No. 02-1674 et al. 

IN THE 

Supreme Court of the United States


SENATOR MITCH MCCONNELL ET AL., 

Appellants/Cross-Appellees, 

—v.— 

FEDERAL ELECTION COMMISSION ET AL., 

Appellees/Cross-Appellants. 

ON APPEAL FROM THE UNITED STATES 

DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 

BRIEF OF AMICI CURIAE, 

FORMER LEADERS OF THE AMERICAN CIVIL LIBERTIES UNION,

IN SUPPORT OF APPELLEES/CROSS-APPELLANTS

FEDERAL ELECTION COMMISSION, ET AL.

ERIC M. LIEBERMAN

ROGER BEARDEN

GREGORY SILBERT

Rabinowitz, Boudin, Standard,

Krinsky & Lieberman, P.C. 

740 Broadway, 5th Floor 

New York, New York 10003-9518 

(212) 254-1111 

NORMAN DORSEN 

Counsel of Record 

Stokes Professor of Law

New York University School of Law

40 Washington Square South

New York, New York 10012

(212) 998-6233
TABLE OF CONTENTS 

PAGE 

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

INTEREST OF AMICI CURIAE AND 

STATEMENT OF POSITION ................ 1 

SUMMARY OF ARGUMENT .................... 2 

ARGUMENT ....................................... 4 

I. Appellants’ Facial Challenge to BCRA 

Must Be Rejected Because BCRA’s 

Scope Is Precisely and Narrowly 

Tailored and Cannot Be Deemed 

“Substantially Overbroad” ................... 4 

A. The Primary Definition of 

Electioneering Communications 

Is Facially Valid .......................... 7 

B. The Fall-back Definition of 

“Electioneering Communication” 

Is Facially Valid .......................... 13 

II. EXPRESS ADVOCACY IS NOT A 

CONSTITUTIONAL CEILING .............. 14 

III. DISCLOSURE REQUIREMENTS AND 

PROHIBITIONS ON CORPORATE 

AND LABOR UNION FUNDING 

OF ELECTIONEERING COMMUNICATIONS SERVE IMPORTANT 

FIRST AMENDMENT INTERESTS ........ 21 
ii 

PAGE 

A. BCRA’s Disclosure Requirements 

Are Constitutional........................ 22

B. BCRA’s Restriction of Corporation 

and Labor Union Funding of 

Electioneering Communications 

Is Constitutional.......................... 25

C. The Exception for MCFL 

Corporations Is Preserved 

by BCRA.................................. 27

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

TABLE OF AUTHORITIES

Cases: PAGE 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) .......................... 20, 26

Board of Trustees, State Univ. of New York 

v. Fox, 492 U.S. 469 (1989) ................. 10

Broadrick v. Oklahoma, 413 U.S. 601 (1973) . . . 6, 8, 9

Brockett v. Spokane Arcades, Inc., 

472 U.S. 491 (1985) .......................... 6, 10

Brown v. Socialist Workers ‘74 Campaign 

Comm. (Ohio), 459 U.S. 87 (1982) .......... 8, 25

Buckley v. Valeo, 424 US 1 (1976) ............... passim 

City of Boerne v. Flores, 521 U.S. 507

(1997) .......................................... 28

City of Chicago v. Morales, 527 U.S. 41 

(1999) .......................................... 13, 14

Coates v. City of Cincinnati, 402 U.S. 611 

(1971) .......................................... 10, 13

Colorado Republican Federal Campaign 

Committee v. FEC, 518 U.S. 604 (1996) .... 

Communist Party v. Subversive Activities 

Control Bd., 367 U.S. 1 (1961) .............. 22

Dombrowski v. Pfister, 380 U.S. 479 (1965)..... 10

FEC v. Beaumont, ___ U.S. ___, 

123 S.Ct. 2200 (2003) ................11, 20, 25, 26

9 
iv 

PAGE 

FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238 (1986) ..................8, 27, 28

FEC v. National Conservative Political Action

Committee, 470 U.S. 480 (1985)............. 20

FEC v. National Right to Work Committee, 

459 U.S. 197 (1982)....................... 25, 26, 27

Gooding v. Wilson, 405 U.S. 518 (1972) ......... 10

Grayned v. City of Rockford, 408 U.S. 104 

(1972) .......................................... 17

Houston v. Hill, 482 U.S. 451 (1987)............. 8

Kolender v. Lawson, 461 U.S. 352 (1983) ....... 13

Members of City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789 

(1984) .......................................... 8

NAACP v. Button, 371 U.S. 415 (1963) .......... 17

New York v. Ferber, 458 U.S. 747 (1982) ........ 8

Pipefitters Local Union No. 562 v. U.S., 

407 U.S. 385 (1972) .......................... 26

Regan v. Taxation With Representation, 

461 U.S. 540 (1983) .......................... 11

Renne v. Geary, 501 U.S. 312 (1991) ............ 10

Secretary of State of Md. v. Joseph H. Munson 

Co., Inc., 467 U.S. 947 (1984) .............. 13, 14

Smith v. Goguen, 415 U.S. 566 (1974) ........7, 13, 14

Spence v. Washington, 418 U.S. 405 (1974) ..... 14
v 

PAGE 

Steffel v. Thompson, 415 U.S. 452 (1974) ........ 7

Thomas v. Collins, 323 U.S. 516 (1945).......... 17

United States v. Raines, 362 U.S. 17 

(1960) .......................................... 7

United States v. Salerno, 481 U.S. 739 (1987). . . 8

United States v. United Auto Workers, 

352 U.S. 567 (1957) .......................... 26, 27

Virginia v. Hicks, U.S. , 123 S. Ct. 1291 

(2003) .......................................... 6, 9

Warth v. Seldin, 422 U.S. 490 (1975) ............ 7

Yazoo & Mississippi Valley R.R. v. Jackson 

Vinegar, 226 U.S. 217 (1912) ............... 7

Statutes and Regulations 

Bipartisan Campaign Reform Act, 

Pub. L. No. 107-155 (2002) .................. passim 

Electioneering Communications, 

67 Fed. Reg. 65190, 65203-04 

(October 24, 2002) ............................ 28

Federal Election Campaign Act, 

Pub. L. No. 93-443 (1974) ................... passim 

2 U.S.C. § 434(f)(3)(A)............................ 5, 17
vi 

PAGE 

Other Authorities 

L. Brandeis, Other People’s Money 

(National Home Library Foundation 

ed. 1933) ....................................... 23 

Richard H. Fallon, Jr., Making Sense of 

Overbreadth, 100 Yale L.J. 853 

(1991) .......................................... 12 
INTEREST OF AMICI CURIAE1 

AND STATEMENT OF POSITION 

Amici constitute persons who have served as ACLU 

President, ACLU Executive Director, ACLU National 

Legal Director, and ACLU National Legislative Director. 

