Nos. 06-969 & 06-970 

IN THE

Supreme Court of the United States __________ 

FEDERAL ELECTION COMMISSION, 

Appellant, 

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee. 

SENATOR JOHN MCCAIN, ET AL., 

Appellants, 

v. 

WISCONSIN RIGHT TO LIFE, INC., 

Appellee. __________ 

On Appeals from the United States District Court 

for the District of Columbia __________ 

BRIEF OF NATIONAL ASSOCIATION OF REALTORS®

AS AMICUS CURIAE IN SUPPORT OF APPELLEE

__________ 

LAURENE K. JANIK

RALPH W. HOLMEN

NATIONAL ASSOCIATION OF

 REALTORS®

430 North Michigan Ave. 

Chicago, IL 60611-4087 

(312) 329-8375 

DAVID C. FREDERICK

 Counsel of Record 

BRENDAN J. CRIMMINS

KELLOGG, HUBER, HANSEN, 

 TODD, EVANS & FIGEL, 

 P.L.L.C. 

1615 M Street, N.W. 

Suite 400 

Washington, D.C. 20036 

(202) 326-7900 

Counsel for National Association of REALTORS®

March 23, 2007 
TABLE OF CONTENTS 

Page 

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

INTEREST OF AMICUS CURIAE .................................... 1 

STATEMENT ...................................................................... 4 

SUMMARY OF ARGUMENT............................................. 6 

ARGUMENT........................................................................ 8 

BCRA § 203 IS UNCONSTITUTIONAL 

AS APPLIED TO TRUE LEGISLATIVE 

ADVERTISING.............................................................. 8 

A. No Compelling Government Interest 

Justifies BCRA § 203’s Burden On 

First Amendment Rights................................... 8 

B. NAR’s Advertisements Are Not The 

Functional Equivalent Of Express 

Advocacy........................................................... 18 

C. Legislative Advocates Do Not Bear 

The Burden Of Establishing A Legal 

Test ................................................................... 19 

D. The Court Should Limit Any Examination Of Context............................................. 22 

E. Print Media May Not Be An Available 

Alternative ....................................................... 23 

CONCLUSION .................................................................. 26 

 
ii

TABLE OF AUTHORITIES 

Page 

CASES 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990).......................................... 13, 15, 16 

Babbitt v. Sweet Home Chapter of Communities 

for a Great Oregon, 515 U.S. 687 (1995)....................... 2 

Buckley v. Valeo, 424 U.S. 1 (1976) ............................. 4, 12, 

14, 15, 16, 24

Citizens Against Rent Control/Coalition for Fair 

Housing v. City of Berkeley, 454 U.S. 290 

(1981)............................................................................ 14

City of Monterey v. Del Monte Dunes at Monterey, 

Ltd., 526 U.S. 687 (1999)............................................... 2 

Consolidated Edison Co. of New York, Inc. v. 

Public Serv. Comm’n, 447 U.S. 530 (1980)........... 13, 17

Dolan v. City of Tigard, 512 U.S. 374 (1994) ..................... 2 

Eastern R.R. Presidents Conference v. Noerr 

Motor Freight, Inc., 365 U.S. 127 (1961) .............. 14, 15

FEC v. Beaumont, 539 U.S. 146 (2003) ............................ 16

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986)......................................... 2, 3, 4, 15, 

16, 18, 20, 21, 23, 24 

FEC v. National Conservative Political Action 

Comm., 470 U.S. 480 (1985).......................................... 5

FEC v. National Right to Work Comm., 459 U.S. 

197 (1982)............................................................... 16, 17

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 

765 (1978)............................................. 12, 13, 16, 17, 18

Garrison v. Louisiana, 379 U.S. 64 (1964)....................... 12

Kelo v. City of New London, 545 U.S. 469 (2005)............... 2 

Lincoln Property Co. v. Roche, 546 U.S. 81 (2005).......... 1-2 
iii

Lucas v. South Carolina Coastal Council, 

505 U.S. 1003 (1992)...................................................... 2 

McConnell v. FEC: 

 251 F. Supp. 2d 176 (D.D.C.), aff’d in part, 

rev’d in part, 540 U.S. 93 (2003) .......................... 8-9, 15 

 540 U.S. 93 (2003)................................... 3, 4, 5, 6, 7, 15, 

16, 17, 22, 24, 25, 26 

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

(1995)................................................................ 13, 15, 16

Mills v. Alabama, 384 U.S. 214 (1966)............................. 12

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

NAACP v. Button, 371 U.S. 415 (1963) ............................ 14

New York Times Co. v. Sullivan, 376 U.S. 254 

(1964)............................................................................ 12

Pacific Gas & Elec. Co. v. Public Utils. Comm’n, 

475 U.S. 1 (1986).......................................................... 13

Rapanos v. United States, 126 S. Ct. 2208 (2006) ............. 1 

Roth v. United States, 354 U.S. 476 (1957) ...................... 12 

Thornhill v. Alabama, 310 U.S. 88 (1940) ....................... 12

Yee v. City of Escondido, 503 U.S. 519 (1992).................... 2 

CONSTITUTION, STATUTES, REGULATIONS, 

AND RULES 

U.S. Const.: 

 Art. II, § 2, cl. 2 .............................................................. 9 

 Amend. I............. 4, 6, 7, 8, 11, 12, 13, 14, 16, 21, 22, 23 

 Petition Clause........................................... 11, 14, 15 

 Speech Clause ........................................................ 11 
iv

Bipartisan Campaign Reform Act of 2002, Pub. 

L. No. 107-155, 116 Stat. 81.......................................... 3 

 § 201, 116 Stat. 88 ......................................................... 5 

 § 203, 116 Stat. 91 .................................. 3, 5, 6, 7, 8, 14, 

15, 16, 17, 18, 20, 23, 25 

Federal Election Campaign Act of 1971, 2 U.S.C. 

§§ 431 et seq. ................................................................. 2 

 2 U.S.C. § 431(18) ........................................................ 15 

 2 U.S.C. § 434(f)(3) ........................................................ 5 

 2 U.S.C. § 434(f)(3)(A)(i)(II) ........................................ 11 

 2 U.S.C. § 434(f)(3)(B)(iv)....................................... 17-18 

 2 U.S.C. § 441b (2000) ................................................... 5 

 2 U.S.C. § 441b(a) .................................................... 2, 23 

 2 U.S.C. § 441b(b)(2).................................................. 3, 5 

 2 U.S.C. § 441b(b)(2)(C)................................................. 2 

Federal Election Campaign Act Amendments of 

1974, Pub. L. No. 93-443, 88 Stat. 1263 ....................... 4 

11 C.F.R.: 

 Pt. 100: 

 § 100.22(b) ........................................................ 24, 25 

 § 100.29(b)(2).......................................................... 15 

 Pt. 102 ............................................................................ 2 

Sup. Ct. R. 37.6.................................................................... 1 
v

ADMINISTRATIVE MATERIALS 

Electioneering Communications, 67 Fed. Reg. 

