SupremeCourt. Debates. Regulating Campaign Advertising SEPTEMBER 2007 VOL. 10 NO. 6

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1 SEPTEMBER 2007 VOL. 10 NO. 6 SupremeCourt A Pro & Con Monthly A Congressional Digest Publication Debates Regulating Campaign Advertising The Court Reconsiders the McCain- Feingold Act Is the Bipartisan Campaign Reform Act s Limit on Electioneering Communications by Corporations and Labor Unions Constitutional? John McCain, et al., Appellants Wisconsin Right to Life, Inc., Respondent and others...

2 SUPREME COURT DEBATES, a Pro & Con Monthly September 2007, Vol. 10, No. 6 Editors Note: Supreme Court Debates now comes to you in this easy-to-read plain text format. Subscribers should send us their address, along with their customer number, using the form so we can send your complimentary portable document file of Supreme Court Debates as well as Congressional Digest and International Debates each month. This issue of Supreme Court Debates provides a summary of key cases before the court, background on this month s debate topic, followed by the Pros (page 14) & Cons (page 28), and excerpts from arguments before the nation s highest tribunal. Article citations are at the end of each section. Supreme Court Debates, September 2007, Vol. 10, No. 6 (ISSN ) is an independent magazine featuring controversies before the Supreme Court, Pro & Con. It is not an official organ, nor is it controlled by any party, interest, class, or sect. Published monthly (except June, July, and August) and offered through Pro & Con Online, a multi-user database. 2007, Congressional Digest Corp. Published by The Congressional Digest Corp., online EDITORIAL: 4416 East West Hwy, Suite 400 Bethesda, MD ; (301) Griff Thomas, Publisher Erika Fitzpatrick, Executive Editor Anthony Zurcher, Editor in Chief SUBSCRIPTION Rates: Supreme Court Debates is available as part of Pro & Con Online for $300 per year. Supreme Court Debates subscribers can, for a limited time, receive a discounted rate of $200 for Pro & Con Online, which includes multi-user academic database access and monthly electronic copies of the three debate magazines: Congressional Digest, International Debates, and Supreme Court Debates. Telephone Orders: Accepted with Visa or MasterCard (800) Customer Service: (301) Order single issues and back copies at Single Copy: $10. Subscribe to Pro & Con Online at Sign up for a free trial to Pro & Con Online: Subscribers to Pro & Con Online may login at The Court Reconsiders the McCain-Feingold Act Is the Bipartisan Campaign Reform Act s Limit on Electioneering Communications by Corporations and Labor Unions Constitutional? In McConnell v. Federal Election Commission (FEC) (2003), the U.S. Supreme Court upheld the constitutionality of the Bipartisan Campaign Reform Act of 2002 (BCRA), which, among other provisions, regulated so-called soft money contributions to political parties and the funding and timing of television issue ads. While the decision was praised by supporters of campaign finance reform, it has been far from the last word on the law s constitutionality. This year, the provision of the BCRA governing issue ads was once again before the Supreme Court. This time, the Court looked at how the BCRA was applied to a specific organization Wisconsin Right to Life (WRTL) and the television advertisements it tried to run calling for a campaigning U.S. senator, Russell Feingold (WI-D), to oppose filibusters of President Bush s judicial nominations. The FEC had blocked the airing of the ads because they were funded by corporate contributions, directly referenced Senator Feingold, and were scheduled to air less than 60 days before the election Congressional Digest Corp. Page 2

3 WRTL sued the FEC, arguing that the law violated the organization s First Amendment right to free speech. After a district court refused to consider the merits of the case, the U.S. Supreme Court ruled in January 2006 that the lower court should take another look at the constitutionality of the law as the FEC applied it to WRTL. In December 2006, the district court ruled that although WRTL mentioned Senator Feingold by name, its ads were aimed at influencing public policy, not the outcome of an election. The FEC, joined by Senator John McCain (AZ-R) and three other congressional supporters of the BCRA, appealed the decision to the U.S. Supreme Court, which granted certiorari on January 19, During oral arguments on April 25, lawyers for the FEC and the supporting politicians argued that WRTL s advertisements were clearly designed to affect the outcome of Senator Feingold s election. The filibuster issue was on the back burner at the time, and the ads directed viewers to WRTL s Website, which contained material opposing the senator s reelection. The provision of the BCRA in question was designed to prevent corporations and unions from using the large amounts of money at their disposal to influence elections, they said. While WRTL s corporate-funded advertisements didn t specifically call for Senator Feingold s defeat, to allow such ads to run would effectively create a massive loophole in the law. Lawyers for WRTL countered that the BCRA was essentially a measure crafted by incumbent politicians to shield themselves from issue lobbying under the guise of campaign reform. And, they continued, if the FEC is allowed to prohibit advertising based on whether a group intends to influence an election or not regardless of the actual content of the advertising courts are going to be bogged down with subjective analysis in individual cases. In addition, they reasoned, free speech will be chilled because many groups will prefer to not air ads rather than risk a protracted legal battle. On June 25, 2007, the Supreme Court ruled 5 to 4 that WRTL s advertising did not run afoul of the BCRA. While Chief Justice Roberts, writing for the majority, did not explicitly rule that the issue ad provision of the BCRA was unconstitutional, his holding gives corporate and union groups like WRTL much greater latitude in airing television advertisements during campaign periods. The right of organizations to be able to lobby government officials on public policy issues, he reasoned, outweighs the interests of the government in preventing possible influence on Federal campaigns. Writing for the dissenters, Justice Souter countered that Chief Justice Roberts ruling essentially ignored and overturned the Supreme Court s McConnell holding of less than four years earlier. In that decision, the Court had cited examples of advertising that, while not explicitly calling for the candidate s defeat in his campaign for Federal office, under the guise of dealing with a political issue were clearly intended to affect an election. WRTL s ads were no different. The influence of big money on political campaigns is a serious threat to democracy, Justice Souter continued, and the government should be allowed to craft measures to address this problem. That the Court s decision in FEC v. WRTL could be so different from the earlier McConnell decision is a reflection of the realities of the new Roberts Court, where Justice Alito has replaced Justice O Connor, the moderate swing voter. In nearly all of the closely contested cases this term including this one the Court has tilted toward the conservative side. Although the lasting impact of President Bush s two appointments to the High Court has yet to be determined, early results indicate that the balance has tilted noticeably to the right. Inside the Court Status of Important Cases Before the Highest Tribunal The following pages provide the status of key cases granted certiorari by the Supreme Court for consideration during the October 2006 term (October 2, 2006, through September 30, 2007). Although the Court term officially runs for a full year, the Court has not been in formal session since June 28, when it handed down its decisions in the cases in which it had already held oral arguments. All other cases for which the Court has granted certiorari this term will be heard during the next term, which begins on October 1, Oral arguments will resume at that time, and the Court will begin reviewing petitions for additional cases to be considered. Cases are organized by certiorari date within each section. Resolved Gonzales v. Carhart This case was granted certiorari on February 21, 2006, and was reversed on April 18, Featured in Partial-Birth Abortion Ban, SUP. CT. DEBATES (Dec. 2006), p For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (May 2007), p Congressional Digest Corp. Page 3

4 Carey v. Musladin This case was granted certiorari on April 17, 2006, and was vacated and remanded on December 11. Featured in Prejudicial Displays in Court, SUP. CT. DEBATES (Nov. 2006), p For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (Feb. 2007), p. 4. Whorton v. Bockting This case was granted certiorari on May 15, 2006, and was reversed and remanded on February 28, For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (April 2007), p. 4. Philip Morris USA v. Williams This case was granted certiorari on May 30, 2006, and was vacated and remanded on February 20, For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (April 2007), p. 4. Burton v. Stewart This case was granted certiorari on June 5, 2006, and was vacated due to lack of jurisdiction on January 9, For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (Feb. 2007), p. 4. Meredith v. Jefferson City Board of Education This case was granted certiorari on June 5, 2006, and was reversed and remanded on June 28, In a 5-to-4 decision, the Court held that a school board student-distribution plan that requires all schools to have between 15 percent and 50 percent African American enrollment violates the Fourteenth Amendment. Featured in Race in Public Education, SUP. CT. DEBATES (Jan. 2007). The following is excerpted from the summary of the majority opinion written by Chief Justice Roberts, as prepared by the Court Reporter of Decisions: The school districts have not carried their heavy burden of showing that the interest they seek to achieve justifies the extreme means they have chosen discriminating among individual students based on race by relying upon racial classifications in making school assignments. Because racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification, Fullilove v. Klutznick (1980), governmental distributions of burdens or benefits based on individual racial classifications are reviewed under strict scrutiny. Thus, the school districts must demonstrate that their use of such classifications is narrowly tailored to achieve a compelling government interest. Adarand Constructors, Inc. v. Peña (1995). Although remedying the effects of past intentional discrimination is a compelling interest under the strict scrutiny test, that interest is not involved here because the Seattle schools were never segregated by law nor subject to court-ordered desegregation, and the desegregation decree to which the Jefferson County schools were previously subject has been dissolved. Moreover, these cases are not governed by Grutter v. Bollinger (2003), in which the Court held that, for strict scrutiny purposes, a government interest in student body diversity in the context of higher education is compelling. That interest was not focused on race alone, but encompassed all factors that may contribute to student body diversity, including having overcome personal adversity and family hardship. Quoting Justice Powell s articulation of diversity in Regents of the University of California v. Bakke (1978), the Grutter Court noted that it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race, but a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. In the present cases, by contrast, race is not considered as part of a broader effort to achieve exposure to widely diverse people, cultures, ideas, and viewpoints ; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, that factor is decisive by itself. Race is 2007 Congressional Digest Corp. Page 4

