United States District Court, District of Columbia
May 1, 2003
SENATOR MITCH MCCONNELL, ET AL., PLAINTIFFS,
FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS. NATIONAL RIFLE ASSOCIATION, ET AL., PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS. EMILY ECHOLS, ET AL., PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS. CHAMBER OF COMMERCE OF THE UNITED STATES, ET AL., PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS. NATIONAL ASSOCIATION OF BROADCASTERS, PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS. AFL-CIO, ET AL., PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS. CONGRESSMAN RON PAUL, ET AL., PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS. REPUBLICAN NATIONAL COMMITTEE, ET AL., PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, DEFENDANT. CALIFORNIA DEMOCRATIC PARTY, ET AL., PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS. VICTORIA JACKSON GRAY ADAMS, ET AL., PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, DEFENDANT. BENNIE G. THOMPSON, ET AL., PLAINTIFFS, V. FEDERAL ELECTION COMMISSION, ET AL., DEFENDANTS.
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 holding that the backup definition also provided in Section 201 is unconstitutional.
To the contrary, I uphold the backup definition's constitutionality, as does Judge Kollar-Kotelly who joins in my opinion as a necessary alternative to Judge Henderson's and my finding the primary definition unconstitutional. The following are my reasons for rejecting the primary definition and upholding the backup definition.
A. Section 201: The Primary Definition
Title II of BCRA is Congress's attempt to close certain loopholes in FECA and to regulate certain conduct arising from the use, both directly and indirectly, of corporate and union treasury funds to finance electioneering communications that directly affect federal elections, even though masquerading otherwise as "pure issue advocacy." Because, in part, Judge Henderson believes that Buckley and its progeny set forth a bright line test requiring the presence of certain "magic words" advocating the election or defeat of a federal candidate in order for this advocacy to be regulable by Congress, she strikes down both the primary and backup definitions.*fn96 Judge Kollar-Kotelly and I disagree with this reasoning, and I join in the portion of her opinion analyzing why the Supreme Court never intended the so-called express advocacy test to be a constitutional rule of law limiting the power of Congress to regulate expenditures for certain uncoordinated advocacy that directly affects federal elections, notwithstanding the absence of these words.*fn97
While Judge Kollar-Kotelly and I agree regarding Congress's power to regulate the source of the funds used for these communications and the disclosures that donors must file, I do not agree that the primary definition, as crafted by Congress, is sufficiently tailored to regulate the electioneering advocacy it seeks to cover. To the contrary, the primary definition, which regulates communications referring to clearly identified federal candidates based upon when and where they are broadcast, rather than their effect on federal elections, sweeps so broadly that it captures too much First Amendment protected speech that Congress, in the absence of a demonstrated compelling government interest, has no power to regulate. What type of speech is that?
The plaintiffs have clearly demonstrated that corporations, interest groups, labor unions and other entities air genuine issue advertisements in the periods immediately preceding general and primary elections, the sole purpose of which is educating the viewers about an upcoming vote on pending legislation, and encouraging them to inform their elected representative to vote for or against the bill (i.e., legislation-centered advertisements). Edward Monroe, Director of Political Affairs for Associated Builders and Contractors ("ABC"), explained that "serious legislative initiatives or regulatory proposals often are considered near the time of elections." Monroe Decl. ¶¶ 18-19. Laura Murphy, legislative director for the ACLU, seconds this: "[The] 60 days before a general election and 30 days before a primary . . . are often periods of intense legislative activity. During election years, the candidates stake out positions on virtually all of the controversial issues of the day. Much of the debate occurs against the backdrop of pending legislative action or executive branch initiatives." Murphy Decl. ¶ 12. See also Mann Cross Exam. at 176 (explaining that a flurry of legislative activity occurs near the end of a congressional session, therefore, often within the 60 day period preceding a general election); Finding 359.*fn98
Notwithstanding defendants' expert testimony to the contrary,*fn99 interest groups believe, and plaintiffs expert agrees,*fn100 that the periods immediately preceding elections are the most effective times to run issue advertisements discussing pending legislation because the public's interest in policy is at its peak.*fn101 Edward Monroe of ABC explains that "it is clear that members of the public are generally more receptive to and engaged in considering government policy ideas and issues as elections near. If that is the time when people will listen, that is the time to speak. And once an election occurs, there seems to be a period of fatigue during which political matters are of less interest, making issue ads then less effective." Monroe Decl. ¶¶ 18-19; see also Finding 359. Likewise, Paul Huard, Senior Vice President for Finance and Administration for the National Association of Manufacturers ("NAM"), finds that "Americans tend to have greater interest in political matters as an election approaches. At the same time, elected officials are most attuned to the views of their constituents in the pre-election period. Thus, for many purposes, the pre-election season is a critical time for issue ads." Huard Decl. ¶ 10; see also Finding 359.
