintraub, Danny L. McDonald, Bradley A. 

Smith, Scott E. Thomas, and Michael E. Toner, in their official 

capacities as Commissioners of the Federal Election 

Commission. 

STATEMENT PURSUANT TO RULE 29.6 

Appellant Gun Owners of America Political Victory Fund, 

a political committee, is a separate segregated fund of appellant 

Gun Owners of America, Inc., a nonprofit, nonstock 

corporation, and appellant Citizens United Political Victory 

Fund is a separate segregated fund of appellant Citizens 

United, a nonprofit, nonstock corporation. Otherwise, none of 

the appellants has a parent corporation. None of the appellants 

is a stock company, and no publicly held company owns 10 

percent or more of the stock of any of the appellants. 
vi 

TABLE OF CONTENTS 

Page 

QUESTIONS PRESENTED FOR REVIEW ........... i

PARTIES TO THE PROCEEDING ................. iii

STATEMENT PURSUANT TO RULE 29.6 ........... v

TABLE OF AUTHORITIES ...................... viii

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

OPINIONS BELOW .............................. 2

JURISDICTION ................................. 3

PERTINENT CONSTITUTIONAL AND STATUTORY

PROVISIONS ................................... 3

STATEMENT OF THE CASE ...................... 3

THE QUESTIONS PRESENTED ARE SUBSTANTIAL 14

A. Paul Plaintiffs’ Freedom of Press Claims Are 

Discrete .................................... 15

B. The Freedom of the Press Is Distinct from the 

Freedoms of Speech and Association ............. 15

C. The Freedom of the Press Applies to Campaign 

Finance .................................... 20

1. Title II BCRA Violations of Freedom of the 

Press .................................... 25
vii 

2. Title I BCRA Violations of Freedom of the 

Press .................................... 27

3. Title III BCRA Violation of Freedom of the

Press .................................... 29

CONCLUSION ................................. 30 

APPENDIX .................................... 1a 

A. Notice of Appeal .......................... 1a

B. Opinions Below........................... 4a

C. U.S. Constitution, Amendment I .............. 5a

D. Federal Election Campaign Act .............. 6a

E. Bipartisan Campaign Reform Act of 2002 ..... 27a
viii 

TABLE OF AUTHORITIES 

Page 

U.S. CONSTITUTION 

Amendment I ............................. 1, passim 

STATUTES 

2 U.S.C. Section 431 ....................... 20, 21, 26

2 U.S.C. Section 434 .............................. 3

2 U.S.C. Section 441 .............................. 3

CASES 

Albertson v. Subversive Activities Control Board, 

382 U.S. 70 (1965) ........................... 24

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 

221 (1987) ............................... 19, 20

Austin v. Michigan State Chamber of Commerce,

494 U.S. 652 (1990) .......................... 22

Buckley v. Valeo, 424 U.S. 1 (1976) ........... 4, passim

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) ....... 21

Burroughs v. United States, 290 U.S. 534 (1934) ........ 3

CBS v.Democratic National Comm., 412 U.S. 94 (1973) . 27

FEC v. Colo. Rep. Fed. Election Campaign Comm.,

533 U.S. 431 (2001) ........................ 4, 25

FEC v. Mass. Citizens for Life, 479 U.S. 238 (1986) ..... 4

FEC v. Phillips Publishing, Inc., 517 F. Supp. 1308 

(D.D.C. 1981) ......................... 20, 21, 26

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

765 (1978) .................................. 22

Grosjean v. American Press Co., Inc., 297 U.S. 233 

(1936) ................................... 6, 19

Hurley v. Irish-American Gay, Lesbian and 

Bisexual Group of Boston, 515 U.S. 557 (1995) .... 30

Lovell v. City of Griffin, 303 U.S. 444 (1938) ......... 18

McIntyre v. Ohio Elections Commission, 514 U.S. 

334 (1995) ............................... 19, 30
ix 

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 

241 (1974) ............................ 6, passim 

Near v. Minnesota, 283 U.S. 697 (1931) .............. 21 

New York Times v. United States, 403 U.S. 713 

(1971) ..................................... 18 

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

377 (2000) ................................... 4 

Reader’s Digest Association v. FEC, 509 F.Supp. 

1210 (S.D.N.Y. 1981) ......................... 21 

Talley v. California, 362 U.S. 60 (1960) ............ 7, 19 

Watchtower v. Village of Stratton, 536 U.S.150 

(2002) .................................. 18, 28 

Wright v. United States, 302 U.S. 583 (1938) .......... 16 

BOOKS 

IV W. Blackstone, Commentaries on the Laws of 

England (Univ. Chi, facs. ed. 1769) ........... 19, 22 

IV J. Eliot, ed., The Debates in the Several State 

Constitutions (Phila: 1866) ..................... 19 

St. G. Tucker, View of the Constitution of the 

United States with Selected Writings 

(Liberty Fund: 1999) ...................... 16, 17 

ARTICLES 

“Bush Formally Starts 2004 Campaign,” May 16, 2003, 

http://www.newsmax.com/archives/articles/ 

2003/5/16/151352.shtml ....................... 23 

OTHER 

148 Cong. Rec. S2,114-16 (daily ed. March 20, 2002) . . . 25 
IN THE 

Supreme Court of The United States 

________________ 

CONGRESSMAN RON PAUL, GUN OWNERS OF AMERICA, INC., 

GUN OWNERS OF AMERICA POLITICAL VICTORY FUND, 

REALCAMPAIGNREFORM.ORG, CITIZENS UNITED, 

CITIZENS UNITED POLITICAL VICTORY FUND, 

MICHAEL CLOUD, AND CARLA HOWELL, 

Appellants, 

v. 

FEDERAL ELECTION COMMISSION, ET AL., 

________________ Appellees. 

On Appeal from the United States District Court 

for the District of Columbia 

________________ 

JURISDICTIONAL STATEMENT 

________________ 

INTRODUCTION 

This case presents a freedom of the press challenge to 

several of the most intrusive provisions of the growing body 

of federal campaign finance law. The appellants, known in the 

court below as the “Paul Plaintiffs” — Congressman Ron Paul, 

Gun Owners of America, Inc., Gun Owners of America 

Political Victory Fund, RealCampaignReform.org, Citizens 

United, Citizens United Political Victory Fund, Michael Cloud, 

and Carla Howell — allege that the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”), and many of the amendments 

to the Federal Election Campaign Act of 1971 (“FECA”) 

wrought by BCRA, violate their rights guaranteed by the 

freedom of the press of the First Amendment of the United 

States Constitution. 
2 

The district court rejected the Paul Plaintiffs’discrete press 

challenge, ruling, as a matter of law, that the Paul Plaintiffs’ 

rights under the freedom of the press are governed by a 

standard no higher than, and no different from, the compelling 

interest test developed in First Amendment litigation involving 

free speech and association. Per Curiam Op. at 106-13. 

Although certain BCRA provisions were determined to be 

unconstitutional as violative of other First Amendment 

guarantees, many BCRA/FECA provisions were sustained, 

including virtually all of those provisions challenged by the 

Paul Plaintiffs. 