Norman Dorsen served as ACLU General Counsel from 

1969-1976 and as President of the ACLU from 1976-

1991. John Pemberton served as Executive Director of 

the ACLU from 1962-1970 and Aryeh Neier served as 

Executive Director from 1970-1978. john powell served 

as National Legal Director from 1987-1993. John Shat

tuck served as National Legislative Director of the 

ACLU from 1976-1984 and Morton Halperin as National 

Legislative Director from 1984-1992.2 Amici have 

devoted much of their professional lives to the ACLU 

and, in particular, to the protection of free speech. They 

are proud of their ACLU service, and they continue to 

support the ACLU’s matchless efforts to preserve the 

Bill of Rights. They believe, however, that the opposi1 This brief is filed with the written consent of all parties. No 

counsel for a party authored this brief in whole or in part, nor did any 

person or entity, other than amici or their counsel, make a monetary 

contribution to the preparation or submission of this brief. 

2 Burt Neuborne, who served as National Legal Director from 

1982-1986 and who joined with amici in a statement supporting the 

legislation, represents the intervenor-defendants/appellees Senator 

John McCain et al. in defense of the constitutionality of the Biparti

san Campaign Reform Act and is therefore ineligible to appear on this 

brief. Charles Morgan, Jr., who served as National Legislative Direc

tor from 1972-1976, signed a letter to Congress with the other amici 

publicly supporting the constitutionality of the BCRA, but he is cur

rently ill and unable to consent to appear on this brief. Bruce Ennis, 

who preceded Burt Neuborne as National Legal Director and who 

joined in the statement in support of the legislation, died prior to the 

commencement of this litigation. 
2€

tion of the current leadership of the ACLU to campaign 

finance reform in general, and the Bipartisan Campaign 

Reform Act (“BCRA”), Pub. L. 107-155, 116 Stat. 81, in 

particular, is misplaced. Amici submit this brief to elu

cidate their publicly-stated view that the electioneering 

provisions of BCRA, Sections 201-204, are facially constitutional.3 

SUMMARY OF ARGUMENT 

The electioneering provisions of BCRA, Sections 201-

204, address the growing evasion of existing campaign 

finance regulations through the use of broadcast adver

tisements designed to influence federal elections, yet not 

subject to the disclosure requirements or the funding 

source prohibitions that for decades have been placed on 

other forms of electioneering activity. These advertise

ments avoid words expressly advocating the election or 

defeat of a particular candidate, while leaving no doubt 

to the listener that a particular candidate’s election or 

defeat is preferred. 

To bring these advertisements within the existing cam

paign finance regulations, Congress adopted a definition 

of electioneering communication, carefully limited to 

broadcast, cable, or satellite communications referring to 

a clearly identified candidate for federal office, made 

within 60 days of a general election or 30 days of pri

mary election, and targeted to the relevant electorate. 

Congress then imposed the same funding and disclosure 

requirements on these communications that for decades 

have applied to other electioneering communications. 

3 Amici support the constitutionality of the soft money provi

sions of BCRA, Sections 101-103, which is fully and adequately 

defended in other briefs before the Court. 
3€

Appellants’ facial challenge, while conceding the 

numerous constitutional applications of the election

eering communications provisions, nevertheless asserts 

that the definition of electioneering communication 

adopted by Congress was overbroad in that it may reach, 

in certain instances, issue advocacy unconnected with a 

pending election. Further, appellants argue that the fallback definition of electioneering communication adopted 

by Congress, limiting the term to broadcast, cable, or 

satellite communications promoting, supporting, attack

ing, or opposing a candidate for office and suggestive of 

no plausible meaning other than an exhortation to vote 

for or against a specific candidate, is unconstitutionally 

vague and therefore must be stricken on its face. 

Appellants’ challenge fails for at least four reasons. 

First, petitioners wrongly invoke the overbreadth doctrine to challenge the primary definition of election

eering communication. The Court has held that it will 

not invoke the “strong medicine” of overbreadth facial 

invalidation unless a law is substantially overbroad and 

only upon due consideration of the costs exacted by 

facial invalidation. Given that the overwhelming major

ity of the applications of BCRA are constitutional and 

that appellants have multiple avenues available for asapplied relief, appellants’ facial challenge cannot stand. 

Second, appellants’ facial vagueness challenge to the 

back-up definition fails for similar reasons. A law may 

be stricken as facially vague only where it lacks an oper

ative core of prohibited conduct. There can be no doubt 

as to the core application of the fall-back definition of 

electioneering communication. Whether the definition 

may be vague in application to particular circumstances 

must be reserved for an appropriate as-applied chal

lenge. 
4€

Third, the application of existing funding and disclo

sure requirements to electioneering communications as 

defined by BCRA is clearly constitutional under the 

Court’s precedents. The Court has long upheld restric

tions on corporate and labor union funding of election

eering communications, and has similarly held that 

disclosure requirements serve important First Amend

ment interests in informing the public about the sources 

of support for candidates for public office. The extension 

of these funding restrictions and disclosure requirements 

to electioneering communications as defined by BCRA 

is perfectly consistent with the Court’s campaign finance 

jurisprudence. 

Last, the contention that the Court’s limiting con

struction in Buckley v. Valeo, 424 US 1 (1976), forever 

constrains Congress to regulate only words expressly 

advocating the election or defeat of a candidate misreads 

the Court’s decision in Buckley. Moreover, given the 

ease with which electoral communications may avoid 

words of express advocacy, a holding that these magic 

words form a constitutional ceiling beyond which no 

campaign finance law may reach would leave Congress 

unable to create any effective system of campaign 

finance regulation. Nothing in the First Amendment or 

the Court’s precedents requires such a result. 

ARGUMENT 

I. Appellants’ Facial Challenge to BCRA Must Be 

Rejected Because BCRA’s Scope is Precisely and 

Narrowly Tailored and Cannot Be Deemed “Substantially Overbroad” 

Congress adopted alternative definitions of the term 

“electioneering communication” in the BCRA. The pri

mary definition provides that an electioneering com-
5€

munication is a “broadcast, cable, or satellite commu

nication” which— (1) “refers to a clearly identified can

didate for Federal office;” (2) is made within 60 days of 

a general election or 30 days of primary election; and (3) 

in elections other than for president or vice-president, 

“is targeted to the relevant electorate.” 2 U.S.C. 

§ 434(f)(3)(A)(i). The fall-back definition, applicable if 

the primary definition “is held to be constitutionally 

insufficient by final judicial decision,” defines “elec

tioneering communication” as a “broadcast, cable, or 

satellite communication which promotes or supports a 

candidate for that office, or attacks or opposes a candi

date for that office (regardless of whether the commu

nication expressly advocates a vote for or against a 

candidate) and which also is suggestive of no plausible 

meaning other than an exhortation to vote for or against 

a specific candidate.” 2 U.S.C. § 434(f)(3)(A)(ii). 