The mere fact that these issue advertisements mention the name of a candidate (i.e., the elected representative in whose district the advertisement ran) does not necessarily indicate, let alone prove, that the advertisement is designed for electioneering purposes. To the contrary, the testimony of various plaintiffs' witnesses indicates that, in their experience, there are many reasons why it is helpful, if not necessary, to mention a candidate's name in these advertisements in order to focus the public's attention on a particular pending piece of legislation. For example, Paul Huard of NAM states "[t]here are many reasons that an issue ad may need to refer to the name of an elected official or candidate. Many bills are identified with particular sponsors and may be known by the sponsors names. Also, both incumbents and candidates may be prominent people whose support or opposition to a bill or policy may have important persuasive effect. . . . Also, if an issue ad is used to explain why a legislative position of a particular Member of Congress is good for his or her district or state, the member generally must be mentioned. The same is true if the purpose of the ad may be to induce viewers to contact the Member and communicate a policy position." Huard Decl. ¶ 12 (emphasis added); see also Finding 293. Similarly, Denise Mitchell, Special Assistant for Public Affairs to the AFL-CIO, concurred, explaining that it is often necessary to refer to a federal candidate by name because "[t]he express or implied urging of viewers or listeners to contact the policymaker regarding [an] issue is . . . especially effective by showing them how they can personally impact the issue debate in question." Mitchell Decl. ¶ 11; see also Finding 293. A quick review of a classic example of a legislation-centered genuine issue advertisement demonstrates these points.
In 1998, the AFL-CIO aired an advertisement entitled "Barker." The advertisement referred to a federal candidate by name only in the call-to-action line at the end of the advertisement where it urged viewers to call their Member of Congress and express their position regarding the pending Fast Track trade legislation. The legislation was scheduled for a vote in the House of Representatives on September 25, 1998 — within 60 days of the general election. The text of the advertisement is as follows:*fn102
Paid for by the Working Men and Women of the AFL-CIO.
[Barker speaking]: Okay ladies and gents, step right
up and see if you can follow the ball. Is it here? Is
it there? Where could it be? [Voice over]: They're
playing games again in Washington. Without discussion
or debate, they're planning another vote on the
controversial Fast Track law special powers to ram
through trade deals like NAFTA. Fast Track failed
last year because working families don't want more
trade deals that put big corporations first; deals
that ignore our concerns about lost jobs;
environmental problems on our borders, and dangerous,
imported foods. But Newt Gingrich and the sponsors of
Fast Track hope they can sneak it by this fall, while
public attention is focused on other issues. [Barker
speaking]: Keep your eyes on the ball now . . . [Voice
over]: Call Representative ___ at xxx-xxx-xxxx and
tell him to vote no on Fast Track. Tell him we're
still paying attention. And Fast Track is still a bad
Mitchell Decl. Exhibit 116, Exhibit 1 at 86. Defendants' own expert, David Magleby, who stated in his report that he would "presume" an advertisement is electioneering merely because it mentions a federal candidate by name,*fn103
candidly admitted after reviewing "Barker" that such an advertisement is a "genuine" issue advertisement. He concluded as such even though it mentions a federal candidate's name because "[t]he body of the ad has no referent to [a candidate] whatsoever. The only referent to [the candidate] is the call line." Magleby Cross Exam. at 104.
[A] generic call your Congressman, call your Senator,
when then linked to a legislation and call your
Congressman or Senator about this legislation without
a referent to their position on the issue, seems to me
substantively different than when they are mentioned
in view of what their position is on that issue. Q.
When you say substantively different, are you
referring to a difference with respect to whether the
advertisement communicates an electioneering message?
Magleby Cross Exam. at 106.
Because genuine issue advertisements, like "Barker," have been, and will need to be, aired during periods of legislative activity leading up to elections, plaintiffs contend the primary definition, if upheld, will capture them as "electioneering communications."*fn104 As such, they will be subjected to a host of limitations and regulations which, according to the plaintiffs, will limit and chill their ability to engage in First Amendment protected speech. I agree.
The crux of the problem with the primary definition is that, unlike the backup definition, it does not depend on the effect of the communication's message on a candidate's election. As such, many genuine issue ads, like "Barker," will be treated the same as the sham "issue" ads Congress supposedly was intending to regulate. It is the absence of a link between the advocacy of an issue and a candidate's fitness, or lack thereof for election that renders congressional intervention with respect to genuine issue ads of this type unconstitutional. Notwithstanding the absence of this link, defendants contend, and Judge Kollar-Kotelly agrees, that the evidence sufficiently demonstrates that even though some genuine issue advertisements that run in the months leading up to an election will be swept in under this definition, it is too insufficient a number to render the primary definition constitutionally defective. I disagree.