5 not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Even as to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/ other terms in Jefferson County. The Grutter Court expressly limited its holding defining a specific type of broad-based diversity and noting the unique context of higher education but these limitations were largely disregarded by the lower courts in extending Grutter to the sort of classifications at issue here. Despite the districts assertion that they employed individual racial classifications in a way necessary to achieve their stated ends, the minimal effect these classifications have on student assignments suggests that other means would be effective. Seattle s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Similarly, Jefferson County admits that its use of racial classifications has had a minimal effect, and claims only that its guidelines provide a firm definition of the goal of racially integrated schools, thereby providing administrators with authority to collaborate with principals and staff to maintain schools within the desired range. Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of this Court s precedents and the Nation s history of using race in public schools, and requires more than such an amorphous end to justify it. In Grutter, in contrast, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school there at issue. While the Court does not suggest that greater use of race would be preferable, the minimal impact of the districts racial classifications on school enrollment casts doubt on the necessity of using such classifications. The districts have also failed to show they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires serious, good-faith consideration of workable race-neutral alternatives, and yet in Seattle several alternative assignment plans many of which would not have used express racial classifications were rejected with little or no consideration. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Parents Involved in Community Schools v. Seattle School District No. 1 This case was granted certiorari on June 5, 2006, and reversed and remanded on June 28, The Seattle School District s plan to take race into consideration when selecting students for admission to public high schools is unconstitutional. Massachusetts v. Environmental Protection Agency (EPA) This case was granted certiorari on June 26, 2006, and reversed and remanded on April 2, Featured in Global Warming, SUP. CT. DEBATES (March 2007). For Holding, see Inside the Supreme Court, SUP. CT. DEBATES (May 2007). Davenport v. Washington Education Association This case was granted certiorari on September 26, 2006, and was vacated and remanded on June 14, In a 6-to-3 decision, the Court held that a State can prohibit a labor union from using nonmembers agency-shop fees for political purposes without the nonmembers consent. Featured in Political Advocacy by Unions, SUP. CT. DEBATES (Feb. 2007). The following is excerpted from the summary of the majority opinion written by Justice Scalia, as prepared by the Court Reporter of Decisions: It does not violate the First Amendment for a State to require its public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember s agency fees for electionrelated purposes. It is undeniably unusual for a government agency to give a private entity the power to tax government employees. The notion that Section 760 s [the Washington ballot measure requiring affirmative authorization] modest limitation upon that extraordinary benefit violates the First Amendment is counterintuitive, because it is undisputed that Washington could have restricted public-sector agency fees to the portion of union dues devoted to collective bargaining, or even eliminated them entirely Congressional Digest Corp. Page 5

6 Washington s far less restrictive limitation on Respondent s authorization to exact money from government employees is of no greater constitutional concern. The State Supreme Court extended this Court s agency-fee cases well beyond their proper ambit in concluding that those cases, having balanced the constitutional rights of unions and nonmembers, required a nonmember to shoulder the burden of objecting before a union can be barred from spending his fees for purposes impermissible under Abood v. Detroit Board of Education (1977). The agency-fee cases did not balance constitutional rights in such a manner because unions have no constitutional entitlement to nonmember-employees fees. The Court has never suggested that the First Amendment is implicated whenever governments limit a union s entitlement to agency fees above and beyond what Abood and Chicago Teachers Union v. Hudson (1986) require. The constitutional floor for unions collection and spending of agency fees is not also a constitutional ceiling for State-imposed restrictions. Hudson s admonition that dissent is not to be presumed means only that it would be improper for a court to enjoin the expenditures of all nonmembers agency fees when a narrower remedy could satisfy statutory or constitutional limitations. Contrary to Respondent s argument, Section 760 is not unconstitutional under this Court s campaign-finance cases. For First Amendment purposes, it is immaterial that Section 760 restricts a union s use of funds only after they are within the union s possession. The fees are in the union s possession only because Washington and its union-contracting government agencies have compelled their employees to pay those fees. The campaign-finance cases deal instead with governmental restrictions on how a regulated entity may spend money that has come into its possession without such coercion. While content-based speech regulations are presumptively invalid, strict scrutiny is unwarranted when the risk that the government may drive ideas or viewpoints from the marketplace is attenuated, such as when the government acts in a capacity other than as regulator. Thus, the government can make content-based distinctions when subsidizing speech and can exclude speakers based on reasonable, viewpoint-neutral subject-matter grounds when permitting speech on government property that is a nonpublic forum. Washington voters did not impermissibly distort the marketplace of ideas when they placed a reasonable, viewpoint-neutral limitation on the State s authorization. They were seeking to protect the integrity of the election process, and their restriction was thus limited to the State-created harm that they sought to remedy. The First Amendment did not compel them to limit public-sector unions extraordinary entitlement to nonmembers agency fees more broadly than necessary to vindicate that concern. Schriro v. Landrigan This case was granted certiorari on September 26, 2006, and was reversed and remanded on May 14, A defense lawyer does not give unconstitutionally ineffective assistance to his client when, at the defendant s request, he does not present mitigating evidence during the sentencing portion of a capital crime. Smith v. Texas This case was granted certiorari on October 6, 2006, and was reversed and remanded on April 25, An error in jury instructions during the sentencing phase in a capital case requires resentencing even if the error is ruled not to have caused egregious harm to the defendant. Abdul-Kabir v. Quarterman This case was granted certiorari on October 13, 2006, and was reversed and remanded on April 25, Jury instructions during the sentencing phase of a capital trial are unconstitutional if they do not allow jurors to consider mitigating factors when deciding whether to apply the death penalty. Timothy Scott v. Victor Harris This case was granted certiorari on October 27, 2006, and was reversed on April 30. In an 8-to-1 ruling, the Court held that a police officer s decision to ram a fleeing suspect s car during a high-speed chase did not violate the suspect s Fourth Amendment rights. Featured in Police Chases, SUP. CT. DEBATES (April 2007) Congressional Digest Corp. Page 6

7 The following is excerpted from the summary of the majority opinion written by Justice Scalia, as prepared by the Court Reporter of Decisions: Because the car chase Respondent initiated posed a substantial and immediate risk of serious physical injury to others, Scott s attempt to terminate the chase by forcing Respondent off the road was reasonable, and Scott is entitled to summary judgment. Qualified immunity requires resolution of a threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer s conduct violated a constitutional right? Saucier v. Katz (2001). The record in this case includes a videotape capturing the events in question. Where, as here, the record blatantly contradicts the plaintiff s version of events so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a summary judgment motion. Viewing the facts in the light depicted by the videotape, it is clear that Deputy [Timothy] Scott did not violate the Fourth Amendment. Tennessee v. Garner (1985) did not establish a magical on/off switch that triggers rigid preconditions whenever an officer s actions constitute deadly force. The Court there simply applied the Fourth Amendment s reasonableness test to the use of a particular type of force in a particular situation. That case has scant applicability to this one, which has vastly different facts. Whether or not Scott s actions constituted deadly force, what matters is whether those actions were reasonable. In determining a seizure s reasonableness, the Court balances the nature and quality of the intrusion on the individual s Fourth Amendment interests against the importance of the governmental interests allegedly justifying the intrusion. In weighing the high likelihood of serious injury or death to Respondent that Scott s actions posed against the actual and imminent threat that Respondent posed to the lives of others, the Court takes account of the number of lives at risk and the relative culpability of the parties involved. Respondent intentionally placed himself and the public in danger by unlawfully engaging in reckless, high-speed flight; those who might have been harmed had Scott not forced Respondent off the road were entirely innocent. The Court concludes that it was reasonable for Scott to have taken the action he did. It rejects Respondent s argument that safety could have been assured if the police simply ceased their pursuit. The Court rules that a police officer s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. Microsoft v. AT&T This case was granted certiorari on October 30, 2006, and was reversed on April 30, A company cannot sue for copyright infringement if the violation solely occurs outside U.S. jurisdiction. Rita v. United States This case was granted certiorari on November 3, 2006, and was affirmed on June 21, A sentence is presumptively reasonable if it falls within the range of the Federal sentencing guidelines. Hein v. Freedom From Religion Foundation This case was granted certiorari on December 1, 2006, and reversed on June 25, A taxpayer does not have standing to challenge the constitutionality of an Executive Branch program that promotes giving religious organizations access to Federal funds. Morse v. Frederick This case was granted certiorari on December 1, 2006, and reversed and remanded on June 25, In a 5-to-4 decision, the Court held that a public school student can be suspended for speech that encourages illegal drug use. Featured in Student Speech, SUP. CT. DEBATES (May 2007). The following is excerpted from the summary of the majority opinion written by Chief Justice Roberts, as prepared by the Court Reporter of Decisions: 2007 Congressional Digest Corp. Page 7

8 Because schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use, the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending [student Joseph] Frederick. Frederick s argument that this is not a school speech case is rejected. The event in question occurred during normal school hours and was sanctioned by [school principal Deborah] Morse as an approved social event at which the district s student-conduct rules expressly applied. Teachers and administrators were among the students and were charged with supervising them. Frederick stood among other students across the street from the school and directed his banner toward the school, making it plainly visible to most students. Under these circumstances, Frederick cannot claim he was not at school. The Court agrees with Morse that those who viewed the banner would interpret it as advocating or promoting illegal drug use, in violation of school policy. At least two interpretations of the banner s words that they constitute an imperative encouraging viewers to smoke marijuana or, alternatively, that they celebrate drug use demonstrate that the sign promoted such use. This pro-drug interpretation gains further plausibility from the paucity of alternative meanings the banner might bear. A principal may, consistent with the First Amendment, restrict student speech at a school event when that speech is reasonably viewed as promoting illegal drug use. In Tinker v. Des Moines Independent Community School District (1969), the Court declared, in holding that a policy prohibiting high school students from wearing antiwar armbands violated the First Amendment, that student expression may not be suppressed unless school officials reasonably conclude that it will materially and substantially disrupt the work and discipline of the school. The Court in Bethel School District No. 403 v. Fraser (1986), however, upheld the suspension of a student who delivered a high school assembly speech employing an elaborate, graphic, and explicit sexual metaphor. Analyzing the case under Tinker, the lower courts had found no disruption, and therefore no basis for discipline. This Court reversed, holding that the school was within its permissible authority in imposing sanctions... in response to [the student s] offensively lewd and indecent speech. Two basic principles may be distilled from Fraser. First, it demonstrates that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. Had Fraser delivered the same speech in a public forum outside the school context, he would have been protected. In school, however, his First Amendment rights were circumscribed in light of the special characteristics of the school environment. Tinker. Second, Fraser established that Tinker s mode of analysis is not absolute, since the Fraser Court did not conduct the substantial disruption analysis. Subsequently, the Court has held in the Fourth Amendment context that while children assuredly do not shed their constitutional rights... at the schoolhouse gate... the nature of those rights is what is appropriate for children in school, Vernonia School District 47J v. Acton (1995), and has recognized that deterring drug use by schoolchildren is an important indeed, perhaps compelling interest. Drug abuse by the Nation s youth is a serious problem. For example, Congress has declared that part of a school s job is educating students about the dangers of drug abuse, and Petitioners and many other schools have adopted policies aimed at implementing this message. Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, poses a particular challenge for school officials working to protect those entrusted to their care. The special characteristics of the school environment, Tinker, and the governmental interest in stopping student drug abuse allow schools to restrict student expression that they reasonably regard as promoting such abuse. Roper v. Weaver This case was granted certiorari on December 7, 2006, and was dismissed as improvidently granted on May 21, To be decided was whether a circuit court can overturn a death penalty conviction because the prosecutor used inflammatory language in his closing arguments. BCI Coca-Cola Bottling Co. v. Equal Employment Opportunity Commission This case was granted certiorari on January 5, 2007, and was dismissed at the request of BCI Coca-Cola Bottling Co. on April 12, Before the Court was whether a corporation may be held liable for employment discrimination 2007 Congressional Digest Corp. Page 8