Appellants assert a facial challenge to both the pri

mary and fall-back definitions of “electioneering com

munication.” Appellants argue, first, that the primary 

definition, although precise and unambiguous, uncon

stitutionally imposes funding and disclosure restrictions 

on certain communications that may appear on the 

broadcast media in an electoral district during the period 

immediately preceding a federal election and use a can

didate’s name or likeness, but that are, nevertheless, 

unconnected with the forthcoming election. The possi

bility that the funding of such so-called “pure issue” 

communications might be restricted by BCRA, appel

lants argue, requires the invalidation of the primary def

inition on its face, even as applied to the vast majority of 

cases in which petitioners concede enforcement would 

not violate the First Amendment. 

Turning to the fall-back definition, appellants contend 

that a definition of electioneering communication lim-
6€

ited to speech that praises or criticizes a given candidate 

and that may not be plausibly understood as anything 

other than an exhortation to vote for or against the can

didate, is unconstitutionally vague on its face. Appel

lants argue that since speakers cannot know with 

absolute certainty whether a given communication prais

ing or criticizing a candidate for federal office can rea

sonably be construed as anything but a request for 

electoral support, speakers may self-censor and untrust

worthy administrators will be vested with undue dis

cretion to apply the statute in a viewpoint discriminatory 

manner. 

Appellants’ facial challenge to BCRA’s two defini

tions of electioneering communications cannot stand. 

This Court has recognized that despite its important role 

as a protector of free expression, the First Amendment 

facial overbreadth doctrine exacts societal costs by strik

ing down otherwise valid laws based on a judicial prediction that a law might be applied in an unconstitutional 

manner. Accordingly, the Court has limited facial overbreadth challenges to settings where plaintiffs can show 

that the feared unconstitutional applications of the law 

are “substantial” relative to those instances where it may 

be constitutionally applied. Broadrick v. Oklahoma, 413 

U.S. 601 (1973); Virginia v. Hicks, ___U.S.___, 123 S. 

Ct. 1291 (2003). Similarly, the Court has refused to 

impose the costs of facial overbreadth review in settings 

where affected speakers can effectively seek as-applied 

protection of First Amendment rights. Brockett v. 

Spokane Arcades, Inc., 472 U.S. 491 (1985). Since 

Congress’s primary definition of electioneering com

munication is clearly constitutional in the vast bulk of its 

applications, and since appellants in this action, among 

the most powerful speakers in this country, may effec

tively seek as-applied relief from any allegedly uncon

stitutional application, the Court should reject 
7€

appellants’ efforts to use facial review strategically in an 

effort to bring down the entire edifice of campaign 

finance regulation. 

Appellants’ facial vagueness challenge to Congress’s 

fall-back definition of electioneering communication 

should likewise be rejected. Under settled law, a facial 

vagueness challenge may be raised only when a statute 

is so vague that it lacks an “operative core.” Smith v. 

Goguen, 415 U.S. 566 (1974). It is impossible to argue 

persuasively that the back-up definition of electioneer

ing communication lacks an “operative core.” Indeed, in 

the vast majority of possible applications, the fall-back 

definition is perfectly clear. A reasonable person can 

understand whether a broadcast advertisement praises or 

criticizes a given candidate and whether the advertise

ment may plausibly be understood as anything other than 

an exhortation to vote for or against the candidate. Any 

purported vagueness in the fall-back definition at the 

margins may effectively be dealt with through an asapplied request for declaratory relief from the Federal 

Election Commission, or, if necessary, an Article III 

court. Steffel v. Thompson, 415 U.S. 452 (1974). 

A. The Primary Definition of Electioneering 

Communications Is Facially Valid 

This Court has traditionally required that persons 

seeking judicial review of the constitutionality of gov

ernment action proceed on an “as-applied” basis, seek

ing relief against a credible and otherwise ripe threat to 

enforce a statute or regulation against the litigant’s 

behavior. See Yazoo & Mississippi Valley R.R. v. Jackson 

Vinegar, 226 U.S. 217 (1912); United States v. Raines, 

362 U.S. 17 (1960); Warth v. Seldin, 422 U.S. 490 

(1975). Although an important exception to this princi

ple has been recognized in the First Amendment context, 
8€

the Court has consistently required plaintiffs to demon

strate “substantial overbreadth” before resorting to the 

“strong medicine” of facial invalidation. Broadrick, 413 

U.S. at 613; see Houston v. Hill, 482 U.S. 451, 458 

(1987) (“Only a statute that is substantially overbroad 

may be invalidated on its face”). The Court has, therefore, rejected efforts to posit hypothetical future harms 

in limited circumstances as a basis for facial invalida

tion. See, e.g., Members of City Council of Los Angeles 

v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984) 

(“[T]he mere fact that one can conceive of some imper

missible applications of a statute is not sufficient to ren

der it susceptible to an overbreadth challenge”); New 

York v. Ferber, 458 U.S. 747, 771 (1982) (“[A] law 

should not be invalidated for overbreadth unless it 

reaches a substantial number of impermissible applica

tions...”); United States v. Salerno, 481 U.S. 739, 745 

(1987).4 

In the campaign finance context, this Court has effec

tively protected the First Amendment rights of partici

pants in the electoral process through as-applied review 

and narrow construction. See, e.g., FEC v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238 (1986) (as-applied 

challenge holding that ban on corporate treasury expen

ditures on behalf of a federal candidate could not con

stitutionally be applied to a small, nonprofit advocacy 

group that received no financial support from capital 

corporations); Brown v. Socialist Workers ‘74 Campaign 

Committee (Ohio), 459 U.S. 87 (1982) (creating asapplied exception to Ohio campaign contribution dis

closure rules for contributions to the Socialist Workers 

4 Notably, plaintiffs-appellants Mitch McConnell, et al., in 

their discussion of the purported overbreadth of the primary defini

tion of electioneering communication, do not cite to a single one of 

the Court’s overbreadth cases. See McConnell Br. at 49-57. 
9€

Party based upon evidence that disclosure would subject 

party members to threats, harassment, and reprisals); 

Colorado Republican Federal Campaign Committee v. 

FEC, 518 U.S. 604 (1996) (recognizing as-applied 

exception to efforts to limit the independent expendi

tures of a political party). Indeed, in Buckley itself, the 

Court recognized that the definition of “electioneering 

communication” in FECA was too broad. Instead of 

invalidating the entire scheme on its face, however, the 

Buckley Court posited a narrowing construction designed 

to avoid conflict with the First Amendment. Buckley, 

424 U.S. at 42; Cf. Broadrick v. Oklahoma, 413 U.S. 601 

(1973) (upholding Oklahoma’s “Little Hatch Act,” reg

ulating political activities of government employees, in 

facial challenge because the protected speech at risk was 

not sufficiently “substantial” when compared with the 

sweep of unprotected activity lawfully regulated by the 

statute). 

