Friday, January 13, 2006

Next Week Supreme Court Hears Case Involving Key BCRA Provision


Democracy 21 Press Release January 13, 2006 

Supreme Court to Hear Case Next Week Involving Key Bipartisan Campaign
Reform Act (BCRA) Provision;

BCRA Congressional Sponsors and U.S. Solicitor General Have Filed Briefs
Defending the BCRA Provision

On Tuesday January 17, 2006 the U.S. Supreme Court will hear oral argument in the case of Wisconsin Right to Life, Inc v. Federal Election Commission.

The case deals with a key provision of the Bipartisan Campaign Reform Act of 2002 (BCRA) that banned the use of soft money to pay for sham ''issue'' ads in federal campaigns. The BCRA provision was upheld as constitutional by the Supreme Court in the McConnell case.

Three of the principal sponsors of BCRA -- Senator John McCain (R-AZ), Representative Christopher Shays (R-CT) and Representative Marty Meehan (D-MA) -- and the U.S. Solicitor General have filed briefs in defense of the BCRA provision. Senator Russell Feingold (D-WI), the fourth principal BCRA sponsor, did not join in the brief because the ads at issue in the case refer to him.

Enclosed below is a press release, originally issued on December 21, 2005, on the Supreme Court case, which includes excerpts of the briefs filed by the BCRA sponsors and the U.S. Solicitor General as well as excerpts from other amici briefs defending the BCRA provision.

December 21, 2005

Sponsors of Bipartisan Reform Act of 2002 (BCRA)
File Amicus Brief in Supreme Court Defending Constitutionality of
Sham ''Issue'' Ads Provision;

Solicitor General Files Brief on Behalf of Government
Defending Constitutionality of the BCRA Provision

Three of the principal sponsors of the Bipartisan Campaign Reform Act of 2002 (BCRA) -- Senator John McCain (R-AZ), Representative Christopher Shays (R-CT) and Representative Marty Meehan (D-MA) -- and the U.S. Solicitor General filed briefs in the Supreme Court on Monday, December 19, in the case of Wisconsin Right to Life, Inc v. Federal Election Commission.

(Senator Russell Feingold (D-WI), the fourth principal BCRA sponsor, did not join in the brief because the ads at issue in the case refer to him.)

The briefs were filed in defense of a key provision of BCRA that was enacted to stop the use of soft money to pay for sham ''issue'' ads in federal campaigns and was upheld as constitutional by the Supreme Court in the McConnell case.

The sponsors' amicus brief, the brief filed by the Solicitor General, and four additional amici briefs filed in support of the constitutionality of the BCRA sham ''issue'' ads provision are summarized below and are available at

''In essence, Wisconsin Right to Life is attempting to re-litigate the constitutionality of a key BCRA provision to prevent the use of soft money in federal campaigns that was upheld as constitutional by the Supreme Court just two years ago,'' according to Democracy 21 President Fred Wertheimer, a member of the legal team that filed the brief for the BCRA sponsors.

''While WRTL claims that the ads it wanted to run are distinguishable 'grassroots lobbying' ads, the reality is that the WRTL ads are the same kind of sham 'issue' ads that led to the BCRA provision that prohibits the use of corporate funds to pay for such ads and that was upheld by the Supreme Court in the McConnell case,'' Wertheimer stated.

The case pending in the Supreme Court was brought in the summer of 2004 by Wisconsin Right to Life, Inc. (WRTL), which sought to run broadcast ads in the period right before the 2004 primary election and general election in Wisconsin.

The ads referred to Senator Feingold who was a candidate for re-election, criticizing a ''group of Senators'' who supported a filibuster of judicial nominees, and telling listeners or viewers to ''contact'' Senators Kohl and Feingold about the matter.

The defeat of Senator Feingold was one of WRTL's ''top priorities'' in 2004.

BCRA requires a corporation to use money from its PAC to pay for any broadcast ad that refers to a candidate and is broadcast in the period 30 days before a primary election or 60 days before a general election.  Because the WRTL ad referred to Senator Feingold and was to be run in the pre-election period covered by the law, WRTL was required by the law to fund the ad with its PAC funds.  Although WRTL has a PAC, it sought to use its corporate treasury funds to pay for its ads.