9 based on the discriminatory conduct of a subordinate employee if that corporation was not aware that discrimination was the reason for the subordinate employee s actions. Panetti v. Quarterman This case was granted certiorari on January 5, 2007, and was reversed and remanded on June 28, Appeals courts must consider whether petitioners are competent to be executed if they have an irrational understanding of why they are sentenced to death. Tennessee Secondary School Athletic Association v. Brentwood Academy This case was granted certiorari on January 5, 2007, and was reversed and remanded on June 21, A high school athletic association s prohibition on recruiting does not violate the member schools First Amendment rights. Brendlin v. California This case was granted certiorari on January 19, 2007, and was vacated and remanded on June 18, Passengers in a car are considered seized during an illegal traffic stop, thus allowing them to challenge any incriminating evidence gathered following the stop. Federal Elections Commission, et al. v. Wisconsin Right to Life This case was granted certiorari on January 19, 2007, and was affirmed on June 25, The Bipartisan Campaign Reform Act, which bans nonprofits from using their corporate treasuries to run television ads naming candidates in the days leading up to elections, is unconstitutional as applied to genuine issue ads that are not designed to influence elections. Featured in, SUP. CT. DEBATES (Sept. 2007). Office of Senator Mark Dayton v. Hanson This case was granted certiorari on January 19, 2007, and was dismissed for lack of jurisdiction on May 21, At issue was whether the Constitution shields Members of Congress from employment discrimination lawsuits brought by legislative staffers. The October 2007 Term Certiorari Granted and Argument Scheduled Board of Education of the City of New York v. Tom F. This case was granted certiorari on February 26, 2007, and is scheduled for argument on October 1. To be decided is whether a parent can be reimbursed under the Individuals With Disabilities Education Act for special education services expenses if that child is in private, not public, school. State of Washington v. Washington Republican Party This case was granted certiorari on February 26, 2007, and is scheduled for argument on October 1. At issue is whether Washington s open primary system, which allows candidates to list their party preference, violates the First Amendment. Stoneridge Investment v. Scientific Atlanta This case was granted certiorari on February 26, 2007, and is scheduled for argument on October 9. Before the Court is whether a company can be held liable if it knowingly assists another company in making illegal false statements under the Securities and Exchange Act. Medellin v. Texas This case was granted certiorari on April 30, 2007, and is scheduled for argument on October 10. To be decided is whether a presidential memorandum can require that a State court consider international law when decided whether to hear an appeal of a capital defendant. Derrick Kimbrough v. United States This case was granted certiorari on June 11, 2007, and is scheduled for argument on October 2. At issue is whether a court can send a convicted drug dealer to prison for less time than the mandatory minimum sentence because it believes there is an unfair disparity between required sentences for crack and powder cocaine Congressional Digest Corp. Page 9

10 Certiorari Granted United States v. Williams This case was granted certiorari on March 26, 2007, and has yet to be scheduled for argument. At issue is whether a Federal law that prohibits individuals from promoting or pandering material that they believe or they wish to cause others to believe contains child pornography violates the First Amendment of the U.S. Constitution. Sprint v. Mendelsohn This case was granted certiorari on June 11, 2007, and has yet to be scheduled for argument. Before the Court is whether a plaintiff can introduce evidence of discrimination by other supervisors against employees when suing a company for age discrimination. Boumediene v. Bush This case was granted certiorari on June 29, 2007, and has yet to be scheduled for argument. To be decided is whether non-american detainees in Guantánamo Bay can challenge confinement in Federal Court despite Federal law to the contrary. Wisconsin Right to Life Inc. v. FEC Impact of the Supreme Court Decision On June 25, 2007, in a 5-to-4 decision, the Supreme Court in Wisconsin Right to Life, Inc. v. Federal Election Commission affirmed a lower court ruling, finding that a provision of the Bipartisan Campaign Reform Act of 2002 (BCRA) prohibiting corporate or labor union treasury funds from being spent on advertisements broadcast within 30 days of a primary or 60 days of a general election was unconstitutional as applied to ads that Wisconsin Right to Life, Inc. (WRTL) sought to run. While not expressly overruling its ruling in McConnell v. Federal Election Commission (FEC) (2003), which upheld the BCRA provision against a First Amendment facial challenge, the Court limited the law s application. Specifically, it ruled that advertisements that may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate are not the functional equivalent of express advocacy and, therefore, cannot be regulated. Background Section 203 of the Bipartisan Campaign Reform Act of 2002 prohibits corporate or labor union treasury funds from being spent for electioneering communications. BCRA defines electioneering communication as any broadcast, cable, or satellite transmission made within 30 days of a primary or 60 days of a general election (sometimes referred to as the blackout periods ) that refers to a candidate for Federal office and is targeted to the relevant electorate. In a 2003 decision, McConnell v. FEC, the U.S. Supreme Court upheld Section 203 of BCRA against a First Amendment facial challenge even though the provision regulates not only campaign speech or express advocacy (speech that expressly advocates the election or defeat of a clearly identified candidate), but also issue advocacy (speech that discusses public policy issues, while also mentioning a candidate). Specifically, the Court determined that the speech regulated by Section 203 was the functional equivalent of express advocacy. On July 26, 2004, Wisconsin Right to Life, a corporation that accepts contributions from other corporations, began broadcasting advertisements exhorting viewers to contact Senators Russ Feingold (WI-D) and Herb Kohl (WI-D) to urge them to oppose a Senate filibuster to delay and block consideration of Federal judicial nominations. WRTL planned to run the ads throughout August 2004 and to finance them with its general treasury funds, thereby running afoul of Section 203, as such ads would have been broadcast within the 30-day period prior to the September 14, 2004, primary. Anticipating that the ads would be illegal electioneering communications, but believing that they nevertheless had a First Amendment right to broadcast them, WRTL filed suit against the FEC, seeking declaratory and injunctive 2007 Congressional Digest Corp. Page 10

11 relief and alleging that Section 203 s prohibition was unconstitutional as applied to the ads and any future ads that they might plan to run. Just prior to the BCRA 30-day blackout period, a three-judge district court denied a preliminary injunction, finding that McConnell v. FEC left no room for such an as-applied challenge. Accordingly, WRTL did not broadcast its ads during the blackout period, and the district court subsequently dismissed the complaint in an unpublished opinion. On appeal, in Wisconsin Right to Life, Inc. v. FEC (2006), the Supreme Court vacated the lower court judgment, finding that by upholding Section 203 against a facial challenge in McConnell, we did not purport to resolve future as-applied challenges. On remand, after permitting four Members of Congress to intervene as defendants, the three-judge district court granted WRTL summary judgment, determining that Section 203 was unconstitutional as applied to WRTL s ads. It concluded that the ads were genuine issue ads, not express advocacy or its functional equivalent under McConnell, and held that no compelling interest justified their regulation. The FEC appealed. Supreme Court Decision Overview. In Wisconsin Right to Life, Inc. v. FEC, the Supreme Court affirmed the lower court ruling in a 5-to-4 decision, finding that Section 203 of BCRA was unconstitutional as applied to the WRTL ads, and that they should have been permissible to broadcast. In a plurality opinion, written by Chief Justice Roberts, joined by Justice Alito Justice Scalia wrote a separate concurrence, joined by Justices Kennedy and Thomas the Court announced that [b]ecause WRTL s ads may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate, we hold they are not the functional equivalent of express advocacy, and therefore, fall outside the scope of McConnell s holding. In determining the threshold question, as required by McConnell, of whether the ads were the functional equivalent of speech expressly advocating the election or defeat of a candidate for Federal office or genuine issue advocacy, the Court observed that it had long recognized that the practical distinction between campaign advocacy and issue advocacy can often dissolve because candidates, particularly incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Nonetheless, the Court stated, its jurisprudence in this area requires it to make such a distinction, and [i]n drawing that line, the First Amendment requires... err[ing] on the side of protecting political speech, rather than suppressing it. Analysis. In WRTL, the FEC appealed the lower court ruling, arguing that in view of the fact that McConnell had already held that Section 203 was facially valid, WRTL and not the Government should bear the burden of demonstrating that BCRA is unconstitutional as applied to its ads. Rejecting the FEC s contention, the Court pointed out that Section 203 burdens political speech and is therefore subject to strict scrutiny. Under strict scrutiny, the Court determined that the FEC not the regulated community had the burden of proving that the application of Section 203 to WRTL s ads furthered a compelling interest, and was narrowly tailored to achieve that interest. As it had already ruled in McConnell that Section 203 survives strict scrutiny to the extent it regulates express advocacy or its functional equivalent, the Court found that in order to prevail, the FEC needed to show that the WRTL ads it sought to regulate fell within that category. On the other hand, if the speech that the FEC sought to regulate is not express advocacy or its functional equivalent, the Court cautioned that the FEC s task is more formidable because it must demonstrate that banning such ads during the blackout periods is narrowly tailored to serve a compelling governmental interest, a conclusion that no precedent has reached. In response to the FEC s and the dissent s argument that McConnell established a test for determining whether an ad is the functional equivalent of express advocacy that is, whether the ad is intended to influence elections or has that effect the Court disagreed, finding that it had not adopted any type of test as the standard for future as-applied challenges. Instead, the Court found that its analysis in McConnell was grounded in the evidentiary record, particularly studies showing that the BCRA definition of electioneering communications accurately captures ads having the purpose or effect of 2007 Congressional Digest Corp. Page 11

