The opinion of the court was delivered by: Richard J. Leon, United States District Judge
The passage of the Bipartisan Campaign Reform Act of 2002 ("BCRA"),*fn1 as the record amply indicates, was a considerable legislative achievement that many thought would never come to pass. Indeed, the law constitutes the most comprehensive reform of our national campaign finance system in the past twenty-eight years. As such, it is the latest chapter in the history of a longstanding and recurring problem that our government has been wrestling with since the administration of Theodore Roosevelt.
Titles I and II of BCRA focus principally on a major campaign finance development that has dramatically unfolded over the past decade: the use of corporate and union treasury funds, either directly or through soft money donations to political parties, to finance electioneering communications masquerading, predominantly, as "issue ads." In an attempt to prevent actual and apparent corruption arising from the funding of such sham issue advertisements, Congress enacted a sweeping set of reforms that effectively: alters the methodology of our national, state, and local parties and transforms their relationship with each other; limits the ability of corporations, unions, individuals, and interest groups to engage in communications on public policy; and diminishes the role of federal officeholders in fundraising for political parties and nonprofit interest groups.
For the reasons set forth in the following opinion, I find that the defendants have more than adequately demonstrated the constitutionally necessary basis for Congress: (1) to restrict the use of soft money donations by national, state, and local parties to fund certain types of campaign communications (particularly candidate-advocacy "issue" advertisements) which are designed to, and which do, directly affect federal elections; and (2) to restrict the airing of corporate and union electioneering communications which promote, oppose, attack, or support specific candidates for the office which they seek.
Notwithstanding this conclusion, however, I do not find that the defendants have demonstrated a sufficient constitutional basis to support Congress's decision: (1) to ban the solicitation, receipt, and use of soft money by national parties for purposes that do not directly affect federal elections; (2) to ban state and local parties from using soft money to fund a variety of election activities that do not directly affect federal elections; (3) to ban the use of corporate and union treasury monies to fund genuine issue advertisements that are aired during a particular time period preceding election even though they do not directly advocate the election or defeat of a federal candidate; (4) to ban national parties from donating to and soliciting soft money for certain Section 501(c) and Section 527 organizations under the Internal Revenue Code; (5) to prohibit federal officeholders from raising soft money for their national parties; and (6) to require broadcast licensees to collect and disclose certain records in connection with requests to purchase broadcast time. To the contrary, I find that in trying to do so Congress has unconstitutionally infringed upon the First Amendment rights of the various political actors and their supporters.
In short, the defendants, in my judgment, have been able to establish in some respects, but not in others, a sufficient basis for Congress's intervention in dealing with these problems. As to those where they succeeded, I believe it would make a mockery of existing Supreme Court precedent and the regulatory scheme that it has heretofore blessed, to hold otherwise. As to those where they have not, the protections accorded the plaintiffs under the First Amendment more than adequately warrant their undoing.
The following is a brief outline of my opinion, which has been organized on a title by title basis. With respect to the opinion itself, to the extent I have agreed with both the judgment and reasoning of either of my colleagues (or both), I have so noted and refrained from writing. As to those sections where I have agreed only in the judgment of one or more of my colleagues, I have limited the discussion of my reasoning to that necessary to explain how I reached my holding. To the greatest extent possible I have tried to acknowledge and address any disagreements we have had factually. However, in light of the importance and enormity of the record, I have included in my opinion a complete set of my Findings of Fact which I relied upon in reaching my judgments.
I. Title I: Restrictions on Nonfederal Funds
New FECA Sections 323(a), 323(b), 301 (20)(a), 323(d), 323(e), and 323(f)
A. New FECA Section 323(a): Nonfederal Fund Restrictions on National Parties
I agree with Judge Henderson's conclusion, although for different reasons, that Congress, in essence, is constitutionally prohibited from regulating a national party's ability to solicit, receive, or use nonfederal funds (i.e., soft money) for nonfederal and mixed purposes. To the extent that Section 323(a) seeks to regulate donations to national parties that are used for purposes that at the most indirectly affect federal elections (i.e., nonfederal or mixed purposes), the defendants have failed to demonstrate that Section 323(a) serves an important government interest, or even if they had, that it is sufficiently tailored to serve that interest.
However, I find that Congress can restrict a national party's use of nonfederal money to directly affect federal elections through communications that support or oppose specifically identified federal candidates. Therefore, like Judge Kollar-Kotelly, I find constitutional Congress's ban on the use of nonfederal funds by national parties for Section 301 (20)(A)(iii) communications. As a result, I concur in part in, and dissent in part from, Judge Henderson's judgment and reasoning regarding Section 323(a).
1. Standard of Review for Restrictions on Donations to Political Parties
The right to freedom of political association under the First Amendment is a fundamental right of donors to political parties, see Buckley v. Valeo, 424 U.S. 1, 24-25 (1976),*fn2 and arguably of the political parties themselves, see FEC v. Colorado Republican Fed. Campaign Comm. ("Colorado II"), 533 U.S. 431, 448 n. 10 (2001). Our national political structure is firmly anchored by our two major parties.*fn3 The role those national parties play in defining wide-ranging political agendas and bringing together individuals (and their financial resources) on behalf of those political agendas is critical to the stability our political system has enjoyed over the past 200 years.*fn4
Upon giving money to a political party, or to any political organization for that matter, a donor hopes that the organization will amplify his political perspective or candidate preference.*fn5 Any number of activities by a political party can amplify the donor's political voice. Some activities, like direct contributions to state candidates, are for a nonfederal purpose because they have no effect on a federal election. Others, like public communications that advocate the election or defeat of a particular federal candidate, are for a federal purpose because they directly affect federal elections. And still others, like generic voter registration and genuine issue advertisements,*fn6 are for "mixed purposes" because they indirectly affect both state and federal elections. Regardless of the purpose served, all of these party activities, paid for with aggregated donations, express loudly, and often effectively, the donor's political position.*fn7 For this reason, an individual's donation to a political party is an act of political association protected by the First Amendment. But as important as this right is, it is not absolute.
The Supreme Court, in Buckley v. Valeo and ensuing campaign finance cases, has recognized Congress's power through FECA*fn8 to regulate, in effect, the source and amount of contributions to political parties and candidates that donors could make for the purpose of influencing federal elections.*fn9 In enacting such contribution limitations Congress had to demonstrate that it was doing so in furtherance of the important government interest of preventing actual or apparent corruption of either the officeholder or the federal electoral system. Buckley, 424 U.S. at 25; see, e.g., Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 298-99 (1981); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 387-88 (2000).*fn10 Indeed, in addressing contribution limitations, preventing actual or apparent corruption is the only government interest the Supreme Court has found sufficient to interfere with associational rights. FEC v. National Conservative Political Action Comm. ("NCPAC"), 470 U.S. 480, 496-97 (1985). In Buckley, the Supreme Court explained:
To the extent that large contributions are given to
secure a political quid pro quo from current and
potential office holders, the integrity of our system
of representative democracy is undermined. . . . of
almost equal concern as the danger of actual quid pro
quo arrangements is the impact of the appearance of
corruption stemming from public awareness of the
opportunities for abuse inherent in a regime of large
individual financial contributions.
424 U.S. at 26-27. In each case where the Supreme Court upheld contribution limitations, see supra note 9, the Court reviewed those limits under Buckley's "closely drawn" scrutiny, a standard of review somewhat less rigorous than strict scrutiny, by which "[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms." Buckley, 420 U.S. at 25 (internal quotations omitted); see also California Medical Ass'n v. FEC ("California Medical"), 453 U.S. 182
, 196, 196 n. 16 (1981).
Nevertheless, the plaintiffs argue, and Judge Henderson agrees, that any limitation on a national party's ability to raise and use nonfederal money must pass muster under the strict-scrutiny standard of review that the Supreme Court has traditionally applied to analyze expenditures. See, e.g., Republican National Committee ("RNC") Opening Br. at 51-53. I disagree.