The plaintiffs have met their burden in this facial challenge because they have shown that BCRA's primary definition "reaches a substantial amount of constitutionally protected conduct." City of Houston v. Hill, 482 U.S. 451, 458 (1987) (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)) (emphasis added). Plaintiffs, in short, have demonstrated from the statute's "text . . . and from actual fact that a substantial number of instances exist in which the [l]aw cannot be applied constitutionally." New York State Club Ass'n v. City of New York, 487 U.S. 1, 14 (1988) (emphasis added). These instances are not merely "`some' overbreadth," Ashcroft v. ACLU, 535 U.S. 564, 584 (2002) (quoting Reno v. ACLU, 521 U.S. 844, 896 (1997)), or a "single" or "bare possibility" of an impermissible application. Members of City Council of the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 & n. 19 (1984) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 630 (1973) (Brennan, J., dissenting)). Instead, the plaintiffs have shown, as the Supreme Court aptly put it in Vincent, that BCRA presents "a realistic danger that the statue will significantly compromise recognized First Amendment protections of parties not before the Court." Id. at 800-801.
The evidentiary basis of both the plaintiffs' and defendants' arguments concerning the primary definition's overbreadth is the Buying Time 1998 and Buying Time 2000 studies. While the defendants correctly contend that plaintiffs carry the burden to show that BCRA is substantially overbroad,*fn105 the studies defendants rely upon to show that it is narrowly tailored*fn106 are, in essence, a highly controversial "survey" of the ads run in the months leading up to the 1998 and 2000 elections. Judge Henderson correctly notes in her opinion, see J. Henderson Op. Part IV.A, that the parties "quarrel at length" regarding the significance of the Buying Time studies and, in particular, its conclusions regarding the percentage of genuine issue advocacy that would be improperly regulated by Section 201 of BCRA. Unlike Judge Henderson, I believe that the Buying Time studies are entitled to some evidentiary weight.*fn107
However, I do not believe that the studies' statistical conclusions are the last word in this Court's analysis of whether or not the primary definition is overbroad. With the respect to the percentage of protected, political speech that is, or will be, regulated by BCRA, it is, of course, impossible to quantify the exact percentage with absolute certainty. See New York v. Ferber, 458 U.S. 747, 773 (1982) (explaining that "[h]ow often, if ever" the statute at issue in Ferber would regulate protected speech "cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach."). Thus, it is important not to overstate the significance of the Buying Time studies when using them as the basis of a finding of unconstitutional overbreadth. After all, the studies did not analyze every advertisement that ran in every market during the 1998 and 2000 elections. Instead, they analyzed the top 75 media markets, encompassing eighty percent of the advertisements runs during those elections. See Findings 315-17. I do not state this fact to suggest that every ad had to be reviewed before the studies could be deemed credible, rather, that the percentages produced by the studies may, in fact, be an overstatement, or understatement, of the statute's overbreadth. See Findings 317-18. In addition, I would note that the Buying Time 2000 study did not analyze advertisements run in the 30 days preceding a primary or preference election, even though such ads aired during that period are entirely regulable by BCRA's primary definition. See Finding 316.
Furthermore, this Court, in my judgment, cannot rely upon the results of the two, Buying Time studies without analyzing, to some extent, the parties' dispute regarding the formulas used to produce those results. The defendants favor the formula used in the 1998 study,*fn108 which compares the total number of genuine issue ads regulated by BCRA to the total number of genuine issue ads run in a calendar year. See Findings 335, 336, 337. The result is the percentage of all genuine issue advocacy that would have been regulated by BCRA in the course of that year. The plaintiffs, however, contend that the 1998 formula misstates BCRA's impact because it includes ads that were run outside the 60-day period preceding a general election, and therefore would not have been subject to regulation under the primary definition. See Findings 336, 338. According to the plaintiffs, the formula applied in the Buying Time 2000 study more accurately reflects BCRA's impact by focusing on the exact period of time regulated by BCRA: the 60 days preceding a general election.*fn109 Looking at ads aired only during that 60-day period, the 2000 formula compares the number of genuine issue ads to the total number of ads, thereby calculating the percentage of all ads that would have been regulated by BCRA that were genuine issue ads.*fn110
As the Supreme Court in Broadrick v. Oklahoma stated that a statute's overbreadth must be "judged in relation to the statute's plainly legitimate sweep," I find that the 2000 formula more accurately measures BCRA's impact. 413 U.S. 601, 615 (1973). The results produced by the 1998 formula do not assist this Court in comparing BCRA's overbreadth to its "plainly legitimate sweep," because it measures ads that never would have been regulated by BCRA.*fn111 While the 1998 formula shows BCRA's impact on all genuine issue advocacy over the course of a calendar year, that information is of limited value when BCRA's primary definition applies only in the 30 days preceding a primary election and the 60 days before a general election.*fn112
Applying the 2000 formula to the data collected during the 1998 and 2000 studies shows that the primary definition's overbreadth is neither speculative nor hypothetical, but real and substantial. In 1998, of the ads that met BCRA's primary definition and were aired in the 60 days preceding a general election, 14.7 percent were genuine issue advocacy. See Finding 339. As to 2000, however, the Buying Time 2000 study concluded that figure was only 2.33 percent. See Finding 357. That percentage, however, was later increased by Professor Goldstein, who compiled the data base that served as the foundation of the Buying Time studies. Professor Goldstein testified on cross examination that he had reevaluated the results of the study for the purposes of this litigation and concluded that, in fact, 17 percent of the ads that met BCRA's primary definition and were aired in the 60 days preceding the 2000 general election were genuine issue advocacy. See Finding 357; see also Goldstein Cross Exam. at 160, 169; McConnell Reply Br. at 36-37. Percentage discrepancies aside, I find that 14.7 percent and 17 percent of the ads run in the months leading up to the 1998 and 2000 elections, respectively, represents a "substantial amount" of protected speech and renders the primary definition defective as constitutionally overbroad.