65,190 (Oct. 23, 2002).................................................. 18 

FEC, First General Counsel’s Report (Aug. 10, 

2005), available at http://eqs.sdrdc.com/ 

eqsdocs/00005805.pdf ...................................... 24, 25, 26 

FEC, Third General Counsel’s Report (Nov. 3, 

2006), available at http://eqs.sdrdc.com/ 

eqsdocs/00005811.pdf .................................................. 25 

Letter from Susan L. Lebeaux, Assistant General 

Counsel, FEC, to B. Holly Schadler, Esq., 

and Michael B. Trister, Esq. (Nov. 15, 2006), 

available at http://eqs.nictusa.com/eqsdocs/ 

00005815.pdf................................................................ 25 

Letter from Senator John McCain et al. to Mai 

Dinh, FEC (Aug. 23, 2002), available at

http://www.fec.gov/pdf/nprm/electioneering_ 

comm/comments/us_cong_members.pdf......... 18, 19, 22 

Letter from Lawrence H. Norton, General 

Counsel, FEC, to B. Holly Schadler, Esq., 

and Michael B. Trister, Esq. (July 21, 2006), 

available at http://eqs.nictusa.com/eqsdocs/ 

00005810.pdf................................................................ 23 

EXECUTIVE MATERIALS 

Statement by President George W. Bush Upon 

Signing H.R. 2356, 38 Weekly Comp. Pres. 

Doc. 517 (Mar. 27, 2002), reprinted in 2002 

U.S.C.C.A.N. 125 ......................................................... 17 
vi

LEGISLATIVE MATERIALS 

147 Cong. Rec.: 

S2812-13 (daily ed. Mar. 23, 2001) ............................. 17 

S2845-46 (daily ed. Mar. 26, 2001) ............................. 17 

OTHER MATERIALS 

Thomas Emerson, Toward a General Theory 

of the First Amendment (1966).................................... 12 
INTEREST OF AMICUS CURIAE1

Amicus the National Association of REALTORS®

(“NAR”)2 is a nationwide, nonprofit professional association, incorporated in Illinois, that represents persons engaged in all phases of the real-estate business, including, 

but not limited to, brokerage, appraising, management, 

and counseling. Founded in 1908, NAR was created to 

promote and encourage the highest and best use of the 

land, to protect and promote private ownership of real 

property, and to promote professional competence. Its 

members are bound by a strict Code of Ethics to ensure 

professionalism and competence. The membership of 

NAR includes 54 state and territorial Associations of 

REALTORS®, approximately 1,500 local Associations of 

REALTORS®, and approximately 1.3 million REALTOR®

and REALTOR-ASSOCIATE® members. 

NAR represents the interests of real-estate professionals and real-property owners in important matters before 

the legislatures, courts, and executives of the federal and 

state governments. The issues presented in those matters include fair-lending practices, equal opportunity in 

housing, real-estate licensing, neighborhood revitalization, housing affordability, and cultural diversity. NAR 

has previously participated as amicus curiae in numerous cases before this Court, including, e.g., Watters v. 

Wachovia Bank, N.A., No. 05-1342 (argued Nov. 29, 2006); 

Rapanos v. United States, 126 S. Ct. 2208 (2006); Lincoln 

 1 Pursuant to Supreme Court Rule 37.6, counsel for amicus represents that it authored this brief and that no person or entity other than 

amicus or its counsel made a monetary contribution to the preparation 

or submission of the brief. Counsel for amicus represents that counsel 

for all parties have consented to the filing of this brief. Appellants in 

No. 06-970 have filed a letter with the Clerk granting blanket consent 

to any party filing an amicus brief, and letters reflecting the consent of 

appellant Federal Election Commission (No. 06-969) and appellee Wisconsin Right to Life, Inc. (Nos. 06-969 & 06-970) to the filing of this 

brief have been filed with the Clerk. 

2 REALTOR® is a federal registered collective membership mark 

used by members of NAR to indicate their membership status. 
2

Property Co. v. Roche, 546 U.S. 81 (2005); Kelo v. City 

of New London, 545 U.S. 469 (2005); City of Monterey v. 

Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999); 

Babbitt v. Sweet Home Chapter of Communities for a 

Great Oregon, 515 U.S. 687 (1995); Dolan v. City of 

Tigard, 512 U.S. 374 (1994); Lucas v. South Carolina 

Coastal Council, 505 U.S. 1003 (1992); and Yee v. City of 

Escondido, 503 U.S. 519 (1992). 

NAR engages in a variety of federal legislative and political activities intended to advance the interests of its 

members by improving the legal climate in which the 

members conduct their businesses. Those activities include financing communications to educate NAR members 

and the general public about legislation and other matters 

pending in Congress that may impact the real-estate 

industry. Those communications may specifically identify 

members of Congress and call on them to support or 

oppose legislation, and they may encourage viewers to 

contact the specified members of Congress to take a particular position. For example, NAR has paid for advertisements promoting legislation to preserve the ability 

of neighborhood real-estate professionals to serve local 

communities. Those communications, which share features of the three advertisements at issue here, are intended to influence the adoption or defeat of legislation, 

and are not intended to influence the election or defeat of 

any candidate for federal office. 

Although NAR maintains a PAC (the REALTORS® 

Political Action Committee), the extensive regulations and 

fundraising constraints imposed on PACs (see 11 C.F.R. 

pt. 1023) make it unduly burdensome for NAR both to 

use PAC contributions to support federal candidates, as 

required by the Federal Election Campaign Act of 1971, 2 

U.S.C. § 441b(a), (b)(2)(C), and at the same time to pay for 

its legislative advocacy through its PAC. Further, NAR 

 3 See also FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 

253-54 (1986) (“MCFL”) (plurality) (detailing requirements imposed on 

PACs).
3

cannot satisfy the requirements for the constitutional exemption to federal regulations of independent expenditures that this Court established in MCFL because many 

of its members pay their membership dues with corporate 

funds. See 479 U.S. at 264 (exempt corporation must not 

accept contributions from business corporations). Significantly, that is true even though most of NAR’s members 

are local, independent real-estate brokers who do not possess the “immense aggregations of wealth” with which 

this Court has expressed concern. McConnell v. FEC, 540 

U.S. 93, 205 (2003) (internal quotation marks omitted). 

NAR files this amicus brief for two principal reasons. 

First, this case is critically important to NAR’s continuing 

ability to express the views of real-estate professionals 

and real-property owners on federal legislation. The Federal Election Commission (“FEC”) seeks to use the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-

155, 116 Stat. 81 (“BCRA”), and this Court’s decision in 

McConnell essentially to shield incumbent legislators 

from all grass-roots lobbying for the critical three-month 

period before any national election. The FEC has justified 

that result using both BCRA’s prohibition on “electioneering communications” by corporate bodies (2 U.S.C. 

§ 441b(b)(2)) and a recently expanded application of federal restrictions on so-called “express advocacy.” 