While I agree that Section 323(a)'s prohibitions on soliciting, receiving, and using nonfederal funds restricts a party's ability to spend nonfederal money, their principal effect is to limit the ability of future donors through their contributions to use the national parties to amplify their voices.*fn11 Therefore, in determining to what extent Congress can limit donations to national and state parties,*fn12 this Court should review the limitations using the closely-drawn standard of review applied to contribution limitations in Buckley, 420 U.S. at 25, and ensuing campaign finance cases,*fn13 in which the Court specifically acknowledged "that restrictions on contributions require less compelling justification than restrictions on independent spending." FEC v. Massachusetts Citizens for Life, Inc. ("MCFL"), 479 U.S. 238, 259-60 (1986); see also Shrink Missouri, 528 U.S. at 387. The Supreme Court lowered the hurdle for contributions, see Shrink Missouri, 528 U.S. at 387-88, because restrictions on contributions, in its judgment, impact associational rights less by leaving "the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates," id. at 387 (quoting Buckley, 424 U.S. at 22) (internal quotations omitted), and by not preventing "political committees from amassing the resources necessary for effective advocacy," Buckley, 424 U.S. at 21. Surely, these reasons for applying a lower standard of scrutiny for donations to candidates and their political committees are no less persuasive for analyzing contributions to political parties.
The plaintiffs, nevertheless, maintain that in Citizens Against Rent Control, which involved limitations on contributions to political committees with the purpose of supporting or opposing ballot measures, 454 U.S. at 291, the Supreme Court settled on strict-scrutiny review for contribution limitations to political organizations.*fn14 This conclusion is not based on a close enough reading of the case. While the plurality does suggest the undefined standard of "exacting judicial scrutiny," Citizens Against Rent Control, 454 U.S. at 294, 298, the three concurring justices either specifically applied closely-drawn scrutiny, id. at 301 (Marshall, J., concurring),*fn15 or equated the plurality's "exacting scrutiny" with Buckley's closely-drawn scrutiny, id. at 302 (Blackmun, J., & O'Connor, J., concurring).*fn16 Thus, if anything, Citizens Against Rent Control suggests that closely-drawn scrutiny should apply, even if the political organization is established exclusively for a purpose unrelated to federal campaigns. Restrictions on national political parties, which engage in both candidate-specific and issue-oriented activities, do not deserve to be treated with greater vigilance. Indeed, considering the standard of review adopted by the Supreme Court in Citizens Against Rent Control and the fact that contribution regulations are less jarring of associational rights than are expenditure restrictions, restrictions on donations to political parties should be similarly regulable if they are closely drawn to serve the compelling government interest of preventing corruption and its appearance.
2. Donations Used to Directly Affect Federal Elections are Regulable by
Section 323(a) of BCRA seeks to expand Congress's authority to regulate donations that by definition did not appear to be regulable under FECA because, ostensibly, they were not given for the purpose of influencing federal elections.*fn17
It does so in sweeping fashion: national parties "may not solicit, receive, . . . direct . . . transfer, or spend any funds that are not subject to the limitations, prohibitions, and reporting requirements of this Act." BCRA § 101; FECA § 323(a); 2 U.S.C. § 441i(b)(1). Congress seeks this expansion, principally, because the national parties have increasingly, over the past decade, exploited a so-called "loophole"*fn18
in FECA that fails to regulate the use of these nonfederal funds for various types of electioneering communications that advocate the election or defeat of a specifically identified candidate.*fn19
The defendants contend that Congress, in its attempt to close this "loophole," can limit any donation to a national party, regardless of the purpose for which it is used thereafter. See Intervenors Opp'n Br. at 26. I disagree. The plaintiffs, on the other hand, contend that Congress can only limit donations that are funneled thereafter through the party as coordinated expenditures, direct contributions to candidates, or uncoordinated expenditures for express advocacy as defined by the "magic words." See, e.g., McConnell Opening Br. at 36; McConnell Opp'n Br. at 25-26; see also Buckley, 424 U.S. at 44 n. 52 (providing examples of"express words of advocacy"). With that I disagree, as well. Both contentions are calculatingly indifferent to what reason, and precedent, have shown to be the only constitutionally viable antidote to corruption or its appearance: restrictions on donations to political parties based upon their use to directly affect federal elections.*fn20 In this sense, from my perspective, the issue before the Court is not whether Congress can limit donations to political parties,*fn21 but to what extent it can do so.
In Shrink Missouri, the Supreme Court made it clear that the amount of evidence needed to satisfy judicial scrutiny of restrictions on associational rights depends on the "novelty and plausibility of the justification raised." 528 U.S. at 391. Here, Congress relies upon the government interest of preventing actual and apparent corruption to justify the restrictions on nonfederal funds. When nonfederal funds are being used by national parties for nonfederal or mixed purposes, the government's interest in preventing corruption or its appearance to justify this restraint is so novel, and implausible, that it requires a substantial amount of evidence to withstand constitutional scrutiny. However, when nonfederal funds are being used by national parties for the federal purpose of directly benefitting the election of candidates*fn22 through either express advocacy or "issue" advocacy of the type defined in Section 301 (20)(A)(iii),*fn23 the government's use of that interest to justify congressional intervention is neither novel, nor implausible, because the risk of corruption, see infra Part I.B.2, naturally flows from circumstances where a donor's contribution to a party is used thereafter to directly benefit a candidate's campaign. Indeed, as I discuss at length in the later in relation to Section 301 (20)(A)(iii), id., the record overwhelmingly demonstrates that candidates are aware of who makes the large soft money donations, and in many instances, participate in raising money from them. Furthermore, the record clearly establishes that the public perceives that those large soft money donors receive special access to the legislators and have special influence on the legislative process. Id.
The notion that using donations for a federal purpose can implicate corruption is consistent with Congress's definition of "contribution" in FECA: "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office." 2 U.S.C. § 431(8)(A)(i) (emphasis added). This definition of contribution was part of FECA when the Supreme Court upheld contribution limitations in Buckley, stating that a donation is regulable (that is, a "contribution") because "it is connected with a candidate or his campaign," thus having "a sufficiently close relationship" to the government interest in preventing actual or apparent corruption. 424 U.S. at 78. Additionally, the contention that a party's use of a donation to influence a federal election is conducive to corruption, or its appearance, is also supported by the widely accepted premise that Congress can restrict donations used for party express advocacy as defined by the so-called "magic words" requirement of Buckley. Indeed, the plaintiffs concede as much,*fn24 and this is perfectly consistent with the regulatory scheme that was propagated by the FEC.*fn25 Surely, if donations used for express advocacy can be limited to prevent corruption, then donations used for candidate advocacy that is tantamount to express advocacy — assuming some minimal "quantum of empirical evidence" of corruption or its appearance, see Shrink Missouri, 528 U.S. at 391 — should be regulable for the same reason.
The notion that Congress may limit donations based on their use for certain purposes is also consistent with Supreme Court precedent which intimates that donations closely connected to a candidate's campaign — even if they are not direct contributions or coordinated expenditures — raise, at a minimum, the specter of corruption. In First Bank of Boston v. Bellotti, the Court rejected a Massachusetts statute prohibiting corporations from making contributions or expenditures to influence the vote on referendum proposals. 435 U.S. 765, 787-95 (1978). In rejecting the statute, the Court explained that the interests in preventing corruption and thus preserving the integrity of the electoral process were not served by limiting contributions and expenditures that affected referendum discussion. Id. at 789-92. The Court stated: "Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue." Id. at 790. Alternatively, one can infer that perceived corruption is likely to be present in cases involving candidate elections.
The extent to which certain uses of donations create the risk of corruption was also at issue in both California Medical, 453 U.S. at 193-201, and Citizens Against Rent Control, 454 U.S. at 292-300, where the Court considered donations to organizations, not candidates. It is difficult to reconcile these two cases without drawing the conclusion that the Court was primarily concerned with the purpose for which the organizations were using the donations.*fn26 In California Medical, the Court held that Congress can restrict the amount of donations to multicandidate political committees "which advocate the views and candidacies of a number of candidates." 453 U.S. at 197. Multicandidate political committees assuredly spend some of their funds on "independent expenditures," as the Court in California Medical concedes, id. at 195-96, but the Court seemingly concluded that those uncoordinated expenditures, by a "multicandidate" political committee, are made on behalf of candidates, whether direct contributions or uncoordinated expenditures. See 2 U.S.C. § 441a(a)(4) (defining multicandidate political committee as a political committee "which has received contributions from more than 50 persons, and . . . has made contributions to 5 or more candidates for Federal office."). The Court said as much when it dismissed the ACLU's concerns that donation restrictions would hinder the PAC's efforts to collectively express political views. California Medical, 455 U.S. at 197 n. 17. Restricting contributions to committees like the one at issue in California Medical, the Court maintained, is different than efforts to regulate groups expressing common political views. Id. In this sense, the nature of the organization — that it is established solely to benefit federal candidates — was enough to conclude that most, if not all, of its contributions and expenditures were for the purpose, and had the effect, of benefitting a federal candidate. Conversely, in Citizens Against Rent Control, where the Court found that the City of Berkeley could not restrict donations to political committees that support or oppose ballot propositions, 454 U.S. at 295-300, the organization was established exclusively to advocate on behalf of a public issue, id. at 291 (explaining that the issue before the Court was whether donations to associations "formed to support or oppose ballot measures" could be regulated). That the association was formed only to oppose a public issue and that its speech was unrelated to candidates in any way, id. at 296-98, led the Court to find that the restriction "does not advance a legitimate governmental interest significant enough to justify its infringement of First Amendment rights," id. at 299.