As the Court recently noted in Virginia v. Hicks, 

____U.S. ____, 123 S.Ct. 1291, 1296-97 (2003), before 

applying the “strong medicine” of facial overbreadth 

invalidation, the Court has weighed the benefits of facial 

invalidation of a statute against the societal costs of 

blocking a statute in its numerous constitutional appli

cations. “[T]here are substantial social costs created by 

the overbreadth doctrine when it blocks application of a 

law to constitutionally unprotected speech.” Id. at 1297 

(emphasis in original). Thus, “[t]o ensure that these costs 

do not swallow the social benefits of declaring a law 

‘overbroad,’” the Court has “insisted that a law’s appli

cation to protected speech be ‘substantial,’ not only in 

an absolute sense, but also relative to the scope of the 

law’s plainly legitimate applications, before applying the 

‘strong medicine’ of overbreadth invalidation.” Id. (cit

ing Broadrick, 413 U.S. at 613). 
10€

Due consideration of both the costs and benefits of 

resorting to the “strong medicine” of facial invalidation 

requires rejection of petitioners’ facial challenge to 

BCRA’s primary definition of electioneering communi

cations. In the first place, resort to facial review is not 

necessary to protect a vulnerable speaker. Appellants in 

this action are among the nation’s most powerful and 

wealthy speakers who are more than able to protect their 

First Amendment rights in as-applied challenges. See 

Renne v. Geary, 501 U.S. 312, 323-324 (1991) (facial 

challenge should generally not be entertained when an 

“as-applied” challenge could resolve the case); Board of 

Trustees, State Univ. of New York v. Fox, 492 U.S. 469, 

484-85 (1989); Brockett, 472 U.S at 504. 

The primary definition of electioneering communi

cation is restricted to the funding of large-scale expen

ditures for broadcast advertisements using the name or 

likeness of a candidate in a period immediately preced

ing a federal election. Since vulnerable speakers who 

might be unable to raise as-applied challenges or to seek 

administrative guidance are highly unlikely to be 

affected by such a narrow law, BCRA simply does not 

raise concerns that would be present in settings involv

ing vulnerable speakers who are unlikely to be in a posi

tion to preserve their First Amendment rights in more 

traditional as-applied proceedings. See, e.g., Dombrowski v. Pfister, 380 U.S. 479 (1965); Coates v. City of 

Cincinnati, 402 U.S. 611 (1971); Gooding v. Wilson, 405 

U.S. 518 (1972). 

Moreover, the risk to protected speech posed by the 

primary definition of electioneering communication is 

minimal. Contrary to appellants’ hyperbole, Congress 

has not banned any speech in adopting the primary def

inition of electioneering communication. Rather, 

Congress has prohibited the use of corporate and labor 
11€

union treasury money to fund broadcast advertisements 

within 60 days of a general election and 30 days of a pri

mary election in which the candidate’s name or likeness 

is used and provided that other entities must disclose the 

source of the funds for these advertisements. In the overwhelming majority of settings, such a regulation aimed 

at reinforcing long-standing restrictions on the use of 

corporate and labor treasury funds in federal election 

campaigns and assuring disclosure of the sources of fed

eral campaign funding raises no significant First Amend

ment issues. Buckley, 424 U.S. at 66-68 (upholding 

disclosure); FEC v. Beaumont, ___ U.S. ___, 123 S.Ct. 

2200, 2211 (2003) (upholding ban on corporate treasury 

funds in federal elections). 

Further, even in those relatively few instances in 

which the application of the primary definition may 

touch upon “pure issue advocacy,” arguably beyond the 

scope of campaign finance regulation, appellants may 

simply establish a separate segregated fund with which 

to conduct such communications, funded in accordance 

with the same rules that apply to other electioneering 

communications. Such a minor administrative inconve

nience hardly requires the strong medicine of facial 

overbreadth review. See Regan v. Taxation With Representation, 461 U.S. 540 (1983). 

Finally, appellants wishing to avoid the administrative 

inconvenience of establishing a PAC can avoid the 

statute’s reach entirely by simply omitting the candi

date’s name or likeness in the period immediately preceding a federal election. 

In the district court, considerable attention was dedi

cated to calculating the percentage of “true issue advo

cacy” communications that would be captured by the 

primary definition of electioneering communications as 

a means of ascertaining whether the primary definition 
12€

was substantially overbroad. For this purpose, defen

dants submitted the Buying Time studies of advertise

ments airing in the 1998 and 2000 elections to which 

BCRA’s primary definition would apply and argued that 

only a small percentage of these advertisements reflected 

“true issue advocacy,” arguably beyond the purview of 

campaign finance legislation. Plaintiffs, for their part, 

submitted no independent evidence of the purported 

overbreadth of the primary definition, but rather relied 

upon their own analysis of defendants’ studies which, 

they said, showed that approximately 50% of the adver

tisements airing in 1998 that would fall within BCRA’s 

coverage and 17% of the advertisements in the 2000 

election were “true issue advocacy.” See Supp. App. at 

244sa, 1349sa-1350sa; McConnell Br. at 56. 

The three judges in the court below reached widely 

divergent conclusions as to the sweep of the primary def

inition. See Supp. App. at 1157sa (Judge Leon); id. at 

857sa (Judge Kollar-Kotelly); id. at 244sa, 367sa n.149 

(Judge Henderson). These widely differing analyses confirm the wisdom of an overbreadth analysis that looks to 

the costs and benefits of facial review, rather than a 

mechanical and unwieldy effort to estimate the per

centage of communications that fall on one side or 

another of a constitutional line. See Richard H. Fallon, 

Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 894 

(1991) (rejecting empirical approach to overbreadth doctrine as requiring “uncabined judicial speculation in 

areas that are, at best, on the outer fringes of the courts’ 

practical competence”). In fact, while the Buying Time 

studies contained the best available social science data 

and were of great assistance to Congress in seeking to 

predict the future, no study – especially a study that asks 

college students to discern the purpose of a political 

advertisement completely divorced from context - can 

provide a court with a precise percentage of hypotheti-
13€

cal future speech that will raise significant First Amend

ment concerns. Only experience can provide that data 

and only as-applied review can respond appropriately to 

such data. Accordingly, appellants’ effort to invalidate 

BCRA before any body of experience can develop 

should be rejected. 

B. The Fall-back Definition of “Electioneering 

Communication” Is Facially Valid 

Appellants’ facial vagueness challenge to Congress’s 

back up definition is equally unavailing. Appellants 

argue that the fall-back definition of “electioneering 

communication” limiting coverage to those communi

cations that (1) praise or criticize a candidate for federal 

office and (2) cannot be plausibly construed as anything 

other than an exhortation to vote for or against the can

didate, introduces an element of subjective uncertainty 

into the statutory scheme and therefore must be stricken 

on its face. 

