Nos. 06-969 and 06-970 

================================================================ 

In The 

Supreme Court of the United States --------------------------------- ♦ --------------------------------- 

FEDERAL ELECTION COMMISSION, 

Appellant, 

vs. 

WISCONSIN RIGHT TO LIFE, INC., ET AL., 

Appellees. 

--------------------------------- ♦ --------------------------------- 

SENATOR JOHN McCAIN, ET AL., 

Intervenor-Appellants, 

vs. 

WISCONSIN RIGHT TO LIFE, INC., ET AL., 

Appellees. 

--------------------------------- ♦ --------------------------------- 

On Appeal From The United States District Court 

For The District Of Columbia 

--------------------------------- ♦ --------------------------------- 

BRIEF AMICI CURIAE OF RICHARD BRIFFAULT 

AND RICHARD L. HASEN IN SUPPORT OF 

APPELLANT AND INTERVENOR-APPELLANTS 

--------------------------------- ♦ --------------------------------- 

RICHARD BRIFFAULT

435 West 116th Street 

New York, NY 10027 

(212) 854-2638 

FAX: (212) 854-7946 

DAVID S. ETTINGER

HORVITZ & LEVY LLP

15760 Ventura Boulevard, 

 18th Floor 

Encino, CA 91436 

(818) 995-0800 

FAX: (818) 995-3157 

RICHARD L. HASEN

*Counsel of Record

919 Albany Street 

Los Angeles, CA 90015 

(213) 736-1466 

FAX: (213) 380-3769 

rick.hasen@lls.edu 

MARTIN S. LEDERMAN

600 New Jersey Avenue, NW

Washington, D.C. 20001 

(202) 662-9937 

Attorneys for Amici Curiae 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

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

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

INTRODUCTION AND SUMMARY OF ARGUMENT .. 2 

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

 I. IN ITS CAMPAIGN FINANCE CASES 

THE COURT HAS CRAFTED AS-APPLIED 

EXEMPTIONS ONLY FOR ACTIVITY NOT 

IMPLICATING COMPELLING GOVERNMENTAL INTERESTS AND WHEN REGULATIONS IMPOSE UNIQUELY SERIOUS 

BURDENS ON FIRST AMENDMENT 

RIGHTS .............................................................. 5 

 II. THE COURT SHOULD CRAFT ANY ASAPPLIED EXEMPTION WITH REGARD TO 

THE COMPELLING INTERESTS CONGRESS SOUGHT TO PROTECT IN BCRA 

SECTION 203..................................................... 10 

 III. THE DISTRICT COURT’S AS-APPLIED TEST 

IS NOT TAILORED TO THE COMPELLING 

INTERESTS CONGRESS SOUGHT TO PROTECT IN BCRA AND WOULD LEAD TO 

THE RE-EMERGENCE OF “ISSUE ADS” 

PAID FOR WITH CORPORATE TREASURY 

FUNDS THAT HAVE AN IMPACT ON FEDERAL ELECTIONS............................................ 21 
ii 

TABLE OF CONTENTS – Continued 

Page 

 IV. THE COURT SHOULD HOLD THAT CORPORATIONS SEEKING AN AS-APPLIED 

EXEMPTION FROM THE PAC REQUIREMENT FOR “ELECTIONEERING COMMUNICATIONS” MUST DEMONSTRATE THAT 

A PARTICULAR BROADCAST ADVERTISEMENT IS UNLIKELY TO HAVE ANY APPRECIABLE EFFECT ON VOTERS’ 

CHOICES IN A FEDERAL ELECTION ........... 24 

CONCLUSION ............................................................... 28 
iii 

TABLE OF AUTHORITIES 

Page 

CASES

Austin v. Mich. Chamber of Commerce, 494 U.S. 

652 (1990) ................................................................. 5, 8, 9 

Brown v. Socialist Workers ’74 Campaign Comm., 

459 U.S. 87 (1982) ...................................................passim

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

Christian Civic League of Maine, Inc. v FEC, 433 

F.Supp.2d 81 (D.D.C. 2006)............................................ 25 

FEC v. Beaumont, 539 U.S. 146 (2003)......................... 9, 10 

FEC v. Colo. Republican Fed. Campaign Comm., 533 

U.S. 431 (2001) ................................................................. 1 

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

FEC v. Nat’l Right to Work Comm., 459 U.S. 197 

(1982) ................................................................................ 9 

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

(1978) .............................................................................. 14 

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

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) ..... 1, 6 

Pipefitters Local Union No. 562 v. United States, 

407 U.S. 385 (1972) .........................................................11 

Randall v. Sorrell, 126 S.Ct. 2479 (2006) ............................ 8 

United States v. CIO, 335 U.S. 106 (1948).......................... 9 

United States v. International Union of United 

Automobile Workers (UAW), 352 U.S. 567 (1957) .........11 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

STATUTES

2 U.S.C. 

 § 434(f) ...................................................................... 12, 23 

 § 434(f)(3)(A)(i) ............................................................... 12 

 § 441b(b)............................................................................ 1 

Bipartisan Campaign Reform Act of 2002 (BCRA) 

 § 201 .......................................................................... 12, 23 

 § 203 .........................................................................passim 

§ 204 ............................................................................ 3, 16 

Labor Management Relations (Taft-Hartley) Act of 

1947, ch. 120, § 304, 61 Stat. 159-160............................11 

Tillman Act of 1907, Pub. L. 59-36, 34 Stat. 864 .............. 10 

COURT RULES

Supreme Court Rule 37.6..................................................... 1 

MISCELLANEOUS

Richard Briffault, Issue Advocacy: Redrawing the 

Elections/Politics Line, 77 Tex. L. Rev. 1751 

(1999) ...............................................................................11 

Richard L. Hasen, Buckley is Dead, Long Live

Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 153 U. Pa. L. Rev. 31 (2004) .................................... 9 

Daniel Hays Lowenstein & Richard L. Hasen, 

Election Law – Cases and Materials (3d ed. 2004) ......... 1 
1 

INTEREST OF THE AMICI CURIAE 

 The individual amici are law professors who have 

devoted much of their careers to the study of election law, 

especially campaign finance law. Richard Briffault, the 

Joseph P. Chamberlain Professor of Legislation at Columbia Law School, has written 17 articles on campaign 

finance law, some of which the Court has cited in its 

campaign finance cases. See, e.g., FEC v. Colo. Republican 

Fed. Campaign Comm., 533 U.S. 431, 462 (2001); Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 406 (2000) (Kennedy, 

J., dissenting). Richard L. Hasen, the William H. Hannon 

Distinguished Professor of Law at Loyola Law School, has 

written 18 articles (or parts of books) on campaign finance 

law, is the co-author of an election law casebook, Election 

Law – Cases and Materials (3d ed. 2004) (with Professor 

Daniel Hays Lowenstein), and the co-editor of the peerreviewed quarterly publication, Election Law Journal.