Of course, political parties are unique; they are neither super multicandidate political committees formed entirely to support candidates for federal office nor political associations completely uninvolved in candidate advocacy. Justice Kennedy described political parties this way:
Political parties have a unique role in serving [the
principle of open, robust debate on public issues];
they exist to advance their members' shared political
beliefs. . . . A political party has its own
traditions and principles that transcend the interests
of individual candidates and campaigns; but in the
context of particular elections, candidates are
necessary to make the party's message known and
effective, and vice versa.
Colorado I, 518 U.S. at 628 (Kennedy, J., concurring in the judgment and dissenting in part) (citations omitted).*fn27
With such varying purposes, national political parties merit a hybrid treatment in regulating the funds donated to them.
Further, Colorado I and Colorado II do not preclude Congress from regulating donations that directly affect federal elections, even if the parties use those funds independently of the candidates*fn28 and even if there is no coordination between the donor and the candidate. In Colorado I, the Supreme Court merely found that Congress could not limit uncoordinated party expenditures. 518 U.S. 617. Indeed, the Court even reiterated that Congress has every power to limit the amount of donations to parties that are "used for independent party expenditures for the benefit of a particular candidate." 518 U.S. at 617. Thus, if anything, Colorado I serves to bolster the proposition that Congress can regulate donations used "for the benefit of a particular candidate" because that is where "the greatest danger of corruption" arises. Id.*fn29 Reading Colorado I together with Buckley, Bellotti, Citizens Against Rent Control, and California Medical leaves one with a clear impression: donations used directly for the purpose of uncoordinated federal activity, like express advocacy, can engender corruption, or the appearance thereof, and are therefore regulable.*fn30 Finally, Colorado II, in which the Supreme Court determined that Congress could limit the amount of coordinated party expenditures, 533 U.S. at 440-65, is relevant because it stands for the proposition that a contribution by the party to the candidate, even absent coordination between the donor and candidate, can be regulated. Thus, donations to political parties used thereafter for purposes that directly affect federal elections, such as candidate "issue ads," even if there is no coordination between the donor and the candidates in advance of the donations to the party, should likewise be regulable. Common sense and the evidence introduced by the defendants support that conclusion. See infra Part I.B.2. And, until such time as Buckley and its progeny are overruled, allowing such donations to occur without regulation is an affront to a regulatory system that has been blessed by the Supreme Court and in place since the adoption of the 1974 amendments to FECA.
3. New FECA Section 323(a) Unconstitutionally Regulates the Use of
Nonfederal Funds for Nonfederal and Mixed Purposes
As sure as the evidence, legal precedent, and common sense support Congress's power to regulate the use of nonfederal funds for federal purposes, they do not support Congress's effort to regulate nonfederal funds used for nonfederal and mixed purposes. National parties need to raise and use nonfederal funds for a variety of purposes. Sometimes they raise and use nonfederal funds for the nonfederal purpose of contributing to state and local candidates in "off-year" elections when there are no federal candidates on the ballot.*fn31
Other times they need to raise and use funds for mixed purposes that only indirectly affect the election of federal candidates, such as generic voter mobilization efforts and genuine issue advertisements.*fn32
The defendants do not deny that the national parties use
Banning Decl. ¶ 28(a); see also Findings 57-59 (explaining, inter alia, that five states hold elections in odd-numbered years). For example, the RNC contributed approximately $500,000 to the 1999 Republican gubernatorial candidate in Virginia. La Raja Decl. ¶ 14. In the last two off-year elections, the RNC also transferred over $10 million to state parties and made over $1 million dollars in direct expenditures, bringing the total to $21 million dollars, not including administrative overhead, spent on the two elections where no federal candidates appeared on the ballot. Banning Decl. ¶ 28(a). In 2001 alone, the RNC spent $15.6 million on nonfederal activities (contributions to state and local candidates, transfers to state parties, and direct spending). That $15.6 million dollars represented 30 percent of all nonfederal money raised that year by the RNC. See Hearing Tr. (Dec. 4, 2002) at 43 (statement of Burchfield). Thus for elections in which there is no federal candidate on the ballot, the RNC contributes directly to state and local candidates, trains state and local candidates, and funds communications calling for election or defeat of state and local candidates. See id.; Josefiak Decl. ¶¶ 19, 41-59; La Raja Decl. ¶ 14; see also Bok Cross Exam. at 34-35. Even defendants' expert Thomas E. Mann agreed that donations to a gubernatorial candidate in an odd-numbered year is not something that is intended to affect a federal election. Cross Exam. of Def. Expert Mann at 71.
Of course, the RNC made direct contributions to state and local candidates during even-numbered years as well, see Josefiak Decl. ¶ 61, and "sometimes devote[d] significant resources toward states with competitive gubernatorial races even though the races for federal offices [were] less competitive," Josefiak Decl. ¶ 62. nonfederal funds for both nonfederal and mixed purposes that at the most indirectly affect federal elections. They contend, nonetheless, that nonfederal donations to national parties — regardless of their use — create actual or apparent corruption. See Intervenors Opp'n Br. at 26. To support that expansion of Congress's power in contravention of the First Amendment rights of the donors and national parties, the defendants would have to demonstrate that using nonfederal funds for either nonfederal or mixed purposes gives rise to either corruption or an appearance of corruption, such that the blanket restriction on non federal funds is not overbroad. For the following reasons, they have not done so.
First, the suggestion that the appearance of corruption, let alone actual corruption, exists regardless of any perceived, or actual, benefit to a federal candidate does not comport with the conventional legal understanding of corruption and apparent corruption. The Supreme Court has defined corruption as something more than a quid pro quo arrangement in which a legislator sells his vote for one or more contributions to his campaign, see, e.g., Colorado II, 533 U.S. at 440-41, as well as "improper influence" or conduct by a donor that results in a legislator who is "too compliant" with the donor, Shrink Missouri, 528 U.S. at 389. Of course, the Supreme Court has also recognized that Congress has an equally compelling government interest in preventing the appearance of corruption in the public's mind. Id. at 390; Buckley, 424 U.S. at 27. The reason for this is simple: like corruption itself, the appearance of corruption undermines the public's confidence in our system of government and frustrates participation in the political process by causing the public to believe elected representatives are not acting independently of the individuals, corporations, and unions who contribute to representatives' campaigns and parties. Shrink Missouri, 528 U.S. at 390. Indeed, contribution limits to federal candidates and parties were enacted, and have been upheld by the Supreme Court, to prevent this very perception in the mind of the public. Id.; Buckley, 424 U.S. at 23-35. And it has been Congress's province to set the dollar limit above which this perception starts to ferment. See Buckley, 424 U.S. at 30; Shrink Missouri, 528 U.S. at 397. Thus, whether the corruption is actual or perceived, every traditional and accepted definition to date depends on the donor conferring, or being perceived as having conferred, a benefit on the candidate in return for something.*fn33 In NCPAC, for example, the Supreme Court defined corruption in the following way: "Corruption is a subversion of the political process. Elected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns." 470 U.S. at 497. Without financial gain to themselves or money into their campaigns, why would candidates elect to act contrary to their obligations? In short, since donations cannot logically foster corruption, or its appearance, unless the candidate benefits or appears to benefit in some way, donations to a party with no prospect that they will be used to directly affect the candidate's election, cannot, absent substantial evidence to the contrary, give rise to either actual or apparent corruption.