The provision of BCRA at issue --Title II of the law --was upheld as constitutional by the Supreme Court in McConnell v. FEC, a case decided in 2003.  Although the provision was upheld as constitutional on its face, WRTL brought suit and argued that the law was unconstitutional as applied to the specific ads it wished to air in Wisconsin. A three-judge federal district court rejected the claim, and WRTL appealed directly to the Supreme Court. The law is being defended in the Supreme Court by the Solicitor General's office.

BCRA Sponsors' Brief

In their amicus brief, the BCRA sponsors argue that if BCRA is held unconstitutional as applied to the WRTL ads in this case, then Title II of BCRA ''will be gravely undermined.'' As the sponsors' brief states:

WRTL's ads directly implicate Congress's well-established interest in preventing corporate treasuries from being used to influence federal elections. Furthermore, the rule that WRTL urges this Court to adopt would functionally overrule this Court's decision in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), and would invite the wholesale evasion of the longstanding ban on the use of corporate treasury funds to influence federal elections.

Although WRTL claims that its ads were not intended to influence the 2004 election, but instead were ''grassroots lobbying ads,'' the sponsors' brief points out that WRTL had announced that one of its ''top priorities'' in 2004 was to defeat Senator Feingold. WRTL issued a press release in March 2004 stating WRTL's ''resolve to do everything possible. . .to send Russ Feingold packing.'' The brief notes WRTL's claim that its ads were ''grassroots lobbying ads,'' and says:

That assertion -- which turns on the false premise that any given ad is exclusively either a form of lobbying or electioneering -- is not accurate as a general matter and certainly is not credible on the facts of this case. Leading up to the airing of the WRTL ads, WRTL publicized its intention to defeat Senator Feingold in the 2004 election, a clear electioneering purpose. Both WRTL and its WRTL-PAC proclaimed that the defeat of Senator Feingold represented one of WRTL's top priorities in the 2004 election. In connection with its strategy to defeat Feingold, WRTL openly endorsed all three of Feingold's Republican opponents. WRTL's public statements of opposition to Feingold, and its support for Feingold's opponents, emphasized Feingold's position on judicial filibusters as a key justification for opposing Feingold in the 2004 election. Moreover, ''candidates opposing Senator Feingold made Senator Feingold's support of Senate filibusters against judicial nominees a campaign issue.'' Having joined with Feingold's opponents in calling for the senator's defeat because of his support for filibusters, WRTL in its ads pointedly reminded voters that a ''group of Senators'' was unjustifiably blocking qualified nominees from a confirmation vote and specifically named Senator Feingold as one of two senators voters should contact. WRTL's so-called ''grassroots lobbying'' ads failed to include, however, Senator Feingold's phone number of office address.

The sponsors' brief traces the long history of congressional efforts to regulate corporate and union money in federal elections, starting with the Tillman Act of 1907. Title II of BCRA was the latest step in that effort, and was intended to close the loophole created by sham ''issue'' ads that were run right before a federal candidate's election, but avoided the use of express advocacy like ''vote for'' or ''vote against.''

The brief also recounts the line of cases where the Supreme Court has consistently upheld congressional efforts to regulate corporate money in federal elections in order to deter corruption and the appearance of corruption. The brief states:

This Court has never questioned Congress's decision to require corporations to finance electioneering expenditures with segregated PAC funds. To the contrary, the Court has repeatedly said that Congress's ''careful legislative adjustment of the federal electoral laws, in a 'cautions advance, step by step,' to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference . . . [and] reflects a permissible assessment of the dangers posed by those entities to the electoral process.''

The latest of these cases was the McConnell decision in 2003. As the brief notes:

The McConnell decision recognized that the issue whether Congress had a compelling interest in regulating corporate expenditures on electioneering communications was ''easily answered by our prior decisions . . . , which represent respect for the legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.''

The brief further points out that the plaintiffs in McConnell made identical arguments about ''grassroots lobbying ads'' that WRTL makes here, and that ads indistinguishable in nature from the WRTL ads were before the Supreme Court in McConnell when it upheld the Title II provisions of BCRA. According to the brief:

This Court's decision in McConnell effectively forecloses this as-applied challenge. McConnell precludes a corporation from arguing that its speech is entitled to more protection than express advocacy or other types of electioneering communications that Congress clearly may regulate within the bounds of the First Amendment. See 540 U.S. at 205. Moreover, McConnell conclusively establishes that Congress has a compelling interest in applying 441b's source restrictions to any ads that are intended to influence a federal election and would almost certainly have that effect. See id. at 206. As with the ads this Court considered in McConnell, there can be no doubt that the advertisements at issue here had the purpose and likely effect of influencing a federal election.