Amici’s affiliations are listed for identification purposes 

only. 

 With the consent of the parties, whose letters of 

consent have been filed with the Clerk of the Court, amici 

respectfully submit this brief in support of the Appellant 

Federal Election Commission and the congressional 

Intervenor-Appellants.1

 The brief suggests a test for asapplied challenges to section 203 of the Bipartisan Campaign Reform Act (BCRA), 2 U.S.C. § 441b(b)(2), that both 

protects First Amendment rights of speech and association 

and preserves the integrity of the election process through 

 1 Pursuant to Supreme Court Rule 37.6, amici state that no 

counsel for a party authored this brief in whole or in part and that no 

person or entity other than amici and their counsel contributed 

monetarily to the preparation or submission of this brief. 
2 

reasonable limitations on corporate spending affecting 

federal elections. 

--------------------------------- ♦ --------------------------------- 

INTRODUCTION AND 

SUMMARY OF ARGUMENT 

 This case involves yet another attack on the 60-yearold requirement that corporations use separate segregated 

funds (or PACs), rather than treasury funds, to spend 

money in connection with federal elections. The Court has 

repeatedly addressed the PAC requirement, and has 

sustained its constitutionality, most recently three Terms 

ago in McConnell v. FEC, 540 U.S. 93, 203-11 (2003). The 

Court has done so not because election-related speech is 

entitled to less constitutional protection than other forms 

of political speech, but because, in the context of the 

election of public officials, legislatures and the Court have 

repeatedly recognized compelling justifications for regulations that might not be present, or as compelling, in other 

settings. 

 At the same time, the Court has recognized that the 

Constitution sometimes requires the creation of as-applied 

exemptions from otherwise permissible campaign finance 

regulations. As-applied exemptions are appropriate, the 

Court has explained, when the burden on speech in a 

particular application significantly outweighs any effect 

the regulation may have in promoting electoral integrity 

and other compelling legislative objectives – especially 

where a particular application of the law does not raise 

any of the concerns justifying regulation. 

 Thus, for example, in Buckley v. Valeo, 424 U.S. 1 

(1976), and Brown v. Socialist Workers ’74 Campaign 
3 

Comm., 459 U.S. 87 (1982), the Court created and applied 

an exemption from general – and constitutionally sound – 

campaign disclosure requirements for minor political 

parties that can demonstrate that disclosure of contributors’ names would have an unusually severe chilling effect 

on the parties’ and contributors’ First Amendment activities. To similar effect, in FEC v. Mass. Citizens for Life, 

479 U.S. 238, 260-61 (1986) (MCFL), the Court held that 

the First Amendment requires an exemption for certain 

nonprofit corporations from a corporate PAC requirement 

similar to that at issue here, because applying the requirement to such nonprofit corporations would not 

further the government interests underlying the requirement. 

 The Court should adopt a similar approach to asapplied exemptions in this case. The regulation in question here is a 2002 enactment, section 203 of the Bipartisan Campaign Reform Act of 2002, which was aimed at 

ending widespread evasions of the corporate PAC requirement. This case presents the question whether and 

under what circumstances the Constitution requires 

another exemption to the PAC requirement for corporations, beyond the exemption recognized in MCFL and in 

BCRA itself in section 204. We respectfully submit that 

any as-applied exemption ought to build on the principles 

for identifying such exemptions that the Court developed 

in Buckley, Brown, and MCFL. 

 The district court below failed to follow the Court’s 

guidance in these cases. It did not even attempt to tailor 

its proposed as-applied exemption to those advertisements 

that are unlikely to implicate the compelling government 

interests underlying section 203. Congress found, and the 

Court has agreed, that broadcast ads that name federal 
4 

candidates in the immediate pre-election period almost 

invariably have an impact on voters’ choices in the election. Yet the district court would exempt many of those ads 

from regulation. If upheld by the Court, the district court’s 

test would thwart Congress’s objectives and return us to 

the days immediately preceding BCRA, when corporations 

easily evaded the PAC requirement. 

 We believe that a more appropriate test would exempt 

only those communications not implicating the governmental interests underlying the corporate PAC requirement. We propose that a corporation should be entitled to 

an as-applied exemption from the PAC requirement for 

electioneering communications only when it proves that an 

identifiable type of communication is unlikely to have any 

appreciable effect on voters’ choices in the election. Following the approach Congress took in BCRA and the Court’s 

analysis in McConnell, whether the corporation is entitled 

to an as-applied exemption for an ad must be based on a 

consideration of the context as well as the content of a 

broadcast advertisement.

 The Court’s task in setting the balance between the 

proper scope of election regulation of corporations and the 

protection of corporate speech is a difficult one. Both 

Congress and the Court struggled with it, and BCRA and 

McConnell have struck a workable and proper balance. 

Any as-applied exemptions should not subvert that balance. 

--------------------------------- ♦ --------------------------------- 
5 

ARGUMENT 

I. 

IN ITS CAMPAIGN FINANCE CASES THE COURT 

HAS CRAFTED AS-APPLIED EXEMPTIONS ONLY 

FOR ACTIVITY NOT IMPLICATING COMPELLING 

GOVERNMENTAL INTERESTS AND WHEN REGULATIONS IMPOSE UNIQUELY SERIOUS BURDENS 

ON FIRST AMENDMENT RIGHTS 

 The Court has repeatedly sustained regulations of 

campaign finance activity where such regulations are 

supported by compelling governmental interests specific to 

the election setting. See, e.g., Buckley v. Valeo, 424 U.S. 1 

(1976) (upholding disclosure requirements, campaign 

contribution limits, and other provisions of Federal Election Campaign Act); Austin v. Mich. Chamber of Commerce, 

494 U.S. 652 (1990) (Austin) (upholding requirement that 

corporations engage in election-related advocacy through 

separate segregated funds); McConnell v. FEC, 540 U.S. 

93 (2003) (upholding “soft money” and “electioneering 

communications” provisions of BCRA). The Court has done 

so not because election-related speech is entitled to less 

constitutional protection than other forms of political speech. 