Second, the defendants' contention, in essence, that Congress can regulate the use of soft money donations by national parties for either nonfederal, or mixed, purposes is equally unsupportable by the record and common sense. If a national party uses nonfederal funds to support generic voter registration, or to conduct training seminars for state parties on get-out-the vote activities, the benefit to the federal candidate, assuming his election is even being contested, is attenuated at best, Colorado I, 518 U.S. at 616, because it is generic in nature and diluted among a far greater number of state and local candidates. See infra Part I.B. 1. No credible evidence has been submitted by the defendants that demonstrates that federal candidates either are, or are perceived to be, indebted to donors as a result of such mixed-purpose party activities.*fn34 Moreover, donations used for generic issue advertisements that may be helpful to both state and federal candidates, another example of a mixed-purpose activity by a party that indirectly affects federal elections in a way unlinked to any particular candidate's election or re-election, also do not foster actual or apparent corruption. Political parties, like many other political organizations, engage in noncandidate-related speech (i.e., genuine or pure issue ads) to influence public opinion on issues of the day.*fn35 Just recently, for example, the RNC funded a generic issue advertisement on the radio that touted the Republican's education proposal. It broadcasted the following:
Male: Every child can learn . . . Female: . . . and
deserves a quality education in a safe school. Male:
But some people say some children can't learn . . .
Female: . . . so just shuffle them through. Male:
That's not fair. Female: That's not right. Male:
Things are changing. A new federal law says every
child deserves to learn. Female: It says test every
child to make sure they're learning and give them
extra help if they're not. Male: Hold schools
accountable. Because no child should be in a school
that will not teach and will not change. Female: The
law says every child must be taught to read by the 3rd
grade. Because reading is a new civil right. Male:
President Bush's No Child Left Behind Law. Female: The
biggest education reform and biggest increase in
education funding in 25 years. Male: Republicans are
working for better, safer schools . . . Female: so no
child is left behind. Male: That's right . . .
Republicans. Anner: Learn how Republican education
reforms can help your children. Call. . . . Help
President Bush and leave No Child Behind.
Josefiak Decl. ¶ 91(e) & Exhibit X. While pure issue advocacy, like the above advertisement, can indirectly affect a federal election,*fn36
it is unlikely, and there is no evidence to the contrary, that candidates will feel indebted to those who helped fund such advertisements. Moreover, the fact that state and local parties would still be able to use nonfederal money to engage in genuine issue advocacy*fn37
serves to undermine Section 323(a)'s complete ban on national parties being able to do the same.*fn38
Lastly, if the above analysis is true with regard to the inability to demonstrate even an appearance of corruption when nonfederal funds are being used for mixed purposes that indirectly affect a federal election, it is even more true when the purpose is nonfederal and has no effect on any federal candidate's election or re-election. In short, the defendants have provided no legal basis to restrict a national party's use of nonfederal funds for nonfederal purposes.
Third and finally, the defendants' contention that candidates, who raise soft money donations for their national parties, regardless of their subsequent use, are indebted to the donors due to "internal party benefits" they subsequently receive for raising the nonfederal donations,*fn39 is equally tenuous from both a theoretical and an evidentiary standpoint, and, in any event, Section 323(a) remains insufficiently tailored based on that justification to pass constitutional muster. The defendants' contention is theoretically flawed because it proceeds from the premise that the corruption, or appearance of corruption, necessary to warrant congressional intervention can be satisfied by a federal candidate receiving a benefit other than personal financial gain or direct assistance, monetary or otherwise, to his election effort. The Supreme Court has never defined corruption, or its appearance, in those terms. As stated previously, the only benefit the Supreme Court has based a finding on is "the prospect of financial gain to themselves or infusions of money into their campaigns." NCPAC, 470 U.S. at 497.*fn40 Even if the Court did, however, bless the notion that a nonmonetary benefit from someone other than the donor could, under the right circumstances, give rise to an indebtedness that the public could perceive as "corrupting" its legislator's independence, there is no evidence on this record that such corruption has either occurred or is perceived by the public to exist. The evidence relating to the appearance of corruption, such as it is, only establishes that the public believes there is a connection between large donations to national parties and the influence and access the pubic believes the donors receive. See infra Part I.B. It does not, however, establish that this connection exists independent of how the parties use the funds. If anything, the public's regular exposure to so-called "issue ads" sponsored by the parties and crafted to help their candidates,*fn41 combined with its lack of knowledge of the difference between soft and hard money and its lack of knowledge of the campaign finance regulations (both of which have been demonstrated),*fn42 should lead this Court to reasonably infer that the public believes that these donations are used in whole, on in part, by the parties to directly help their candidates. It is that perceived benefit, in my judgment, that gives rise to the public's view that officeholders, either out of gratitude, or in hope of similar future contributions, provide increased access and influence to those donors. And in light of the utter absence of evidence on the record establishing any other reason that the public believes accounts for federal officeholders granting increased influence and access to those who give large donations to their party, this Court should infer the same. In any event, the defendants' argument is flawed because their supposed internal-party-benefit rationale was not even relied upon by Congress to limit the national parties use of nonfederal funds. If it had been, Congress would have only restricted nonfederal funds that federal candidates themselves solicited. Thus, Section 323(a)'s sweeping restriction, even if acceptable theoretically and factually based on the internal-party-benefit rationale, is not sufficiently tailored to "alleviate [the] harm in a direct and material way." Turner Broadcasting Sys., Inc. v. FCC ("Turner I"), 512 U.S. 622, 664 (1994).*fn43
In sum, conduct which only indirectly affects a federal election requires a greater degree of evidence of corruption, or appearance thereof, to warrant congressional regulation. Thus, in the absence of sufficient proof to warrant expanding FECA in this direction, Congress may only prohibit the national parties from using nonfederal money for federal purposes such as those defined in Section 301 (20)(A)(iii), which are clearly designed to directly affect federal elections. The use of nonfederal funds for nonfederal or mixed purposes, which at the most indirectly affect federal elections, is simply not regulable by Congress because it does not give rise to corruption or the appearance of corruption. Thus Section 323(a)'s complete ban on the use of nonfederal funds is not closely drawn to serve the designated government interest.
4. Severability of New FECA Section 323(a)
Because Section 323(a) prohibits all uses of nonfederal funds by national parties, and because I only uphold Congress's power to prohibit the use of nonfederal funds for federal purposes (as defined in Section 301 (20)(A)(iii)), see infra Part I.B.2, a considerable issue is presented as to whether we can isolate and uphold that prohibition from the remaining undefined, unconstitutional prohibitions in Section 323(a) in a manner consistent with both the severance clause and Supreme Court precedent. For the following reasons, I believe we can and should.
It is a "cardinal principle" of statutory construction to save as much of a statute as possible. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937) (Hughes, C.J.).*fn44 Indeed, Congress itself in Section 401 of BCRA provided us with a severability clause which directed us to do as much.*fn45 In attempting to save a statute, however, the Supreme Court has made it clear that a court must take great pains to avoid "rewriting" the statute.*fn46 Thus, a severability clause, due in part to separation of powers concerns, is merely an "aid," not a "command," to the judiciary. Nonetheless, the Supreme Court has frequently found statutory provisions unconstitutional (or constitutional) as to particular applications without invalidating (or validating) the entire provision.*fn47 In the campaign finance arena, the Supreme Court in Colorado I and Colorado II did not object to severing applications of Section 441a(d), a FECA provision that caps how much political parties can spend.*fn48 In Colorado I, the Supreme Court invalidated Section 441a(d) as applied to uncoordinated, or independent, expenditures. 518 U.S. at ¶ 13-20. It then remanded the question of whether Section 441a(d)'s application to coordinated expenditures was constitutional, directing the lower courts to determine "whether or not Congress would have wanted [Section 441a(d)'s] limitations to stand were they to apply only to coordinated, and not to independent, expenditures." Id. at 625-26. On remand the district court found that Section 441a(d)'s application to coordinated expenditures was severable from its application to uncoordinated expenditures. 41 F. Supp.2d 1197, 1206-07 (D. Co. 1999). The district court found the two applications severable because of the "strong" severability provision, which is almost identical to the provision at issue here, and because there was "no evidence" that Congress would not have rejected Section 441 a(d) as applied to coordinated party expenditures. Id. at 1207. Both the Tenth Circuit and the Supreme Court, noting that the severability argument was not renewed upon appeal, let the district court's decision stand. Colorado II, 533 U.S. at 440 n. 5; FEC v. Colorado Republican Fed. Campaign Comm., 213 F.3d 1221, 1225 n. 3 (10th Cir. 2000). In the end, though the language in Section 441a(d) makes no reference to coordinated or uncoordinated expenditures, the Supreme Court upheld certain applications of the provision (coordinated party expenditures) but invalidated other applications (uncoordinated party expenditures).