The effect of the district court’s ruling is to retain and 

enlarge unconstitutionally invasive federal campaign finance 

laws, abridging freedom of the press as well as curtailing core 

political speech throughout the country, and leaving the area of 

campaign finance regulation in disarray. This is a vital First 

Amendment case that demands this Court’s attention and 

review. 

Appellants request and urge this Court to note probable 

jurisdiction on the questions presented herein, and to reverse 

the district court on each of those questions. 

OPINIONS BELOW 

The three-judge district court issued its judgment, along 

with four opinions which were filed on May 2, 2003: a per 

curiam opinion joined by two of the judges, and individual 

opinions by each of the three judges. None of the opinions is 

reported. Pursuant to this Court’s Order of May 15, 2003, the 

appellants are submitting jointly the district court’s opinions, 

in the form of a Joint Appendix. See Appendix hereto (“App.”) 

4a. 
3 

JURISDICTION 

The district court issued its opinions and judgment on May 

2, 2003. Appellants timely filed their Notice of Appeal on May 

7, 2003. This Court has appellate jurisdiction pursuant to 

Section 403(a)(3) of the Bipartisan Campaign Reform Act of 

2002, Pub. L. No. 107-155, 116 Stat. 81, 114. Appellants’ 

Notice of Appeal is reprinted at App. 1a. 

PERTINENT CONSTITUTIONAL 

AND STATUTORY PROVISIONS 

The First Amendment to the United States Constitution is 

reprinted at App. 5a. 

Sections 434 and 441 of Title 2 of the United States Code 

(FECA prior to BCRA’s amendments), are set forth at App. 6a. 

The Bipartisan Campaign Reform Act of 2002, Pub. L. No. 

107-155, 116 Stat. 81, is reprinted at App. 27a. 

STATEMENT OF THE CASE 

1. Federal campaign finance regulation, including laws 

licensing entry into the marketplace of ideas generated by 

campaigns for election to federal office, appears to have been 

attempted by Congress, for the first time, only in the second 

half of the twentieth century, with passage of the Federal 

Election Campaign Act of 1971 (and its extensive 1974 

Amendments). See 2 U.S.C. Section 431, et seq. Previously, 

certain federal statutes had been enacted affecting certain rights 

of certain “persons.” See, e.g., Burroughs v. United States, 290 

U.S. 534 (1934). FECA was Congress’s first comprehensive 
4 

effort to take control of federal “electioneering,” including the 

establishment of an administrative agency with power to 

enforce a complete panorama of licensing restrictions, 

contribution and expenditure limitations, reporting and 

disclosure requirements, backed up by penalties both civil and 

criminal, for infractions of the new rules. 

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court found 

some of the original provisions of FECA unconstitutional 

abridgments of free speech and association. For nearly a 

generation, the Buckley decision has guided this Court, and the 

lower federal courts, in the application of free speech and 

association to the enforcement of FECA by the Federal 

Election Commission (“FEC”), and the enforcement of similar 

rules enacted by state legislatures to control the financing of 

election campaigns. See, e.g., FEC v. Colo. Rep. Fed. Election 

Campaign Comm. (Colo. II), 533 U.S. 431 (2001); Nixon v. 

Shrink Missouri Gov’t. PAC (Shrink PAC), 528 U.S. 377 

(2000). Despite continued adherence to Buckley, three justices 

on this Court have urged that Buckley be overruled, observing 

most recently that the Court’s application of Buckley has 

“offered only tepid protection to core speech and associational 

rights that our Founders sought to defend.” Colo. II, 533 U.S. 

at 466 (Thomas, J., dissenting). 

Indeed, the “strict scrutiny” standard of Buckley has 

proved to be a malleable tool, the application of which has 

turned on how strictly the courts are predisposed to scrutinize 

the application of a particular regulation to the facts of a case. 

Compare Shrink PAC, supra, with FEC v. Mass. Citizens for 

Life, 479 U.S. 238 (1986). Essentially, the application of 

Buckley has proved ad hoc, rather than principled, opening the 

door for Congress to extend the FEC’s power by the enactment 

of the Bipartisan Campaign Reform Act which contains a 
5 

number of novel encroachments upon the marketplace of ideas 

generated by campaigns for election to public office. 

a. In an effort to sweep more and more contributions and 

expenditures in the marketplace of ideas generated by federal 

election campaigns within the licensing and regulatory power 

of the FEC, Title I of BCRA has extended the reach of federal 

campaign regulation in such a way as to place discriminatory 

controls upon political parties, federal and state officeholders, 

and candidates for federal and state office. For example, 

BCRA Title I, Section 101(a) (FECA Section 323(e)) prohibits 

a federal officeholder, or candidate for federal office, from 

“solicit[ing], receiv[ing], direct[ing], transfer[ing], or 

spend[ing] funds in connection with an election for Federal 

office ... unless the funds” are raised under the licensing and 

regulatory control of the FEC. In a similar manner, BCRA 

Title I prohibits any state or local officeholder or candidate for 

state or local office from “spend[ing] any funds...” (Section 

101(a) (FECA Section 323(f))) for “a public communication 

that refers to a clearly identified candidate for Federal office ... 

and that promotes or supports a candidate for that office, or 

attacks or opposes a candidate for that office (regardless of 

whether the communication expressly advocates a vote for or 

against a candidate)” (BCRA Section 101(b) (FECA Section 

301(20)(A)(iii))). 

By these provisions, Congress has breached the wall that 

Buckley had raised limiting the reach of the FEC only to those 

communications that expressly advocate a vote for or against 

a particular candidate. Buckley, 424 U.S. at 42-44, n.52. In so 

doing, Congress has invited the FEC to exercise editorial 

control over the “public communications” of federal, state, and 

local officeholders, and candidates for election to federal, state, 

and local office in ways that would be impermissible if applied 

to a newspaper or magazine of general circulation for a news 
6 

story, editorial, or commentary “that promotes or supports a 

candidate .... or attacks or opposes a candidate.” See Miami 

Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). 

b. In another effort to breach the Buckley wall between 

“express advocacy” and “issue advocacy,” Title II of BCRA 

creates a whole new set of prohibitions and regulations 

extending the FEC’s licensing power and editorial control over 

“electioneering communications,” on the grounds that although 

such broadcast, cable, or satellite communications do not 

expressly advocate the election or defeat of a particular 

candidate, they profoundly affect the outcome of federal 

elections. In recognition that BCRA’s effort to exercise 

editorial control over the discussion of issues in relation to a 

campaign for federal election was on shaky constitutional 

grounds, Congress not only offered a “fall-back” definition of 

“electioneering communications,” but provided a number of 

exceptions, keeping the FEC’s editorial hands off news stories, 

commentaries, and editorials “distributed through the facilities 

of any broadcasting station [not] owned or controlled by any 

political party, political committee, or candidate” (BCRA 

Section 201(a) (FECA Section 304(f)(3)(B)(i))) and affirming 

the FEC’s editorial powers in relation to candidate debates 

(BCRA Section 201(a) (FECA Section 304(f)(3)(B)(iii))). In 

short, BCRA Title II, by means of the licensing power of the 

FEC, treats differentially persons and entities, allowing some 

to participate in the debate over the issues related to election 

campaigns without having to comply with BCRA contribution 

limits and prohibitions, disclosure requirements, and economic 

burdens, but not others, a differentiation that would never be 

constitutionally tolerated if applied to a newspaper or magazine 

of general circulation. See Grosjean v. American Press Co., 

Inc., 297 U.S. 233 (1936). 
7

c. In order to obtain the necessary support for BCRA Titles 

I and II, Congress raised the FECA individual contribution 

limit to individual candidate campaigns per election from 

$1,000 to $2,000, indexing the limit to inflation. BCRA Title 

III, Section 307(a). Even with this increase, Congress 

continued to impose significant editorial control upon 

individual candidate campaigns, limiting both the quality and 

quantity of campaign communications, as well as forcing 

disclosure of the identities of contributors, consequences that 

would be constitutionally intolerable under such rulings as 

Miami Herald, supra, and Talley v. California, 362 U.S. 60 

(1960). 