Second, NAR files this brief to provide the Court with 

additional context in which to consider appellee’s asapplied challenge to BCRA § 203. NAR provides examples 

of the grass-roots lobbying advertisements that it has 

sponsored and hopes to continue to sponsor. Those advertisements, which are described in greater detail below, 

represent quintessential exercises of the rights of speech, 

petitioning, and association – an association of professionals petitioning members of Congress to support a 

piece of federal legislation, and urging concerned citizens 

to do likewise. However the Court resolves appellee’s asapplied challenge (and it should be sustained), the Court 

should recognize – like BCRA’s own sponsors have – that 
4

genuine issue ads do exist and the First Amendment protects them. 

STATEMENT 

The developments in electoral campaigns and their 

regulation that led to the statutory provision at issue here 

began in 1974, when Congress passed a law limiting the 

ability of individuals and groups to communicate their 

views on candidates for federal office.4 That law restricted both “the giving and spending of money in political campaigns.” Buckley v. Valeo, 424 U.S. 1, 15 (1976) 

(per curiam). This case involves a restriction on spending. 

In Buckley, this Court held that restrictions on campaign spending burden the exercise of rights of speech 

and association, triggering “exacting scrutiny” under the 

First Amendment. See id. at 19-20, 22-23, 39, 44-45. 

In addressing disclosure requirements for independent 

expenditures, the Court interpreted the vague statutory 

term “expenditure” (which was defined to include spending “for the purpose of . . . influencing” a federal election) 

to apply only to “funds used for communications that expressly advocate the election or defeat of a clearly identified candidate” for federal office. Id. at 80 (footnote omitted). The First Amendment compelled that interpretation 

because the language as drafted threatened unconstitutionally to chill speech on “public issues involving legislative proposals and governmental actions.” Id. at 42; see 

id. at 42-44, 76-80. The law at issue in Buckley also limited spending by groups, but no party challenged that aspect of the statute. See McConnell v. FEC, 540 U.S. 93, 

122 (2003). The Court’s narrowing interpretation of the 

disclosure provision was later applied to the group expenditure limitations as well. See id. at 126; FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 248-49 (1986) 

(“MCFL”). Before BCRA, therefore, federal law prohibited 

corporations and unions from making expenditures on 

 4 Federal Election Campaign Act Amendments of 1974, Pub. L. No. 

93-443, 88 Stat. 1263. 
5

such forms of expression as television advertisements that 

expressly advocated the election of a candidate or the 

defeat of her opponent.5 See McConnell, 540 U.S. at 203; 

MCFL, 479 U.S. at 249; 2 U.S.C. § 441b (2000). 

In the years preceding BCRA’s enactment, Congress 

concluded that candidates’ supporters were circumventing 

that spending restriction by paying for ads that were intended to and did function as candidate advertising but 

eschewed the words of express advocacy (which were generally limited to words like “vote for”). See McConnell, 

540 U.S. at 126-28. Instead of expressly telling the viewer 

to vote for or against a particular candidate, the ads 

would instead take the form of “so-called” or “sham” issue 

ads – for example, an ad “that condemned [candidate] 

Jane Doe’s record on a particular issue before exhorting 

viewers to ‘call Jane Doe and tell her what you think.’” 

Id. at 126-27, 132. 

In part to address that problem of “candidate advertisements masquerading as issue ads,” id. at 132 (internal 

quotation marks omitted), Congress enacted BCRA. As 

interpreted by this Court, § 203 prohibits corporations 

from using their general treasury funds to pay for any 

“electioneering communication.” 2 U.S.C. § 441b(b)(2); see 

McConnell, 540 U.S. at 203-04 & n.87. Section 201, in 

turn, defines an “electioneering communication” as any 

broadcast, cable, or satellite communication that refers to 

a candidate for federal office and that is broadcast within 

30 days of a federal primary election or 60 days of a federal general election in the jurisdiction in which that candidate is running for office. 2 U.S.C. § 434(f)(3). 

In McConnell, this Court rejected a facial challenge to 

the constitutionality of those provisions. See 540 U.S. at 

 5 See generally FEC v. National Conservative Political Action 

Comm., 470 U.S. 480, 490 (1985) (“On the record before us, these expenditures were ‘independent’ in that they were not made at the request of or in coordination with the official Reagan election campaign 

committee or any of its agents.”). 
6

189-94, 203-09. Several plaintiffs in that case contended, 

among other things, that § 203 was overbroad because the 

compelling government interest justifying regulation of 

express candidate advocacy did not apply “to significant 

quantities of speech encompassed by the definition of electioneering communications.” Id. at 206. According to the 

Court, that contention “fail[ed] to the extent that the issue 

ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy.” Id. (emphasis 

added). It further stated that “[t]he justifications for the 

regulation of express advocacy apply equally to ads aired 

during those periods if the ads are intended to influence 

the voters’ decisions and have that effect.” Id. This case 

presents the question McConnell left open – namely, 

whether § 203’s prohibition on “electioneering communications” can constitutionally be applied to an ad that is 

not “the functional equivalent of express advocacy.” 

SUMMARY OF ARGUMENT 

A. Wisconsin Right to Life, Inc. (“WRTL”) seeks to 

sponsor broadcast communications advocating positions 

on matters pending before Congress and urging citizens to 

contact their members of Congress about those matters. 

NAR believes that it should be able to engage in similar 

legislative advocacy. Legislative advocacy of the type that 

WRTL and NAR seek to conduct (which is referred to as 

grass-roots lobbying) implicates the First Amendment’s 

protections for speech, petitioning, and association. 

BCRA § 203, which prohibits corporate grass-roots lobbying of incumbent candidates for 30 days before a primary 

and 60 days before a general election, burdens all three of 

those First Amendment protections. Although this Court 

has recognized a compelling government interest in limiting corporate spending on electoral advocacy, it has not 

recognized a similar interest in limiting corporate speech 

addressing legislative affairs. Because no compelling interest justifies BCRA § 203’s burdens on true legislative 
7

advocacy, that provision is unconstitutional as applied 

here. 

B. The FEC and the intervenors contend, however, that 

the compelling government interest in restricting corporate electoral spending justifies prohibiting grass-roots 

lobbying during the pre-election period. But communications like those that NAR desires to fund are not the functional equivalent of express candidate advocacy, and their 

regulation therefore cannot be defended on that ground. 

C. In criticizing the district court’s conclusion that the 

First Amendment precludes BCRA § 203’s application to 

WRTL’s planned advertisements, the FEC asserts that 

WRTL, and other similarly situated speakers challenging 

the application of BCRA § 203 to their speech, cannot prevail on an as-applied challenge to § 203 unless it articulates a legal test to govern future as-applied challenges. 

But nothing justifies imposing such a requirement on 

speakers such as WRTL. 

D. The FEC and the intervenors also criticize the district court for giving insufficient weight to purported contextual facts – such as separate statements made by 

WRTL (or other individuals and groups) about the upcoming election. The wide-ranging inquiry that the FEC 

and the intervenors urge conflicts with the approach that 

this Court took in McConnell and penalizes one speaker 

for the statements of others. 