Typically the Supreme Court invalidates specific applications, while letting others stand, when it can confidently discern congressional intent. In one recent case where the Supreme Court refused to limit the application of a statute which banned all honoraria to government employees, United States v. National Treasury Employees Union ("NTEU"), 513 U.S. 454, 479 (1995), it did so because it was faced with considerable uncertainty as to how Congress would have defined the honoraria restriction if it had known the complete ban on honoraria would have been rejected as unconstitutional. Id.*fn49 For a number of reasons, we do not have that problem here.
First, with regard to Title I, Congress's intent, based on both the severability clause and the text of the statute, is unambiguous. The clause itself, of course, directs that the Court save "the application of the provisions . . . to any person or circumstance." BCRA § 401. However, as stated previously, such a clause only creates a presumption of severability.*fn50 It does not relieve this Court of its obligation to determine if the limiting construction of Section 323(a) can stand alone, and if Congress would have enacted such a construction knowing that its broader position would be held unconstitutional.*fn51 With regard to both the former and the latter, Congress, by defining "federal election activity" in Section 301 (20)(A)(iii) to include certain communications which directly affect federal elections and by constitutionally prohibiting state parties from engaging in such activity in Section 323(b), has unequivocally indicated its intent that such activity — as defined — would be among the undefined uses of nonfederal funds that national parties were similarly being prohibited from engaging in under Section 323(a). To conclude otherwise would be to turn a blind eye to an obvious reason why Sections 323(b) and 301 (20)(A) were written in the first place: to prohibit donors (especially corporations and unions) and the national parties from circumventing Section 323(a) by funneling soft money through state and local parties for Section 301 (20)(A) purposes.*fn52 By limiting the prohibited uses of nonfederal funds by national parties in Section 323(a) to communications of the kind defined by Congress in its own words in 301 (20)(A)(iii), I am neither employing a saving construction that "rewrites" Section 323(a), nor ignoring Congress's clear intention to save an implicit feature of that section consistent with BCRA's severance clause admonition.
Finally, by applying Section 301 (20)(A)(iii), which I hold to be constitutionally acceptable for Section 323(b), see infra Part I.B.2, to define the prohibited conduct in Section 323(a), I avoid the Supreme Court's additional concern of creating a definition the constitutionality of which has not been decided.*fn53 Accordingly, for all of the above reasons, I find that Section 323(a)'s implicit prohibition on national parties to use nonfederal money to fund communications of the kind defined in Section 301 (20)(A)(iii) is constitutionally severable from its remaining unconstitutional applications.
B. New FECA Sections 323(b) and 301 (20)(A): Restrictions on Nonfederal Funds for "Federal Election Activities"
Unlike Section 323(a)'s total ban on the use of nonfederal funds by national parties, Section 323(b) only prohibits state parties from using nonfederal funds for certain "federal election activities," BCRA § 101; FECA § 323(b); 2 U.S.C. § 441i(b)(1), which it defines in Section 301 (20)(A). BCRA § 101; FECA § 301 (20)(A); 2 U.S.C. § 431(20)(A). Thus, in order to assess the constitutionality of the restraint on the state parties in Section 323(b), we have to simultaneously assess the constitutionality of Section 301 (20)(A)'s definition of federal election activity.
Section 301 (20)(A) defines federal election activity to include: (1) voter registration activity during the period 120 days before a regularly scheduled federal election; (2) "voter identification, get-out-the-vote activity, or generic campaign activity conducted in connection with an election in which a candidate for Federal office appears on the ballot"; (3) "a public communication that refers to a clearly identified candidate for Federal office . . . and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate)"; and (4) services provided by a state or local party committee employee who spends more than twenty-five percent of that individual's compensated time "on activities in connection with a Federal election." BCRA § 101; FECA § 301 (20)(A); 2 U.S.C. § 431 (20)(A).
Only Section 301 (20)(A)(iii), however, describes conduct which is targeted exclusively at federal elections and which directly affects federal elections. Accordingly, for the reasons set forth below, I find that Section 323(b) and Sections 301 (20)(A)(i), (ii), and (iv) are substantially overbroad in that they seek to restrain state parties from using nonfederal funds for election activities, which only indirectly affect federal elections, and thus do not give rise to the appearance of corruption necessary to warrant congressional intervention. As to Section 301 (20)(A)(iii), however, I find that it is constitutionally permissible because, by contrast, it focuses on election activities that directly affect federal elections and as such, give rise to the appearance of corruption necessary to warrant Congress's restraint on the First Amendment rights of the donors.
1. New FECA Sections 323(b) and 301 (20)(A)(i), (ii), and (iv)
Section 323(b) is premised, in part, on the congressional belief that certain mixed-purpose activities by state parties, when funded with nonfederal funds, sufficiently affect federal elections that they give rise to an appearance of corruption between the donors and the candidates whose campaign receives the benefit of these activities. I disagree. Setting aside the considerable issue of whether the Elections Clause, U.S. Const. art. I, § 4; Buckley, 424 U.S. at 13 & n. 16,*fn54 can be fairly read to allow Congress to regulate state party activities such as those defined in Sections 301 (20)(A)(i), (ii), and (iv), see CDP/CRP Opening Br. at 20-27, the justification and evidence submitted here fail to establish that those provisions serve a sufficient government interest to justify an infringement on First Amendment rights.
The Supreme Court pointed out in Colorado I that "the opportunity for corruption posed by" nonfederal funds for mixed-purpose activities like voter registration and get-out-the-vote "is, at best, attenuated." 518 U.S. at 616. Though dictum it may be, it is particularly telling. See Central Green Co. v. United States, 531 U.S. 425, 431 (2001) ("dicta `may be followed if sufficiently persuasive' but are not binding" (quoting Humphrey's Executor v. United States, 295 U.S. 602, 627 (1935))). One can infer from the Supreme Court's plain statement that the opportunity for corruption is less because there is no clear link between donations used for these predominantly generic activities and whatever benefit accrues to the candidate.
When nonfederal funds go to political parties, not candidates, and are spent for purposes that do not directly affect federal elections, there is less concern about donors having quid pro quo arrangements with candidates. Indeed, given that Section 301 (20)(A)(iii) prevents communications that promote federal candidates, the activities defined in Sections 301 (20)(A)(i) and (ii) are necessarily "generic" or specific only to a nonfederal candidate: that is, these activities are not directed at a specific federal candidate.*fn55 Conversely, such activities potentially assist a considerably larger number of state and local candidates that greatly outnumber the one, or possibly two, federal candidates on the ballot,*fn56 many of whom invariably run unopposed or in clearly noncompetitive races. There is also evidence that state and local parties undertake voter mobilization efforts principally for state and local candidates,*fn57 mostly from nonfederal money they raised on their own,*fn58 and in elections where the federal candidates are practically uncontested.*fn59
In light of this focus on state and local candidates, there is every reason for this Court to doubt whether the federal candidates themselves would view such generic activities by state and local parties as sufficiently helpful to their campaigns as to warrant even a token sense of indebtedness to the soft money donors to the political parties. The evidence, such as it is, regarding Sections 301 (20)(A)(i) and (ii) activities fails to demonstrate either the degree of effect such activities have on the federal candidate's re-election, or the existence of a public perception that donations used to fund such efforts create a sense of indebtedness between the federal candidate and those who make large donations to the party. That there is no evidence that the public perceives corruption in these circumstances is not surprising. Since the public would expect state parties to engage in such voter mobilization efforts for the benefit of all of its candidates, we can, and should, reasonably infer that the public would correspondingly view a federal candidate's sense of indebtedness, if any, to be diluted among the numerous state and local candidates who equally benefit from these activities. See Feingold Dep. at 126-27 (acknowledging that soft money being used for generic campaign activity is less likely to create an appearance of corruption). Such uncertainties are hardly a sufficient basis from which to allege that precluding state and local parties from using nonfederal funds for mixed-purpose activities serves the government interest in preventing corruption, or its appearance. Thus, in the absence of a substantial evidentiary showing to the contrary, it is "mere conjecture," Shrink Missouri, 528 U.S. at 392, by the defendants that an appearance of corruption arises from donations to state parties, or transfers from national parties, that are used for these generic or noncandidate-specific activities set forth in Sections 301 (20)(A)(i) and (ii).