Finally, the brief points out that WRTL could have paid for the ads from its PAC funds, an option that the Supreme Court has previously held to be a ''constitutionally sufficient'' alternative to the spending of corporate or union treasury funds. WRTL claims that it did not raise sufficient PAC funds to pay for the ads it wished to run. But as the brief states:

This lack of support for WRTL's electoral positions, or WRTL's poor fiscal planning, hardly undermines the adequacy of the PAC alternative or justifies using general treasury funds in place of PAC funds. This Court has never accepted the notion that the applicability of 441b can turn on the size of a particular PAC's checkbook.

The legal team that filed the brief on behalf of the BCRA sponsors was led by Bradley Phillips of Munger, Tolles and Olson and Roger Witten of Wilmer Cutler Pickering Hale and Dorr.

Solicitor General's Brief

The brief filed by the Solicitor General on behalf of the Federal Election Commission also argues in defense of the constitutionality of the law. The brief notes:

Just two Terms ago in an extraordinary sitting, this Court considered and rejected a facial challenge to BCRA's restrictions on the corporate financing of ''electioneering communications'' as defined in the Act. The Court's decision in McConnell effectively forecloses appellant's as-applied constitutional challenge to those restrictions. . .The Court's analysis. . .precludes the type of as-applied challenges that otherwise might be brought following an unsuccessful facial challenge to a statute.  Principles of stare decisis strongly counsel in favor of strict adherence to the Court's decision in McConnell.

The government brief argues that allowing the kind of as-applied challenge asserted by WRTL in this case would fundamentally undermine BCRA:

Acceptance of appellant's own as-applied constitutional challenge not only would be inconsistent with the Court's decision in McConnell, but would be especially disruptive of the statutory scheme upheld in that case. The statutory definition of ''electioneering communication'' is intended to provide a clear bright-line rule that correlates closely, though admittedly not precisely, with intent to influence federal elections. The bright-line nature of the rule -- both its practical advantages and its alleged constitutional deficiencies -- was a focal point of the constitutional challenge in McConnell.

[A]ppellant's ad hoc approach would require the sort of formless and unpredictable inquiry into a corporate advertiser's subjective purpose that Congress and this Court have sought to avoid. In addition, it would invite fact-intensive litigation and would require federal courts to parse. . .the likely intent of political advertisers in. . .hearings conducted on the eve of federal elections.

Finally, the Solicitor General rejects WRTL's argument that its ads should be exempt from BCRA because they constitute ''grassroots lobbying'' ads:

There is no merit to appellant's claim that ''grassroots lobbying'' -- by which appellant appears to mean efforts to persuade members of the public to contact elected officials regarding particular policy issues -- is constitutionally exempt from BCRA's restrictions on corporate financing of ''electioneering communications.'' A particular advertisement may be intended to induce citizens both to contact their elected representatives and to vote in a particular manner. Indeed, as Congress found, a group that feels strongly enough about an issue to air an advertisement on it in the months before an election. . .will invariably have a view as to which candidates may be more favorably disposed to the group's view of the issue. Congress' authority to superintend federal elections includes the power to regulate corporate financing of such dual-purpose communications.

Other Amici Briefs

In addition to the Solicitor General's brief and the amicus brief filed by the BCRA sponsors, four other amici filed briefs in support of the BCRA provision with the Court:

A coalition of non-profit groups, including AARP, Common Cause, the League of Women Voters, U.S. PIRG and the Greenlining Institute, filed a brief in support of the law. This brief noted that WRTL is simply attempting to re-litigate the Supreme Court's decision in the McConnell case, where the same arguments were presented to, and rejected by, the Court. The brief states:

Confronted [in McConnell] with all of the same arguments that WRTL now makes here, this Court did not state or even imply that it was postponing for another day a future challenge to the statute as applied to such ads. Rather, this Court upheld the ''bright line'' test drawn by the statutory definition of electioneering communications notwithstanding any incidental effect on grassroots lobbying.

The brief also argues that WRTL had the option to fund its ads through its PAC:

As WRTL admits, it has the right to spend for any electioneering communications out of its connected PAC.  It did not want to do so, however, because those funds ''would not have been sufficient'' and because it wanted to preserve them for federal contributions and independent expenditures. This is, of course, its right. But the desire to preserve its PAC funds does not make the requirement to use PAC funds for electioneering communications a constitutionally insufficient alternative -- for WRTL or for any other corporation.