12 supporting candidates for election to office. Hence, when the McConnell Court made its assessment that the plaintiffs in that case had not sufficiently proven that Section 203 was overbroad and could not be enforced in any circumstance, it did not adopt a particular test for determining what constituted the functional equivalent of express advocacy. Indeed, the Court held, the fact that in McConnell it looked to such intent and effect neither compels nor warrants accepting that same standard as the constitutional test for separating, in an asapplied challenge, political speech protected under the First Amendment from that which may be banned. Accordingly, the Court turned to establishing the proper standard for an as-applied challenge to Section 203 of BCRA, finding that such a standard must be objective, focusing on the substance of the communication rather than amorphous considerations of intent and effect, involving minimal if any discovery so that parties can resolve disputes quickly without chilling speech through the threat of burdensome litigation, and eschewing the open-ended, rough-and-tumble of factors, which invites complex argument in a trial court and a virtually inevitable appeal. In summation, the Court announced that the standard must give the benefit of any doubt to protecting rather than stifling speech. Taking such considerations into account, the Court held that [A] court should find that... an ad is the functional equivalent of express advocacy only if the ad is susceptible to no reasonable interpretation other than as an appeal to vote for or against a specific candidate. Under this test, WRTL s three ads are plainly not the functional equivalent of express advocacy. First, their content is consistent with that of a genuine issue ad: The ads focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials with respect to the matter. Second, their content lacks indicia of express advocacy: The ads do not mention an election, candidacy, political party, or challenger; and they do not take a position on a candidate s character, qualifications, or fitness for office. Moreover, the Court cautioned, contextual factors should seldom play a significant role in the inquiry. Although courts are not required to ignore basic background information that provides relevant contextual information about an advertisement such as whether the ad describes a legislative issue that is under legislative consideration the Court found that such background information should not become an excuse for discovery. In applying the standard it developed for as-applied challenges to the ads that WRTL sought to broadcast, the Court determined that the FEC had failed to demonstrate that such ads constituted the functional equivalent of express advocacy because they could reasonably be interpreted as something other than a vote for or against a candidate. The Court s established jurisprudence has recognized the governmental interest in preventing corruption and the appearance of corruption in elections, which has been invoked in order to justify contribution limits and, in certain circumstances, spending limits on electioneering expenditures that pose the risk of quid pro quo corruption. In McConnell, the Court noted, it had applied this interest in justifying the regulation of express advocacy and its functional equivalent, but in order to justify regulating WRTL s ads, this interest must be stretched yet another step to ads that are not the functional equivalent of express advocacy. In strongly worded opposition to extending the application of this governmental interested yet again, the Court announced, Enough is enough. The WRTL ads are not equivalent to contributions they are political speech and the governmental interest in avoiding quid pro quo corruption cannot be used to justify their regulation. The Court also announced that the discussion of issues cannot be suppressed simply because the issues may also be relevant to an election: Where the First Amendment is implicated, the tie goes to the speaker, not the censor. In an equally strongly worded dissent, Justice Souter with whom Justices Stevens, Ginsburg, and Breyer joined argued that WRTL overruled that portion of McConnell v. FEC upholding Section 203 of BCRA against a facial constitutional challenge. Among other points in opposition to the Court s 2007 Congressional Digest Corp. Page 12

13 ruling, the dissent observed that Section 203 was less restrictive than the Court s opinion would indicate in that it did not effect a complete ban on corporate and labor union funds being spent on electioneering communications. Indeed, the dissent remarked, quoting McConnell, Corporations and unions may finance genuine issue ads [in the run-up period] by simply avoiding any specific reference to Federal candidates, or in doubtful cases by paying for the ad from a segregated [PAC] fund. Moreover, the dissent added, a nonprofit corporation, regardless of its source of funding, may communicate its criticism or support of a particular candidate within days of an election by speaking via a newspaper ad or on a Website and, in accordance with earlier Court precedent, may use its general treasury funds to pay for electioneering communications so long as it does not finance such ads with funding from business corporations and unions. Of particular significance, the dissent cautioned that it is possible, based on the reasoning of the Court s ruling, that even advertisements containing express words of advocacy known as magic words could now escape regulation under Section 203. Conclusion While the ultimate impact and aftermath of the Supreme Court s decision in WRTL remains to be seen, application of the Federal law prohibiting corporate and labor union treasury funds from being spent on ads that are broadcast 30 days before a primary and 60 days before a general election has been limited. As a result of this ruling, only ads that are susceptible to no reasonable interpretation other than an exhortation to vote for or against a candidate can be regulated. While the Court s ruling was careful not to overrule explicitly its earlier upholding of this portion of the Bipartisan Campaign Reform Act (BCRA) in its 2003 decision, McConnell, WRTL seems to indicate that the FEC s ability to regulate the electioneering communication ban has nonetheless been circumscribed. Excerpted from the July 5, 2007, Congressional Research Service Report The Constitutionality of Regulating Political Advertisements: An Analysis of Federal Election Commission v. Wisconsin Right to Life, Inc Congressional Digest Corp. Page 13

14 Is the Bipartisan Campaign Reform Act s Limit on Electioneering Communications by Corporations and Labor Unions Constitutional? PROS Senator John McCain (AZ-R) and Representatives Tammy Baldwin (WI-D), Christopher Shays (CT-R), and Martin Meehan (MA-D), Appellants Seth P. Waxman, Counsel of Record On March 27, 2002, under the leadership of Senators John McCain (AZ-R) and Russell Feingold (WI-D) and Representatives Christopher Shays (CT-R) and Martin Meehan (MA-D), the U.S. Congress passed the Bipartisan Campaign Reform Act (BCRA). Among other things, the law regulated the use of money raised by political parties in Federal elections and prohibited electioneering communication funded by corporations, nonprofits, and labor unions within 30 days of a primary or 60 days of a general election. Although the law withstood an initial challenge before the Supreme Court, on July 28, 2004, the nonprofit group Wisconsin Right to Life (WRTL) contested a court ruling in favor of the Federal Election Commission (FEC) that prohibited it from airing television ads prior to that year s general election calling for Senator Feingold to oppose judicial filibusters. After the U.S. Supreme Court allowed the suit to proceed, a Federal district court ruled the BCRA s prohibitions to be unconstitutional when applied to WRTL s advertising. The FEC, joined by Senator McCain and Representatives Shays and Meehan, as well as Representative Tammy Baldwin (WI-D), appealed to the U.S. Supreme Court, which granted certiorari on January 19, Seth P. Waxman is a partner with the law firm WilmerHale, where he cochairs the appellate and Supreme Court litigation group. He served as U.S. solicitor general from 1998 to He received his law degree from Yale in The following is excerpted from the Brief for the Appellants as submitted to the U.S. Supreme Court on February 23, This Court has long recognized Congress s compelling interest in guarding against the undue and damaging influence that business corporations and unions could exercise on Federal elections if permitted to use their general treasuries to fund electioneering. That interest extends equally to not-for-profit advocacy groups, like WRTL, to the extent they act as conduits for corporate or union funds. In McConnell v. FEC [Federal Election Commission] (2003), this Court held that Congress s interest is not limited to regulating particular words or forms used to advocate for or against a candidate, but encompasses all advertisements that are the functional equivalent of express advocacy. The uncontested facts leave no doubt that WRTL s advertisements fall into that category. The ads denounced a group of senators, of whom Senators Feingold and [Herb] Kohl [WI-D] were known to be a part, for filibustering, and then instructed the audience to call Feingold and Kohl and tell them to oppose the filibusters. That alone is sufficient to establish the likelihood that the ads would have functioned as electioneering: Any voters aware of Feingold s public position on the filibusters, or who could infer it from the ads themselves, would have clearly understood the ads to call into question Feingold s fitness to continue serving in the Senate. If more were needed, numerous additional facts confirm the electioneering nature of WRTL s ads: WRTL and its political action committee (PAC) had openly advocated for Senator Feingold s defeat in the 2004 election and had identified the filibuster issue as a reason he should be removed from office; Feingold s Republican opponents had also made the filibusters a central issue in the campaign; WRTL s ads provided no contact information for Senator Feingold, but did refer the audience to a Website that expressly criticized Feingold for his role in the filibusters; and WRTL sought to broadcast the ads immediately prior to the election, while the Senate was in recess, rather than when a vote to end a 2007 Congressional Digest Corp. Page 14