E. In asserting that BCRA imposes a tolerable burden 

on First Amendment freedoms, the FEC and the intervenors rely on the fact that BCRA’s definition of electioneering communications does not include print or other 

non-broadcast advertisements. But the availability of 

those avenues of expression is not as clear as the FEC and 

the intervenors suggest. The FEC recently has taken an 

aggressive interpretation of its ability to prohibit corporate funding of non-broadcast advertisements that the 

FEC contends contain express electoral advocacy by considering amorphous contextual factors – an approach that 
8

significantly threatens to chill legitimate and constitutionally protected speech.6

ARGUMENT 

BCRA § 203 IS UNCONSTITUTIONAL AS APPLIED 

TO TRUE LEGISLATIVE ADVERTISING 

The district court correctly held that BCRA’s prohibition on “electioneering communications” cannot constitutionally be applied to “genuine issue ads” – that is, ads 

that are neither “express advocacy” nor “its functional 

equivalent.” J.S. App. 17a. As applied here, BCRA burdens the exercise of fundamental First Amendment freedoms, and the compelling government interest in regulating corporate speech on candidate elections does not apply 

to true legislative advertising. 

A. No Compelling Government Interest Justifies 

BCRA § 203’s Burden On First Amendment 

Rights 

This case involves the ability of corporations (both forprofit and not-for-profit) to engage in grass-roots lobbying. 

Grass-roots lobbying is designed to inform members of the 

public about important legislative or public-policy issues 

and to express a particular view about those issues. Such 

efforts often seek to motivate constituents to contact their 

elected officials about those issues. It typically takes 

the form of advertisements advocating a position on a 

pending issue and recommending that viewers contact 

their political representatives and urge them to support 

that position.7

 6 The FEC also contends that this case is moot. This Court postponed to the hearing on the merits further consideration of the question of jurisdiction in these cases. See Order (Jan. 19, 2007). NAR 

agrees with WRTL and the intervenors (see Appellants Br. 13 n.8) that 

this case is not moot because, as the district court explained, it is capable of repetition, yet evading review. See J.S. App. 11a-15a. (References to “J.S. App.” are to the Appendix to the Jurisdictional Statement filed by the FEC in No. 06-969.) 

7 See, e.g., McConnell v. FEC, 251 F. Supp. 2d 176, 793 (D.D.C.) 

(Leon, J.) (describing “genuine issue advertisements . . . , the sole 
9

In this case, for example, WRTL sought to sponsor 

broadcast communications criticizing the Senate’s conduct 

of (or failure to conduct) a constitutional function – advising on and consenting to the President’s judicial nominees 

(see U.S. Const. art. II, § 2, cl. 2). See J.S. App. 3a-6a & 

nn.3-5. Those communications would have expressed the 

collective concern of WRTL’s adherents that the failure to 

confirm judges impaired the judiciary’s functioning and 

would have urged recipients of the communications to 

contact their Senators and express disapproval of the 

practice of filibustering to prevent a confirmation vote on 

judicial nominees. See id.

NAR has paid for analogous advertisements promoting 

its views on behalf of its member real-estate professionals, 

as well as real-property owners, on pending federal legislation. For example, NAR has sponsored advertisements 

with the following messages: 

Congressman Ferguson 

please cosponsor 

H.R. 3424 – “The Community Choice in Real Estate Act” 

A COMMITMENT TO

OUR COMMUNITY

America was built by people following a dream, 

starting small businesses and building communities 

– by people working together in communities volunteering to enhance our quality of life. They have 

made America into the great country it is today. 

Legislation has been introduced that will preserve 

our local communities, preserve competition in real 

estate and give consumers the choices they deserve. 

 

purpose of which is educating the viewers about an upcoming vote 

on pending legislation, and encouraging them to inform their elected 

representative to vote for or against the bill (i.e., legislation-centered 

advertisements)”), aff ’d in part, rev’d in part, 540 U.S. 93 (2003). 
10

H.R. 3424 will keep the local personalized service 

consumers now receive from their local neighborhood real estate professionals. 

Call Congressman Ferguson at 908-686-5576 to 

ask him to join more than 160 members of Congress 

and cosponsor this bipartisan legislation to ensure 

local choice for our communities. 

We need the support of strong leaders such as 

Congressman Ferguson, so that consumers and local 

communities will win. 

* * * 

Call 

Congressman Gonzalez 

210-472-6195 

Tell Him to 

Do the Right Thing 

and Cosponsor 

H.R. 3424 – 

“The Community Choice in Real Estate Act” 

A COMMITMENT TO 

OUR COMMUNITY

Right now, large mega banks are attempting to 

control more and more of our lives. The Big Bank 

Conglomerates now want to buy up locally owned 

and operated real estate companies. The result: 

consumers lose. 

Legislation has been introduced that will preserve 

our local communities, preserve competition in real 

estate and give consumers the choices they deserve. 

H.R. 3424 will keep the local personalized service 

consumers now receive from their local neighborhood real estate professionals. 
11

Call Congressman Gonzalez and ask him to join 

more than 140 members of Congress and cosponsor 

this bipartisan legislation to ensure local choice for 

our communities. 

We need the support of strong leaders such as 

Congressman Gonzalez, so that consumers and local 

communities will win.8

* * * 

Like the WRTL communications at issue in this case, 

NAR’s advertisements “describe[d] an issue that . . . was 

. . . an ongoing issue of legislative concern” in Congress. 

J.S. App. 23a. Those advertisements explained to the constituents of Congressmen Ferguson and Gonzalez why 

they should support pending legislation to protect the independence of local real-estate agents, exhorted them to 

contact those congressmen, and provided a telephone 

number to call. And, like WRTL’s ads, NAR’s legislative 

ads did “not mention an election, a candidacy, or a political party, nor do they comment on a candidate’s character, 

actions, or fitness for office.” Id.

1. Grass-roots lobbying is protected by the Speech 

Clause, the Petition Clause, and the right of association. 

Grass-roots lobbying implicates three interrelated protections of the First Amendment, which provides in pertinent 

part that “Congress shall make no law . . . abridging the 

freedom of speech, . . . or the right of the people peaceably 

to assemble, and to petition the Government for a redress 

of grievances.” U.S. Const. amend. I. 

 8 These advertisements were published as print advertisements in 

February 2002, shortly before BCRA’s enactment. Because they were 

not broadcast on radio or television and because they were not run during a pre-election “blackout” period, BCRA would not have prohibited 

them. See 2 U.S.C. § 434(f )(3)(A)(i)(II). Even so, NAR believes that it 

has the freedom to broadcast during pre-election periods similar advertisements on pending legislative matters that affect its members, and 

it may wish to exercise that freedom. 
12

First, legislative advocacy is protected speech. As this 

Court has explained, “[w]hatever differences may exist 

about interpretations of the First Amendment, there is 

practically universal agreement that a major purpose of 

that Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 

(1966). In light of our “profound national commitment to 

the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. 