Finally, even if the defendants had demonstrated that some mixed-purpose activities do somehow create an appearance of corruption, Sections 301 (20)(A)(i), (ii), and (iv) are not sufficiently tailored to be constitutionally acceptable. By limiting donations for so many unmistakably noncorrupting activities, like donations for voter registration on behalf of state candidates, these sections extend too far. It is simply not enough to claim that just because the use of a donation has some effect on a federal election, it must be completely funded with federal funds.*fn60 To reach such a conclusion would inevitably sweep in too many activities that deserve First Amendment protection. Section 301 (20)(A)(iv)'s percentage based definition of the amount of time a party official must spend in connection with a federal election, BCRA § 101; FECA § 301 (20)(A)(iv); 2 U.S.C. § 431 (20)(A)(iv), provides the starkest example of this insufficient tailoring. If a state party employee spends 26 percent of his compensated time "in connection with a Federal election," then his entire salary must be paid using federal funds. Clearly, 74 percent of the employee's compensated time, which has no relation whatsoever to a federal election, is being regulated. There is no adequate basis in the record before us to determine whether the nature of his conduct sufficiently impacts the election to give rise to an appearance of corruption between the donors who may be funding his efforts through the state party and the candidate receiving the benefit of his services. Thus, even if Sections 301 (20)(A)(i), (ii), and (iv) served to prevent some appearance of corruption, they are not drawn closely enough to survive scrutiny.
2. New FECA Section 301 (20)(A)(iii)
As I indicated previously, Congress has the power to require both national and state parties to use only federal money for election activities that directly affect federal elections.*fn61 Section 301 (20)(A)(iii) focuses on one such type of activity: "a public communication that refers to a clearly identified candidate for Federal office . . . and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office." BCRA § 101; FECA § 301 (20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii) (emphasis added). Judge Henderson concludes in her opinion that the Supreme Court in Buckley required certain "magic words" that specifically advocate the election or defeat of a candidate in order for a communication to be the type of advocacy regulable by Congress. All other communications, even if they directly affect a federal election, from her perspective, are not regulable.*fn62 I disagree. For the same reasons, in part, set forth by Judge Kollar-Kotelly in her opinion on Title II, I believe that Buckley did not set forth a "bright-line test." See J. Kollar-Kotelly Op. at Part III.I.C.1. But, even if the Supreme Court did set forth a bright-line test for Congress's regulation of expenditures by nonparties in Buckley, 424 U.S. at 39-51, that rationale is not necessarily applicable to, and binding on, Congress's power to regulate donations to political parties under BCRA.
Therefore, the question before this Court is not so much whether Congress can regulate the use of nonfederal funds for uncoordinated, nonexpress advocacy that directly affects federal elections, but whether Congress has defined such nonexpress advocacy in Section 301 (20)(A)(iii) in a way that will withstand constitutional scrutiny. For the following reasons, I have concluded that Congress not only can regulate uncoordinated, nonexpress advocacy which directly affects federal elections, but has defined that nonexpress advocacy in Section 301 (20)(A)(iii) in a way that is sufficiently tailored to serve the government interest of preventing actual or apparent corruption, and in a way that is not unconstitutionally vague.*fn63
In defining "candidate advocacy" as it did, Congress chose to couple two concepts together in order for communications to qualify as regulable: (1) the identification of a candidate for a federal office; and (2) words that promote, oppose, attack, or support that candidate for that office. BCRA § 101; FECA § 301 (20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii). Therefore, unlike genuine issue advocacy, which both national and state parties have every right to participate in with nonfederal funds, and which help all party candidates in a generic sense, Congress in this definition was seeking to focus on parties using nonfederal funds for communications intended to directly help a specific federal candidate. Because such assistance is focused on a specific candidate,*fn64 it is natural for that candidate to feel indebted towards those whose donations funded the communication, even if he does not know exactly which soft money donors' funds actually made it possible. Concomitantly, it is natural for the public to perceive that those whose large soft money donations funded the national and state parties' communications are not only known by the parties staffs, but by the federal candidates who directly benefitted from the donations.
The evidence submitted by the defendants overwhelmingly corroborates these common sense conclusions. The record is clear that many, if not most, of the party so-called "issue ads" refer to a specific federal candidate.*fn65 And the evidence also demonstrates that the advertisements are designed to, and do, support or oppose those candidates for that office.*fn66 To illustrate one extreme of this genre: in 1996, the Republican National Committee ("RNC") ran a supposed "issue ad" called "The Story" which requires only a quick reading to discern its true purpose and effect.
Audio of Bob Dole: We have a moral obligation to give
our children an America with the opportunity and
values of the nation we grew up in. Voice Over: Bob
Dole grew up in Russell, Kansas. From his parents he
learned the value of hard work, honesty and
responsibility. So when his country called. he
answered. He was seriously wounded in combat.
Paralyzed, he underwent nine operations. Audio of Bob
Dole: I went around looking for a miracle that would
make me whole again. Voice Over: The doctors said he'd
never walk again. But after 39 months, he proved them
wrong. Audio of Elizabeth Dole: He persevered, he
never gave up. He fought his way back from total
paralysis. Voice Over: Like many Americans, his life
experience and values serve as a strong moral
compass. The principle of work to replace welfare. The
principle of accountability to strengthen our criminal
justice system. The principle of discipline to end
wasteful Washington spending. Voice of Bob Dole: It
all comes down to values. What you believe in. What
you sacrifice for. And what you stand for.
Fabrizio Dep. Exhibit 2; McCain Decl. ¶ 15; Huyck Decl. ¶ 3; Fabrizio Dep. at 49-55. Though this advertisement transparently was intended to assist Senator Dole's campaign, it was funded in part with nonfederal funds. It is hard to disagree with Senator Levin, who described the advertisement this way: "It's not an ad about welfare or wasteful spending; it is an ad about why should we elect that particular nominee."*fn67
Another and more typical form of sham issue advertisement run by parties is a candidate-centered ad that focuses on the positions, past actions, or general character traits of a given federal candidate; contrasts them to the party's view of the proper outlook on those issues; and encourages the viewers to contact the candidate to ostensibly inquire why he/she is taking those positions or actions. See Findings 45 & 46. In the 2000 election, for example, the National Republican Congressional Committee and the Florida Republican Party ran television advertisements criticizing Linda Chapin, the Democratic candidate for Congress:
Announcer: Linda Chapin. Hard on taxpayers. Soft on
convicts. Chapin raised taxes on your utilities,
pushed to raise the county sales tax and even tried
raising your property tax. Meanwhile, hard time in the
county jail turned into "Chapin time." Where convicts
received cable tv and lounged on padded furniture in
carpeted cells. Chapin's County Commission ran this
soft jail . . . a jail she called a "national model."
Ask Chapin why she's hard on taxpayers and soft on
Chapin Decl. Exhibit 2; Chapin Decl. ¶ 10; Beckett Decl. ¶ 10; Pennington Decl. ¶ 14.*fn68
This type of electioneering advertisement, and many others like it, were run by the state party, which used mostly nonfederal funds to pay for it. It takes little convincing to find that these advertisements can, and do, directly influence the outcome of a federal election*fn69
and that parties engaging in them are "electioneering in the guise of issue advocacy." Mann Expert Report at 26. Moreover, because the amount of money used for candidate advocacy is substantial,*fn70
the candidates are likely to feel even more indebted to the donors whose contributions to the political parties made possible this form of campaign assistance.*fn71
Not surprisingly, the use of non federal funds for this type of candidate advocacy was, to all appearances, Congress's primary concern in deciding to enact BCRA Sections 323(a) and 323(b).*fn72
The record further demonstrates that congressional candidates know who the major soft money donors are.*fn73 In some cases, they actively assist in helping the party to raise such contributions.*fn74 And as to those candidates who do not, the parties and the donors keep many of them apprised of who made the large donations. For example, Robert Hickmott, lobbyist and former DNC official, advised donors in the following manner:
[W]hen one of my clients is going to make a donation
to a federal candidate or party, hard or soft money, I
advise them on the manner in which they should do
that. I tell them not to just send the check to the
party committee, for example, to the young staff
member who is collecting the checks. Instead I tell my
clients that they should personally give the money to
a Member of Congress who then can give the money to
the Chair of the party committee, who will in turn
make sure that the check reaches the young staff
member. That way the donor, with one check, gets
"chits" with multiple Members of Congress.