15 filibuster was imminent. Moreover, WRTL had ample alternative means for disseminating its message, including using its established PAC or constituting itself as an MCFL [FEC v. Massachusetts Citizens for Life, Inc. (1986)] organization that does not accept contributions from business corporations. Rather than ask whether WRTL s ads would have functioned as election advocacy in the context in which their audience would have received them, the district court refused to look beyond the ads literal words and images. It concluded that because the ads referred to a pending legislative issue and did not attack Senator Feingold in so many words, their funding could not be regulated. That blinkered approach offends common sense and cannot be reconciled with McConnell, which made clear that Congress s compelling interest in regulating corporate expenditures goes beyond express support for or opposition to a candidate, extending to any ad that has the same election-influencing function. It also threatens to undo the work that Congress did in BCRA, and that this Court upheld in McConnell, to close the issue ad loophole not only for nonprofit advocacy groups like WRTL, but for all business corporations and unions. The district court attempted to justify its approach by asserting that examining the context of the ads would be practically and theoretically unmanageable. Those fears are insubstantial. The district court s practical concern was that developing a record would prove too onerous. But no extensive record was necessary to determine that ads criticizing a group of senators including Senator Feingold were likely to function as election advocacy against Feingold when broadcast immediately before the election. In any event, this Court has previously rejected the notion that the difficulty of compiling a record to support an as-applied challenge can serve as a basis for a categorical exemption from the campaign-finance laws. The district court s theoretical concern that looking beyond the ad s four corners would involve an unworkable investigation into the advertiser s subjective intent is also groundless. The court failed to appreciate that, in light of McConnell s holding that Section 203 [of BCRA] is constitutional as to the vast majority of ads within its coverage, an as-applied challenge should succeed only if the ads are so different in kind from that vast majority that they do not implicate the compelling interests underpinning the statute. To resolve that question, it is not necessary to plumb the advertiser s subjective state of mind. Any ad that satisfies BCRA s definition of electioneering communication and that is likely to influence voters decisions, based on an examination of the ad s objective content and context, sufficiently evinces an electioneering purpose and implicates the legitimate goals of BCRA. In this case, moreover, WRTL s open advocacy of Feingold s defeat, precisely because of his role in the filibusters, can leave no real doubt of its electioneering purpose. For those reasons, no trial is necessary to resolve any disputed issues here. WRTL s ads plainly fall at the core of Section 203 s constitutional application, and this Court should reverse the district court s judgment and remand for entry of summary judgment for appellants. I. Congress Can Bar the Use of Corporate Treasuries to Fund Political Advertising, Even If the Advertising Also Addresses Legislative Issues. This Court reaffirmed in McConnell what is now well-established: that Congress has a compelling interest in preventing the corrosive and distorting effects of corporate and union treasuries on the integrity of the political process. As the Court explained, The legislative judgment is that the special characteristics of the corporate structure require particularly careful regulation. Indeed, Congress has regulated corporate contributions to candidates for a full century, and it has regulated election-related expenditures by corporations and unions for 60 years. At least two significant justifications support restricting the use of corporate treasury funds to influence Federal elections. First, the special advantages which go with the corporate form of organization, FEC v. National Right to Work Committee (NRWC) (1982), permit corporations to use resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace. MCFL Congressional Digest Corp. Page 15

16 Second, Individuals who have paid money into a corporation for purposes other than the support of candidates should not have that money used to support political candidates to whom they may be opposed. NRWC. In short, Congress has a compelling interest in limiting the effect on Federal elections of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to either the general public s or the corporation s shareholders support for the corporation s political ideas. McConnell. Requiring corporations to fund their election-related speech through PACs serves that end by allow[ing] corporate political participation without the temptation to use corporate [general treasury] funds for political influence. FEC v. Beaumont (2003). Those concerns are also applicable to nonprofit advocacy groups that accept donations from business corporations. Such groups can serv[e] as conduits for the type of direct spending that creates a threat to the political marketplace. MCFL. Accordingly, although this Court in MCFL recognized the existence of a limited class of nonprofit organizations that are sufficiently different from business corporations that they do not implicate Congress s interest in regulating corporate election spending, it limited the MCFL exemption to organizations that were not established by a business corporation or labor union and do not accept contributions from such entities. Here, because WRTL accepted substantial donations from for-profit corporations, WRTL does not qualify for an MCFL exemption, as it has acknowledged. Its election-related expenditures raise precisely the concerns regarding corporate spending that Congress has a compelling interest in addressing. This Court held in McConnell that the compelling interest in regulating corporate and union election expenditures is not limited to advertisements that contain words expressly advocating the election or defeat of a candidate. Rather, The justifications for the regulation of express advocacy apply equally to all advertisements that are intended to influence the voters decisions and have that effect and thus are the functional equivalent of express advocacy. The BCRA s opponents argued vigorously that its restrictions on electioneering communications could not constitutionally be applied to issue advocacy. This Court unequivocally rejected that contention. It explained that issue advocacy the discussion of political policy generally or advocacy of the passage or defeat of legislation is entitled to no greater protection under the First Amendment than [a]dvocacy of the election or defeat of candidates for Federal office. And it concluded: [W]e [are not] persuaded that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. Indeed, the unmistakable lesson from the record in this litigation is that Buckley [v. Valeo s (1976)] magic-words requirement is functionally meaningless. Not 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. This Court went on to reject plaintiffs contention that BCRA s definition of electioneering communications was unconstitutionally overbroad. Although the Court accepted the hypothesis that BCRA s definition might apply to some ads that did not function as electioneering and thus did not implicate Congress s regulatory goals, it concluded after reviewing the extensive record that the vast majority of ads, including issue ads, that identified a candidate and were broadcast during the relevant pre-election period clearly had [an electioneering] purpose. Far from establishing that BCRA s application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion. In short, the record confirmed Congress s common-sense judgment that ads clearly identifying a candidate in a Federal election and broadcast to 50,000 or more people in the relevant 2007 Congressional Digest Corp. Page 16

17 district shortly before the election will almost certainly operate as electioneering. The Court further observed that whatever the precise percentage of ads meeting BCRA s criteria but not constituting electioneering may have been in the past, in the future corporations may finance such ads by simply avoiding any specific reference to Federal candidates, or in doubtful cases by paying for the ad from a segregated fund. McConnell thus laid out the basic principles that must govern any as-applied challenge to Section 203 of BCRA: Issue ads are entitled to no greater constitutional protection than express electioneering. Congress may regulate the funding of ads that focus on issues and do not expressly support or oppose a candidate if the ads nevertheless function as election advocacy. Advertisements that meet BCRA s definition of electioneering communication are highly likely to fall into that category. And, in doubtful cases, advertisers ability to pay for their ads from a segregated fund counsels against a finding of unconstitutionality. II. This Court s Precedent Demonstrates That Section 203 May Constitutionally Be Applied to WRTL s Advertisements. Against the backdrop of McConnell, resolving WRTL s as-applied challenge is a straightforward task. The undisputed facts demonstrate that WRTL s ads functioned as election advocacy and thus are at the core of the problem Congress legitimately addressed in BCRA. As this Court observed of another asapplied First Amendment challenge, Acknowledging the difficulty of rendering a concise formulation to govern all such challenges, or recognizing the possibility of borderline cases, does not disable us from identifying cases far from any troublesome border. Brown v. Hartlage (1982). This is such a case. A. The Undisputed Facts Demonstrate That WRTL s Advertisements Functioned as Election Advocacy. WRTL sought to run one television and two radio ads during the period immediately before the 2004 primary and general elections. WRTL s advertisements possessed two critical characteristics that ensured that, when run immediately before the election, they would function as electioneering. First, the ads took a critical stance regarding a candidate s position on an issue. And, second, they referred to the candidate by name in urging the audience to contact the candidate about the issue. It is precisely this type of issue ad, widely used to evade the magic words restriction on election advocacy, that Congress was concerned to capture in BCRA s definition of electioneering communication, and that this Court concluded Congress had a compelling interest in regulating. As McConnell explained: Little difference exist[s] between an ad that urge[s] viewers to vote against Jane Doe and one that condemn[s] Jane Doe s record on a particular issue before exhorting viewers to call Jane Doe and tell her what you think. The text of WRTL s ads does not expressly state that Senator Feingold is one of the group of senators using delay tactic[s] to block qualified candidates, causing gridlock and backing up courts to a state of emergency. But that fact cannot be dispositive, as this Court s rejection of the magic words approach makes clear. Whether Congress may regulate an ad s financing turns not on whether it uses particular words, or whether it makes its election-related nature explicit, but whether it is likely to function as election advocacy by affecting voters decisions. Here, Senator Feingold s participation in the filibusters was public knowledge, and Feingold had publicly defended the filibusters. Moreover, the ads themselves strongly suggest that Feingold did not oppose the filibusters if he did, an ad urging the audience to lobby him on the issue would have been gratuitous. For those Wisconsin voters who already knew Feingold s position on the filibuster issue, or who could surmise his likely position either from his party affiliation or from the strong implication of the ads themselves, the ads inescapably functioned as electioneering. The text of WRTL s ads, in conjunction with the undisputed fact that Senator Feingold was one of the group of senators the ads denounced, thus suffices to decide this case. This Court need look no 2007 Congressional Digest Corp. Page 17

18 further to recognize that WRTL s ads cannot meaningfully be distinguished from the paradigmatic Jane Doe ads that BCRA addressed and that Congress may constitutionally regulate. If more were needed, however, a wealth of additional undisputed evidence confirms that WRTL s ads are the functional equivalent of express advocacy. McConnell. First, throughout the spring, summer, and fall of 2004, WRTL and its PAC publicly opposed Senator Feingold s reelection, endorsed his opponents, criticized him for his participation in the filibusters, and cited the filibusters as a reason he should be removed from office. In a March 5, 2004, press release, for example, WRTL s PAC endorsed Feingold s Republican [primary] opponents, commenting that we do not want Russ Feingold to continue to have the ability to thwart President Bush s judicial nominees. And before the general election, WRTL s PAC distributed thousands of voter guides contrasting Pro-Abortion Russ Feingold with Pro-Life Tim Michels, Feingold s opponent, and asserting that Tim Michels has pledged to allow the Senate to vote on President Bush s judicial nominees, while Russ Feingold has voted approximately 20 times since March 2003 to prevent a vote on President Bush s judicial nominees. Thus, WRTL made substantial efforts to ensure that the filibuster controversy would be an important issue in the election, and its issue ads were part of a larger campaign with the dual and related aims of seeing WRTL s preferred judicial nominees confirmed and unseating Senator Feingold. Second, WRTL s campaigning dovetailed with partisan efforts to make the filibusters a critical issue in Wisconsin s 2004 U.S. Senate race. The Wisconsin Republican Party and the three candidates seeking the Republican nomination Tim Michels (the eventual nominee), Russ Darrow, and Bob Welch all invoked Feingold s participation in the filibusters as a central reason he should be defeated. Third, although WRTL s ads urge the audience to contact Senators Feingold and Kohl, they provide no contact information for them. Instead, they direct listeners to BeFair.org, a Website that WRTL maintained during the relevant time period in Visitors to BeFair.org would indeed find contact information for the senators, but they would also find multiple press releases and e-alerts issued by WRTL excoriating Feingold and Kohl for their role in the filibusters. Accordingly, WRTL s purported lobbying ads directed their audience to contact information for Senator Feingold only through a Website that harshly criticized him. Fourth, the undisputed timing of WRTL s ads belies the notion that they were aimed solely (or even substantially) at affecting upcoming votes to end filibusters on judicial nominees, rather than the election. The Senate voted on motions to invoke cloture on four of President Bush s judicial nominees on July 20 and July 22, The Senate recessed on July 22 and did not return until September 7. Yet, WRTL began running its radio ads on July 26 and its television ad on August 2 immediately after the Senate had recessed, when the ads were the least likely to affect filibuster votes, but most likely to have an impact on the upcoming election. Following the 2004 election, WRTL never resumed running the ads despite the fact that the filibuster controversy peaked in the spring of 2005, when other groups spent more than $8.5 million on advertising regarding the issue. The facts thus leave no doubt that WRTL s ads are precisely the kind of advertisements at which Section 203 was aimed: ads that address an issue by criticizing a particular candidate s stand on that issue just before an election. As McConnell recognized, such ads are the functional equivalent of express advocacy. B. WRTL Had Ample Alternative Means to Disseminate Its Message. Nor has WRTL shown that it faced undue burdens as a result of having to comply with BCRA s funding restrictions. Section 203 applies only to advertisements that are broadcast on radio or television; run in the final weeks before an election; clearly identify a particular candidate; and, in the case of a congressional election, are targeted to the candidate s electorate. Moreover, corporations and unions may run even ads that fit all of BCRA s criteria for electioneering communications so long as they do so through their PACs, rather than funding them with general treasury monies. The burdens Section 203 imposes on corporations First Amendment rights far from being a complete ban on speech, McConnell are 2007 Congressional Digest Corp. Page 18