The Court will strike a statute for facial vagueness 

only in extremely narrow circumstances where the statute 

lacks an “operative core” of prohibited behavior. See 

Smith v. Goguen, 415 U.S. 566 (1974); Secretary of State 

of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 965-

966 (1984) City of Chicago v. Morales, 527 U.S. 41, 56-

57 (1999). In such a situation, the statute is vague “‘not 

in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative stan

dard, but rather in the sense that no standard of conduct 

is specified at all.’” Smith, 415 U.S. at 578 (quoting 

Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)); 

see Kolender v. Lawson, 461 U.S. 352, 358 (1983) (Cal

ifornia statute requiring persons who loiter or wander on 

the streets to provide “credible and reliable” identifica

tion “contains no standard for determining what a suspect 
14€

has to do in order to satisfy the requirement to provide a 

‘credible and reliable’ identification”); Smith, 415 U.S. 

at 578 (Massachusetts statute prohibiting “publicly 

treat[ing] contemptuously the flag of the United States” 

specifies “no standard of conduct” and therefore facially 

vague); City of Chicago, 527 U.S. at 59-60 (striking on 

facial vagueness grounds Chicago anti-loitering ordi

nance prohibiting individuals from “remain[ing] in any 

one place with no apparent purpose”); Cf. Spence v. 

Washington, 418 U.S. 405, 414 n.9 (1974). 

The fall-back definition of electioneering communi

cations is not facially vague under such a test. In the vast 

majority of cases, application of the fall-back definition 

raises no difficult issues of statutory construction and 

neither prospective speakers nor regulators can have any 

doubt as to the statute’s applicability. The statute thus 

has a “core of easily identifiable and constitutionally 

proscribable conduct,” Munson, 467 U.S. at 965-966. If, 

as appellants allege, certain circumstances may arise in 

which the scope of the prohibition is unclear, an appro

priate as applied challenge may be brought before both 

the FEC and an Article III Court to determine the appli

cability of the statute. 

II. EXPRESS ADVOCACY IS NOT A CONSTITUTIONAL CEILING 

Appellants contend that BCRA’s primary and fall-back 

definitions of “electioneering communication” violate a 

putative constitutional requirement that campaign 

finance restrictions be limited to speech that expressly 

advocates the election or defeat of a candidate by using 

magic words such as “vote for” or “vote against” the 

candidate.5 The magic words version of an express advo5 The contention that the Court’s limiting construction in Buckley creates a constitutional ceiling beyond which no permissible reg-
15€

cacy limitation is not an irreducible constitutional ceil

ing, restricting any conceivable regulation of indepen

dent expenditures. Rather, the Court resorted to a magic 

words approach to express advocacy as a narrowing con

struction to avoid constitutional issues raised by certain 

provisions of FECA, namely that the provisions did not 

clearly demarcate what conduct was prohibited and 

might have regulated speech too far afield from the elec

tion campaign of a specific candidate for federal office. 

Neither of these vulnerabilities is present in the elec

tioneering communication provisions of BCRA. 

The Court in Buckley twice construed a provision of 

FECA to apply only to expenditures used to fund com

munications that use magic words to expressly advocate 

the election or defeat of a candidate. Each time, the 

Court used magic word/express advocacy as a saving 

construction of statutory language that would otherwise 

be unconstitutionally vague or reach communications not 

clearly related to the campaign of a particular federal 

candidate. Neither in Buckley nor thereafter has the 

Court suggested that a campaign finance regulation without these infirmities must be limited to a magic word 

version of express advocacy. 

The Buckley Court first discussed express advocacy in 

the context of FECA’s $1,000 ceiling on expenditures 

“relative to a clearly identified candidate.” “The use of 

ulation of electioneering communications may regulate is the sole 

issue properly before the Court in facial challenge to the election

eering provisions of BCRA. If, as appellants contend, Buckley’s 

magic words of express advocacy forever constrain Congress from 

fixing a definition of electioneering communications beyond these 

magic words, then BCRA’s regulation of electioneering communi

cations beyond express advocacy would be unconstitutional in all its 

applications and therefore be subject to facial challenge. However, 

as shown below, nothing in the Court’s precedents sustains appellants’ 

contention. 
16€

so indefinite a phrase as ‘relative to’ a candidate,” the 

Court explained, “fails to clearly mark the boundary 

between permissible and impermissible speech . . . .” 

Buckley, 424 U.S. at 41. In the Court’s view, the vague

ness problem was not overcome by the court of appeals’ 

reading of the statutory term “relative to a . . . candi

date” to mean “advocating a candidate’s election or 

defeat.” The problem with that interpretation, the Court 

explained, is that a speaker could never be certain 

whether any particular political communication would be 

deemed electoral advocacy—and thus within the 

statute’s reach—or mere “issue advocacy.” “For the dis

tinction between discussion of issues and candidates and 

advocacy of election or defeat of candidates may often 

dissolve in practical application. Candidates, especially 

incumbents, are intimately tied to public issues involv

ing legislative proposals and governmental actions.” Id. 

at 42. The Court therefore adopted a more precise inter

pretation of the statutory language than the one put forward by the Court of Appeals: “[I]n order to preserve the 

provision against invalidation on vagueness grounds, 

[the expenditure ceiling] must be construed to apply only 

to expenditures for communications that in express terms 

advocate the election or defeat of a clearly identified 

candidate for federal office.” Id. at 43 (emphasis added). 

In contrast, BCRA leaves no doubt whether any par

ticular expenditure will be deemed to have been made 

for an “electioneering communication.” Four criteria 

must be satisfied to come within the statute’s reach: 

There must be (1) a broadcast, cable or satellite com

munication; (2) which refers to a clearly identified can

didate for federal office; (3) is made within 60 days 

before the election for the office sought by the candidate 

(or 30 days before the primary or caucus); and (4) is 

targeted to the relevant electorate, unless the office 
17€

sought is President or Vice-President. 2 U.S.C. 

§ 434(f)(3)(A)(i). 

Whether an expenditure satisfies each of these crite

ria may easily be determined, and a speaker need only 

negative any one of them to avoid application of the 

statute. Consequently, no one could plausibly claim to 

have been deprived of “‘fair warning’” as to what conduct the statute regulates. Buckley, 424 U.S. at 41 n.48 

(quoting Grayned v. City of Rockford, 408 U.S. 104, 

108-109 (1972)). Nor is any speaker compelled to 

“‘hedge and trim,’” or refrain even from unregulated 

speech because the boundaries of the statute’s coverage 

are not clearly marked. Buckley, 424 U.S. at 43 (quoting 

Thomas v. Collins, 323 U.S. 516, 535 (1945)). In short, 

BCRA regulates with “narrow specificity,” just as the 

First Amendment requires. NAACP v. Button, 371 U.S. 