2. BCRA was enacted on March 27, 2002. Eleven 

separate complaints were filed in the United States District 

Court for the District of Columbia challenging its 

constitutionality. The cases were consolidated by the threejudge panel assigned to hear them, and the parties were ordered 

to conduct discovery and submit their cases-in-chief, 

supporting briefs and opposition and reply briefs on an 

expedited basis over the course of approximately six months. 

The fully-submitted cases were argued before the court below 

on December 4-5, 2002. On May 2, 2003, the district court 

issued four separate opinions — a per curiam opinion and an 

opinion of each of the three judges on the panel — upholding 

certain BCRA provisions, striking down certain other BCRA 

provisions, and dismissing challenges to certain other BCRA 

provisions for nonjusticiability and lack of standing. 

3. Appellants, the Paul Plaintiffs, present unique 

challenges to the constitutionality of BCRA/FECA, having 

relied exclusively upon the freedom of the press, rather than 

invoking the free speech and association standards relied on in 

Buckley. Although they participated collectively with most of 

the other plaintiffs regarding procedural undertakings, their 
8

substantive presentation was distinct, and the district court 

permitted them to brief the issues separate and apart from the 

other plaintiffs in the consolidated cases below. See Per 

Curiam Op. at 56. Although the district court addressed the 

freedom of the press legal claims of the Paul Plaintiffs by 

ruling them irrelevant as a matter law, the opinions below carry 

sparse mention of the evidentiary foundation for those claims.

1 

Such evidence was admitted below through substantial fact and 

expert testimony, as follows: (i) the reports and declarations of 

three expert witnesses: James C. Miller III, Ph.D., former 

1 The Paul Plaintiffs’ case was mentioned or discussed in the district 

courts’ opinions at the following pages. Per Curiam Opinion: 5 

(description of contents of opinion), 56 (description of briefing schedule), 

81 (description of parties), 87 (findings re identities of plaintiffs Ron Paul 

and GOA), 88 (findings re identities of plaintiffs GOAPVF, 

RealCamp aignReform. org (erroneousl y i d e n tified as 

“RealCampaignFinance.org”), CU, and CUPVF), 89 (findings re identities 

of plaintiffs Cloud and Howell), 106-113 (findings of law with regard to 

Paul Plaintiffs’ free press claims), 115 (description of parties challenging 

BCRA section 201), 170 (conclusion); Judge Henderson’s Opinion: 11 

(description of parties), 40 (identification of press claims re corporate 

disbursements for “electioneering communications”), 54 (identification of 

free press challenges to BCRA Section 101), 58 (identification of free press 

challenges to $2,000 contribution limit), 111 (citing declarations of Paul 

Plaintiffs witnesses Boos and Pratt with respect to the limited ability of 

PACs to finance electioneering communications), 227 (not deciding free 

press challenges to BCRA Sections 201, 203-204), 242 (not deciding free 

press challenges to BCRA Section 212), 325 (rejecting free press challenge 

to BCRA Section 101(a) (FECA Section 323(e)), 339-42 (determining no 

Article III standing with regard to indexing of contribution limit increase); 

Judge Kollar-Kotelly’s Opinion: 229, 397 (plaintiff Ron Paul deposition to 

support opinion that outside issue ads in 2000 were intended to influence 

elections), 334-36 (witness Pratt declaration regarding determination that 

primary definition of “electioneering communications” not overbroad), 471 

(equal protection and free press challenge to BCRA/FECA media 

exemption); and Judge Leon’s Opinion: 257-258 (plaintiff Ron Paul 

deposition to support opinion that outside issue advertisements in 2000 were 

intended to influence elections), 333 (citing Pratt declaration regarding radio 

advertisement in 2002 within 30 days of primary in New Hampshire). 
9 

Chairman of the Federal Trade Commission and Director of the 

Office of Management and Budget; Perry Willis, former 

Director, Libertarian Party and Campaign Manager, Harry 

Browne, Libertarian for President 2000; and Walter J. Olson, 

CPA, campaign finance practitioner; and (ii) 11 fact 

witnesses: Congressman Ron Paul; Mark Elam, Campaign 

Manager of Paul for Congress; Tom Lizardo, Chief of Staff, 

Congressman Ron Paul; Lawrence D. Pratt, Executive 

Director, Gun Owners of America, Inc.; James H. Babka, Jr., 

President, RealCampaignReform.org; Michael Boos, Esquire, 

General Counsel, Citizens United; David N. Bossie, President, 

Citizens United; Michael Cloud, Libertarian Party candidate 

for U.S. Senate from Massachusetts in 2002; Carla Howell, 

Libertarian Party candidate Governor of Massachusetts in 

2002; Anonymous Witness No. 1, a donor who contributes 

less to federal candidates than the reporting threshold to avoid 

disclosure of his identity; and Anonymous Witness No. 2, a 

donor who would contribute to federal candidates more than 

$1,000 per election under current law, or $2,000 per election 

under BCRA, if it were legal to do so. 

Combined, these witnesses presented the facts, as follows: 

a. Appellant Ron Paul is a Member of the United States 

House of Representatives from the 14th Congressional District 

of Texas. He is a member of the Republican Party, and was the 

Republican nominee in 2002 for the congressional seat he now 

holds. Congressman Paul, in addition to his own activities as 

a voter and contributor to other organizations and candidates, 

conducts a number of “general press” activities as a candidate 

for federal office. Congressman Paul testified, inter alia, how 

FECA/BCRA operated as a prior restraint upon him and his 

campaign committee, requiring them, prior to entering into the 

marketplace of ideas related to his campaigns for election to 

federal office, to secure a license from, and submit to the 
10 

editorial supervision and control of, the FEC. Congressman 

Paul also testified that the continuing and increased 

discriminatory burdens of such laws — including contribution 

limitations, soft money limits, campaign coordination rules, 

and “electioneering communications” — would substantially 

and adversely impact his ability to engage in a variety of 

communicative activities related to his campaigns for federal 

office. But for BCRA/FECA, Congressman Paul would be 

able to raise more money from individuals and organizations 

for communicative activities, as well as expand the range of 

fundraising events, receive more assistance from volunteers, 

and redirect resources now required to comply with FEC 

licensing, recordkeeping, and reporting requirements. Paul 

Decl. Paras. 14-18. See also Elam Decl. Paras. 5-12; Lizardo 

Decl. Paras. 3-5; Anonymous Witness No. 1 Decl. Paras. 2-9; 