But these statistics, alone, do not present the full picture of BCRA's impact on genuine issue advocacy in the 60 days preceding a general election. Indeed, determining whether BCRA's primary definition reaches a substantial amount of constitutionally protected issue advocacy is not simply a function of calculating the percentage of pure issue ads that would have been captured by that definition during the 60-day period preceding the 1998 and 2000 federal elections. Because the total amount of issue advocacy likely to be generated in any given election year is a function of both the quantity and nature of the issues Congress chooses to address in that pre-election period, those numbers should not be viewed in a legislative vacuum. Ideally, this court should additionally assess whether the legislative agendas in 1998 and 2000 were unusually active, controversial or both. Regrettably, however, the record does not lend itself to such an analysis. Obviously, the more active and/or controversial the legislative schedule, the greater (or lesser) the amount of issue advocacy one would expect it to have generated. Simply put, the amount of pure issue advocacy captured in a particularly contentious, or active, legislative period, is likely to be higher than that captured in a slow, or routine, legislative period. Furthermore, restricting 14.7 percent of genuine issue advocacy in 1998 would have restricted otherwise protected speech that would have been seen in 30 million American homes, a number that brings into sharp relief the effect BCRA will have on the amount of in formation available to voters. See Finding 335. Accordingly, for the reasons stated previously, there is reason to believe that the amount of issue advocacy likely to be generated in future election cycles will be at least as substantial as it was during those years.
Ever mindful that overbreadth is "strong medicine" to be used "sparingly and only as a last resort," Broadrick, 413 U.S. at 613, I do not lightly find that the primary definition of electioneering communications is substantially overbroad. However, the realistic danger that the primary definition of electioneering communications will significantly compromise genuine issue advocacy necessitates such a finding. In circumstances such as these, "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002) (quoting Broadrick, 413 U.S. at 612). I therefore find that the primary definition of electioneering communications is unconstitutionally overbroad.
I do not, however, join in Judge Henderson's conclusion that both the primary and backup definitions of electioneering communications are unconstitutional due to underinclusion. Plaintiffs argue, and Judge Henderson agrees, that Section 201 must fail because it regulates only broadcast and cable communications, but does not regulate other mediums of communication such as print, direct mail, and the internet.*fn113 I disagree and join Judge Kollar-Kotelly's analysis on that issue. See J. Kollar-Kotelly Op. at Part III.I.F. However, one point bears emphasizing: Congress is infinitely more familiar than this Court with the circumstances and practical ramifications surrounding federal elections and campaign finance laws. The record thoroughly, and convincingly, demonstrates that Congress's decision to regulate broadcast communications, rather than other forms of communication, was well justified. Congress, as defendants argue, "need not regulate the entire universe of activity intended to influence federal elections" in order to constitutionally regulate electioneering communications. Govt Opp'n Br. at 96. As Congress, in its expertise, has made this judgment and the record "demonstrates that the recited harms [justifying a statute] are real," plaintiffs' argument that the statute is unconstitutional for underinclusion is unavailing. Turner I, 512 U.S. at 664.
B. Section 201: The Backup Definition
Unlike the primary definition, the backup requires as a link between the identified federal candidate and his election to that office, certain language the purpose of which is advocacy either for, or against, the candidate. For the same reasons that the absence of that link doomed the primary definition, it sustains the backup.
Congress concluded, and the record more than adequately demonstrates, that in the twenty-eight years since Buckley, corporations, unions, and interest groups, have increasingly affected federal elections by funding out of their general treasuries uncoordinated "issue ads" that either they, or a political party, ran in the months leading up to an election. See Findings 280-84, 296-301; see also Annenberg Study at 1, 4, 3, 7-8 (showing that the number of issue advertisements has increased, as well as the number of groups airing them, from 1996 to 1998, and that corporations, interest groups, and unions began in 1996 to actively use treasury funds to sponsor issue advertisements that "looked and sounded like campaign ads."). In order to avoid regulation as express advocacy, those so-called "issue advertisements" did not contain certain "magic words" designed to support or oppose a specific candidate's election or re-election.*fn114 The ads, however, were constructed in such a way that they simultaneously presented their sponsors' stand on an issue, identified a specific candidate's positions or track record thereon, and under the guise of admonishing the viewer to inform the candidate of his view, suggested that a candidate who takes (or has taken) the candidate's position should (or should not) be elected to that office. Ads such as these have been typically described as "sham issue advertisements,"*fn115 or candidate-centered advertisements, and the factual record unequivocally establishes that they have not only been crafted for the specific purpose of directly affecting federal elections, but have been very successful in doing just that. See Findings 273-74. Indeed, they have been so successful that it is widely believed in the industry that old fashioned express advocacy of the "magic words" type is far less effective in winning over a viewer's vote. See Findings 273-74, 279; see also Bailey Decl. ¶¶ 1-2 (stating that "it is rarely advisable to use such words as `vote for' or `vote against.'").