To the contrary, speech and associational activity that 

supports or opposes candidates is entitled to the greatest 

constitutional protection. The election of public officials, 

however, provides compelling justifications for regulation 

that are not necessarily present in other settings. 

 For example, the Court has found that maintaining an 

informed electorate justifies laws requiring disclosure of 

information concerning contributions to and expenditures 

by candidates, political parties, and political committees 

that support or oppose candidates. Buckley, 424 U.S. at 66-

67. So, too, the Court has repeatedly held that preventing 
6 

the corruption or the appearance of corruption of elected 

officials justifies contribution limitations. E.g., id. at 29;

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 (2000). 

Again, this is not because large contributions for political 

activities are not constitutionally protected, but because 

they raise unique dangers to the integrity of elections. 

 In upholding reasonable campaign finance regulations, however, the Court has also indicated that the 

Constitution sometimes requires the creation of as-applied 

exemptions from these regulations. The Court has carved 

out discrete as-applied exemptions either when substantial evidence demonstrates that a uniquely serious burden 

on First Amendment activities significantly outweighs any 

effect the regulation may have in promoting electoral 

integrity in a particular set of cases, or when the conduct 

of particular actors does not raise any of the concerns 

justifying regulation. 

 Thus, in Buckley and in Brown v. Socialist Workers ’74 

Campaign Comm., 459 U.S. 87 (1982), the Court created 

and applied an exemption from general – and constitutionally sound – campaign disclosure requirements: 

disclosure cannot be required when a minor political party 

shows its contributors, if identified, will be subject to 

“threats, harassment, or reprisals from either Government 

officials or private parties.” Buckley, 424 U.S. at 74; 

Brown, 459 U.S. at 93. In such a case, not only is there a 

unique First Amendment harm to the exempted parties; in 

addition, the required disclosure would do little to advance 

the voter information and anti-corruption goals that such 

disclosure ordinarily serves. See Buckley, 424 U.S. at 70 

(“the governmental interest in disclosure is diminished 
7 

when the contribution in question is made to a minor party 

with little chance of winning an election”).2 When the limited 

regulatory benefit of applying disclosure to minor party 

candidates is combined with the demonstration that a 

particular minor party and its members have been subject to 

harassment, the First Amendment requires an as-applied 

exemption to the disclosure requirement. 

 The Court has used a similar mode of analysis in 

defining an exemption to requirements (such as that at 

issue here, in BCRA section 203) that corporations spend 

money on election-related activities only through “separate 

segregated funds,” or PACs: the exemption is closely 

tailored to the absence in certain cases of the state interests justifying the regulation. 

 The Court has recognized that such PAC requirements 

are generally constitutional because they serve two compelling state interests.3

First, such requirements eliminate 

 2 The Court in Buckley explained that “[a]s minor parties usually 

represent definite and publicized viewpoints, there may be less need to 

inform the voters of the interests that specific candidates represent.” 

424 U.S. at 70. Moreover, the concern that large donors may wield 

undue influence over officeholders is “reduced where contributions to a 

minor party or an independent candidate are concerned, for it is less 

likely that the candidate will be victorious.” Id.; see also Brown, 459 

U.S. at 96 n.11 (“In the case of minor parties, . . . their limited financial 

resources serve as a built-in expenditure ceiling which minimizes the 

likelihood that they will expend substantial amounts of money to 

finance improper campaign activities. . . . We cannot agree . . . that 

minor parties are as likely as major parties to make significant 

expenditures in funding dirty tricks or other improper campaign 

activities. . . . Moreover, the expenditure by minor parties of even a 

substantial portion of their limited funds on illegal activities would be 

unlikely to have a substantial impact.”). 

 3

 The general constitutionality of a PAC requirement for corporate 

election-related spending was not litigated below and thus is not at 

(Continued on following page) 
8 

a type of “distortion caused by corporate spending” in 

elections. Austin, 494 U.S. at 660. The distortion is the 

result of “state-created advantages” that permit corporations “to use ‘resources amassed in the economic marketplace’ to obtain ‘an unfair advantage in the political 

marketplace.’ ” Id. at 659 (quoting MCFL, 479 U.S. at 

257).4

 “As the Court explained in MCFL, the political 

advantage of corporations is unfair because ‘[t]he resources in the treasury of a business corporation . . . are 

not an indication of popular support for the corporation’s 

political ideas. They reflect instead the economically 

motivated decisions of investors and customers. The 

availability of these resources may make a corporation a 

formidable political presence, even though the power of 

the corporation may be no reflection of the power of its 

ideas.’ ” Id.; see also McConnell, 540 U.S. at 205 (“We have 

repeatedly sustained legislation aimed at ‘the corrosive 

and distorting effects of immense aggregations of wealth 

that are accumulated with the help of the corporate form 

and that have little or no correlation to the public’s support for the corporation’s political ideas.’ ” (quoting Austin, 

issue here. See Randall v. Sorrell, 126 S.Ct. 2479, 2500-01 (2006) (Alito, 

J., concurring) (refusing to reconsider campaign finance precedent in 

Buckley, 424 U.S. 1, because issue was not properly before the Court). 

The only question in this case is whether Wisconsin Right to Life, Inc. 

(WRTL) is entitled to an as-applied exemption from the requirement for 

three advertisements it sought to broadcast with general treasury 

funds near the 2004 elections. 

 4

 “State law grants corporations special advantages – such as 

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

capital and to deploy their resources in ways that maximize the return 

on their shareholders’ investments.” MCFL, 479 U.S. at 258-59. 
9 

494 U.S. at 660)); MCFL, 479 U.S. at 257-59; cf. FEC v. 

Nat’l Right to Work Comm., 459 U.S. 197, 209-10 (1982). 