Sullivan, 376 U.S. 254, 270 (1964), this Court has construed the First Amendment to afford “the broadest protection to such political expression in order ‘to assure [the] 

unfettered interchange of ideas for the bringing about of 

political and social changes desired by the people,’” Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 

U.S. 476, 484 (1957)) (alteration in original).9 Spending 

on political communications receives the same First 

Amendment protection because restrictions on that 

spending “restrain[] . . . the quantity and diversity of political speech.” Buckley, 424 U.S. at 19; see id. at 16-20; 

Bellotti, 435 U.S. at 786 n.23 (“It is too late to suggest 

‘that the dependence of a communication on the expenditure of money itself operates to introduce a nonspeech 

element or to reduce the exacting scrutiny required by the 

First Amendment.’”) (quoting Buckley, 424 U.S. at 16). 

This Court’s decision in Bellotti confirms the conclusion that this case involves protected speech. There, a 

corporation challenged a state statute forbidding it from 

 9 See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 777 n.11 

(1978) (“Freedom of expression has particular significance with respect 

to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of 

suppression.’ ”) (quoting Thomas Emerson, Toward a General Theory 

of the First Amendment 9 (1966)) (alteration in original); Garrison 

v. Louisiana, 379 U.S. 64, 74-75 (1964) (“For speech concerning public affairs is more than self-expression; it is the essence of selfgovernment.”); Thornhill v. Alabama, 310 U.S. 88, 95 (1940) (“Those 

who won our independence had confidence in the power of free and 

fearless reasoning and communication of ideas to discover and spread 

political and economic truth.”). 
13

spending money “for the purpose of influencing the vote 

on referendum proposals.” 435 U.S. at 767. The Court 

explained that the speech at issue was “at the heart of the 

First Amendment’s protection,” id. at 776, and “indispensable to decisionmaking in a democracy,” id. at 777.10 

That was “no less true because the speech [came] from 

a corporation rather then an individual” because the 

“inherent worth of the speech in terms of its capacity for 

informing the public does not depend upon the identity 

of its source, whether corporation, association, union, or 

individual.” Id.11

Second, this case involves the right “to petition the 

Government for a redress of grievances.” U.S. Const. 

amend. I. WRTL opposed Senate filibusters of judicial 

nominees. To redress its grievance, it sought to sponsor 

advertisements petitioning Senators to end the filibusters 

and urging others also to petition those Senators. Similarly, NAR opposes the attempts of large banking conglomerates to obtain the authority to participate in local 

markets for real-estate services. Accordingly, NAR has 

petitioned (and exhorted others to petition) members of 

Congress to enact legislation prohibiting such entities 

from leveraging the substantial economic advantages they 

 10 See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) 

(“issue-based” advocacy “is the essence of First Amendment expression” and “[n]o form of speech is entitled to greater constitutional 

protection”). 

11 See Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 657 

(1990) (“The mere fact that the Chamber is a corporation does not remove its speech from the ambit of the First Amendment.”); Pacific Gas 

& Elec. Co. v. Public Utils. Comm’n, 475 U.S. 1, 8 (1986) (plurality) 

(“The identity of the speaker is not decisive in determining whether 

speech is protected. Corporations and other associations, like individuals, contribute to the discussion, debate, and the dissemination of 

information and ideas that the First Amendment seeks to foster.”) (internal quotation marks omitted); Consolidated Edison Co. of New York, 

Inc. v. Public Serv. Comm’n, 447 U.S. 530, 533 (1980) (“The restriction 

on bill inserts cannot be upheld on the ground that [the corporation] is 

not entitled to freedom of speech.”); Bellotti, 435 U.S. at 778 n.14 (listing 11 cases invalidating laws infringing speech by corporate bodies). 
14

enjoy as federally chartered institutions to engage in realestate brokerage, to the detriment of local independent 

real-estate agents who do not enjoy those advantages. 

This Court has indicated that such “publicity campaign[s] 

to influence governmental action fall[] clearly into the 

category of political activity” protected by the Petition 

Clause. Eastern R.R. Presidents Conference v. Noerr 

Motor Freight, Inc., 365 U.S. 127, 140-41 (1961); see id. at 

137-38. 

Third, this case involves the ability of corporations 

“effectively [to] amplify[] the voice[s] of their adherents” – 

which the First Amendment freedom of association protects. Buckley, 424 U.S. at 22 (citing NAACP v. Alabama, 

357 U.S. 449, 460 (1958)); see Citizens Against Rent 

Control/Coalition for Fair Housing v. City of Berkeley, 

454 U.S. 290, 294 (1981) (the value of associative communication “is that by collective effort individuals can make 

their views known, when, individually, their voices would 

be faint or lost”); see also Buckley, 424 U.S. at 15 (“The 

First Amendment protects political association as well as 

political expression.”); NAACP v. Button, 371 U.S. 415, 

428 (1963) (corporation may raise right of association “on 

its own behalf”). 

2. Section 203 burdens the rights to speak, petition, 

and associate. As applied to the type of grass-roots lobbying at issue here, BCRA § 203’s regulation on electioneering communications burdens all three of those important 

First Amendment freedoms. Section 203 precluded WRTL 

from sponsoring its three planned advertisements. See

J.S. App. 6a-7a & nn.7-8. Likewise, BCRA prohibits NAR 

from broadcasting advertisements like those reproduced 

above on either radio or television (the most effective media12), in the congressmen’s districts, for three out of every 

24 months (election time, when the congressmen are most 

attuned to the telephone calls that the ad urges constitu-

 12 See Buckley, 424 U.S. at 19 (broadcast media are “indispensable 

instruments of effective political speech”). 
15

ents to make13) – simply because the ads contain names of 

candidates for federal office.14 Under an FEC rule, such 

ads would be prohibited even if they asked viewers only 

to call “your Congressman.” 11 C.F.R. § 100.29(b)(2); see 

2 U.S.C. § 431(18). Grass-roots lobbying of the type engaged in by WRTL and NAR is impossible, of course, if a 

legislative advertisement cannot recommend even that a 

viewer contact “your Congressman.”15

Prohibiting corporations from using their general 

treasuries for advocacy of a legislative agenda imposes a 

content-based burden on freedom of speech. See Austin, 

494 U.S. at 657-58; id. at 669 (Brennan, J., concurring).16 

Similarly, because the statute restricts WRTL’s ability to 

conduct “a publicity campaign to influence governmental 

action,” Noerr Motor Freight, 365 U.S. at 140-41, and 

“effectively [to] amplify[] the voice of [its] adherents,” 

Buckley, 424 U.S. at 22, it trenches on the guarantees of 

the Petition Clause and the right of association. 

3. No compelling government interest justifies § 203’s 

burden on legislative advocacy. Because BCRA § 203 

 13 See McConnell, 251 F. Supp. 2d at 793-94 (Leon, J.) (discussing 

record evidence that “the periods immediately preceding elections are 

the most effective times to run issue advertisements discussing pending legislation because the public’s interest in policy is at its peak”). 