Defendants contend that because these sham issue ads, in essence, directly affect federal elections, candidates are "beholden" to those who fund them.*fn116 It is that indebtedness, according to the defendants, that if left unregulated, will undermine the public's confidence in the integrity and fairness of our electoral process in the same way that unregulated express advocacy otherwise would, and thereby give rise to corruption or the appearance of corruption. See Mellman and Wirthlin at 9-10.*fn117 For essentially the same reasons that I uphold Congress's definition of federal election activity in Section 301 (20)(A)(iii), see supra Part I.B.2, I believe that large soft money expenditures to fund this type of covert advocacy, regardless of whether corporations, labor unions, and interest groups produce them themselves, give rise to a public perception that the candidate is being directly benefitted and will naturally reciprocate with either favored access, or increased legislative influence, or both. See id. Accordingly, the source of the funds used and the identity of the sponsors are both, in my judgment, regulable by Congress.
Plaintiffs raise a number of arguments as to why the backup definition of electioneering communications is "impermissibly vague." McConnell Opening Br. at 70. First, they claim that "reasonable people can, and emphatically do, disagree about whether virtually any particular advertisement meets the criteria of BCRA's fallback definition." Id. As proof of the definition's vagueness, plaintiffs offer the deposition testimony of one of BCRA's sponsors and one of defendants' expert witnesses, in which they disagree about whether a particular ad is a genuine issue ad, or whether it promotes or supports a particular candidate.*fn118 Plaintiffs also offer testimony of two Members of Congress, in which one concludes that a particular ad supports a candidate, while the other concludes that the same ad attacks the candidate.*fn119 While BCRA's sponsors may disagree about the purpose and effect of an ad, that fact alone does not demonstrate unconstitutional vagueness. Perfect clarity, of course, is not required when a law regulates speech. As the Supreme Court said in Grayned, "we can never expect mathematical certainty from our language." 408 U.S. at 110 (1972). For this reason, the Supreme Court has held that a statute's vagueness exceeds constitutional bounds only when "its deterrent effect on legitimate expression is . . . both `real and substantial' and . . . the statute is [not] readily subject to a narrowing construction by state courts." Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976) (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975)) (emphasis added). Moreover, if a statute "gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited," it is not void for vagueness. Grayned, 408 U.S. at 108.
Next, plaintiffs contend that the definition's use of the words "promote," "support," "attack," and "oppose" to define the sponsor's message causes it to be unconstitutionally vague.*fn120 I disagree. The backup definition's language, specifically those words, is not void for vagueness because a person of ordinary intelligence would understand what is prohibited. See Grayned, 408 U.S. at 108. Indeed, one need only conclude, in effect, that the ad is not neutral as to both candidates for it to have satisfied the backup definition, and thereby have satisfied the objective First Amendment standard that a reasonable person considering the context and nature of the expression at issue is able to evaluate the speech. Such objective tests have routinely been applied in the First Amendment context. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989) (religious expression); Hess v. Indiana, 414 U.S. 105 (1973) (fighting words); Miller v. California, 413 U.S. 15 (1973) (obscenity); Brandenburg v. Ohio, 395 U.S. 444 (1969) (fighting words). For example, the following advertisement entitled "No Two Way" and sponsored by the AFL-CIO is not neutral as to a federal candidate, as it attacks his or her position on the federal budget. Mitchell Decl. ¶ 41. While former Congresswoman Andrea Seastrand is named, this advertisement also ran in thirty-five other congressional districts, naming federal candidates from those districts.
CAROLYN: My husband and I both work. And next year, we
will have two children in college. And it will be very
hard to put them through, even with the two incomes.
[Announcer]: Working families are struggling. But
Congresswoman Andrea Seastrand voted with Newt
Gingrich to cut college loans, while giving tax breaks
to the wealthy. She even voted to eliminate the
Department of Education. Congress will vote again on
the budget. Tell Seastrand, don't write off our
children's future. CAROLYN: Tell her, her priorities
are all wrong.
Mitchell Decl. Exhibit 114. Congress is not, and should not be, constitutionally confined to "bright line" tests such as the primary definition or the "magic words" formulation in enacting campaign finance restrictions. A person of ordinary intelligence can be expected to understand this test, and know what is prohibited.