 Second, the PAC requirement protects dissenting 

shareholders of corporations who oppose the use of their 

money to affect political campaigns. See McConnell, 540 

U.S. at 204 (quoting FEC v. Beaumont, 539 U.S. 146, 163 

(2003)); Austin, 494 U.S. at 673-75 (Brennan, J., concurring); see also id. at 665-66 (majority opinion); MCFL, 479 

U.S. at 260; cf. FEC v. Beaumont, 539 U.S. at 154-55.5

 The Court in MCFL held that the First Amendment 

requires an exemption from the longstanding PAC requirement for a certain category of nonprofit corporations 

whose electoral expenditures do not implicate these two 

state interests – namely, those that (1) rely solely on 

donations from ideological supporters rather than from 

commercial activities; (2) have no shareholders; and (3) do 

not take money from business corporations. MCFL, 479 

 5 These two rationales have been the dual justifications for 

Congress’s restrictions on corporate election activity going all the way 

back to the Tillman Act of 1907. See United States v. CIO, 335 U.S. 106, 

113 (1948). Since its inception in 1947, the federal PAC requirement 

has also applied to labor unions. As the Court recognized in Austin, 

there are “crucial differences between unions and corporations,” 494 

U.S. at 666, such that the government interests that justify the PAC 

requirements as to corporations do not necessarily apply in the same 

manner to unions, see id. at 665-66 (elaborating those differences). In 

McConnell, the Court held that the PAC requirement was constitutional 

as applied to unions, albeit without providing any rationale for treating 

corporations and unions alike. See Richard L. Hasen, Buckley is Dead, 

Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 153 U. PA. L. REV. 31, 56-57 

(2004). Because of the additional constitutional questions that might 

arise with respect to application of the PAC requirement to unions, the 

discussion in this brief is limited solely to election-related spending by 

corporations. 
10 

U.S. at 259-65; see also McConnell, 540 U.S. at 210-11 

(reiterating criteria in greater detail). In crafting these 

criteria, the Court ensured that the exemption would be 

carefully tailored in accord with the underlying justifications for the PAC requirement. Requiring such “MCFL

corporations” to use PACs for political expenditures would 

burden their First Amendment activities without advancing the state interests that support the general regulation 

as applied to other corporations. With respect to such a 

corporation, “the concerns underlying the regulation of 

corporate political activity are simply absent. . . . It is not 

the case . . . that [the corporation] merely poses less of a 

threat of the danger that has prompted regulation. Rather, 

it does not pose such a threat at all.” MCFL, 479 U.S. at 

263. 

 The Court’s treatment of as-applied exceptions in such 

cases should guide its analysis here, as well, where it is 

faced with a virtually indistinguishable corporate PAC 

requirement. 

II. 

THE COURT SHOULD CRAFT ANY AS-APPLIED 

EXEMPTION WITH REGARD TO THE COMPELLING INTERESTS CONGRESS SOUGHT TO PROTECT IN BCRA SECTION 203 

 Section 203 of BCRA is the latest amendment to the 

very well-established, decades-old regulation on corporate 

expenditures that the Court has reviewed in numerous 

cases. Congress has regulated corporate influence on 

federal elections for 100 years, since the Tillman Act 

of 1907, Pub. L. 59-36, 34 Stat. 864. See Beaumont, 539 

U.S. at 152-53. Since 1907, “there has been continual 
11 

congressional attention to corporate political activity.” Id.

at 153. And for fully 60 years, since the Labor Management Relations (Taft-Hartley) Act of 1947, ch. 120, § 304, 

61 Stat. 159-160, Congress has required that corporate 

expenditures in connection with federal elections must 

come from funds raised for that purpose, rather than from 

corporate treasury funds derived from shareholders. See 

generally Pipefitters Local Union No. 562 v. United States, 

407 U.S. 385 (1972) (construing the 1947 and 1972 versions of the PAC requirement); see also id. at 402-14 

(canvassing the history of the regulation); United States v. 

International Union of United Automobile Workers (UAW), 

352 U.S. 567, 570-87 (1957); MCFL, 479 U.S. at 246-48. 

 In 1986, the Court construed the PAC requirement to 

apply only to expenditures for express advocacy (i.e., ads 

specifically stating that viewers or listeners should vote 

for or against a particular candidate), so as to avoid a 

concern that the coverage of the law was too imprecise. 

MCFL, 479 U.S. at 248-49 (referring to Buckley’s vagueness concerns in an analogous context); see Buckley, 424 

U.S. at 40-44. Within ten years, corporations had begun to 

exploit this limitation by spending significant sums of 

treasury funds for so-called “issue ads,” that is, ads not 

expressly advocating a vote for or against a candidate, but 

instead criticizing or supporting a candidate’s position on 

an issue and telling listeners to call the candidate about 

the issue. McConnell, 540 U.S. at 127-28 & nn.20-21; see 

also Richard Briffault, Issue Advocacy: Redrawing the 

Elections/Politics Line, 77 TEXAS L. REV. 1751, 1755-62 

(1999) (setting forth ease by which corporations and others 

evaded FECA regulation). 
12 

 Congress’s response to this widespread evasion of the 

restrictions on corporate campaign spending was section 

203 of BCRA. It applies the PAC requirement to “electioneering communications.” Doing so eliminates the vagueness concerns that resulted in the Court’s narrowing 

construction in MCFL, and as a practical matter puts 

corporations in much the same position they were in for 

several decades after Congress enacted its initial limitation on corporate expenditures in 1947. Under section 203 

– and the definition of “electioneering communications” 

found in BCRA section 201 – the corporate PAC requirement now extends to expenditures for broadcast, cable, or 

satellite communications that refer to a clearly identified 

candidate for federal office, that are aired within 60 days 

before a general election or 30 days before a primary 

election, and that are aired to the candidate’s constituency. 

2 U.S.C. § 434(f)(3). Congress determined that by reason of 

their content, medium, timing, and targeting, such ads are 

“functionally identical in important respects” to express 

campaign advocacy even though they eschew the “magic 

words” of express advocacy, such as “Elect John Smith.” 

McConnell, 540 U.S. at 126. In McConnell, the Court 

agreed, upholding the extension of the longstanding 

corporate PAC requirement to electioneering communications as defined by Congress. Id. at 203-09. 

 In so doing, the Court gave great weight to political 

realities and focused on the electoral significance of the 

ads’ context – not merely to their words: 

[T]he unmistakable lesson from the record on 

this litigation, as all three judges in the District 

Court agreed, is that Buckley’s magic-words requirement is functionally meaningless . . . Not 
13 

only can advertisers easily evade the line by eschewing the use of magic words, but they would 

seldom choose to use such words even if permitted. And although the resulting advertisements 

do not urge the viewer to vote for or against a 

candidate in so many words, they are no less 

clearly intended to influence the election. Buckley’s express advocacy line, in short, has not 

aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA 

to correct the flaws it found in the existing system. 

Id. at 193-94 (emphasis added); see also id. at 206. 

 The Court in McConnell concluded that BCRA’s 

electioneering communication definition was not vague, id. 

at 194, and that the corporate PAC requirement for such 

electioneering communications is neither unconstitutionally underinclusive, id. at 207-08, nor unconstitutionally 

overbroad, id. at 205-07. The Court noted that the vast 

majority of ads that fall within the statutory definition are 

“clearly” election-related. Id. at 206. Moreover, the Court 

noted that corporations would not be unduly burdened by 

the regulation because they could continue to pay for 

political ads either by avoiding any specific reference to 

federal candidates, or “in doubtful cases by paying for the 

ad from a segregated fund,” that is, a PAC. Id. 