Hickmott Decl. ¶ 9.*fn75
Finally, while there is no evidence in the record of actual quid pro quo corruption,*fn76 the record does establish that the public not only appreciates that there are many donors giving large sums of money (mostly corporations and unions) to the political parties,*fn77 but believes and expects that the donors — in return — receive privileged access to the legislators and special influence in the legislative process.*fn78 It is of little surprise that Congress was particularly concerned with the consequences of the public's perception of a correlation between large donations to parties and the special access and influence that the public believes are accorded to these donors.*fn79 There is ample evidence, including polls*fn80 and press reports,*fn81 to support Congress's judgment that the special access and perceived special influence accorded to those large donors have undermined the public's confidence in the independence of its elected representatives from those donors, and thereby giving rise to an appearance of corruption. The record clearly establishes that those large donations are used in large part by the parties to bombard the public with candidate advocacy of the type defined by Section 301 (20)(A)(iii). See Findings 36-52, 138-47. Because the advertisements are recognizably sponsored by the parties, see supra note 41, it takes little for the public to conclude that candidates are directly benefitting from large donations to the parties. Moreover, the fact that the public neither distinguishes between "soft money" and "hard money," nor is knowledgeable of the restrictions on contributions,*fn82 does nothing to deter the inference that the special access and influence it perceives are accorded to the donors is in return for the plainly visible assistance the parties provide to candidates' campaigns. Given the high plausibility that federal candidates feel indebted to donors who fund, through the parties, Section 301 (20)(A)(iii) communications of which they are the beneficiary, and the equally high plausibility that the public perceives that the special access and influence it believes are accorded to these donors is in gratitude for that assistance, the evidentiary documentation more than adequately convinces me that an appearance of corruption has arisen from such arrangements. Simply stated, Congress has drawn a reasonable inference of the same based on substantial evidence.*fn83
Moreover, any fear that Section 301 (20)(A)(iii) is overbroad is cured by the accumulated effects of three circumstances. First, Section 301 (20)(A)(iii) only regulates communications that are candidate specific, not issue specific, such that most genuine issue communications should not be subject to regulation. See Hearing Tr. (Dec. 4, 2002) at 17. Second, though there are some genuine issue advertisements that do specifically mention candidates,*fn84 the fact that the Section 301 (20)(A)(iii) definition requires the communication to have language that "promotes or supports a candidate for that office, or attacks or opposes a candidate for that office" eviscerates any remaining overbreadth by focusing on advertisements that directly influence "a candidate for that office." Finally, the fact that the "speaker" running this type of advertisement is a national or state party also supports the defendants' contention that most of the advertisements, referring to a candidate in this manner, will be intended to promote or attack that particular candidate.*fn85 A political party, as opposed to corporations and other nonparties, exists to a large extent for the purpose of electing candidates of its party to office.*fn86 In Buckley, the Supreme Court observed that expenditures by political parties, and other political committees with "the major purpose of which is the nomination and election of a candidate . . . can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related." 424 U.S. at 79. In interpreting this language by the Supreme Court, the D.C. Circuit observed that "when an organization controlled by a candidate or the major purpose of which is election-related makes disbursements, those disbursements will presumptively be expenditures within the statutory definition." Akins v. FEC, 101 F.3d 731, 742 (en banc) (D.C. Cir. 1996).*fn87 With this understanding of parties and other political committees, it is not surprising that the Supreme Court limited disclosure of expenditures by all other groups to express advocacy, but sanctioned disclosure of all expenditures by "political committees." Buckley, 424 U.S. at 49. While not all party advertisements are intended to directly influence a federal election (i.e., genuine issue advertisements), the presumptively electoral-focus focus of parties suggests that party communications that do mention candidates are, more likely than not, designed to have some impact on a federal election.*fn88 For these reasons, Section 301 (20)(A)(iii) is closely drawn to serve the government's interest.
Even so, plaintiffs contend that Section 301 (20)(A)(iii) is still defective because its definition of communications that must be funded with federal money is too vague to withstand constitutional scrutiny. They claim that words such as "promote," "oppose," "attack," and "support" are too vague to enable party officials to determine where the line between noncandidate advocacy (i.e., pure issue advertisements) and candidate advocacy lies. Like Section 201's fallback definition, see BCRA § 201(a); FECA § 304(f)(3)(A)(i); 2 U.S.C. § 434 (f)(3)(A)(i), however, the definition of candidate advocacy in Section 301 (20)(A)(iii) is not unconstitutionally vague because: (1) potential party speakers can simply avoid regulation by not identifying a candidate; (2) the formulation Congress chose to use even for those not expert in the subtleties of campaign advocacy — is anchored in every day words that have to be linked to a specific candidate's election, or re-election, to a particular office; (3) to paraphrase defendant's counsel during oral argument, as long as the communication is not neutral as to the candidate's election or defeat it is covered by the definition, see Intervenors Opp'n Br. at 66; and (4) the opportunity to seek advisory opinions to clarify any ambiguity "mitigates whatever chill may be induced by the statute and argues against constitutional adjudication on a barren record," see Martin Tractor Co. v. FEC, 627 F.2d 375, 384-85 (D.C. Cir. 1980); see also United States Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 580 (1973).*fn89 Indeed, Section 301 (20)(A)(iii), as crafted, "give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited," "provide[s] explicit standards for those who apply them," and where First Amendment rights are implicated, does not induce "citizens to `steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (quoting Baggett v. Bullitt, 377 U.S. 360, 372 (1964)).
Even if the above factors were not enough to save Section 201 from a vagueness attack, those factors, combined with the identity of the speaker being restricted and the fact that it is a restriction on a contribution (as opposed to an expenditure), would still rescue Section 301 (20)(A)(iii). Because political parties are sophisticated participants in the election arena, they are much more likely to recognize the line between candidate advocacy and genuine issue advocacy. See Colorado II, 533 U.S. at 453 ("[T]he party marshals [the power to speak] with greater sophistication than individuals generally could.").*fn90 Political parties, more than others, are also more likely to assume the risk that they have crossed the line.*fn91 In short, the argument that Section 301 (20)(A)(iii) is unconstitutionally vague rings hollow as it applies to parties who are experts in the business of discerning what combination of words and images help, or harm, candidates.*fn92
Vagueness concerns are also less pronounced with regard to contributions than expenditures. When restrictions on expenditures are at issue, one must be concerned that if the potential speaker cannot discriminate between issue advocacy and candidate advocacy, then the speaker will shy away from speaking at all. The restrictions at issue here, however, only require that Section 301 (20)(A)(iii) communications be funded with federal money, so if the political parties are afraid that a communication may promote or attack a candidate, they can simply resort to federal funds. In any event, if despite all of the mitigations, some slight potential for vagueness remains, "uncertainty at the periphery" does not render a provision unconstitutionally vague. See FEC v. National Right to Work Comm., 459 U.S. 197, 211 (1982).
In sum, Section 301 (20)(A)(iii), in its application to Sections 323(a) and 323(b), is neither unconstitutionally vague, nor insufficiently tailored to serve the compelling government interest of combating the appearance of corruption. By seeking only to restrict donations that can give rise to actual or apparent corruption, it sweeps neither too far nor too near. To the extent that "issue ads" are about issues in fact, as well as in name, political parties are free to raise as much soft money as they like for such advertisements. In contrast, soft money donations to political parties used for communications that support or oppose a clearly identified candidate for federal office that is, candidate advocacy directly affect a federal election and give rise to an appearance of corruption that Congress has a substantial interest in combating. Such candidate advocacy must be funded with federal money.