However, while I do not believe that the words used to define the message are vague, I do believe that the backup definition's final clause, which requires the message to be "suggestive of no plausible meaning other than an exhortation to vote," is unconstitutionally vague. In my judgment, it is extremely difficult, if not impossible, for a speaker to determine with any certainty prior to airing an ad that it meets that requirement. Whether an ad is suggestive of no plausible meaning other than an exhortation to vote depends on a number of variables such as the context of the campaign, the issues that are the centerpiece of the campaign, the timing of the ad, and the issues with which the candidates are identified.*fn121 The "uncertain meaning" of this phrase in the backup definition will, as the Supreme Court stated in Grayned, "inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas are clearly marked." 408 U.S. at 109. The chilling effect of this language does not doom the backup definition as unconstitutionally vague, however, because it is susceptible to a saving construction. See Edward J. Debartolo Corp. v. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1998) ("[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality." (quoting Hooper v. California, 155 U.S. 648, 657 (1895)); see also Carlin Communications, Inc. v. FCC, 837 F.2d 546, 560-61 (2d Cir. 1988) (finding that as "the presumption is in favor of severability," the court "dropped" the "invalid part" from an FCC regulation, i.e., the words "or indecent," because "the remainder of the statute is fully operative."), cert. denied, 488 U.S. 984 (1988).
The backup definition's susceptibility to a saving construction is a function of how it is written. Because the offending phrase is simply appended to the end of the definition, it can be excised without rewriting the entire definition. See Commodity Futures Trading Comm'n, 478 U.S. at 841 ("Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of statute . . . or judicially rewriting it." (quoting Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964) (internal quotations omitted)). By so construing the backup definition to avoid vagueness, the definition assures that there will be no real, let alone substantial, deterrent effect on political discourse unrelated to federal elections. Genuine issue advocacy thereby remains exempt from both the backup definition and its attendant disclosure requirements and source restrictions. Similarly, genuine issue advocacy, specifically of the legislation-centered type, that mentions a federal candidate's name in the context of urging viewers to inform their representatives or senators how to vote on an upcoming bill will not be regulated by the backup definition because it does not promote, support, attack, or oppose the election of that candidate. See Findings 368-73 (providing examples of legislation-centered advertisements that do not promote, support, attack, or oppose the election of a federal candidate).
Indeed, the backup definition of electioneering communications with its final clause severed is very similar to the type of "public communication" defined by BCRA's Section 301 (20)(A)(iii) as "federal election activity." See BCRA § 301 (20)(A)(iii). While the arguments against vagueness applicable to Section 301 (20)(A)(iii) are generally applicable to the backup definition, one distinction is important to note: the sophistication in electioneering communications of the parties being regulated is not equally applicable to the backup definition. That said, however, I do not believe it is necessary to make a similar finding here in regard to the comparative sophistication of corporations, labor unions, interest groups, and other participants in political speech. Additionally, whatever chilling effect, if any, the definitions of"public communications" and "electioneering communications" may have are minimized in two, substantial ways: (1) corporations, labor unions, national banks, individuals, and other entities can avoid regulation simply by not mentioning a candidate for federal office in its ad, and (2) those groups may seek an advisory opinion from the FEC to determine whether a communication is regulated by BCRA.*fn122
Thus, the plaintiffs have failed to demonstrate that the vagueness of the backup definition as severed is real and substantial enough to deprive a person of ordinary intelligence a reasonable opportunity to know what is prohibited. As such, the backup definition of electioneering communications is constitutional.
C. Section 204: The Wellstone Amendment
While I join Judge Henderson in holding that Section 204 is unconstitutional as it applies to MCFL nonprofit corporations, I do not agree that it is unconstitutional as it applies to those nonprofit corporations that do not qualify for MCFL status. Therefore, I am writing separately to explain my reasons for joining with Judge Henderson in part, and with Judge Kollar-Kotelly in part who upholds the constitutionality of Section 204 for different reasons.
Defendants concede that Section 204 does not contain an exemption for MCFL organizations. However, defendants argue that an exemption nonetheless exists for those organizations because the Supreme Court in MCFL "carve[d] out an as-applied exemption to restrictions on corporate election activity." Govt Opening Br. at 167 (emphasis in original). It is therefore inconsequential, according to the defendants, that BCRA does not codify the MCFL exemption. The defendants' reasoning misses the mark.
Under FECA, nonprofit corporations were required to pay for express advocacy expenditures from a separately segregated fund, rather than general treasury funds, unless that corporation met the three requirements set forth by the Supreme Court in MCFL.*fn123 Section 203 of BCRA expands FECA's separately segregated fund requirement to apply not only to corporate expenditures for express advocacy, but to expenditures by corporations, labor unions, and national banks for electioneering communications (i.e., nonexpress advocacy), as defined by Section 201. Likewise, Section 203 expands the exemption for nonprofit corporations from the separately segregated fund requirement of FECA. Whereas only those nonprofit corporations that met the three requirements set forth in MCFL were exempt from FECA's separately segregated fund requirement, Section 203 of BCRA ignores completely the MCFL criteria and instead provides that all nonprofit corporations organized under either Section 501(c)(4) or Section 527(e)(1) of the Internal Revenue Code may pay for electioneering communications using general treasury funds, simply by virtue of their incorporation under those sections. Doing so, in my judgment, was perfectly consistent with both MCFL and Congress's power under the Elections Clause, U.S. Const. art. I, § 4.