14 See McConnell, 540 U.S. at 334-35 (Kennedy, J., concurring in the 

judgment in part and dissenting in part) (explaining some of the reasons why grass-roots advocacy must mention the names of members of 

Congress to be effective). 

15 See McConnell, 251 F. Supp. 2d at 794 (Leon, J.) (citing record 

evidence making this point). 

16 See also MCFL, 479 U.S. at 263 (“While the burden on MCFL’s 

speech is not insurmountable, we cannot permit it to be imposed without a constitutionally adequate justification.”); id. at 255 (plurality) 

(“[T]hat the statute’s practical effect may be to discourage protected 

speech is sufficient to characterize [it] as an infringement on First 

Amendment activities.”); id. at 265-66 (O’Connor, J., concurring in part 

and concurring in the judgment); cf. McIntyre, 514 U.S. at 345 (statute 

requiring campaign literature to identify the author is “a direct regulation of the content of speech”). 
16

burdens fundamental First Amendment freedoms, the district court rightly employed “exacting scrutiny” in testing 

§ 203’s application to WRTL’s ads. Buckley, 424 U.S. at 

16, 44-45; see McConnell, 540 U.S. at 205; Austin, 494 

U.S. at 669 (Brennan, J., concurring) (such restrictions 

“must be analyzed with great solicitude and care”); J.S. 

App. 25a. Statutory burdens on First Amendment rights 

“must be justified by a compelling state interest,” MCFL, 

479 U.S. at 256, and “narrowly tailored to serve” that 

interest, McIntyre, 514 U.S. at 347. This Court has identified a compelling government interest in restricting corporate expenditures on electoral campaigns to prevent 

“corruption or the appearance of corruption.” Austin, 494 

U.S. at 658; see McConnell, 540 U.S. at 205, 206 n.88; 

FEC v. Beaumont, 539 U.S. 146, 154 (2003); FEC v. 

National Right to Work Comm., 459 U.S. 197, 208 (1982); 

Bellotti, 435 U.S. at 788-89.17

But this Court’s cases also have recognized that the 

“unusually important interests underl[ying] the regulation of corporations’ campaign-related speech” do not apply to legislative advocacy. McConnell, 540 U.S. at 206 

n.88 (emphasis added). Bellotti unequivocally establishes 

the point. There, the Court held that “[t]he risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue.” 435 

U.S. at 790 (citations omitted; emphasis added).18 The 

 17 In the electoral context, the Court also has recognized a government interest in restricting corporate and union giving and spending 

on political campaigns to “protect[ ] the 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.” Beaumont, 539 U.S. at 154 

(internal quotation marks omitted). That interest does not apply to 

organizations, such as WRTL and NAR, whose mission involves advocating legislative changes that would benefit the organization and its 

members. See MCFL, 479 U.S. at 260-61. 

18 See Austin, 494 U.S. at 677 (Brennan, J., concurring) (recognizing 

that, while the government can regulate corporate speech on candidate 

elections, “a State cannot prohibit corporations from making many 

other types of political expenditures”); id. at 678 (Stevens, J., concur-
17

speech at issue there – corporate-sponsored advertisements meant to influence a vote on a referendum proposal 

– cannot meaningfully be distinguished from the legislative advocacy at issue here. 

In upholding § 203 against a facial challenge in McConnell, this Court identified no compelling government interest justifying the application of BCRA § 203 to true legislative advocacy – advertisements that are not “the functional equivalent of express advocacy.” 540 U.S. at 206. 

Indeed, the Congress that considered BCRA,19 and the 

President who signed it,20 showed by their statements 

that they perceived no compelling government interest 

in regulating true legislative advertisements. Congress 

empowered the FEC to exempt genuine issue ads, see 2 

 

ring) (“[T]here is a vast difference between lobbying and debating public issues on the one hand, and political campaigns for election to public 

office on the other.”); see also National Right to Work Comm., 459 U.S. 

at 210 n.7 (interpreting Bellotti as recognizing that, “in elections of 

candidates to public office, unlike in referenda on issues of general public interest, there may well be a threat of real or apparent corruption”) 

(emphasis added); Consolidated Edison, 447 U.S. at 535 (invalidating a 

regulation that “limited the means by which [a corporation could] participate in the public debate on . . . controversial issues of national interest and importance”). 

19 See 147 Cong. Rec. S2845-46 (daily ed. Mar. 26, 2001) (statement 

of Sen. Wellstone) (repeatedly referencing “sham issue ads” and stating 

that “I am not talking about ads . . . that are legitimately trying to influence policy debates . . . I am not talking about legitimate policy 

ads”); id. at S2812-13 (daily ed. Mar. 23, 2001) (statement of Sen. 

Jeffords) (BCRA’s prohibition on electioneering communications not 

intended to “affect the ability of any organization to urge grassroots 

contacts with lawmakers on upcoming votes” or “to urge their members 

and the public through grassroots communications to contact their 

lawmakers on upcoming issues or votes”; “[a]ny organization can, and 

should be able to, use their grassroots communications to urge citizens 

to contact their lawmakers”). 

20 See Statement by President George W. Bush Upon Signing H.R. 

2356, 38 Weekly Comp. Pres. Doc. 517 (Mar. 27, 2002) (“I also have 

reservations about the constitutionality of the broad ban on issue 

advertising, which restrains the speech of a wide variety of groups on 

issues of public import in the months closest to an election.”), reprinted 

in 2002 U.S.C.C.A.N. 125. 
18

U.S.C. § 434(f)(3)(B)(iv), but the FEC has refused to so,21

even though several of the intervenors in this case recommended an exemption that would have shielded some 

legislative advocacy from regulation.22 Because no compelling state interest justifies the application of BCRA to 

WRTL’s advertisements, the district court correctly held 

that the statute is unconstitutional as applied to them. 

See MCFL, 479 U.S. at 263; Bellotti, 435 U.S. at 795. 

B. NAR’s Advertisements Are Not The Functional Equivalent Of Express Advocacy 

Neither the FEC nor the intervenors contend that 

BCRA § 203’s application to WRTL’s advertisements is 

not subject to strict scrutiny. Rather, they argue that 

Congress’s interest in regulating electoral advocacy justifies prohibiting WRTL’s planned advertisements. Regardless of how the Court rules on WRLT’s advertisements, 

NAR’s advertisements reproduced above present tangible 

examples of genuine legislative communications under 

any reasonable test. 

Notably, with one insignificant exception, NAR’s communications meet the stringent test articulated by several 

of the intervenors in their comments to the FEC on its 

proposed exemption for grass-roots lobbying. Those intervenors have suggested that a communication would be 

 21 See Electioneering Communications, 67 Fed. Reg. 65,190, 65,201-

02 (Oct. 23, 2002) (rejecting proposed exemptions for true legislative 

communications because, “[a]lthough some communications that are 

devoted exclusively to pending public policy issues before Congress or 

the Executive Branch may not be intended to influence a Federal 

election, the Commission believes that such communications could be 

reasonably perceived to promote, support, attack, or oppose a candidate in some manner”). 