19 thus limited and tolerable in view of the compelling governmental interest at stake. Corporations may run whatever ads they please, even during BCRA s specified pre-election periods, by simply avoiding any specific reference to Federal candidates, or in doubtful cases by paying for the ad from a segregated fund. Even if there may be exceptional circumstances in which the alternative means permitted by BCRA are not adequate, WRTL has made no such showing here. 1. The PAC Option WRTL had a functioning PAC, which it had used to make independent expenditures against Feingold in 1992 and WRTL contended below that it was unable to raise sufficient funds for its PAC in 2004 to finance the $100,000 it expected to spend on the ads. But WRTL offered no specific evidence to support that assertion. It is undisputed that in the election cycle, WRTL raised over $150,000 for its PAC. Had it raised the same amount in 2004, it would easily have been able to fund its ads. Although WRTL asserted vaguely that PAC fundraising was difficult, it provided no evidence showing why the four years following the election cycle would have presented special obstacles. Indeed, funds donated to PACs nationwide increased by about 50 percent during that period. In any event, absent a showing (which WRTL has not made) that extraordinary administrative burdens prevented WRTL from obtaining the necessary PAC donations from its members, its failure to do so demonstrates not that the PAC requirement unconstitutionally burdens WRTL s speech, but merely that WRTL could successfully fund its ads only by acting as a conduit for business corporations. The PAC option gives corporations like WRTL a constitutionally sufficient means of financing electioneering communications. McConnell. WRTL has shown nothing to justify a contrary conclusion. 2. The MCFL Option As a nonprofit advocacy group, WRTL could also have avoided BCRA s restrictions on electioneering communications by constituting itself as an MCFL organization. It chose not to do so. MCFL organizations are constitutionally exempt from BCRA s requirements in part because they do not accept contributions from business corporations or labor unions. Accordingly, they do not implicate Congress s compelling interest in combating the distorting effects on Federal elections of massive infusions of corporate cash. WRTL, by contrast, sought to have it both ways: highlighting its status as a not-for-profit advocacy group, while using funds obtained from business corporations to pay for its ads. In 2004, WRTL raised over $315,000 from corporations for its general fund, and the vast majority of that amount was from business corporations. Indeed, between five and 10 business corporations donated a total of more than $50,000 precisely in order to pay for the ads at issue here. In short, this is a classic case of business corporations funneling unregulated monies to an advocacy group to pay for ads that will influence a Federal election. 3. Avoiding Candidate Names or the Pre-Election Period Alternatively, WRTL could have omitted Senator Feingold s name from the ads without sacrificing its professed purpose of issue advocacy. Although WRTL claimed below that it was important to mention Senators Feingold and Kohl by name so that the audience would contact them, the ads failure to provide any contact information for Feingold and Kohl belies that assertion. Similarly, were issue advocacy truly WRTL s sole objective, it could have run its ads when the filibuster issue was most salient, prior to the cloture votes in July 2004 or when the issue became most heated, in the spring of Instead, WRTL chose to run its ads when Congress was in recess, at a time when no filibuster votes were imminent but the election was. III. The District Court Was Wrong to Refuse to Consider the Context of the Advertisements Congressional Digest Corp. Page 19

20 The district court concluded that Section 203 could not constitutionally be applied to WRTL s ads only by shutting its eyes to the undisputed facts. The court manufactured a test that limits judicial inquiry to the four corners of an ad, refusing to look beyond the ad s literal words and images or to consider the context in which its audience would view or hear it. That see-no-evil approach was based on a fundamental misunderstanding of McConnell and on the district court s misplaced fear that looking beyond the face of the ads would prove judicially unmanageable. It not only led the district court to reach the wrong result in this case, but threatens to open the floodgates to renewed evasion of BCRA s regulations. A. The District Court s Approach Contravenes This Court s Holding in McConnell. The district court held that, in evaluating WRTL s challenge, it would limit its consideration to language within the four corners of the advertisements. Refusing to consider any other facts or context that might bear on the meaning, purpose, or possible electoral effect of an advertisement, the district court restricted its inquiry to five factors, asking whether, on its face, the ad in question: (1) describes a legislative issue that is either currently the subject of legislative scrutiny or likely to be the subject of such scrutiny in the near future; (2) refers to the prior voting record or current position of the named candidate on the issue described; (3) exhorts the listener to do anything other than contact the candidate about the described issue; (4) promotes, attacks, supports, or opposes the named candidate; and (5) refers to the upcoming election, candidacy, and/or political party of the candidate. The court indicated that it would also look at the images of the television ad to evaluate whether they otherwise accomplish the prohibited result. Because WRTL s ads referred to a current issue before the Senate, and did not explicitly attack Senator Feingold or refer to his record (other than by reference to the group of senators widely known to include Feingold), the district court concluded that they were genuine issue ads that WRTL must be permitted to fund with general treasury monies. The court explained: The common denominator between express advocacy and its functional equivalent, as the Supreme Court defined it in McConnell, is the link between the words and images used in the ad and the fitness, or lack thereof, of the candidates for public office. Indeed, it is that very link which evinces, on the face of the ad, the intent to influence the election that the McConnell Court imposed as a critical requirement to functional equivalency. Conversely, it is the absence of that link that enables an issue ad to be fairly regarded as a genuine issue ad. More importantly, it is the absence of that link which obviates the likelihood of political corruption and public cynicism in government where the ad, on its face, is devoid of any language the purpose of which is advocacy either for or against a particular candidate for Federal office. This reasoning cannot be reconciled with McConnell. It misapprehends this Court s holding in two critical respects. First, it resurrects the flawed notion that BCRA may constitutionally be applied only to an ad that on its face advoca[tes] either for or against a particular candidate for Federal office. McConnell made clear that ads need not expressly advocate a candidate s election or defeat, or expressly comment on a candidate s fitness for office, in order to function as election advocacy, and that the 2007 Congressional Digest Corp. Page 20

21 presence or absence of magic words is not the only basis for discerning electioneering speech. Indeed, this Court explicitly recognized what the record in McConnell demonstrated: that indirection is often a more effective form of advocacy than blunt words of support or opposition. Far from impos[ing] as a critical requirement that the face of the ad evince its intent to influence an election, this Court held that no express language was required in order to render BCRA s application to an ad constitutional. Second, the district court s analysis and, indeed, WRTL s entire case is built on the erroneous premise that advertisements can easily be separated, on their face, into two mutually exclusive categories: electioneering ads, on the one hand, and genuine issue ads, on the other. As this Court has already recognized, however, while the distinction may seem neat in theory, McConnell, no such line can be drawn in practice. An advertisement may be a genuine issue ad, in the sense that it advocates a position on a political issue in which the advertiser genuinely believes, and at the same time have the purpose and effect of influencing the election of a candidate who has taken a position on that issue. As one former PAC chairperson quoted in McConnell put it: It is foolish to believe there is any practical difference between issue advocacy and advocacy of a political candidate. What separates issue advocacy and political advocacy is a line in the sand drawn on a windy day. Moreover, issue advocacy warrants no greater protection under the First Amendment than does express electioneering. The constitutional question to be answered, therefore, is not whether a particular advertisement is a genuine issue ad, but whether genuine issue ad or not the advertisement is the functional equivalent of express advocacy. To answer that question, as this Court has made clear, it is not enough to observe that, on its face, the ad does not expressly promote or attack a candidate. Rather, the court must consider how the ad is likely to function in practice and that in turn requires that the court not blind itself to the context in which an ad is run. A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. Towne v. Eisner (1918). What is perhaps most troubling is that the district court s four corners approach would invite wholesale circumvention of the campaign-finance laws the very problem Congress worked to overcome in BCRA. The district court s approach reopens the loophole BCRA was intended to close, permitting a return to a world in which advertisers can skirt congressional regulation simply by including a reference to a pending legislative issue and omitting express words of support for or opposition to a candidate. And that loophole would be open not only for nonprofit corporations like WRTL, but for all for-profit corporations and labor unions. Indeed, under the district court s test, corporations and unions are free to run ads immediately before elections, criticizing candidates for office in the harshest possible terms, so long as the criticism refers to the candidate only as a member of a group and not by name. One can easily imagine, for example, an ad run in the hotly contested 2006 Connecticut senatorial primary between Senator Joseph Lieberman [D] and [challenger] Ned Lamont in which the prime issue was Senator Lieberman s support for the war in Iraq by an organization supporting Lamont, attacking a group of senators who supported the war and urging voters to contact Senator Lieberman to tell him to oppose the war. Similarly, supporters of Representative Bob Ney s [OH-R] opponent in the 2006 congressional primary when Ney was under investigation for his association with disgraced lobbyist Jack Abramoff might have run ads financed with corporate treasury funds attacking a group of congressmen who care more about the Washington lobbyists who are making them rich than about their constituents and asking viewers to call Representative Ney and tell him to support ethics legislation. The corporate funding of such ads would be permissible under the district court s test despite their patent electioneering message. That result seriously undermines BCRA and cannot be squared with McConnell. B. A Proper Contextual Inquiry Is Administrable. The district court refused to look beyond the four corners of WRTL s ads in part because it feared that doing so would render as-applied challenges judicially unmanageable. The court opined that inquiring 2007 Congressional Digest Corp. Page 21