What Section 203 provides, however, Section 204 takes away. As defendants acknowledge, Section 204 completely cancels out the exemption for all nonprofit corporations provided by Section 203. See Gov't Opening Br. at 164, n. 115. Plaintiffs contend, and Judge Henderson agrees, that Section 204 is unconstitutional because, in essence, it contravenes the Supreme Court's decision in MCFL.*fn124 I, too, agree with this conclusion, but I also believe that Section 204 is unconstitutional only in its application to those nonprofit organizations exempted under MCFL. Congress, in my judgment, has the authority to withdraw the exemption it provided in Section 203 to those nonprofit corporations not exempted by MCFL. Thus, the fact that Section 204 applies to nonprofit corporations does not, in and of itself, impair its constitutionality; the critical factor is whether the nonprofit corporation that is being regulated is one protected from such regulation by the MCFL holding.
Congress's authority to withdraw the expansion of the exemption rests on the same basis as its authority to require non-MCFL, nonprofit corporations to use only separately segregated funds to purchase electioneering communications: the demonstrated appearance of corruption that arises if for-profit corporations and unions are able to funnel their general treasury funds through nonprofit corporations in order to purchase electioneering communications that they cannot otherwise purchase directly.*fn125 Judge Kollar-Kotelly sets forth this reasoning in the portions of her opinion upholding Section 203's prohibition on the use of corporate and union treasury funds, and Section 201's disclosure requirements, for corporations, unions, and nonprofit corporations. See J. Kollar-Kotelly Op. at Part III.I.E.1.a. I concur in her reasoning and it needs no further repetition here.
Accordingly, for the reasons stated above and the relevant portions of Judge Kollar-Kotelly's opinion, I hold that Section 204 is unconstitutional only in its application to MCFL, nonprofit corporations.
D. Section 213: The Party Choice Provision
Under FECA, as interpreted by the Supreme Court in Colorado I, and Colorado II, national party committees could make unlimited independent expenditures on behalf of a federal candidate, as well as coordinated expenditures up to the amount provided for by the Party Expenditure Provision, 2 U.S.C. § 441 a(d).*fn126 BCRA, however, changes this by forcing national parties, in effect, to choose between making coordinated expenditures and unlimited independent expenditures on behalf of their federal candidates. The defendants contend that such a choice is necessary, because once a national party coordinates with a candidate, no expenditure thereafter is truly independent.*fn127 While I agree that Congress can constitutionally place restrictions on the ability of a national party to make coordinated expenditures, Section 213's restriction on national party independent expenditures flies in the face of the Supreme Court's holding in Colorado I, and is therefore unconstitutional.*fn128
The provisions of Section 213 are, as plaintiffs acknowledge, "relatively straightforward." McConnell Opening Br. at 85. After the date on which a party nominates its candidate, if it first makes an independent expenditure on behalf of that candidate, any subsequent coordinated expenditure will be subject to the same $5,000 limitation that exists for multicandidate committee expenditures, and not under the higher limitation set forth in formula form in the Party Expenditure Provision of Section 441a(d) of FECA. Conversely, if the party chooses to first make a coordinated expenditure on behalf of a candidate, thereby taking advantage of the higher, formula-based dollar limitation under the Party Expenditure Provision, it cannot thereafter make any independent expenditures on behalf of that candidate. Additionally, Section 213 treats "all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee)" as a "single political committee." Finally, Section 213 forbids transfers, assignments, and receipt of funds by a committee of a political party that has made a coordinated expenditure for a federal candidate to a political party committee "that has made or intends to make an independent expenditure with respect to the candidate." BCRA § 213; FECA § 315(d); 2 U.S.C. § 441a(d).
Plaintiffs argue that the practical effect of Section 213 is to "ban political parties from making independent expenditures at all (if they choose to make coordinated expenditures first), and to ban them from making coordinated expenditures at all (if they choose to make independent expenditures first)." McConnell Opening Br. at 86. As to the latter claim, plaintiffs undoubtedly exaggerate Section 213's reach. While it is clear that it does prevent national party committees that have made an independent expenditure on behalf of a federal candidate from making coordinated expenditures up to the increased amount as calculated under the formula in 2 U.S.C. § 441a(d), they are still able nonetheless to make coordinated expenditures (or contributions) up to the $5,000 limitation provided in 2 U.S.C. § 441a(a)(2), just like any other multicandidate committee. Thus, since the national political parties may still make coordinated expenditures after making an independent expenditure first, the real issue before this Court is the constitutionality of Congress's new provision prohibiting national political party committees from making independent expenditures if it has first made a coordinated expenditure on behalf of a federal candidate. Applying a strict scrutiny review to this prohibition,*fn129 I find that Section 213's restriction on independent expenditures by national political parties is unconstitutional.