 We respectfully submit that in determining whether 

any as-applied exemption to this rule is constitutionally 

required, the Court ought to build on the principles that it 

developed in Buckley, Brown, and MCFL. 

 In crafting as-applied exemptions in those cases, the 

Court identified discrete circumstances in which the 

constitutional balance between the burden on First 
14 

Amendment rights and the advancement of the state’s 

interests was significantly different from the usual run of 

cases in which the regulation had already been deemed 

constitutional. In particular, the Court considered whether 

there were situations in which (i) the burden on First 

Amendment rights was greater than in the standard cases 

covered by the regulation; and (ii) the usual justifications 

for imposing that burden did not apply, i.e., where the 

state interests are not implicated. 

 In this case – unlike in Brown, 459 U.S. 87; see supra

pp. 6-7 – there are no circumstances in which BCRA’s PAC 

requirement imposes greater burdens on First Amendment 

rights than the burdens imposed in the vast majority of 

concededly constitutional applications. In particular, 

application of section 203 to “electioneering communications” that are purportedly related to legislative initiatives 

does not impinge on corporations’ protected speech any 

more than does the application of the PAC requirement to 

express advocacy itself. As the Court explained in McConnell, “the speech involved in so-called issue advocacy” is 

not “any more core political speech than are words of 

express advocacy.” 540 U.S. at 205.6

 

 6 “After all,” the Court explained, “ ‘the constitutional guarantee 

has its fullest and most urgent application precisely to the conduct of 

campaigns for political office,’ ” and “ ‘[a]dvocacy of the election or defeat 

of candidates for federal office is no less entitled to protection under the 

First Amendment than the discussion of political policy generally or 

advocacy of the passage or defeat of legislation.’ ” McConnell, 540 U.S. 

at 205 (citations omitted). On this particular point, the entire Court in 

McConnell appeared to be in agreement. See id. at 328 (Kennedy, J., 

concurring in the judgment in part and dissenting in part). 

 The Court’s decision in First Nat. Bank of Boston v. Bellotti, 435 

U.S. 765 (1978), is not to the contrary. In Bellotti, the state had 

foreclosed all means for corporations to engage in communications on 

(Continued on following page) 
15 

 Because application of section 203 to speech that is 

arguably more focused on legislative initiatives than on 

electoral choices does not raise greater First Amendment 

concerns than the core applications of the law that the 

Court has already approved, if there are to be any asapplied exemptions from that statute, it would only be 

under circumstances in which “the interests that justify 

the regulation of campaign speech might not apply.” Id. at 

206 n.88; see also MCFL, 479 U.S. at 263 (“the concerns 

underlying the regulation of corporate political activity are 

simply absent with regard to MCFL”). 

 As noted above, supra pp. 7-9, Congress and the Court 

have identified at least two such interests – prevention of 

the “distortion caused by corporate spending” when a 

corporation uses funds secured by virtue of “state-created 

advantages,” and protection of the prerogatives of dissenting shareholders – that are sufficiently compelling to 

justify the basic corporate PAC requirement, even as 

applied to core political speech. 

 The Court and Congress have identified one category 

of cases in which these two compelling governmental 

interests are simply not implicated – namely, application 

of the PAC requirement to so-called “MCFL-exempt” 

nonprofit corporations. See McConnell, 540 U.S. at 210-11 

(“We presume that the legislators who drafted” BCRA 

certain referendum proposals. Under BCRA section 203, by contrast, 

corporations may engage in electioneering communications in a number 

of ways, including through a PAC that they may control. See MCFL, 

479 U.S. at 259 n.12 (“The [corporate PAC requirement] imposed as a 

result of this concern is of course distinguishable from the complete 

foreclosure of any opportunity for political speech that we invalidated in 

the state referendum context in [Bellotti].”). 
16 

section 204, 2 U.S.C. § 441b(c)(6)(A), extending PAC 

requirement to certain nonprofit corporations “were fully 

aware that the provision could not validly apply to MCFLtype entities.”). 

 The Court has explained in MCFL and McConnell 

why the two state interests that ordinarily justify the 

corporate PAC requirement are inapposite to such nonprofit corporations. First, such groups do not use aggregations of wealth accumulated by virtue of the corporate 

form to espouse political advocacy with no correlation to 

the public’s support for such ideas. Second, the shareholder-protection interest is not implicated, because 

“[i]ndividuals who contribute to [such a nonprofit corporation] are fully aware of its political purposes, and in fact 

contribute precisely because they support those purposes.” 

MCFL, 479 U.S. at 260-61; see generally McConnell, 540 

U.S. at 210-11. 

 Wisconsin Right To Life, Inc. (WRTL) presumably 

satisfies two of the three criteria for an MCFL exemption: 

It “ ‘was formed for the express purpose of promoting 

political ideas, and cannot engage in business activities,’ ” 

and “ ‘it has no shareholders or other persons affiliated so 

as to have a claim on its assets or earnings.’ ” McConnell, 

540 U.S. at 210 (quoting MCFL, 479 U.S. at 264). Therefore, WRTL’s use of its treasury funds, like that of most 

nonprofit advocacy corporations, would not implicate the 

state interests underlying BCRA section 203. WRTL would 

be free to use its treasury funds for both issue-oriented 

and direct electoral expression, but for the fact that it does 

not satisfy the final MCFL criterion: WRTL does not abide 

by a policy of declining to accept contributions from forprofit corporations. See Defendant Federal Election Commission’s Supplemental Brief in Support of Motion for 
17 

Summary Judgment, Wis. Right to Life, Inc. v. FEC, No. 

1:04cv01260, at 12 (D.D.C. Sept. 11, 2006), available at: 

http://electionlawblog.org/archives/fec-wrtl-supp%20msj.pdf 

(WRTL took contributions of up to $300,000 (including 

individual contributions of $50,000 and $130,000) from forprofit corporations). 