415, 433 (1963). 

The Buckley Court returned to express advocacy when 

construing FECA’s disclosure requirements for expen

ditures made by persons other than candidates and 

groups other than political committees. “To insure that 

the reach of [the disclosure provision] is not impermis

sibly broad, we construe ‘expenditure’ for purposes of 

that section . . . to reach only funds used for commu

nications that expressly advocate the election or defeat 

of a clearly identified candidate. This reading is directed 

precisely to that spending that is unambiguously related 

to the campaign of a particular federal candidate.” Id. at 

80 (internal footnote omitted). 

Unlike FECA, in the vast majority of applications, 

BCRA is directed at “spending that is unambiguously 

related to the campaign of a particular federal candi

date.” As noted, the primary definition requires that a 

subject communication must refer to a clearly identified 

candidate, must be made within a short period preceding 
18€

an election or vote for nomination, and must be targeted 

to the relevant electorate. Taken together, these require

ments ensure that the overwhelming majority of com

munications subject to BCRA are communications 

intended to be and received as messages in support or 

opposition to a candidate. 

Notably, two of these three requirements in the pri

mary definition of electioneering communications were 

lacking in FECA’s provisions regulating expenditures. 

Although FECA limited its reach to expenditures that 

were “relative to a clearly identified candidate,” or “for 

the purpose of influencing” an election, it did not restrict 

its coverage to a narrow time frame preceding an elec

tion or vote for nomination. Nor did FECA limit its 

scope to communications that, where appropriate, are 

targeted to the relevant electorate. These additional 

statutory criteria sharpen the focus of the BCRA’s elec

tioneering communication provisions as compared with 

FECA’s regulation of expenditures. Virtually any infor

mation about a candidate worth sharing and distributed 

to the relevant electorate soon before an election will be 

received by listeners as potentially pertinent to voting 

decisions. BCRA thus restricts its reach to communica

tions that will inevitably be understood as supporting or 

opposing a candidate’s election. Consequently, under the 

plain language of BCRA—but not under the plain lan

guage of FECA—only communications unambiguously 

related to a particular candidate’s campaign will be cov

ered by the statute.6 Applying the Court’s analysis in 

Buckley, then, no magic words/express advocacy limi6 As noted in Point I, above, to the degree to which BCRA 

applies to broadcast advertisements referring to clearly identified fed

eral candidates and appearing shortly before an election, but which 

nevertheless are unrelated to the upcoming election, an appropriate asapplied challenge may be raised. 
19€

tation nor any other narrowing construction is needed to 

make the BCRA’s “electioneering communication” provision consistent with the First Amendment. 

Appellants’ argument that the First Amendment 

requires all regulations of campaign finance expendi

tures to be limited to a magic words approach to express 

advocacy rests on a misreading of Buckley. Appellants 

contend that the use of magic words as a form of express 

advocacy demarcates the boundary between “electoral 

advocacy,” which may permissibly be regulated, and 

“issue advocacy,” which, on appellants’ theory, may not 

be. As the Buckley Court plainly recognized, however, 

the very distinction between electoral advocacy and 

issue advocacy is frequently a false dichotomy. See id. at 

42 (“[T]he distinction between discussion of issues and 

candidates and advocacy of election or defeat of candi

dates may often dissolve in practical application”). 

Moreover, as the Court observed when invalidating 

FECA’s expenditure ceiling: “[I]t would naively underestimate the ingenuity and resourcefulness of persons 

and groups desiring to buy influence to believe that they 

would have much difficulty devising expenditures that 

skirted the restriction on express advocacy of election or 

defeat but nevertheless benefited the candidate’s cam

paign.” Buckley, 424 U.S. at 45. 

In this light, the net result of the magic words/express 

advocacy limitation urged by appellants is not the draw

ing of a line between regulable and non-regulable 

speech. Rather, appellants ask the Court to hold that the 

Constitution prohibits effective regulation of expendi

tures for any form of advocacy, whether for issues or 

elections. For any campaign finance regulation limited 

by a magic words approach to express advocacy will, in 

practice, function as a purely voluntary regime. As the 

record below amply demonstrates, it is a simple matter 
20€

to express support or opposition for a candidate’s elec

tion without invoking talismanic phrases such as “vote 

for” or “vote against” which, on petitioners’ view, are 

the only suitable means of identifying communications 

subject to regulation. 

Consequently, the elevation of a magic words 

approach express advocacy from a narrowing construc

tion of a poorly drafted statute into an irreducible con

stitutional ceiling, as petitioners propose, would forever 

prevent Congress from advancing the substantial inter

ests served by disclosure requirements for independent 

expenditures—interests which, according to this Court, 

themselves “furthe[r] First Amendment values by open

ing the basic processes of our federal election system to 

public view.” Buckley, 424 U.S. at 82. 

Likewise, the transformation of a magic words 

approach to express advocacy into a constitutional ceil

ing would forever free corporations to use corporate 

treasury funds for independent expenditures to support 

or oppose candidates for Federal office—notwithstand

ing the Court’s holding that “the compelling governmental interest in preventing corruption support[s] the 

restriction of the influence of political war chests fun

neled through the corporate form.” Austin v. Michigan 

Chamber of Commerce, 494 U.S. 652, 659 (1990) (quot

ing FEC v. National Conservative Political Action Committee, 470 U.S. 480, 500-01 (1985)). If appellants’ 

theory of express advocacy is correct, the Constitution 

leaves Congress no practicable means of remedying “the 

corrosive and distorting effects of immense aggregations 

of wealth that are accumulated with the help of the cor

porate form and that have little or no correlation to the 

public’s support for the corporation’s political ideas.” 

Austin, 494 U.S. at 660; see Beaumont, 123 S.Ct. at 
21€

2206-07. Nothing in Buckley or the Court’s campaign 

finance jurisprudence dictates that result. 

III. DISCLOSURE REQUIREMENTS AND PROHIBITIONS ON CORPORATE AND LABOR 

UNION FUNDING OF ELECTIONEERING 

COMMUNICATIONS SERVE IMPORTANT 

FIRST AMENDMENT INTERESTS 

As argued in Point I, above, this Court should not 

entertain appellants’ facial overbreadth and vagueness 

challenges to either the primary or fall-back definitions 

of “electioneering communication.” Assuming the Court 

chooses to address the merits of these arguments, the 

Court should uphold the electioneering provisions of 

BCRA. 

The Court has long held that fundamental First 

Amendment principles support reasonable disclosure and 

funding requirements for electoral communications. 