Political scientists Norman Ornstein, Thomas Mann and Anthony Corrado filed a brief stressing the long history of congressional efforts to regulate money in federal elections, and the development of sham ''issue'' ads as a means to evade those regulations. The brief recounts the extensive factual record about sham ''issue'' ads that was before Congress when it developed Title II of BCRA, and before the Supreme Court when it upheld those provisions in the McConnell case. The brief notes:

BCRA Section 203 only extends a longstanding prohibition against the use of corporate and union treasury funds for advertisements that expressly advocate the election or defeat of a federal candidate to cover a newly defined form of communication --i.e., electioneering communications. Congress concluded, and record evidence demonstrates, this measure was needed to prevent corporations and unions from circumventing the pre-existing prohibition by funding advertisements with treasury revenues that, while falling short of express advocacy, were no less calculated to influence federal elections and likely had that effect.

The brief also pointed out that the WRTL ads at issue in this case clearly had a campaign purpose:

The timing and substance of WRTL's planned broadcasts belie any notion that they are intended as ''grassroots lobbying'' and instead confirm that they subtly -- but nonetheless clearly -- suggest a vote against Senator Feingold based on his perceived stance on the judicial filibuster issue. Thus these broadcast advertisements are of the type ''functionally identical'' to express advocacy messages that Congress, through BCRA, sought to bring within the ambit of the federal campaign finance regime -- an effort this Court approved of in McConnell.

Former political and media campaign consultant Douglas L. Bailey, who was a witness in the McConnell case, filed a brief arguing that WRTL's ads would have clearly affected the 2004 Senate election if they had been broadcast:

Advertisements aired in the time frame immediately preceding an election that mention a clearly identified candidate by name will undoubtedly influence voting decisions regardless of whether the advertisement makes a direct appeal for voter support or opposition. Every competent campaign consultant, issue advocacy group, or other entity involved in the political process is cognizant of this undeniable fact and design their advertising approaches accordingly.

The brief further argues:

[WRTL] is essentially seeking to overrule a major tenet of this Court's decision in McConnell by creating an exception to BCRA's bright line prohibition -- an exception that would. . .subsume the rule. WRTL claims that its ads are true issue ads that are simply one part of its ''grassroots efforts'' to affect pending legislative activities. . .Determining the purpose and intent behind a particular ad will be a virtually impossible task for district courts. It will lead to arbitrary and non-uniform results regarding which advertisements are permissible under BCRA based on the subjectivity of a particular judge looking at the context of political ads and attempting to divine the purpose and intent of the party in running such an ad. Moreover, it is well known in the political campaign world that clearly identifying a known candidate in an ad aired right before an election will impact the electorate in regard to that candidate, and that a competent political consultant can design an effective issue ad or grassroots lobbying effort without identifying a candidate. Accordingly, it should be presumed that the true purpose or intent (and unavoidable result) of any ad aired right before an election that clearly identifies a candidate for office is to influence the election.

Professor Frances R. Hill of the University of Miami School of Law filed a brief discussing the tax law issues in the case. WRTL is a non-profit corporation organized under section 501(c)(4) of the tax code. WRTL and amici groups who filed on its behalf argued that non-profit or charitable tax status indicates that the activities of such groups by definition are either not substantially related or not related at all to influencing elections, and therefore should not be subject to campaign finance laws. Professor Hill's brief responded to this argument:

Nonprofit corporations may not claim exemption from federal election law requirements by virtue of their exemption from federal income taxation. This Court has consistently held in its campaign finance related cases that nonprofit corporations are subject to the same requirements under federal election law as are taxable corporations.  See, e.g., Federal Election Comm'n (FEC) v. Beaumont, 539 U.S. 146, 160 (2003)(''Beaumont'').

The Court has long held that the favored tax status accorded exempt entities may be subject to conditions, and that different conditions may apply to different types of exempt entities. . .This Court has also long held that the benefits conferred on tax exempt entities may not be used to avoid the requirements and limitations of federal election law, and has rejected claims that these requirements violate the First Amendment when applied to nonprofit corporations. See, Beaumont, 539 U.S. at 163. Appellant Wisconsin Right to Life (''WRTL'') and the section 501(c)(3) amici are advancing precisely the type of special claims based on their tax status that the Court has previously rejected.


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Capital Bits & Pieces Vol. VI, No. 5    Released: Friday, January 13, 2006

Contact: Elenia Saloutsi

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