Anonymous Witness No. 2 Decl. Paras. 3-8; Olson Expert 

Witness Decl. Paras. 7-11, 13; and Miller Expert Witness Decl. 

at 16-19. 

b. Appellants Cloud and Howell also engage in “general 

press” activities similar to those engaged in by Congressman 

Paul, both as citizens and voters, and as candidates for federal 

and state office. Mr. Cloud and Ms. Howell , both members of 

the Libertarian Party, as well as respective federal and state 

candidates of the Libertarian Party in 2002, engage in press 

activities that have been, are, and will continue to be 

profoundly limited by the federal campaign laws embodied in 

BCRA/FECA. For example, Mr. Cloud and Ms. Howell, and 

their campaigns, promote (and seek to educate the public 

regarding) various policy issues and ideas, including the 

reduction of the size of government, abolition of the 

Massachusetts income tax, and the restoration of personal 

liberties, and both work with other Libertarian candidates for 

state and federal office. In fact, as 2002 federal and state 

Libertarian Party candidates, respectively, Mr. Cloud and Ms. 
11 

Howell coordinated certain campaign activities with one 

another in the 2002 federal election cycle, which would be 

prohibited by BCRA’s Title I “soft money” rules. The press 

campaign activities of both Mr. Cloud and Ms. Howell in the 

past have been restrained, economically burdened, and 

adversely impacted by the laws limiting campaign 

contributions and requiring registration, reporting, and 

disclosure, which will be exacerbated under BCRA/FECA. 

Mr. Cloud’s and Ms. Howell’s press activities are adversely 

impacted especially by the discriminatory effects of the FECA 

with respect to the institutional media, because they are 

involved with a “third party.” Cloud Decl. Paras. 1-2, 7-17, 

19-20, 23-28; Howell Decl. Paras. 7-20; Willis Expert Witness 

Decl. Paras. 6-10. 

c. Appellants Gun Owners of America, Inc. (“GOA”), 

RealCampaignReform.org (“RCR”), and Citizens United 

(“CU”), are separate nonpartisan, nonprofit, nonstock 

educational/advocacy organizations which, by their respective 

undertakings, engage in “general press” activities. GOA and 

CU spend significant funds for communications on issues 

related to federal election campaigns during periods, inter alia, 

just prior to federal primary and federal general elections, 

utilizing broadcast, cable, and satellite facilities. GOA and CU 

also communicate with the public by means of mailed and 

telefaxed letters, messages and articles on their Internet web 

sites, audio tapes, videotapes, and radio and television 

broadcasts to the public. The press activities of both GOA and 

CU include engaging in issue advocacy, by means of 

communications which will constitute prohibited and/or highly 

regulated “electioneering communications” as that term is 

defined by both the primary and back-up definitions in BCRA 

(BCRA Section 201(a) (FECA Section 304(f)(3)(A))). Bossie 

Decl. Para. 5; Boos Decl. Paras. 8, 11-14; Pratt Decl. Paras. 10, 

13, 16-19. RCR, which was formed in 2000, does not have the 
12 

many years of press activities that GOA and CU have, but it 

regularly distributes educational communications by e-mail to 

a contributor list of 15,000; it also has engaged in developing 

communications to the public by radio broadcast which would 

constitute “electioneering communications” as defined by 

BCRA. Babka Decl. Para. 9. The communications to the 

public of GOA, RCR, and CU that are in evidence do not 

constitute “express advocacy” within the meaning of federal 

election law, but rather “issue advocacy.” Likewise, the types 

of communications that GOA, RCR, and CU are prohibited by 

BCRA/FECA from broadcasting do not constitute “express 

advocacy.” Additionally, GOA, RCR, and CU are negatively 

impacted by BCRA/FECA with respect to their working 

relationships with federal officeholders. For example, both 

GOA and CU solicit funds through direct mail endorsed by 

Members of Congress who support the goals of those 

organizations. RCR has not yet reached that stage of its 

development, but would like to engage in such communications 

in the future. BCRA/FECA would effectively prohibit such 

communications, and thus would substantially interfere with 

such press activities. Paul Plaintiffs Proposed Findings of Fact, 

Paras. 3, 5, 6, 14, 15. 

d. Appellants Gun Owners of America Political Victory 

Fund (“GOAPVF”) and Citizens United Political Victory Fund 

(“CUPVF”) are multicandidate “political committees,” 

independent of any political party and are the federallyregistered, connected political committees of appellants GOA 

and CU, respectively. Paul Plaintiffs Proposed Findings of 

Fact, Paras. 4, 7. 

e. BCRA/FECA subjects appellants’ “general press” 

activities to a system of federal licensure. Appellants Paul, 

Cloud, and Howell, who have been federal candidates, have 

been required to file a “statement of organization” with the 
13

government before the individual, or any committee 

established by the individual, can expend more than $5,000 on 

“campaign activities,” including publishing communications 

that expressly advocate the individual’s election to federal 

office. Furthermore, BCRA/FECA imposes economically 

burdensome regulations upon federal candidates and their 

“campaign” committees. BCRA/FECA requires candidate 

committees to file periodic reports with the government 

containing the name, address, occupation, and employer of any 

contributor of more than $200 in the aggregate during a 

calendar year. This regulatory burden limits the funds 

available to federal candidates. For example, plaintiff Cloud 

estimated that his 2002 campaign for Senate would have 

received between $100,000 and $300,000 in additional 

contributions from at least 261 contributors who would have 

donated more, but did not do so because any contributions over 

$200 in the aggregate in a calendar year from an individual 

would have required that his or her identity be disclosed in 

filed reports. There is other substantial evidence that this 

reporting/disclosure requirement interferes with plaintiffs’ 

press activities by restricting the funds that would otherwise be 

available for their federal candidacies. Paul Plaintiffs Proposed 

Findings of Fact, Paras. 17, 18. Additionally, BCRA/FECA 

limits individual contributions to a candidate’s committee to 

$2,000 per election. This regulatory burden limits the funds 

available to federal candidates. Plaintiff Cloud estimates that 

the limitation of $1,000 prior to BCRA cost his campaign 

committee between $350,000 and $700,000 in net contributions 

from at least 46 donors. Such limits enhance the role and 

influence of institutional media corporations in the electoral 

process. Paul Plaintiffs Proposed Findings of Fact, Para. 19. 

f. BCRA/FECA also imposes economically burdensome 

regulations upon I.R.C. Section 501(c)(4) organizations, 

including appellants GOA, CU, and RCR, as well as separate 
14 

segregated funds (“SSFs”) GOAPVF and CUPVF, which had 

to be formed solely because of discriminatory prohibitions on 

corporate involvement in federal elections in order to conduct 

“express advocacy.” GOAPVF and CUPVF have been 

required to file “statements of organization” with the FEC in 

order to register before they were permitted to provide any 

financial support to federal candidates, including publishing 

communications that expressly advocate the election or defeat 

of any federal candidate. No multicandidate SSF, including 

plaintiffs GOAPVF and CUPVF, may receive contributions in 

excess of $5,000 per year from an individual. GOAPVF, 

CUPVF, and other political committees supporting or opposing 

federal candidates also are required to file periodic reports with 

the FEC regarding their financial activities. GOAPVF, 

CUPVF, and other political committees registered with the 

FEC are further required to report the name, address, employer, 

and occupation of each contributor donating more than $200 in 

the aggregate in a calendar year. This burden on plaintiffs’ 

press activities is not imposed on other elements of the press, 

such as the institutional media, and is discriminatory. The 

reporting burden can be 20 percent or more of an SSF’s annual 

receipts. Paul Plaintiffs Proposed Findings of Fact, Para. 20. 