First, the Court has repeatedly held that disclosure 

requirements enhance, rather than retard, First Amend

ment interests. As the Court has recognized, the mar

ketplace of ideas that the First Amendment guarantees is 

ill-served by a regime of shadowy, untraceable expen

ditures for electioneering communications by groups that 

disguise their true sources of support. Second, the Court 

has repeatedly recognized that the marketplace of ideas 

suffers when corporations and labor unions are able to 

monopolize electoral communications through the stateconferred advantages that permit them to amass large 

quantities of capital unrelated to the support for their 

political positions. 

The electioneering provisions of BCRA, Sections 201-

204, build directly upon these long-standing pillars of 

the Court’s campaign finance jurisprudence. First, in line 

with long-upheld restrictions on corporate and labor 
22€

union electioneering activities, BCRA prohibits corpo

rate and labor union funding of broadcast communica

tions which clearly identify a candidate within 60 days 

of a general election or 30 days of a primary election 

and are targeted to the candidate’s electorate. Second, 

BCRA requires entities or individuals who spend more 

than $10,000 in a calendar year on such broadcast com

munications to disclose the sources of funding for these 

communications. These provisions are fully consistent 

with the First Amendment principles long recognized by 

this Court. 

A. BCRA’s Disclosure Requirements Are Constitutional 

Section 201 of BCRA requires every person who 

makes disbursements in excess of $10,000 per year for 

electioneering communications to file with the FEC a 

statement containing the person’s identity and principal 

place of business; the amount of each disbursement over 

$200 and the identity of the recipient of the disburse

ment; the elections and candidates to which the elec

tioneering communications pertain; and the names and 

addresses of contributors who contributed $10,000 or 

more to the person or separate segregated fund making 

the disbursement. 2 U.S.C. § 434 (f)(1), (2). 

The Court has previously recognized that the gov

ernmental interests advanced by disclosure requirements 

are especially likely to outweigh any potential inhibition 

of First Amendment activity where, as here, “the ‘free 

functioning of our national institutions’ is involved.” 

Buckley, 424 U.S. at 66 (quoting Communist Party v. 

Subversive Activities Control Bd., 367 U.S. 1, 97 

(1961)). The Court has further noted that “disclosure 

requirements . . . in most applications appear to be the 

least restrictive means of curbing the evils of campaign 
23€

ignorance and corruption that Congress found to exist.” 

Buckley, 424 U.S. at 68. “‘Publicity is justly commended 

as a remedy for social and industrial diseases. Sunlight 

is said to be the best of disinfectants; electric light the 

most efficient policeman.’” Id. at 67 (quoting L. Bran

deis, Other People’s Money at 62 (National Home 

Library Foundation ed. 1933)). 

Applying these principles in Buckley, the Court upheld 

disclosure requirements substantially similar to those at 

issue here. As in Buckley, the disclosures mandated by 

BCRA advance at least three governmental interests. 

First, BCRA’s disclosure provisions assist voters by pub

licizing a candidate’s sources of financial support, 

thereby identifying the interests to which the candidate 

is likely to be responsive if elected. See Buckley, 424 

U.S. at 66-67. “Second, disclosure requirements deter 

actual corruption and avoid the appearance of corruption 

by exposing large contributions and expenditures to the 

light of publicity.” Id. at 67. “Third, and not least sig

nificant,” disclosure facilitates enforcement of contri

bution limitations. Id. at 67-68. 

BCRA’s disclosure requirements raise none of the 

vagueness concerns that prompted the Buckley Court to 

adopt a narrowing construction of FECA’s disclosure 

provision for expenditures by parties other than candi

dates or political committees. FECA defined “expendi

ture” to mean the use of money or valuable assets “for 

the purpose of . . . influencing” a federal nomination or 

election. Id. at 77; FECA §§ 431(e), (f). “It [wa]s the 

ambiguity of this phrase that pose[d] constitutional prob

lems.” Buckley, 424 U.S. at 77. To avoid those problems, 

the Court interpreted “for the purpose of . . . influenc

ing” an election to mean using magic words for the pur

pose of expressly advocating a candidate’s election or 

defeat, for purposes of section 434(e)’s disclosure 
24€

requirements for persons other than candidates or polit

ical committees. Id. at 80. 

As discussed above, section 201’s definition of “elec

tioneering communication” is not similarly ambiguous in 

its reach. The statute leaves virtually no doubt whether 

particular conduct will trigger disclosure obligations. 

The precision of the legislation not only provides ade

quate notice to persons contemplating future expendi

tures, it also defines a safe harbor for pure issue 

advocacy. Those wishing to engage in issue advocacy 

free from regulation may do so easily by avoiding any 

one of the statutory criteria. 

Section 201 likewise does not require disclosure of 

information too remote from the government’s objectives 

to sustain the legislation. Cf. Buckley, 424 U.S. at 80-81. 

Virtually any “electioneering communication” within the 

meaning of section 201 will relate to the campaign of a 

specific candidate and will therefore properly be the target of the government’s anti-corruption and informa

tional interests advanced by disclosure. 

The weighty First Amendment values served by dis

closure would forever be compromised if the Court were 

to treat the magic words approach to express advocacy 

as a constitutional ceiling on the regulation of indepen

dent expenditures. As with section 434(e) of FECA, sec

tion 201 “is responsive to the legitimate fear that efforts 

would be made, as they had been in the past, to avoid the 

disclosure requirements by routing financial support of 

candidates through avenues not explicitly covered by the 

general provisions of the Act.” Id. at 76 (internal footnote omitted). As the Court predicted when discussing 

express advocacy in the context of FECA’s expenditure 

caps, see id. at 45, the express advocacy limitation made 

it a simple matter to circumvent pre-BCRA regulation of 

expenditures while engaging in full-blown electoral 
25€

advocacy. Section 201 is well-drawn because it provides 

ample breathing room for discussion of issues while tar

geting communications overwhelmingly likely to be 

understood as supporting or opposing a particular can

didate’s election. 

To the extent BCRA’s disclosure requirements may 

unduly burden any particular group, adequate protection 

is available through as-applied challenges. The Buckley 

Court spelled out clearly the evidentiary requirement 

necessary to prevail in such a challenge, and called for 

“flexibility in the proof of injury” from disclosure. See 

Buckley, 424 U.S. at 74. Applying those standards, the 

Court subsequently found Ohio’s disclosure requirement 

unconstitutional as applied to the Socialist Workers Party 

of Ohio. See Brown v. Socialist Workers ‘74 Campaign 

Comm. (Ohio), 459 U.S. 87, 102 (1982). As the Court 

observed in Buckley, it “cannot assume that courts will 

be insensitive to similar showings when made in future 

cases.” Buckley, 424 U.S. at 74. 