22 See Letter from Senator John McCain et al. to Mai Dinh, FEC, at 

10-11 (Aug. 23, 2002) (“McCain Letter”) (proposing an exemption 

“allow[ing] individuals and entities concerned about legislation to 

run true issue ads with a legislative objective and a request to contact 

an elected official during the 30 or 60 day windows”), available at

http://www.fec.gov/pdf/nprm/electioneering_comm/comments/us_cong_

members.pdf. 
19

“plainly and unquestionably . . . wholly unrelated to an 

election” if it satisfied the following criteria: (i) the ad 

concerns only a legislative or executive branch matter; 

(ii) the ad’s only reference to the clearly identified federal 

candidate is a statement urging the public to contact the 

candidate and ask that he or she take a particular position on the legislative or executive branch matter; (iii) the 

ad refers to the candidate only by the use of a phrase 

like “your congressman” or “your senator” and does not 

include the name or likeness of the candidate; (iv) the ad 

does not reference a political party; (v) the ad does not 

reference the candidate’s record or position on any issue, 

the candidate’s qualifications or fitness for office, or the 

candidate’s election or candidacy. McCain Letter at 10 

(internal quotation marks omitted). 

Applying the McCain test, NAR’s communications concerned only a legislative matter – a pending bill to prevent national banking conglomerates from entering and 

dominating the real-estate business, to the exclusion of 

small, independent real-estate brokers. The only references to the two congressmen were statements asking 

them to support that bill and urging viewers to contact 

them and tell them to support the bill. The advertisements did not reference a political party, the congressmen’s records or positions on any issue, the congressmen’s 

qualifications or fitness for office, or their election or candidacy. But for the fact that NAR’s ads mention the congressmen by name, they would meet every criterion of the 

McCain test. But that fact alone cannot transform the 

communications into the functional equivalent of express 

advocacy. To be sure, whether the ad uses the candidate’s 

name may be relevant to whether it has an electoral nature, but basic common sense dictates that use of a name 

in an advertisement cannot be dispositive. 

C. Legislative Advocates Do Not Bear The Burden Of Establishing A Legal Test 

The FEC also asserts that WRTL cannot succeed on its 

as-applied challenge unless it articulates a legal test that 
20

identifies advertisements that are different in kind from 

electoral advocacy and that is neither unduly complex nor 

susceptible of evasion. FEC Br. 27. The FEC further 

asserts that the class of issue advertisements to which 

BCRA § 203 cannot constitutionally be applied should 

be defined without reference to the text or content of 

the advertisements. Id. at 43. Intervenors, for their 

part, apparently recognize no circumstances under which 

BCRA § 203 cannot constitutionally be applied to legislative advocacy. See Appellants Br. 40 n.27 (acknowledging 

possible exceptions only for commercial advertisements 

that incidentally mention the name of a candidate). 

NAR submits that the FEC’s legal-test requirement has 

no basis in this Court’s cases and should be rejected. Entities like WRTL (and possibly, in the future, NAR) should 

not be required to establish an iron-clad legal test to govern future cases as a condition for obtaining relief from an 

unconstitutional statute. If no compelling government 

interest supports the application of BCRA § 203 to particular speech, then the statute is unconstitutional as applied to that speech. 

Contrary to the FEC’s contention, this Court’s decision 

in MCFL does not support the FEC’s legal-test requirement. There, the Court held that the prohibition on corporate expenditures on express candidate advocacy was 

unconstitutional as applied to a nonprofit advocacy corporation (MCFL) that did not accept donations from business enterprises. See MCFL, 479 U.S. at 263-64. This 

Court concluded that corporations like MCFL could engage in electoral advocacy without creating the problems 

at which the prohibition on corporate electoral advocacy 

was targeted. While (presumably to provide guidance for 

future cases) the Court detailed the three features of 

MCFL that it found dispositive, it did not impose on 

MCFL the burden of establishing an airtight and administrable legal test to prevail on its as-applied challenge. 

See id. Indeed, this Court rejected the contention that 

“the desire for a bright-line rule,” which would be easily 
21

administrable, “justif[ied] any infringement on First 

Amendment freedom.” Id. at 263. 

Furthermore, MCFL is different from this case because 

MCFL there sought an exemption to engage in express 

candidate advocacy. In that context, it made sense for 

the Court to articulate how MCFL differed in “kind” from 

the ordinary business corporation, which Congress had a 

compelling interest in barring from spending on electoral 

campaigns. Id. Here, by contrast, the compelling government interest in restricting corporate electoral spending does not apply to WRTL’s planned communications 

because NAR (and, indeed, the district court) does not 

view WRTL as attempting to engage in electoral advocacy. 

Here, too, there is a difference in “kind,” but the difference 

is that genuine legislative advocacy is different in its essential message from electoral advocacy. Contrary to the 

FEC’s contention, however, whether a particular communication is electoral advocacy can be determined only by 

examining the text of the communication at issue. 

Finally, the MCFL Court recognized that as-applied 

challenges can succeed even when “the class of organizations affected by [the Court’s] holding [may] be small.” Id.

at 264. Similarly, the FEC cannot diminish the significance of the First Amendment rights at stake in this case 

by asserting that the class of true legislative ads captured 

by the definition of electioneering communication is small. 

As the Court in MCFL concluded: 

Freedom of speech plays a fundamental role in a democracy . . . . Our pursuit of other governmental 

ends, however, may tempt us to accept in small increments a loss that would be unthinkable if inflicted 

all at once. For this reason, we must be as vigilant 

against the modest diminution of speech as we are 

against its sweeping restriction. 

Id. at 264-65. 
22

D. The Court Should Limit Any Examination Of 

Context 

Under the circumstances, even if the McCain test were 

to state properly the law, one would expect that NAR 

should feel somewhat confident that it could prevail in an 

as-applied challenge, considering that its advertisements 

concern only a pending legislative matter and contain 

nothing suggesting an electoral intent or effect. But in 

reality NAR and others like it can take little comfort 

because the FEC and the intervenors here assert that 

the FEC can mine the ads’ “context” to discover some 

purported indicia of electioneering intent or effect. As 

the district court explained, that approach disserves First 

Amendment values and is impractical. See J.S. App. 19a22a. 

Furthermore, a search for contextual evidence of electioneering intent or effect ignores the approach that this 

Court took in McConnell. There, the Court found it unnecessary to look to context in giving examples of sham 

issue ads that were the functional equivalent of express 

advocacy. See 540 U.S. at 126-27, 193 n.78. And a focus 

on the text of the advertisement itself comports with the 

test put forth by several intervenors in their submission 

to the FEC. See McCain Letter at 10. 

Particularly pernicious is the FEC’s and the intervenors’ focus on statements that WRTL (or its PAC) made in 

other contexts. See FEC Br. 47-48; Appellants Br. 23-24. 