THE QUESTIONS PRESENTED ARE SUBSTANTIAL 

The Paul Plaintiffs’ rights under the freedom of the press 

are unconstitutionally abridged by government censorship and 

patrimony under BCRA/FECA. Well aware of the First 

Amendment encroachments with the passage of BCRA, 

Congress predicted immediate constitutional challenges, 

expressly providing for a direct appeal to this Court from the 

decision of the three-judge district court opinion below. The 

questions presented by appellants are both substantial and 

discrete from the questions presented by all other plaintiffs in 

the court below, and, if addressed on the merits, are dispositive 
15 

of the constitutionality of the provisions challenged by the Paul 

Plaintiffs in this case. 

A. Paul Plaintiffs’ Freedom of Press Claims Are Discrete. 

In its per curiam opinion, the court below recognized that 

the Paul Plaintiffs’ claims that BCRA violates the freedom of 

the press were “discrete” from those of all of the other 

plaintiffs in this case. Per Curiam Op. at 106. Indeed, no other 

plaintiff challenged BCRA, or any of its provisions, on the 

ground that it violated the plaintiffs’ rights guaranteed by the 

freedom of the press. See Per Curiam Op. at 106-113. Not 

only did the court below find the Paul Plaintiffs’ press claims 

discrete from the other plaintiffs’ free speech and association, 

and equal protection and due process claims, but it understood 

that, if the Paul Plaintiffs prevailed on their press claims, it 

would be dispositive of most of the constitutional challenges to 

BCRA. Thus, the per curiam opinion opened its discussion of 

the constitutionality of BCRA by addressing the “Paul 

Plaintiffs’ Press Clause Challenge.” Although the court 

rejected that challenge, it did not summarily dismiss it. Rather, 

it disposed of the Press Clause challenge by ruling, as a matter 

of law, that “the Press Clause provides no greater rights” than 

the freedoms of speech and association, and therefore, 

governed by no standard other than “the general First 

Amendment compelling interest test.” See Per Curiam Op. at 

106. In so ruling, the court below erred. 

B. The Freedom of the Press Is Distinct from the 

Freedoms of Speech and Association. 

In support of its claim that this Court “has not explicitly 

stated whether the freedom of press affords greater protections 

than that of speech or association,” the court below failed to 

examine a single case in which this Court explicitly relied upon 
16 

the freedom of the press guarantee, as distinguished from the 

other freedoms listed in the First Amendment. See Per Curiam 

Op. at 106-113. Instead, the court relied upon two 

contemporary academic treatises for the remarkable 

proposition that “the Press Clause has largely been subsumed 

into the Speech Clause.” Per Curiam Op. at 109-110. By 

relying on the contemporary opinions of “two leading First 

Amendment scholars” — rather than examining the text and 

history of the freedom of the press in relation to the freedoms 

of speech and association — the court below departed from the 

first principle of constitutional interpretation: 

In expounding the Constitution of the United States ... 

every word must have its due force, and appropriate 

meaning; for it is evident from the whole instrument, 

that no word was unnecessarily used, or needlessly 

added. The many discussions which have taken place 

upon the construction of the Constitution, have 

proved the correctness of this proposition; and shown 

the high talent, the caution, and the foresight of the 

illustrious men who framed it. Every word appears 

to have been weighed with the utmost deliberation, 

and its force and effect to have been fully understood. 

[Wright v. United States, 302 U.S. 583, 588 (1938) 

(quoting from Holmes v. Jennison, 14 Pet. 540, 570, 

571 (1840)) (emphasis added).] 

Indeed, by failing to adhere to this long-standing rule of 

interpretation, the court below “disregard[ed] ... a deliberate 

choice of words and their natural meaning” (id., 302 U.S. at 

588), as evidenced by the first-hand witness of St. George 

Tucker, author of “the first extended, systematic commentary 

on the Constitution after it had been ratified by the people of 

the several state and amended by the Bill of Rights” (St. G. 
17 

Tucker, View of the Constitution of the United States with 

Selected Writings vii (Liberty Fund: 1999)): 

[N]othing could more clearly evince the inestimable 

value that the American people have set upon the 

liberty of the press, than their uniting it in the same 

sentence, and even in the same member of a sentence, 

with ... the freedom of speech. And since congress 

are equally prohibited from making any law abridging 

the freedom of speech, or of the press, they boldly 

challenged their adversaries to point out the 

constitutional distinction... If the unrestrained 

freedom of the press, said they, be not guaranteed, by 

the constitution, neither is that of speech. If, on the 

contrary the unrestrained freedom of speech is 

guaranteed, so also, is that of the press. If then the 

genius of our federal constitution has vested the 

people of the United States, not only with a censorial 

power, but even with the sovereignty itself ... why, 

said they, is the exercise of this censorial power, this 

sovereign right ... to be confined to the freedom of 

speech? ... Surely not.... The best speech... must be 

altogether inadequate to the due exercise of the 

censorial power, by the people. The only adequate 

supplementary aid for these defects ... is the absolute 

freedom of the press. [St. G. Tucker, “Of the Right 

of Conscience; and of the Freedom of Speech and of 

the Press,” in View of the Constitution of the United 

States and Selected Writings, supra, at 382 (emphasis 

added).] 

Not only did the court below ignore the constitutional text 

and history, it failed to acknowledge a number of this Court’s 

venerable precedents, cited by the Paul Plaintiffs in their briefs 

below, establishing that the freedom of the press imposes 
18 

constitutional limits upon the exercise of government power, 

distinct and independent of “the general First Amendment 

compelling state interest test.” See Per Curiam Op. at 113. 

First, this Court has held that the freedom of the press 

prohibits all “prior restraints” imposed by government officials 

upon the communication of ideas, except for “a single, 

extremely narrow class of cases ... [which] may arise only 

when the Nation ‘is at war.’” New York Times v. United 

States, 403 U.S. 713, 725-26 (1971) (Brennan, J., concurring), 

(citing Schenck v. United States, 249 U.S. 47, 52 (1919)). 

Thus, whenever a government imposes an unconstitutional 

prior restraint upon the communication of ideas, it is 

“unnecessary” for a court to apply the general First 

Amendment standard of strict scrutiny. See Watchtower v. 

Village of Stratton, 536 U.S. 150, 161-64 (2002). 