B. BCRA’s Restriction of Corporation and 

Labor Union Funding of Electioneering 

Communications Is Constitutional 

Federal law has long prohibited the use of corporate 

and labor treasury funds for federal election activities 

and required that any corporate or labor expenditures on 

these activities be made from separate, segregated funds. 

Congress first prohibited corporate contributions to can

didates for election to federal offices in the Tillman Act 

of 1907, 34 Stat. 864 (1907). Congress extended the pro

hibition on corporate contributions to labor unions and 

prohibited corporate and union expenditures in connec

tion with federal elections in the Taft-Hartley Act, 61 

Stat. 136 (1947); Beaumont, 123 S.Ct. at 2205-06; FEC 

v. National Right to Work Committee, 459 U.S. 197, 208 
26€

(1982); Pipefitters Local Union No. 562 v. U.S., 407 

U.S. 385, 402 (1972); United States v. United Auto 

Workers (“UAW”), 352 U.S. 567, 585 (1957). These 

long-standing prohibitions were incorporated into FECA, 

adopted following Watergate, and have long been 

upheld. 

In Austin v. Michigan Chamber of Commerce, 494 

U.S. 652 (1990), the Court examined provisions of 

Michigan’s campaign finance law, which, like FECA, 

prohibited corporate contributions or expenditures in 

connection with an election. The Court reasoned that, 

given the special advantages conferred on corporations 

under state law, they can accumulate large quantities of 

capital which “have little or no correlation to the pub

lic’s support for the corporation’s political ideas.” Id. at 

660. Austin upheld the prohibition on corporate contri

butions and expenditures to guard against “the corrosive 

and distorting effects of immense aggregations of wealth 

that are accumulated with the help of the corporate 

form” and to “ensure[] that expenditures reflect actual 

public support for the political ideas espoused by cor

porations.” Id.; see FEC v. National Right to Work Committee, 459 U.S. 197, 207 (1982) (“[S]ubstantial 

aggregations of wealth amassed by the special advan

tages which go with the corporate form of organization 

should not be converted into political ‘war chests’ which 

could be used to incur political debts from legislators”). 

The reasoning of Austin was reaffirmed in the Court’s 

recent decision in FEC v. Beaumont, ___ U.S. ___,123 

S.Ct. 2200 (2003). In upholding the prohibition on cor

porate contributions as applied to nonprofit advocacy 

groups, the Court noted that “as in 1907, the law focuses 

on the ‘special characteristics of the corporate structure’ 

that threaten the integrity of the political process.” Beaumont, 123 S.Ct. at 2207 (quoting National Right to Work, 
27€

459 U.S. at 209). The Court reaffirmed “the public inter

est in ‘restrict[ing] the influence of political war chests 

funneled through the corporate form.’” Id. (quoting 

National Conservative Political Action Comm., 470 U.S. 

at 496-497); see UAW, 352 U.S. at 585 (examining 

extensive history of prohibition of labor union contri

butions and expenditures in federal elections). 

Building upon the long-standing prohibition on cor

porate and labor union expenditures for electioneering 

activities, BCRA expands the definition of electioneer

ing activities to include broadcast advertisements made 

within 60 days of a general election or 30 days of a pri

mary election, referring specifically to an identified can

didate for federal office within the jurisdiction in which 

the candidate seeks office. Congress reasonably could 

conclude that these communications present the same 

distortive effects as those expressly advocating the elec

tion or defeat of a candidate. Moreover, such commu

nications may still be funded through a corporation or 

labor union’s separately segregated fund. 

C. The Exception for MCFL Corporations Is 

Preserved by BCRA 

In Federal Election Comm’n v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238 (1986) (“MCFL”), 

the Court held unconstitutional the application of 

FECA’s independent expenditure limitations to nonprofit 

advocacy corporations which receive no corporate or 

labor union funding. As set forth in the Court’s opinion, 

three “essential” characteristics of Massachusetts Citi

zens for Life made it constitutionally impermissible to 

apply FECA to it. First, MCFL was “formed for the 

express purpose of promoting political ideas, and cannot 

engage in business activities.” MCFL, 479 U.S. at 264. 

Second, it had “no shareholders or other persons affili-
28€

ated so as to have a claim on its assets or earnings.” Id. 

Third, MCFL “was not established by a business cor

poration or a labor union” and had a “policy not to 

accept contributions from such entities.” Id. This policy 

of refusing business corporation or labor union contri

butions “prevent[ed] such corporations from serving as 

conduits for the type of direct spending that creates a 

threat to the political marketplace.” Id; see also Austin, 

supra, at 664 (noting that a nonprofit corporation is 

capable of “serv[ing] as a conduit for corporate political 

spending”). 

Amici acknowledge that Section 204, known as the 

Wellstone Amendment, would appear to make BCRA 

applicable to MCFL-type corporations. As a constitutional 

rule, however, MCFL cannot be repealed by legislative 

enactment. See City of Boerne v. Flores, 521 U.S. 507, 519 

(1997). The FEC’s implementing regulations confirm this 

understanding of BCRA. See Electioneering Com-muni

cations, 67 Fed. Reg. 65190, 65203-04 (October 24, 

2002), <available at http://www.fec.gov/pdf/nprm/ 

electioneering_comm/fr67n205p65189.pdf>. Thus, under 

BCRA, corporations that meet the three requirements set 

forth in MCFL continue to be exempt from the disclosure 

requirements and expenditure limitations of FECA. 

Nonprofit advocacy corporations that continue to 

receive corporate and/or labor union contributions are 

therefore faced with a choice under BCRA. They can 

either refuse to accept such contributions, thereby 

exempting themselves from BCRA’s disclosure rules and 

expenditure limitations, or accept such contributions, 

subjecting themselves to BCRA with its requirement that 

electioneering communications be funded through a seg

regated fund. Given the compelling interest in prevent

ing nonprofit corporations from being used as conduits 

for prohibited corporate and labor union electioneering 
29€

activities, the application of BCRA to nonprofit corpo

rations that choose to receive corporate and labor union 

contributions is clearly constitutional, especially since 

the option of establishing a PAC leaves open a full range 

of communicative options. 
30 

CONCLUSION 

For the foregoing reasons, amici curiae respectfully 

submit that the electioneering provisions of BCRA, Sec

tions 201-204, are constitutional. 

Dated: New York, New York 

August 5, 2003 

Eric M. Lieberman 

Roger Bearden 

Gregory Silbert 

Rabinowitz, Boudin, 

Standard, Krinsky & 

Lieberman, P.C. 

Respectfully submitted, 

Norman Dorsen 

Counsel of Record 

Stokes Professor of Law 

New York University 

School of Law 

40 Washington Square 

South 

740 Broadway, 5th Floor New York, NY 10012 

New York, NY 10003-9518 (212) 998-6233 

(212) 254-1111 

Attorneys for Amici Curiae 

Former Leaders of the American Civil Liberties Union