A final note on Section 301 (20)(A)(iii). Requiring parties to fund Section 301 (20)(A)(iii) communications with federal money not only serves the government interest of preventing actual and apparent corruption, but also prevents circumvention of campaign laws and principles. See NCPAC, 470 U.S. at 500 (noting the Court's "deference to a congressional determination of the need for a prophylactic rule").*fn93 Under Section 441b of FECA, corporations and unions are prohibited from using general treasury funds for independent expenditures expressly advocating the election or defeat of a particular federal candidate. 2 U.S.C. § 441b; see also MCFL, 479 U.S. at 241-64. If the backup definition of "electioneering communications" under Section 203 of BCRA is upheld, BCRA § 203(a); FECA §§ 316(a), (b)(2); 2 U.S.C. § 441b(a), (b)(2), corporations and unions would be additionally prohibited from using their general treasuries to fund candidate advocacy pieces which promote, oppose, attack, or support federal candidates. BCRA § 201(a); FECA § 304(f)(3)(A)(ii); 2 U.S.C. § 434(f)(3)(A)(ii). Most of the largest nonfederal money contributions to parties are by corporations and unions. See supra note 77. Thus, if national and state parties were allowed to spend unlimited amounts of nonfederal money on candidate advocacy, corporations and unions could largely circumvent the new BCRA Section 203 by funneling unlimited funds through political parties to pay for advertisements that they are now prohibited from broadcasting under Section 441b of FECA. To allow such a circumvention in that manner would be ludicrous. Finally, to permit national (or state or local) parties to convert nonfederal donations, whether from the general treasuries of corporations and unions, or from wealthy individuals and MCFL groups, to the federal purpose of directly influencing a federal election through candidate advocacy of the type defined in Section 301 (20)(A)(iii) is, in and of itself, a direct circumvention of a fundamental premise of the FECA regulatory scheme relating to donations, blessed by the Supreme Court in Buckley and its progeny: only federal money may be used to directly influence a federal election. As long as the Buckley line of cases remains the law, it would make a mockery of those Supreme Court cases and the current regulatory scheme to allow political parties to use soft money to engage in what Justice Kennedy has aptly described as "covert advocacy." Shrink Missouri, 528 U.S. at 406, 407 (Kennedy, J., dissenting).
C. New FECA Section 323(d): Nonfederal Fund Restrictions on Tax-Exempt Organizations
Section 323(d) prohibits national, state, and local parties from donating either soft or hard money to, or soliciting for, either: (1) a Section 527 organization; or (2) a Section 501(c) organization if that organization makes expenditures in connection with a federal election, including expenditures for "federal election activity" as defined in Section 301 (20)(A). BCRA § 101(a); FECA § 323(d); 2 U.S.C. § 441i(d). Judge Henderson strikes down the entire section as unconstitutional. I concur in her judgment, but for different reasons.
First, I would note that the defendants argue that the donation and solicitation restrictions should be reviewed under closely-drawn scrutiny. See Intervenors Opp'n Br. at 21-23. While I agree with the defendants that Buckley's closely-drawn scrutiny should apply to donation limitations to organizations as well as candidates, it is less clear which scrutiny should apply to the solicitation restriction. See J. Henderson Op. at Part IV.D.4. However, if the restriction on solicitation cannot even withstand closely-drawn scrutiny, there is no need to choose between the standards of review. Cf. Blount v. S.E.C., 61 F.3d 938, 942-43 (D.C. Cir. 1995).
As to the statute itself, Section 323(d) prevents national parties from donating any funds to certain Section 501(c) organizations. This complete ban on donations infringes the various parties' abilities to effectuate their members voices, and because it is not even closely drawn to serve a sufficient government interest, it cannot withstand scrutiny. Section 323(d) is not closely drawn as to Section 501(c) organizations because it prohibits solicitation for and donations to those organizations merely because they have made, in effect, expenditures for federal purposes in the past, and regardless of whether those donations will be used again for that very purpose. By not specifying the purpose for which the money will be put, Congress, in effect, is prohibiting solicitation for and donations to these Section 501(c) organizations that might in turn be used for nonfederal or mixed purposes. Congress, of course, can only do this if it could show that a sufficient government interest was being served by doing so. It has not. As discussed at length earlier, the only restrictions on uses of nonfederal funds that can be constitutionally regulated are uses that directly affect a federal election. See supra Parts I.A.2 & I.B.2. Any other use of the donation is too tangential to give rise to the risk of corruption, or appearance of corruption, that is necessary to warrant this congressional infringement on First Amendment rights. To say the least, the defendants have not produced sufficient evidence to demonstrate that an appearance of corruption, let alone corruption itself, arises when organizations of this type use donations from national, state, and local parties for nonfederal or mixed purposes.
Section 323(d) is also constitutionally problematic as a result of its treatment of Section 527 organizations. Section 527 organizations, according to the applicable IRS definition, exist, in part, to influence the selection, nomination, election, or appointment of individuals to state and local public offices, as well as to various political organizations. 26 U.S.C. § 527(e)(1) and (2). Accordingly, since Section 527 organizations could expend the solicited or donated funds for one of these nonfederal or mixed purposes,*fn94 the blanket prohibition in Section 323(d) on national, state, and local parties from assisting them in this manner is similarly not closely drawn. Perhaps if Congress had structured Section 323(d) like Section 323(b) and prohibited these organizations from using nonfederal funds — which they had received from national, state, and local parties to directly affect federal elections, it might have been able to demonstrate that the restriction was closely drawn to serve the sufficient government interest required under any standard of review to justify these infringements. But it did not. Therefore, for all of the above reasons, I conclude that Section 323(d) is unconstitutionally overbroad.
D. New FECA Section 323(e): Nonfederal Fund Restrictions on Federal Candidates
Judge Henderson and Judge Kollar-Kotelly uphold Section 323(e) in its entirety. While I concur to the extent that this section prohibits federal officeholders and candidates from receiving, directing, transferring, or spending any nonfederal funds in connection with any election, including the kind of election activity defined in Section 301 (20)(A),*fn95 I dissent with regard to the prohibition on a federal candidate, or officeholder, from soliciting funds for the benefit of his national party, especially since Congress can and has legally prohibited the parties (national, state, and local) from using nonfederal funds to directly influence federal elections. Accordingly, I am writing separately to dissent in part from, and concur in part in, their opinions.
With regard to the First Amendment rights of federal candidates and officeholders to solicit soft money funds for the use of their parties, I would dissent principally on the basis that the defendants have failed to demonstrate that soliciting nonfederal funds to be used by parties for purposes that, at most, indirectly affect federal elections is regulable by Congress. For example, donations used for such activities as party building, newsletters, genuine issue advocacy, and generic voter mobilization so indirectly affect federal elections, if at all, that they do not give rise to the minimally necessary appearance of corruption to warrant congressional intervention.
Indeed, soliciting donations to be used for the national party on such mixed (and/or nonfederal) purposes is the kind of conduct by officeholders which the public not only would expect them to participate in, but which is fundamental to the successful operation of the major national parties. To the extent that helping their parties in this way provides officeholders with some added status among other party officials, in my judgment, is too attenuated a benefit to give rise to the appearance of corruption necessary to warrant congressional intervention. See supra Part I.A.3. Accordingly, I concur in part in, and dissent in part from, the holding of my colleagues.
E. New FECA Section 323(f): Nonfederal Fund Restrictions on State Candidates
Section 323(f) prohibits state candidates from spending funds for a communication of the type discussed in Section 301 (20)(A)(iii) unless the funds are subject to the limitation, prohibitions, and reporting requirements of FECA (i.e., hard money). Restricting the use of soft money by state candidates for communications that directly affect federal elections is, of course, consistent with my preceding discussion of the constitutionality of Section 301 (20)(A)(iii). By placing this restriction on state candidates Congress is simply guarding against similar conversions of soft money donations to fund communications that are designed to accomplish the federal purpose of directly influencing a federal election. Since this section is closely drawn to uses of soft money by state candidates exclusively for that purpose, I similarly uphold its constitutionality.
II. Title II: Noncandidate Campaign Expenditures
Sections 201, 204, 213
I join with Judge Henderson, but for different reasons, in holding that the primary definition of electioneering communications set forth in Section 201 is unconstitutional. I do not, however, join in her ...