 This third requirement “ ‘prevents [nonprofit] corporations from serving as conduits for the type of [otherwise 

prohibited] direct [corporate] spending that creates a 

threat to the political marketplace.’ ” McConnell, 540 U.S. 

at 211 (quoting MCFL, 479 U.S. at 264). This point is 

worth emphasis: The only reason section 203 applies to 

WRTL at all – as to any of its advertising – is because 

WRTL has opted to accept large amounts of money from 

the for-profit corporations that are the specific target of 

the section 203 PAC requirement. If WRTL would simply 

decline corporate funds to pay for political advocacy, then 

section 203 and FECA more broadly would not prevent it 

from using its treasury funds for any sort of advertising, 

including express advocacy.7

 Because it has chosen not to 

take advantage of the MCFL exemption, the burden of 

establishing eligibility for yet another type of as-applied 

exemption rests upon WRTL. See Buckley, 424 U.S. at 72-

74; Brown, 459 U.S. at 93-94. 

 7 It is conceivable that some other nonprofit corporation that 

accepts very little money from for-profit corporations could demonstrate 

that in such a case the “conduit” concern the Court has recognized is 

inapposite because of the trivial amount of corporate funds received. If 

such a showing were made, then the Court would have to consider 

whether a “de minimis” exception to the final criterion of the MCFL 

exemption would be appropriate, and manageable. But no such proof 

has been offered here, presumably because WRTL accepts a great deal 

of money from for-profit corporations. 
18 

 Instead of identifying a category of speakers that do 

not implicate the state interests underlying section 203 (as 

in MCFL), WRTL argues that there is a category of broadcast advertising that falls within the plain terms of the 

BCRA definition of “electioneering communications” but 

that somehow does not implicate the interests underlying 

the PAC requirement. See Appellee’s Response to Appellants’ Jurisdictional Statements, at 4 (the Court in 

McConnell “ ‘assume[d] that the interests that justify the 

regulation of campaign speech might not apply to the 

regulation of genuine issue ads’ ” (quoting McConnell, 540 

U.S. at 206 n.88)). 

 In order for WRTL to meet its burden, it must demonstrate that there is a category of so-called corporate 

“electioneering communications” as defined by Congress as 

to which corporate aggregations of wealth do not have the 

sort of “corrosive and distorting” effects on federal elections that justify the PAC requirement in the first instance, and that do not implicate shareholders’ interests in 

not having their funds be used to affect federal elections. 

 We submit, however, that advertisements taking the 

form of “electioneering communications” as defined by 

Congress will invariably implicate such concerns except in 

the unusual situation where it is unlikely that such advertisements would have an appreciable effect on voters’ 

choices in the relevant election. 

 The Court’s decision in McConnell makes clear that 

whether or not an ad implicates the relevant state interests 

is a question that necessarily requires careful consideration 

of the electoral setting – of whether the ad could have the 

effect of influencing voters’ decisions. The Court held that 

“issue ads” falling within the statutory definition generally 
19 

are the “functional equivalent of express advocacy,” i.e., 

that the “justifications that adequately support the regulation of express advocacy” apply as well to “significant 

quantities of speech encompassed by the definition of 

electioneering communications.” McConnell, 540 U.S. at 

206. 

 Of course, Congress’s definition of “electioneering 

communications” does not correspond exactly to every 

advertisement that implicates the interests supporting the 

corporate PAC requirement. That definition does not, for 

instance, cover every ad that is likely to influence voters’ 

choices in a federal election. See id. at 208 (explaining that 

the definition is not fatally underinclusive even though “it 

leaves advertising 61 days in advance of an election 

entirely unregulated”). Just as the definition – like any 

bright-line rule – is slightly underinclusive relative to 

Congress’s objectives, perhaps it is likewise a bit overinclusive: There might be some ads covered by the definition 

that would be highly unlikely to influence voters’ choices. 

 Appellees’ primary argument appears to be that an asapplied exemption should be recognized where a corporation’s ostensible purpose in broadcasting the advertisement is to influence legislative debates rather than (or in 

addition to) federal elections. There is some reason to 

think such ostensible non-election-related purposes would 

be pretextual in a significant number of cases. See McConnell, 540 U.S. at 206. But more fundamentally, it simply is 

not the case that “electioneering communications” would 

not implicate Congress’s compelling interests even if the 

corporation might also intend for the broadcasts to have 

an impact on legislative debates. 
20 

 Indeed, a corporation’s intent in broadcasting such ads 

should be immaterial to the as-applied-exemption question. The state interests underlying the PAC requirement 

– the effects of corporate wealth on federal elections by 

virtue of state-conferred prerogatives, and the protection 

of shareholders against the risk that their money will be 

used to influence federal elections in ways that they do not 

approve – are implicated whenever such ads influence 

voters’ choices, regardless of whether the corporation 

might have (or be able to articulate as a pretext) additional objectives for broadcasting such ads. 

 Thus, corporate intent should not be the touchstone 

for an exemption. The burden for a corporation such as 

WRTL must be to identify an easily distinguishable set of 

advertisements that fall within the definition of “electioneering communications” but that do not have any appreciable chance of actually influencing voters’ federal 

election choices – because it is only such advertisements 

that would not implicate the compelling government 

interests underlying the 60-year-old requirement that 

corporations should use segregated funds to influence 

federal elections. 
21 

III. 

THE DISTRICT COURT’S AS-APPLIED TEST IS 

NOT TAILORED TO THE COMPELLING INTERESTS CONGRESS SOUGHT TO PROTECT IN BCRA 

AND WOULD LEAD TO THE RE-EMERGENCE OF 

“ISSUE ADS” PAID FOR WITH CORPORATE 

TREASURY FUNDS THAT HAVE AN IMPACT ON 

FEDERAL ELECTIONS 

 The district court did not attempt to identify a set of 

advertisements that are unlikely to implicate the compelling government interests underlying section 203. Rather, 

it would create an exemption for any advertisement that 

“describes a legislative issue that is either currently the 

subject of legislative scrutiny or likely to be the subject of 

legislative scrutiny in the near future,” refers to the 

candidate’s voting record, “exhorts the listener to . . . 

contact the candidate about the described issue,” but then 

avoids references to an election or political party, and 

avoids expressly attacking or supporting a candidate. 

(Appendix to Jurisdictional Statement of Appellant Federal Election Commission (App. J.S.) 22a.) 

 This draws a roadmap for easily evading BCRA. 