Second, this Court has found, as an unconstitutional 

abridgment of the freedom of the press, any statute requiring a 

“license” from the government for the privilege of 

communicating ideas. Lovell v. City of Griffin, 303 U.S. 444, 

451 (1938). This “no licensing” principle applies regardless of 

the claimed government interest, because, as this Court has 

recently observed, “[i]t is offensive — ... to the very notion of 

a free society — that ... a citizen must first inform the 

government of her desire to speak ... and then obtain a permit 

to do so, [e]ven if the issuance of permits ... is a ministerial task 

that is performed promptly....” Watchtower v. Village of 

Stratton, 536 U.S. at 165-66. 

Third, this Court has ruled that the freedom of the press 

prohibits the forced disclosure of the identities of authors, 

publishers, disseminators, and other communicators, not as a 

measure to protect the privacy of such persons, but to maintain 

inviolate the absolute right of the author or publisher to decide 
19 

whether to disclose his or her name. See Talley v. California, 

362 U.S. 60, 64-65 (1960); accord, McIntyre v. Ohio Elections 

Commission, 514 U.S. 334, 342-43 (1995). This principle of 

anonymity is designed to protect the people from the power of 

government censorship, reflecting the Press Clause’s 

foundational principle that the people have power to censor 

their government, not vice versa. See J. Madison, “Report on 

the Virginia Resolutions,” reprinted in IV J. Eliot, ed., The 

Debates in the Several State Constitutions 569-70 (Phila: 

1866). 

Fourth, this Court has held that the government may not 

exercise any editorial control over the content of a 

communication, the freedom of the press having absolutely 

reserved the “editorial function” to the author, publisher, 

disseminator or other private communicator. Miami Herald 

Publishing Co. v. Tornillo, 418 U.S. 241, 247-54, 256, 258 

(1974). As Sir William Blackstone put it in his Commentaries 

on the Laws of England, “[e]very freeman has an undoubted 

right to lay what sentiments he pleases before the public: to 

forbid this is to destroy the freedom of the press....” IV W. 

Blackstone, Commentaries on the Laws of England 151-52 

(Univ. Chi., facs. ed. 1769). 

Fifth, this Court has determined that the freedom of the 

press forbids government from placing discriminatory 

economic burdens upon communicative activity, thereby 

imposing, in effect, a tax on “the acquisition of knowledge by 

the people in respect to their governmental affairs.” Grosjean 

v. American Press Co., Inc., 297 U.S. 233, 247 (1936). Such 

an economic burden is considered by the freedom of the press 

to be an unconstitutional “penalty” (see Miami Herald, 418 

U.S. at 256), and unconstitutional per se when imposed upon 

particular “subject matter, or ... content.” Arkansas Writers’ 
20 

Project, Inc. v. Ragland, 481 U.S. 221, 229-30 (1987) (internal 

citation omitted). 

C. The Freedom of the Press Applies to Campaign 

Finance. 

Despite the Paul Plaintiffs having called the district court’s 

attention to these specific press principles and precedents, and 

demonstrated their applicability to their challenge to BCRA, 

the court below declined to apply them. First, they declined 

because they found the Paul Plaintiffs’ challenge “novel ... — 

a tack that has not been used in the campaign finance realm.” 

Per Curiam Op. at 107. Second, the court observed that, if the 

Paul Plaintiffs’ press claims applied to BCRA, then “litigants 

could besiege the courts with a host of challenges to laws 

previously upheld by the Supreme Court on First Amendment 

grounds, merely by characterizing themselves in their 

complaints as members of the ‘press’ because their purpose is 

to disseminate information to the public.” Id. at 112. The 

court below is wrong on both counts. 

As an initial matter, the court’s claim that the Paul 

Plaintiffs can cite no case applying freedom of press to 

campaign finance reform laws is inaccurate, depending upon 

the definition one applies to “campaign finance reform.” The 

Paul Plaintiffs did cite Miami Herald, a case in which this 

Court applied freedom of press and struck a state law 

regulating campaigns by forcing newspapers to expend 

resources in ways contrary to the editorial policy of the paper. 

Additionally, two district courts, relying in part upon the 

freedom of the press, limited the investigative powers of the 

FEC in its effort to enforce the “news activity” exemption 

provided in 2 U.S.C. Section 431(9)(B)(i). FEC v. Phillips 

Publishing, Inc., 517 F. Supp. 1308, 1312-14 (D.D.C. 1981); 
21

Reader’s Digest Association v. FEC, 509 F. Supp. 1210 

(S.D.N.Y. 1981). Indeed, in the Phillips case, the district court 

noted that Congress based the FECA exemption enjoyed by a 

“press entity,” in part, upon the freedom of the press. Phillips, 

517 F. Supp. at 1312. However, the court below was correct 

that, until the Paul Plaintiffs filed their complaint in this case, 

no one had waged a direct challenge to the constitutional 

legitimacy of comprehensive federal campaign finance 

regulations (FECA/BCRA) on freedom of the press grounds.2 

Per Curiam Op. at 110-11. 

As the Paul Plaintiffs pointed out, and as the court below 

acknowledged, the freedom of the press is not, however, a 

special privilege of the institutional media, but extends to 

“every freeman,” citing this Court’s opinion in Near v. 

Minnesota, 283 U.S. 697, 713-14 (1931). Per Curiam Op. at 

108. By providing the special exemptions to the institutional 

media under FECA3 and BCRA,4 Congress has breached this 

2 It is true that one of the plaintiffs, Human Events, in Buckley v. Valeo, 

included a freedom of the press claim in its complaint. But neither the 

United States Court of Appeals for the District of Columbia nor this Court 

addressed that claim in their opinions. Buckley v. Valeo, 519 F.2d 821 

(D.C. Cir. 1975); Buckley v. Valeo, 424 U.S. 1 (1976). 

3

 FECA provides the institutional media (with respect to the definition of 

“expenditure”) an exemption for: “any news story, commentary, or editorial 

distributed through the facilities of any broadcasting station, newspaper, 

magazine, or other periodical publication, unless such facilities are 

owned or controlled by any political party, political committee, or 

candidate.” 2 U.S.C. Section 431(9)(B)(i) (emphasis added). 

4 Additionally, BCRA provides the institutional media (with respect to an 

“electioneering communication”) an exemption for: “a communication 

appearing in a news story, commentary, or editorial distributed through the 

facilities of any broadcasting station, unless such facilities are owned or 

controlled by any political party, political committee, or candidate.” BCRA 

Section 201(a) (FECA Section 304(f)(3)(B)(i)) (emphasis added). See also 
22

first principle of the freedom of the press, conferring upon a 

“definable category of persons or entities,” special First 

Amendment privileges, and thereby, instituting a system of 

inclusion and exclusion “reminiscent of the abhorred licensing 

system” that the liberty of the press was designed to prohibit. 

See First National Bank of Boston v. Bellotti, 435 U.S. 765, 

801, 802 (1978) (Burger, C.J., concurring); accord IV W. 

Blackstone’s Commentaries at 152, n.a.