22 into an advertisement s purpose and effect in order to determine whether it is the functional equivalent of express advocacy was practically unacceptable because it would entail developing a record under expedited circumstances, and theoretically unacceptable because it would involve an unworkable inquiry into the advertiser s subjective intent. The district court s concern that looking beyond the four corners of the ads would be practically unacceptable is unwarranted. As an initial matter, the contextual inquiry needed to resolve this case was minimal: that the ads in question denounced a group of senators, of whom Senator Feingold was one, particularly in combination with the undisputed fact that WRTL had publicly opposed Senator Feingold s reelection in 2004, suffices to decide this case. Even if more evidence were required, however, the court s concerns were overblown. This case demonstrates that compiling a sufficient record is no more onerous than in the typical case where a preliminary injunction is sought and must be resolved on an expedited basis. This Court has previously rejected such administrability concerns as a reason to create a categorical exemption from campaign-finance laws. In Buckley v. Valeo (1976), for example, the Court declined to carve out such a blanket exemption to FECA s [Federal Election Campaign Act] disclosure requirements for minor parties, and instead required such parties to make a case-by-case showing that the facts of their situation demonstrated a reasonable probability that disclosure would subject them to harassment. The Court expressly rejected the argument that a blanket exemption was necessary, lest irreparable injury be done before the required evidence can be gathered. The district court s theoretical concerns merely reflected its misapprehension of the proper constitutional inquiry. In McConnell, this Court recognized that Congress had carefully designed BCRA s definition of electioneering communication with its requirements that an ad must clearly identify a candidate, must be aired in the weeks before an election, and must be targeted to at least 50,000 persons in the candidate s State or district so as to encompass ads that would almost certainly function as electioneering. That congressional judgment regarding the scope of the problem BCRA addressed is entitled to substantial deference. And this Court s own judgment confirms that BCRA s definition was well-crafted: As the Court observed after reviewing a voluminous record, the vast majority of ads that clearly identified a candidate for office and were aired in the weeks before the election including the many issue ads in the record were the functional equivalent of express advocacy. McConnell. Far from establishing that BCRA s application to pure issue ads that do not constitute electioneering is substantial the record strongly supports the contrary conclusion. Against that background, a court considering an as-applied challenge should not lightly conclude that an ad that meets BCRA s definition nevertheless really has no electioneering significance. Rather, an as-applied challenge should succeed only if the plaintiff can show that the ad itself and the circumstances of its creation and airing demonstrate that there is no reasonable prospect the ad is likely to influence the election. In order to make out a valid as-applied challenge, in other words, a plaintiff should be required to show that its ad is different in kind not merely in degree from the issue ads considered in McConnell, so that the compelling governmental interest in preventing corporate funds from influencing elections has no application. In MCFL, for example, the plaintiff made such a showing. There, this Court recognized that we should not second-guess a decision to sweep within a broad prohibition activities that differ in degree but not kind. It held the restriction on independent expenditures unconstitutional as applied to MCFL not [because] MCFL merely poses less of a threat of the danger that has prompted regulation, but because it does not pose such a threat at all. The same principles should govern here, and should significantly narrow and simplify the task of deciding an as-applied challenge to Section 203. These same considerations indicate that the district court s focus on the difficulties of an inquiry into the advertiser s subjective intent was misplaced. As an initial matter, the compelling justification for Section 203 is the need to temper the corrosive and distorting influence of corporate cash on Federal elections. That justification is implicated by any ad whose objective characteristics and context indicate that it is likely to have a material effect on voters choices and thus to function as the equivalent of 2007 Congressional Digest Corp. Page 22

23 express advocacy regardless of the advertiser s subjective intent in airing it. Ultimately, the integrity of the electoral process does not turn on an advertiser s subjective state of mind, but on the inferences that can reasonably be drawn from its objective conduct. In any event, the district court was mistaken in believing that discerning electioneering intent requires the court to try to read [the] speaker s mind, or even that it requires depos[ing]... the decision makers of the organization. Where, as here, the likely electioneering effect of an ad is patent, an electioneering purpose may readily be inferred. In McConnell itself, this Court recognized that the vast majority of ads in the record that would have fallen within Section 203 s scope clearly had [an electioneering] purpose, without inquiring into the subjective state of mind of particular advertisers. Indeed, the rule in many areas of the law is that a party intends the natural and probable consequences of his or her actions. Where the natural and probable result of an ad will be to influence voters choices, an advertiser can safely be presumed to have intended that result. Here, as discussed above, WRTL s ads denunciation of a group of senators that included Feingold both demonstrated the likelihood that the ads would affect voters choices and justified an inference that they were intended to do so. In this case, moreover, the record is replete with additional objective evidence reflecting a manifest electioneering purpose: WRTL announced that one of its top priorities was to send Feingold packing, distributed literature opposing him, and endorsed his opponents; it directly tied its public opposition to Senator Feingold s reelection to his position on the filibusters; and its ads referred their audience to a Website that attacked Senator Feingold precisely for his position on the filibuster issue. The undisputed facts thus establish that WRTL s ads had an electioneering purpose. In sum, the district court s decision to ignore the undisputed facts of record in this case was mistaken. And even a cursory examination of those facts makes clear that nothing materially distinguishes WRTL s ads from the issue ads that this Court in McConnell found were the functional equivalent of express advocacy. Reply Brief The following is excerpted from the Reply Brief of the Appellants as submitted to the U.S. Supreme Court on April 19, This case presents a single, narrow question: whether three advertisements WRTL sought to broadcast just before the 2004 election are the functional equivalent of express advocacy. McConnell v. Federal Election Commission (2003). They are, and WRTL therefore may constitutionally be required to finance them with PAC funds. As McConnell recognized, ads like WRTL s which, in the run-up to an election, criticize or praise a candidate s position on an issue, then urge the audience to contact the candidate about it inevitably function as electioneering and are within the constitutional scope of BCRA s funding-source restrictions. This Court need go no further to decide this case. The Court should reject WRTL s and its amici s requests that it create a bright-line exemption for grassroots lobbying. WRTL s contention that the Constitution requires a sweeping carve-out to Section 203 of BCRA permitting corporations and unions to use general treasury funds for grassroots lobbying ads, run just before elections, even if the ads attack a candidate s position on an issue is squarely at odds with McConnell s central holding. Moreover, it would gut Section 203 and return the election laws to their state before BCRA, when easy circumvention of an overly formalistic rule rendered the rule a virtual nullity. Nor is a bright-line constitutional exemption necessary to provide a standard for future as-applied challenges. Rather, courts should engage in the common-sense inquiry suggested in McConnell: If an ad is the functional equivalent of express advocacy for or against a candidate and, in particular, if an ad, taken in context, promotes, attacks, supports, or opposes a candidate applying Section 203 to it is constitutional. As a last resort, WRTL and its amici ask this Court to overrule McConnell s holding that Sections 2007 Congressional Digest Corp. Page 23

24 203 and 204 of BCRA are facially constitutional. But they provide no justification for abandoning this Court s considered judgment, based on an extensive record, just three terms ago: that those provisions are a constitutional means of furthering Congress s compelling interest in preventing corporations and unions from undermining the integrity of elections through the corrosive and distorting effects of wealth accumulated with the help of the corporate form. Norman Dorsen, Aryeh Neier, Burt Neuborne, and John Shattuck, Amici Curiae Burt Neuborne, Counsel of Record The parties in this brief are all former officials with the American Civil Liberties Union. Burt Neuborne is a professor at the New York University School of Law. He received his law degree from Harvard in The following is excerpted from the Amicus Curiae Brief for the Appellants as submitted to the U.S. Supreme Court on February 22, In recent years, the battle over whether corporations may use treasury funds to affect the outcome of Federal elections has taken the form of a strategic game between challengers and defenders of the Bipartisan Campaign Reform Act of 2002 (BCRA). Both sides have sought to exploit an alleged difficulty in distinguishing electioneering speech (subject to regulation) from issue speech (protected from regulation) in an effort to advance their polar views. Proponents of corporate-funded electioneering have argued that, in order to preserve constitutionally protected issue speech, a broad loophole must be opened in Section 203 of BCRA, insulating from regulation speech that qualifies as electioneering communications as long as the literal text of advertising avoids an explicit call to electoral action. Conversely, opponents of corporate-funded electoral speech have argued that, in order to preserve the effective prohibition of corporate-funded electioneering, it is necessary to tolerate the restriction of at least some corporate-funded issue speech. This Court has rejected both extremes. In McConnell v. Federal Election Commission (2003), this Court upheld the facial constitutionality of Section 203, ruling that corporations do not enjoy a First Amendment right to expend treasury funds on electioneering speech. The ruling followed almost 30 years in which corporations enjoyed an unfettered de facto right to use treasury funds to influence Federal campaigns, as long as their advertising avoided magic words of express advocacy. Congress enacted Section 203 to close that loophole, which had permitted an avalanche of corporate campaign spending, and the McConnell Court sustained the provision. But this Court recognized in Wisconsin Right to Life [WRTL] v. Federal Election Commission (2006) that an as-applied exemption from Section 203 might be constitutionally compelled in the context of genuine issue speech at the periphery of the electoral process. In granting as-applied relief without a full review of the factual context, the district court turned the law of as-applied challenges on its head. The decision below ignored the purpose of an as-applied challenge, which is designed to permit a fact-specific analysis of Plaintiff s particular circumstances. The district court s assertion that consideration of the facts would be administratively unworkable and might chill protected corporate speech ignores the fact that courts routinely consider context in First Amendment cases, and that a well-defined procedure exists for determining whether the presumption of coverage established by the probative weight of the criteria set forth in Section 203 has been rebutted. Viewed in factual context, this is an easy case. Wisconsin Right to Life, Inc. (WRTL) used corporate treasury funds to finance three advertisements criticizing Senator Feingold s position on President Bush s judicial nominees, and broadcast the advertisements in the months leading up to Senator Feingold s reelection bid. The advertisements directed listeners to a Website explicitly opposed to Senator Feingold s reelection and were part and parcel of a long campaign by WRTL to oust Senator Feingold. Regulating these ads under BCRA advances the compelling State interests recognized in McConnell. WRTL simply has no right to a First Amendment exemption that would enable it to use corporate treasury funds for electioneering communications at the core of the electoral process Congressional Digest Corp. Page 24