Congress found, and the Court agreed in McConnell, that 

broadcast advertisements that name federal candidates in 

the immediate pre-election period have an impact on the 

election. Yet, the district court would exempt many of 

these ads from regulation. It is hard to imagine what 

campaign issue is not “currently the subject of legislative 

scrutiny or likely to be the subject of legislative scrutiny in 

the near future.” (App. J.S. 22a.) Surely, it would be simple 

for a corporation to develop an election-period ad that 

takes an emphatic position on an issue, links a candidate 
22 

to the issue, criticizes the candidate’s position on the issue 

(albeit not the candidate herself), and calls on voters to 

contact the candidate – all without referring to an election 

or party. As McConnell explained, “[l]ittle difference 

existed, for example, between an ad that urged viewers to 

‘vote against Jane Doe,’ and one that condemned Jane 

Doe’s record on a particular issue before exhorting viewers 

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

540 U.S. at 126-27. 

 The district court’s standard would once again enable 

corporations to use treasury funds to sponsor electionperiod ads that condemn Jane Doe’s record on a particular 

issue before exhorting voters to “call Jane Doe and tell her 

what you think.” Truly, under the district court’s approach, 

the exemption would eat up the rule, and the very kinds of 

advertising tactics that BCRA was enacted to prevent 

would flourish again. 

 The district court determined that the as-applied 

exemption has to be decided solely by looking at the face of 

the ad, without any context. As the court explained, it 

limited “its consideration to language within the four 

corners of the anti-filibuster ads.” (App. J.S. 22a.) This is 

flatly inconsistent with Congress’s judgment in BCRA, and 

with the Court’s opinion in McConnell. The lower court’s 

test for as-applied challenges to section 203 ignores 

political reality by adopting a “see no evil” approach, 

devoid of context, for determining whether corporate 

treasury funds are being spent on election-period advertisements that are likely to have an appreciable effect on 

voter choices in federal elections. 

 The compelling government interests that justify 

regulation of corporate spending are not concerned with 
23 

the content of ads per se but with the potential impact of 

the corporate treasury funds on elections and on the rights 

of shareholders not to have their funds diverted to election 

campaigns. The content of the ad is, of course, a critical 

factor in determining whether an ad raises the concerns 

that justify regulation. That is why section 203 provides 

that a reference to a “clearly identified candidate for 

Federal office” is a prerequisite for regulation of the ad as 

an “electioneering communication.” But as Congress and 

the Court have recognized, content cannot be the only 

factor. As BCRA and McConnell together make clear, 

context – including the timing of the ad and the medium of 

communication – matters, too. 

 If the lower court’s as-applied test is allowed to stand, 

the corporate “issue ads” that Congress intended to subject 

to the PAC requirement in BCRA would likely return in 

full force, thereby leading once again to an irrational 

regime that might treat ads with virtually identical 

electoral impact differently, depending upon the presence 

or absence of magic words (in this case, any word that 

directly “promotes, attacks, supports, or opposes” a named 

candidate (J.S. App. 22a)). 

 Moreover, although WRTL in this litigation requests 

an as-applied exemption only as to BCRA section 203’s 

PAC requirement, if the lower court opinion is allowed to 

stand, corporations and others would be able to ask for asapplied exemptions to BCRA section 201, which uses the 

same “electioneering communications” test to trigger a 

disclosure requirement for election-related communications over a certain spending threshold. See 2 U.S.C. 

§ 434(f). A broad as-applied exemption thus could lead to a 

situation in which the “sponsors of [issue] ads [will once 

again use] misleading names to conceal their identity.” 
24 

McConnell, 540 U.S. at 128. This is a result that would 

thwart Congress’s strong interest in mandating effective

campaign finance disclosure, an interest eight of the 

Court’s Justices upheld in McConnell. Id. at 196 (upholding section 201); id. at 321 (Kennedy, J., joined by 

Rehnquist, C.J., and Scalia, J., concurring and dissenting) 

(voting with majority to uphold the disclosure rules of 

section 201 except as to its “advanced disclosure” requirement). 

IV. 

THE COURT SHOULD HOLD THAT CORPORATIONS 

SEEKING AN AS-APPLIED EXEMPTION FROM 

THE PAC REQUIREMENT FOR “ELECTIONEERING 

COMMUNICATIONS” MUST DEMONSTRATE THAT A 

PARTICULAR BROADCAST ADVERTISEMENT IS 

UNLIKELY TO HAVE ANY APPRECIABLE EFFECT 

ON VOTERS’ CHOICES IN A FEDERAL ELECTION 

 The as-applied exemption the Court should craft is 

one tailored to the substantial governmental interests 

that, according to the Court, justify the regulation of 

corporate election-related activity. We propose the following test: a corporation should be entitled to an as-applied 

exemption to the PAC requirement for electioneering 

communications only when it proves that the communication is unlikely to have any appreciable effect on voters’ 

choices in the federal election. 

 For example, suppose a corporation wishes to use its 

general treasury funds to broadcast a television advertisement during the pre-election period concerning a pending 
25 

legislative issue that mentions an incumbent member of 

Congress who is running unopposed for reelection.8 In such 

circumstances, an as-applied exemption might be warranted because in an uncontested election the advertising 

can have no appreciable effect on voters’ choices.9

 To give another example, imagine a corporation that 

sells baseball cards. It pays for a television advertisement 

of its products that is broadcast close to an election and 

 8 The Center for Responsive Politics reports that in 2006, candidates ran completely unopposed in 36 House races. Center for Responsive Politics, 2006 Election Analysis: Incumbents Linked to Corruption 

Lose, But Money Still Wins (updated Nov. 9, 2006), http://www.opensecrets. 

org/pressreleases/2006/PostElection.11.8.asp. 

 9

 The issue is more complex when a corporation wishes to run a 

television advertisement in an uncontested primary election mentioning a candidate who will run in a contested general election. Such 

advertising may affect the general election. See Christian Civic League 

of Me., Inc. v FEC, 433 F.Supp.2d 81, 89 (D.D.C. 2006) (suggesting that 

electioneering communication mentioning Senator Olympia Snowe 

broadcast shortly before the 2006 Maine Republican primary for U.S. 

Senate “might have the effect of encouraging a new candidate to oppose 

Senator Snowe, reducing the number of votes cast for her in the 

primary, weakening her support in the general election, or otherwise 

undermining her efforts to gather such support, including by raising 

funds for her reelection”). Nevertheless, Congress has treated the 

primary and general elections as separate elections under BCRA, and 

therefore we would not rule out the possibility of an as-applied exemption for uncontested primary elections, depending upon the nature of 

the proof a corporation is able to adduce, notwithstanding a slight 

possibility that the pre-primary ads might affect general elections. 

 The question is not academic in the context of this very case. 