Indeed, the intervenors would go even further, considering communications made by individuals and groups other 

than WRTL or its PAC. See Appellants Br. 25-27. The 

consequence of that focus is to strip an entity that has 

made negative statements about an incumbent in the past 

(or that is considered to be associated with those who 

have) of its First Amendment right to engage in preelection grass-roots lobbying of that incumbent on any legislative issue. While it is easy to understand why an incumbent legislator interested in preserving power would 
23

favor such a rule, that does not make it comport with the 

First Amendment. 

E. Print Media May Not Be An Available Alternative 

Both the FEC and the intervenors assert that BCRA 

§ 203 does not impose a particularly severe burden on 

First Amendment activities in part because affected parties like NAR have the option of communicating through 

non-broadcast media. See FEC Br. 36; Appellants Br. 31 

n.20. But they fail to mention that the FEC recently has 

employed an expansive interpretation of the prohibition 

on expenditures for express advocacy – a prohibition that 

applies to all media. Specifically, the FEC has promulgated a broad regulatory definition of express advocacy, 

and it has signaled a willingness to apply that definition, 

using a wide-ranging contextual analysis, to prohibit communications that neither contain actual express advocacy 

nor meet the definition of electioneering communication. 

Last year, the FEC found probable cause to believe that 

the Sierra Club had violated 2 U.S.C. § 441b(a), which 

(as interpreted by this Court in MCFL, 479 U.S. at 249) 

prohibits corporations from making independent expenditures for express candidate advocacy.23 It based that 

conclusion in part on the following definition of express 

advocacy contained in an FEC regulation: 

When taken as a whole and with limited reference 

to external events, such as the proximity to the 

election, could only be interpreted by a reasonable 

person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) 

because – 

(1) The electoral portion of the communication is 

unmistakable, unambiguous, and suggestive of only 

one meaning; and 

 23 See Letter from Lawrence H. Norton, General Counsel, FEC, to 

B. Holly Schadler, Esq., and Michael B. Trister, Esq. (July 21, 2006), 

available at http://eqs.nictusa.com/eqsdocs/00005810.pdf. 
24

(2) Reasonable minds could not differ as to 

whether it encourages actions to elect or defeat one 

or more clearly identified candidate(s) or encourages 

some other kind of action. 

11 C.F.R. § 100.22(b). 

In contending that the communication at issue there, 

a voter guide, constituted express advocacy under that 

regulation, the FEC General Counsel’s Office gleaned that 

the “electoral portion” was “suggestive” based on an examination of some of the same “contextual” facts that it 

relies on here – namely, that the guide was issued in the 

pre-election period; that it mentioned clearly identified 

candidates for federal office; and “the Sierra Club’s 

well-known stance promoting environmental regulation.” 

First General Counsel’s Report at 11 (Aug. 10, 2005) 

(“FEC Report”), available at http://eqs.sdrdc.com/eqsdocs/ 

00005805.pdf. Thus, the FEC showed a willingness to 

preclude pre-election speech containing candidates’ names 

even when that speech does not fall within the definition 

of electioneering communication. 

Even worse, the Office cited McConnell as support 

for its expansive interpretation of the express-advocacy 

requirement. See id. at 16. The Office observed that 

McConnell had held that the express-advocacy standard 

was not a constitutional requirement and had sustained 

the “promote, support, attack, or oppose” standard against 

a vagueness challenge. See id. at 14-16. But this Court 

imposed the express-advocacy requirement because the 

statute as written was unduly vague. See MCFL, 479 

U.S. at 249; Buckley, 424 U.S. at 42-44, 76-80. Nothing in 

McConnell’s holding that the express-advocacy standard 

does not articulate a constitutional line authorized the 

FEC to substitute a vague regulatory definition for this 

Court’s narrowing construction of a vague statute. Moreover, the FEC’s regulatory standard is a far cry from the 

relatively straightforward “promote, support, attack, or 

oppose” test sustained by this Court. The regulation applies when, considering whatever contextual factors the 
25

FEC deems relevant, “[t]he electoral portion of the communication” (whatever that portion might be) “is unmistakable, unambiguous, and suggestive of only one meaning; and . . . [r]easonable minds could not differ as to 

whether it encourages actions to elect or defeat one or 

more clearly identified candidate(s) or encourages some 

other kind of action” (whatever that action might be). 11 

C.F.R. § 100.22(b) (emphases added). 

The FEC General Counsel’s Office also noted that 

McConnell had upheld the definition of electioneering 

communication against an overbreadth challenge and had 

“acknowledged that the definition of electioneering communication would cover some ads which have no electioneering purpose.” FEC Report at 16. The Office thus signaled it believed itself to be empowered to regulate speech 

that is not express advocacy, and that may not even have 

an “electioneering purpose.” 

The Sierra Club case, which was the FEC’s first use of 

§ 100.22(b) since McConnell,24 leaves speakers with little 

reason to credit the FEC’s and the intervenors’ assertions 

that, regardless of the outcome of this case, they will continue to be able to conduct legislative advocacy in the preelection period through print media. Indeed, to the extent 

the FEC is able to apply § 100.22(b) in this sweepingly 

broad fashion to corporate-sponsored ads that are not 

“electioneering communications” under BCRA § 203, there 

is little reason to think that the FEC will not similarly do 

so with respect to ads like those of WRTL at issue here, 

and thereby functionally eviscerate the constitutional protection to which true legislative advocacy is entitled.25

 24 See Third General Counsel’s Report at 3 (Nov. 3, 2006), available 

at http://eqs.sdrdc.com/eqsdocs/00005811.pdf. The case was settled 

after the FEC’s finding of probable cause. See Letter from Susan L. 

Lebeaux, Assistant General Counsel, FEC, to B. Holly Schadler, Esq., 

and Michael B. Trister, Esq. (Nov. 15, 2006), available at http://eqs. 

nictusa.com/eqsdocs/00005815.pdf. 

25 The particular communication at issue in the Sierra Club case 

may have been fairly characterized as express advocacy based on an 
26

CONCLUSION 

The Court should affirm the district court’s judgment. 

 Respectfully submitted, 

LAURENE K. JANIK DAVID C. FREDERICK

RALPH W. HOLMEN Counsel of Record

NATIONAL ASSOCIATION OF BRENDAN J. CRIMMINS

 REALTORS® KELLOGG, HUBER, HANSEN, 

430 North Michigan Ave. TODD, EVANS & FIGEL, 

Chicago, IL 60611-4087 P.L.L.C. 

(312) 329-8375 1615 M Street, N.W. 

 Suite 400 

 Washington, D.C. 20036 

 (202) 326-7900 

Counsel for National Association of REALTORS®

March 23, 2007 

 

examination of the ad’s text only. See FEC Report at 9-10. Nevertheless, the FEC’s suggestion that McConnell authorizes it to use a vague 

regulatory standard to prohibit communications that may “have no 

electioneering purpose,” id. at 16, is troubling and likely to chill constitutionally protected speech.