5 

As the Paul Plaintiffs demonstrated below, through the 

testimony of several witnesses, the federal campaign finance 

system functions as licensing system, requiring candidates and 

their supporters to obtain permission from the government 

before taking their message to the people.6 As White House 

subsections (iii) and (iv) exempting candidate debates and other FEClicensed press activities. 

5 To escape this application of free press principles, the court below read 

this Court’s decisions in Bellotti and Austin v. Michigan State Chamber of 

Commerce, 494 U.S. 652 (1990) to have established that the government 

may discriminate between the “general press” and the “institutional press” 

on the ground that the government has a “compelling interest ... to exempt 

media corporations from the scope of political expenditure limitations.” Per 

Curiam Op. at 111, n.64. To read Bellotti and Austin as having, de facto, 

conferred upon the “institutional media” greater rights than the “general 

press” (Per Curiam Op. at 111, n.65) smacks of the very kind of special 

privilege that Chief Justice Burger claimed, in Bellotti, the First Amendment 

condemned. 

6 The operation of FECA/BCRA as a licensing scheme was explained by 

Paul Expert Witness Walter J. Olson, CPA. Mr. Olson, a certified public 

accountant and expert in FEC compliance matters, submitted a report 

containing detailed testimony about the burdensome, intricate, laborintensive, time-consuming, and costly recordkeeping and reporting 

requirements imposed by FECA, and further increased by BCRA. His report 

demonstrates that FECA/BCRA exposes individuals and organizations 

engaged in federal election activities to serious penalties for violation of an 

extensive and intricate set of operating, reporting, filing, and recordkeeping 
23

Press Secretary Ari Fleischer put it, upon the occasion of 

President Bush’s formal announcement that his re-election 

campaign had begun: 

Today ... the legal structure for a re-election campaign 

was put in place as a result of the filing of what’s 

called FEC Form 1 and FEC Form 2... This is the 

legal structure that is required, so that grass-roots 

activities can begin, the fundraising can begin. This 

is the required legal step that must be taken for other 

events to follow on. [“Bush Formally Starts 2004 

Campaign,” May 16, 2003, http://www.newsmax. 

com/archives/articles/2003/5/16/151352.shtml.] 

And, as the Paul Plaintiffs’ testimony demonstrated below, 

once the FEC Forms 1 and 2 are filed, the candidates and their 

supporters enter into a marketplace of ideas in which they lose 

substantial editorial control over their campaigns and in which 

challengers and third party candidates are placed at significant 

disadvantage in relation to incumbent office holders and the 

institutional media.7 

requirements so complex that the FEC’s own information and software 

specialists are sometimes unable to provide answers. 

7 Paul Expert Witness James C. Miller III, Ph.D., former Chairman of the 

Federal Trade Commission and Director of the Office of Management and 

Budget and author of the book, Monopoly Politics, submitted a report 

testifying to the actual operation and effect of the federal election laws, as 

well as the rules promulgated and enforced by the FEC. Dr. Miller’s report 

documents how FECA/BCRA operates to the disadvantage of challengers, 

and to the advantage of incumbents, and how campaign finance regulations 

generally impair the quantity and quality of public debate by candidates on 

the issues. 

Paul Expert Witness Perry Willis, an experienced federal campaign 

manager and Libertarian Party organizer, submitted a report in which he 
24

According to the court below, however, 27 years after 

Buckley, it is too late for the Paul Plaintiffs to challenge BCRA 

on freedom of the press grounds. See Per Curiam Op. at 112. 

But the per curiam opinion has cited no case supporting the 

proposition that a party is precluded, other than by collateral 

estoppel, from raising a new constitutional claim just because 

it might undercut judicial precedents applying other 

constitutional guarantees. See, e.g., Albertson v. Subversive 

Activities Control Board, 382 U.S. 70 (1965). 

Had Buckley been litigated and decided based on freedom 

of press principles, it is submitted that a very different result 

would have obtained. A classic press analysis openly reveals 

the impropriety of Congress establishing a burdensome 

licensing scheme, regulating both issue advocacy and 

campaigns for office, threatening to fine or send to jail those 

who criticize Congressmen in a manner those Congressmen 

find impermissible, chilling the activities of those Americans 

who seek to participate politically and electorally in our 

constitutional republic. Unlike Buckley, which was based 

solely on congressional findings to which this court deferred, 

the challenge by the Paul Plaintiffs to BCRA/FECA has 

demonstrated the actual anti-competitive, anti-minor party, 

anti-challenger scheme which Members of Congress have 

devised to protect their own selfish political interests under the 

ruse of preventing an undefined and vague threat — 

“corruption and the appearance of corruption.” The Paul 

Plaintiffs fully agree with the three justices on this Court who 

have stated in previous opinions that Buckley should be 

testified at great length as to how FECA/BCRA serves to protect the 

Democratic and Republican parties’ domination of American politics by 

artificial enhancement of media influence on elections through a special 

privilege exemption, and imposition of draconian contribution limits and 

reporting requirements on minor parties and their candidates, who are 

oftentimes ignored by the exempt institutional media. 
25

overruled,8 and would ask the Court to overrule Buckley. 

Nonetheless, since the Paul Plaintiffs are contending that the 

freedom of the press, overlooked by the parties in Buckley, 

dictates a different approach to the constitutionality of 

campaign finance regulation than the one based upon free 

speech and association, it may be possible that Buckley can 

merely be set aside rather than overruled. 

1. Title II BCRA Violations of Freedom of the Press. 

Claiming that the Buckley distinction between “express 

candidate advocacy” and “issue advocacy” is too easily evaded, 

Congress enacted Title II of BCRA to subject certain “sham 

issue ads” broadcast over the air waves to the same 

prohibitions and regulations as ads expressly advocating the 

election or defeat of a clearly identified candidate for federal 

office. Such “issue ads,” Congress maintained, are, in reality, 

camouflaged express candidate advocacy, and therefore, ought 

to be prohibited and regulated in like manner as express 

advocacy ads in order to protect the federal government from 

corruption and the appearance of corruption. See, e.g., 148 

Cong. Rec. S2,114-16 (daily ed. March 20, 2002) (statement of 

Sen. Carl Levin). 

Conspicuously exempted from the new Title II BCRA 

prohibitions and regulations, however, is any “news story, 

commentary, or editorial distributed through the facilities of 

any broadcasting station, unless such facilities are owned or 

controlled by any political party, political committee, or 

candidate.” (BCRA Section 201(a) (FECA Section 

304(f)(3)(B)(i)).) Thus, any television or radio station fitting 

the statutory exemption is completely free to spend money to 

8 See FEC v. Colo. Rep. Fed. Election Campaign Comm., 533 U.S. 431, 

465 (2001) (Thomas, J., dissenting). 
26 

communicate its position on the issues, without having to 

comply with the Title II prohibitions, or licensing, disclosure, 

and editorial control requirements, and economic burdens. 

The BCRA exemption for television and radio is not based 

upon a congressional finding that such entities do not engage 

in “sham issue” communications, expressing camoflauged 

support for the election or defeat of candidates for federal 

office. Rather, the BCRA exemption is based upon a 

previously-enacted FECA provision exempting the express 

advocacy of the election or defeat of a federal candidate 

contained in any “news story, commentary, or editorial 

distributed through the facilities of any broadcasting station ... 

unless such facilities are owned or controlled by any political 

party, political committee, or candidate.” (2 U.S.C. Section 

431(9)(B)(i).) 