Senator Feingold ran unopposed in 2004 in the Wisconsin Democratic 

primary for U.S. Senate. See Wisconsin State Elections Board, Results 

of Fall Primary Election – 9/14/2004, at p. 2, http://165.189.88.185/ 

docview.asp?docid=1382&locid=47. However, only part of the total 

electioneering communications period at issue in this case was due to 

the primary; on September 2, or two weeks before the primary, the 60-

day general election period began. 
26 

includes the name or likeness of a former baseball star 

who also happens to be an incumbent Senator running for 

re-election. The corporation should be entitled to an asapplied exemption because such an advertisement, so 

entirely unconnected to anything relevant to the candidate 

or his performance in office, is unlikely to have an appreciable effect on the voters’ decisionmaking. 

 Similarly, suppose a candidate has the same name as 

an automobile dealership within the district she seeks to 

represent in Congress – a business that she founded and is 

now operated by her daughter, who has the same name. 

The dealership could be allowed to run ads for its business 

in the pre-election period featuring the name common to 

the candidate, the dealership, and the current head of the 

business.10

 Although this test would require application of some 

judgment (less in the case of the unopposed candidate, a 

little more in the baseball card and car dealership cases), 

the number of difficult cases would be few. The baseball 

card or car dealership ad will not have an appreciable effect 

on voters’ choices because it is highly unlikely that voters 

would use an ad so far removed from anything relevant to 

the candidate or his or her performance in assessing the 

candidate. In contrast, WRTL’s 2004 advertisements 

should easily fail to qualify for an as-applied exemption 

 10 The FEC agreed in a 2004 determination. 2004-31 Op. FEC 

(2004) (Russ Darrow Group, Inc.), available at http://www.fec.gov/aos/ 

2004/ao2004-31final.pdf. Although the FEC declined to create an 

exemption for all situations in which a candidate and a business shared 

a name – because such ads could often be used to promote the candidate 

– it found that in the particular circumstances of the dealership case an 

exemption was appropriate. Id. 
27 

(except arguably during part of the primary period, when 

Senator Feingold was running unopposed; see supra p. 25 

n.9). A broadcast ad that refers to both a candidate and a 

campaign issue in the pre-election period is singularly 

unsuitable for an as-applied exemption, because such ads 

would almost certainly affect voters’ choices about the 

named candidates. The WRTL ads are closely enough 

related to a candidate’s performance and issues in the 

election that it is quite plausible the advertisements could 

affect voters’ choices, as the dissent in the lower court 

below demonstrated, applying an appropriate contextual 

analysis. (App. J.S. 40a-47a.)11

 The Court in McConnell recognized that political 

actors can understand context and make such commonsense judgments. In the few close cases that may arise, 

corporations may seek an advisory opinion from the FEC, 

cf. McConnell, 540 U.S. at 170 n.64, or “during those 

timeframes [ ] simply avoid[ ] any specific reference to 

federal candidates, or in doubtful cases [ ] pay[ ] for the ad 

from a segregated fund.” Id. at 206. 

 11 It is noteworthy that the radio scripts for each of WRTL’s ads 

included the following disclaimer: “Paid for by Wisconsin Right to Life 

(befair.org), which is responsible for the content of this advertising and 

not authorized by any candidate or candidate’s committee.” (App. J.S. 

3a-5a & nn.3-5.) The disclaimer plainly indicates WRTL’s recognition 

that the ads would be perceived by the voters who heard them as 

electoral ads, thus confirming that even their sponsor understood they 

would have an electoral effect. Indeed, by specifically using the terms 

“candidate” and “candidate’s committee,” the ads employ the language 

of electoral ads, which reinforces their foreseeable electoral effect. Even 

under the district court’s inadequate, content-only test, the ads’ 

references to “candidate or candidate’s committee” ought to render 

them electoral communications ineligible for any as-applied exemption. 
28 

 To be sure, there would not be many cases in which 

corporations would qualify for as-applied exemptions. But 

corporations would continue to have significant protections 

for their First Amendment activities. MCFL-exempt corporations are not subject to the PAC requirement at all. They can 

spend their general treasury funds on such ads. (Recall that 

WRTL itself could qualify for such a sweeping exemption if it 

simply declines donations from other corporations.) Even forprofit corporations and corporations such as WRTL that do 

not qualify for the MCFL exemption continue to have many 

ways to engage in political activity, including: 

• Spending on express advocacy and electioneering communications through a separate PAC 

(as WRTL has created (see App. J.S. 41a-42a)); 

• Internet, mail, and print advertising that 

avoids express advocacy; 

• Broadcast advertisements, including ads 

that refer to federal candidates, that are 

aired outside the statutory pre-election period and that avoid express advocacy; 

and 

• Television or radio advertising broadcast 

close to the election that “simply avoid[s] 

any specific reference to federal candidates” 

(McConnell, 540 U.S. at 206). 

--------------------------------- ♦ --------------------------------- 

CONCLUSION 

 Both Congress and the Court have long struggled to set 

the balance between the proper scope of election regulation 

and the protection of political speech. BCRA and McConnell
29 

have struck a fair balance. Any as-applied exemptions to 

BCRA should not be allowed to subvert that balance. 

 The district court erred in its most recent opinion by 

applying a poorly tailored and constitutionally tone-deaf 

test for separating electioneering communications likely to 

influence voters’ choices in federal elections from those 

unlikely to have such an effect. It would permit corporate 

use of treasury funds for speech that falls within the core 

of the constitutional justifications for BCRA’s regulation. 

And it would exempt many electioneering communications 

from the reach of a statute Congress only recently adopted 

and the Court just recently sustained. Its judgment should 

be reversed. Any as-applied exemption the Court adopts 

should exempt only those electioneering communications 

that are not likely to have an appreciable effect on voters’ 

choices in a federal election. 

 For the foregoing reasons, we urge the Court to 

reverse the judgment of the district court. 

 Respectfully submitted, 

RICHARD BRIFFAULT

435 West 116th Street 

New York, NY 10027 

(212) 854-2638 

FAX: (212) 854-7946 

DAVID S. ETTINGER

HORVITZ & LEVY LLP

15760 Ventura Boulevard, 

 18th Floor 

Encino, CA 91436 

(818) 995-0800 

FAX: (818) 995-3157 

RICHARD L. HASEN

*Counsel of Record

919 Albany Street 

Los Angeles, CA 90015 

(213) 736-1466 

FAX: (213) 380-3769 

rick.hasen@lls.edu 

MARTIN S. LEDERMAN

600 New Jersey Avenue, NW

Washington, D.C. 20001 

(202) 662-9937 

Attorneys for Amici Curiae