25 Finally, the district court s insistence on granting an as-applied exemption from Section 203, based solely on the absence of explicit words of electoral exhortation in the text of a corporate-funded advertisement, threatens to undercut Congress s statutory scheme and to destabilize the careful First Amendment balance established by this Court. In the guise of adjudicating WRTL s as-applied challenge, the district court resuscitated the very magic words doctrine that Congress and this Court had rejected, effectively permitting an end run around the doctrine of stare decisis [giving deference to Supreme Court precedent]. This appeal represents the latest round of gamesmanship among parties seeking to upset the terms of BCRA as sustained by this Court in McConnell and WRTL. Amici urge the Court to reject the lower court s swing from one extreme to the other, to reaffirm longstanding ground rules for as-applied challenges, and to bring the strategic game to an end. The League of Women Voters of the United States, Common Cause, Inc., The Greenlining Institute, and United States Public Interest Research Group (U.S. PIRG), Amici Curiae Daniel R. Ortiz, Counsel of Record The parties to this brief are all public interest groups that support campaign finance reform. Daniel R. Ortiz is a professor of law at the University of Virginia. He received his law degree from Yale in The following is excerpted from the Amicus Curiae Brief for the Appellants as submitted to the U.S. Supreme Court on February 23, Largely in response to mounting sham issue-advocacy in Federal elections, which evaded reasonable restrictions on corporate and labor spending as well as longstanding disclosure requirements, Congress passed and the president signed the Bipartisan Campaign Reform Act (BCRA). One of its central provisions, Title II, barred corporations and unions from funding so-called electioneering communications out of their general treasuries and required disclosure of electioneering communications funded from other sources. In McConnell v. FEC [Federal Elections Commission] (2003), this Court upheld these electioneering provisions on their face, except insofar as they involved certain ideological nonprofits meeting the strict conditions this Court had outlined earlier in FEC v. Massachusetts Citizens for Life, Inc. (1986). Wisconsin Right to Life, Inc. (WRTL) now seeks to create an as-applied exception large enough to swallow up Title II itself. Although it couches its challenge to these same provisions as limited to their application to vaguely defined grassroots lobbying, the exception WRTL seeks would not only exempt many ads, like the sham issue-ads considered in McConnell itself, designed to influence Federal elections and likely having that effect, but also ads nearly identical to those run by Federal candidates themselves in past elections. The grassroots lobbying test created by the district court, as well as the test WRTL itself promoted below, would open the door to corporations and unions funding the functional equivalent of express advocacy from their general treasuries, a practice which this Court found Congress could bar in McConnell. Although WRTL claims that these ads intend only to encourage voters to lobby their representatives on legislation, none of these ads directly gives voters the rudimentary information they would need to place a phone call or write a letter or to their representatives. Their aim is candidate, not legislative, advocacy. Committee for Economic Development, Norman Ornstein, Thomas Mann, and Anthony Corrado, Amici Curiae H. Christopher Bartolomucci, Counsel of Record 2007 Congressional Digest Corp. Page 25

26 The parties in this brief are part of a nonprofit independent research and policy organization of approximately 250 business leaders and educators, and are three political scientists who have dedicated much of their careers to studying and analyzing Congress, Federal elections, campaign finance, and American politics. H. Christopher Bartolomucci is a partner with the law firm Hogan & Hartson, where he specializes in appellate and Supreme Court litigation. He received his law degree from Harvard in The following is excerpted from the Amicus Curiae Brief for the Appellants as submitted to the U.S. Supreme Court on February 23, Preventing corporations, unions, and national banks from using general treasury funds to influence Federal elections is not a novel congressional goal; it is one that Congress has pursued for more than a century. The Bipartisan Campaign Reform Act (BCRA) is only its most recent effort to purge national politics of what was conceived to be the pernicious influence of big money campaign contributions. McConnell v. Federal Election Commission (2003). Section 203 of the BCRA extends a longstanding prohibition against the use of corporate and union treasury funds for ads that expressly advocate the election or defeat of a Federal candidate to cover a newly defined form of communication i.e., electioneering communications. Based on overwhelming evidence, Congress concluded that this extension was necessary to prevent corporations and unions from circumventing the pre-existing FECA [Federal Election Campaign Act] prohibition by funding with general treasury revenues ads that, while falling short of prohibited express advocacy, were no less calculated to influence Federal elections and likely had that effect. Section 203 thus closed a loophole in FECA that corporations and unions exploited in past elections. This Court upheld BCRA Section 203 against a facial constitutional attack in McConnell. Yet, in striking that same statute down as applied to WRTL s [Wisconsin Right to Life] ads, the district court overlooked this Court s core rationale for upholding the provision on its face. In addition to deviating from the approach taken in McConnell, the district court also deviated from the traditional approach to asapplied challenges which are fact-intensive inquiries on the mistaken belief that a speaker s intent or purpose for communicating a message is beyond the bounds of judicial inquiry. If future as-applied challenges to Section 203 are reviewed in the same contextual vacuum fashioned here by the court below, Congress s effort to capture ads that are the functional equivalent of express advocacy will inevitably be lost as political actors push the limits of the district court s four corners rule a crabbed rule that harkens a return to the pre-bcra magic word days. In any event, the ads that WRTL sought to air during BCRA s pre-election blackout period are, at bottom, the very kind of sham issue-ads i.e., ads about candidates masquerading as ads about issues that Congress expressly sought with BCRA Section 203 to prohibit. As is obvious from the timing, content, and context of WRTL s ads, they were designed to influence Senator Feingold s bid for reelection and, if permitted to air, would likely have had just that effect. Richard Briffault and Richard L. Hasen, Amici Curiae Richard L. Hasen, Counsel of Record Richard Briffault is a professor of legislation at Columbia Law School. Richard L. Hasen is a professor at Loyola Law School in Los Angeles. He received his law degree from the University of California Los Angeles in The following is excerpted from the Amicus Curiae Brief for the Appellants as submitted to the U.S. Supreme Court on February 23, This case involves yet another attack on the 60-year-old requirement that corporations use separate segregated funds (or PACs [political action committees]), rather than treasury funds, to spend money in connection with Federal elections. The Court has repeatedly addressed the PAC requirement, and has 2007 Congressional Digest Corp. Page 26

27 sustained its constitutionality, most recently three terms ago in McConnell v. FEC [Federal Election Commission] (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 (1976) and Brown v. Socialist Workers 74 Campaign Committee (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. Massachusetts Citizens for Life (MCFL) (1986), the Court held that the First Amendment requires an exemption for certain nonprofit corporations from a corporate PAC [political action committee] 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 as-applied exemptions in this case. The regulation in question here is Section 203 of the Bipartisan Campaign Reform Act, 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 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 Congressional Digest Corp. Page 27

28 Is the Bipartisan Campaign Reform Act s Limit on Electioneering Communications by Corporations and Labor Unions Constitutional? CONS Wisconsin Right to Life, Inc. (WRTL), Appellee James Bopp, Jr., Counsel of Record In 2004, Wisconsin Right to Life, Inc. (WRTL), a nonprofit advocacy group, took a position opposing filibusters in the U.S. Senate blocking the confirmation of President Bush s judicial nominations. It began airing television advertisements opposing such filibusters and calling on viewers to contact Senators Russell Feingold (WI-D) and Herb Kohl (WI-D). Because Senator Feingold was running for reelection in 2004, a Federal district court ruled that WRTL s ads were electioneering communication paid for with corporate money, which must be ceased 60 days prior to Election Day, as stipulated by the Bipartisan Campaign Reform Act (BCRA). WRTL appealed to the U.S. Supreme Court, which ruled that the district court must consider the merits of the case. After trial, the district court held that WRTL s ads were, in fact, permissible under the BCRA. The Federal Election Commission, joined by a group of U.S. senators and representatives, appealed, and the U.S. Supreme Court granted certiorari on January 19, James Bopp, Jr. is a partner with the law firm Bopp, Coleson & Bostrom, where he specializes in biomedical, corporate, and election law. He received his law degree from the University of Florida in The following is excerpted from the Brief for the Appellee as submitted to the U.S. Supreme Court on March 22, While WRTL has forever lost the opportunity to broadcast its 2004 grassroots lobbying ads, it seeks recognition of constitutional protection for its ads so that the next opportunity will not be lost, as well. Appellants and their amici seek to shift the burden to WRTL to justify its ads. But the strictscrutiny burden is on the Government because paying for grassroots lobbying from a PAC [political action committee], or communicating with less effective means at less effective times, is a heavy burden on the right of the sovereign people to participate in self-government through their liberties of expression, association, and petition. Precedent specifically requires strict-scrutiny justification in such circumstances. Federal Election Commission v. McConnell (2003) employed strict scrutiny by stating that the corporate-form interest is compelling as to restricting corporate express advocacy and doing narrow tailoring by stating that sham ads were the functional equivalent of express advocacy. But McConnell recognized that this analysis might not apply to the regulation of genuine issue ads. Strict scrutiny requires that the prohibition is narrowly tailored, in the least restrictive manner, to a compelling interest. However, WRTL s grassroots lobbying ads are not the functional equivalent of express advocacy, because they are materially identical to the PBA (partial-birth abortion) ad, identified in McConnell as a genuine issue ad. Furthermore, grassroots lobbying has only a remote and speculative effect on elections, and corporations have an independent First Amendment right to engage in such communications. In addition, there are two less restrictive means that Congress could have employed, so that the prohibition fails strict scrutiny. One would be to require that electioneering communications be funded from a separate bank account (with no corporate funds) instead of from a PAC. WRTL offered to funds its ads from such an account, which would have eliminated the corporate-form interest. A second less restrictive means would be a test distinguishing grassroots lobbying that is not functionally equivalent to express advocacy. Alternatively, the facial upholding of the prohibition in McConnell should be overturned because the FEC [Federal Election Commission] and interveners contend that WRTL s genuine issue ads are in 2007 Congressional Digest Corp. Page 28