Neither exemption for such television and radio news, 

editorial or commentary broadcasts is based upon a finding by 

Congress that generally such media do not corrupt, or create 

the appearance of corruption, of the electoral process. Rather, 

the original FECA exemption is, in part, based explicitly upon 

the freedom of the press. See Phillips, 517 F. Supp. at 1312. 

The BCRA exemption, in turn, is calculated to preserve 

editorial control over the discussion of public issues, even 

when related to an election campaign, as dictated by the 

freedom of the press in favor of the print media. See Miami 

Herald Publishing Co. v. Tornillo, 418 U.S. at 247-54, 256, 

258, supra. 

Indeed, if Congress subjected the institutional press to the 

prior restraint, registration (licensing), contribution and 

disclosure requirements (editorial controls), and economic 

burdens that the non-exempt press is subjected to under Title 

II of BCRA, they would be the first to invoke their rights under 
27 

the freedom of the press as the Miami Herald Publishing Co. 

did in response to a Florida state campaign finance regulation 

imposing upon any newspaper that attacked a candidate for 

office to provide space in its publication for a “right to reply.” 

And they would expect to prevail on that press claim, 

notwithstanding any countervailing government interest, 

compelling or otherwise, on the ground that, under the freedom 

of the press, the “editorial function,” including the right to 

decide how to spend limited financial resources, is an inviolate 

right. See CBS v.Democratic National Comm., 412 U.S. 94, 

145 (1973) (Stewart, J., concurring) (“For that guarantee (the 

freedom of the press) gives every newspaper the liberty to print 

what it chooses and reject what it chooses, free from the 

intrusive editorial thumb of Government.” (emphasis added)). 

The adverse impact of BCRA Title II on the Paul 

Plaintiffs’ press right is aggravated by additional exemptions 

conferred upon FEC-licensed candidate debates and other press 

activities as determined by the FEC. The grant of such 

discretionary editorial control to a government agency strikes 

at the very heart of the freedom of the press which guarantees 

that the editorial function belongs to the people not to the 

government. See Miami Herald Publishing Co. v. Tornillo. 

2. Title I BCRA Violations of Freedom of the Press. 

BCRA Section 101(a) (FECA Section 323(e)(1)) subjects 

a federal officeholder or candidate for election to federal office 

to the “limitations, prohibitions, and reporting requirements of 

this Act,” if he or she engages in activity to “solicit, receive, 

direct, transfer, or spend funds in connection with an election 

for Federal office, including funds for any Federal election 

activity....” While the court below struck down three statutory 

definitions of “federal election activity,” it left intact the one 

specifying any “public communication that refers to a clearly 
28 

identified candidate for Federal office ... and that promotes or 

supports a candidate for that office, or attacks or opposes a 

candidate for that office (regardless of whether the 

communication expressly advocates a vote for or against a 

candidate).” BCRA Section 101(b) (FECA Section 

301(20)(A)(iii)). 

Likewise, the court upheld BCRA Section 101(a) (FECA 

Section 323(f)), subjecting a state or local officeholder or 

candidate for election to state or local office to the “limitations, 

prohibitions, and reporting requirements of this Act,” if he or 

she “spend[s] any funds” for any “public communication that 

refers to a clearly identified candidate for Federal office ... and 

that promotes or supports that candidate for that office, or 

attacks or opposes a candidate for that office (regardless of 

whether the communication expressly advocates a vote for or 

against a candidate).” 

Had the district court applied the freedom of press 

protections to BCRA Section 101(a) (FECA Sections 323(e) 

and 323(f)), it should have found them unconstitutional in their 

entirety as an impermissible prior restraint, a forbidden 

licensing and disclosure requirement, overreaching editorial 

control, and a discriminatory economic burden. To single out 

individuals who hold government office, or who are candidates 

for such office, and impose upon them special licensing, 

disclosure requirements, editorial control, and economic 

burdens strikes at the very heart of the freedom of the press 

which guarantees to every man liberty to communicate on 

matters of state without first having to obtain government 

permission. See Watchtower v. Village of Stratton, 536 U.S. 

at 165-66. 
29 

3. Title III BCRA Violation of Freedom of the Press. 

The Paul Plaintiffs challenged the constitutionality of 

BCRA Section 307(a) modifying the individual contribution 

limits to federal election campaigns by FECA as a violation of 

the freedom of the press. At the heart of this challenge was the 

claim that contribution limits, in whatever amount, 

unconstitutionally abridge a candidate’s editorial authority by 

abridging his or her right to determine the quality and quantity 

of his or her communications and his or her right to determine 

whether or not to disclose to the public the identities of his or 

her co-publishers. 

In his sworn declaration, Congressman Paul attested that 

the individual contribution limitation adversely impacted his 

campaign by reducing the quality and quantity of his 

communications during his election campaign. His campaign 

manager and a campaign consultant confirmed this testimony, 

adding that they were aware of several individuals who would 

have given more to the Paul campaigns had there been no limit. 

Additionally, two anonymous witnesses furnished declarations 

that they would have given more but for the contribution 

limitations and/or the disclosure requirements. 

This evidence of the impact on the Paul campaign’s 

editorial function was ignored by the court below, having ruled 

as a matter of law that Paul Plaintiffs’ press claim was 

indistinguishable from the free speech and association claims 

of the other plaintiffs. This erroneous ruling led the court to 

conclude that none of the Paul Plaintiffs had standing to contest 

the constitutionality of the individual contribution limits. 

Had the court below addressed the Paul Plaintiffs’ freedom 

of the press claims on the merits, not only should the court 

below have found standing, but also a violation of the freedom 
30 

of the press guarantees of editorial autonomy as embraced by 

this Court in Hurley v. Irish-American Gay, Lesbian and 

Bisexual Group of Boston, 515 U.S. 557, 569-70, 573-74 

(1995) and anonymity as embraced by this Court in McIntyre 

v. Ohio Elections Commission, supra. 

CONCLUSION 

For the reasons stated, this Court should note probable 

jurisdiction of the Paul Plaintiffs’ appeal 

Respectfully submitted, 

HERBERT W. TITUS 

TROY A. TITUS, P.C. 

5221 Indian River Road 

Virginia Beach, VA 23464 

(757) 467-0616 

RICHARD WOLF 

MOORE & LEE, LLP 

1750 Tysons Boulevard 

Suite 1450 

McLean, VA 22102 

(703) 506-2050 

Attorneys for Appellants 

*Counsel of Record 

May 30, 2003 

WILLIAM J. OLSON* 

JOHN S. MILES 

WILLIAM J. OLSON, P.C. 

Suite 1070 

8180 Greensboro Drive 

McLean, VA 22102 

(703) 356-5070 

GARY W. KREEP 

U.S.JUSTICE FOUNDATION 

Suite 1-C 

2091 E. Valley Parkway 

Escondido, CA 92027 

(760) 741-8086