The Supreme Court made clear in Colorado I that "[t]he independent expression of a political party's views is `core' First Amendment activity no less than is the independent expression of individuals, candidates or other political committees," 518 U.S. at 616, and it cannot therefore be restricted unless the expenditures pose "special dangers of corruption."*fn130 Id. Despite the FEC's contention in Colorado I that "all party expenditures should be treated as if they had been coordinated as a matter of law" because "`party officials will as a matter of course consult with the party's candidates before funding communications intended to influence the outcome of a federal election,'" the Supreme Court found that no such risk of corruption existed. 518 U.S. at 619, 620 (citing the brief of the FEC). "[T]he constitutionally significant fact" upon which the Supreme Court relied to determine that national political parties could, like any other political speaker, exercise their First Amendment right to make independent expenditures without posing a risk of corruption, "is the lack of coordination between the candidate and the source of the expenditure." Id. at 617 (emphasis added). Absent such evidence, the Supreme Court refused to accept "as a factual matter" the FEC's contention that all expenditures by a party were ipso facto coordinated.*fn131 Id. at 621.
Section 213 conditions a party's exercise of its First Amendment right to make independent expenditures upon its having refrained from engaging in coordinated expenditures up to the limit of the Party Expenditures Provision. Defendants' argument that "[p]roviding . . . an option, which a party committee is free to accept or decline, does not constitute a restriction of First Amendment rights" is, at best, fanciful. Gov't Opening Br. at 180.*fn132 By mandating that a party that has made a coordinated expenditure cannot thereafter make independent expenditures, BCRA leaves national political parties with the familiar predicament of only being able to make expenditures up to the Party Expenditure Provision limits set forth in 2 U.S.C. § 441a(d). Indeed, this is the very situation the Supreme Court found unconstitutional in Colorado I.
Defendants have produced no evidence of "special dangers of corruption" posed by national parties making an independent expenditure after having made one or more coordinated ones. At most this Court is presented with defendants' own speculation and suspicion that all expenditures made after a coordinated expenditure are necessarily coordinated between candidate and party. of course, if they had such evidence of corruption or potential corruption, then restrictions on the independent expenditures of national parties might possibly be warranted. However, the nature of the defendants' concerns about coordination between parties and candidates*fn133 are such that they can file a complaint with the FEC challenging whether a party's expenditure on behalf of a candidate is, in fact, independent. A complete ban on all party independent expenditures after a coordinated expenditure has occurred is just not sufficiently tailored to deal with that type of problem. Moreover, Section 213's ban on independent expenditures treats national political parties differently than other political actors even though, as mentioned previously, a party's independent expenditures are no less protected as First Amendment activity than that of others. See Colorado I, 518 U.S. at 616.
Having rejected Section 213's ban on independent expenditures for parties that have first made coordinated expenditures, I find it unnecessary to reach the constitutionality of the two remaining provisions of Section 213: the provision treating all committees of a party as a single committee, and the provision forbidding transfers and receipt of funds between committees of a political party. Even if I found those provisions to be constitutional, I do not believe — after finding the ban on independent expenditures unconstitutional that a saving construction can be applied to Section 213 so that it is consistent with Congress's clear intent to provide a choice to parties between unlimited independent expenditures and coordinated expenditures up to the Party Expenditure Provision limit.*fn134 Applying a saving construction to the statute that would allow only one option, but not the other, would flout that intent. Therefore, for the reasons set forth above, Section 213 of BCRA is, in our judgment, unconstitutional.
III. Section 318: Prohibition of Donations by Minors
I concur in the judgment of Judge Henderson and Judge Kollar-Kotelly that Section 318, which prohibits children from making contributions to candidates or donations to political parties,*fn135 is unconstitutional. I write, however, only to explain why I believe this Court should evaluate this provision under the strict-scrutiny standard of review.
If Section 318 were a complete ban on adults, instead of on minors, Supreme Court precedent would require us to review such a provision under the strictest of scrutiny. Indeed, one of the primary reasons that the Supreme Court reviewed contribution limitations in Buckley under the less-demanding closely-drawn standard of review was because contribution limitations permit some expression of support. 424 U.S. at 20-21. A complete ban on donations, on the other hand, prevents even a symbolic expression of support for a candidate or a party's agenda. Id. Similarly, Section 318 merits heightened scrutiny regardless of the age of those it silences. Simply stated, the standard of review applied by this Court should be a function of the constitutional rights being infringed upon, rather than the age of those whose rights are being infringed.
Children, like adults, are protected by the Constitution.*fn136 The Supreme Court, however, has made clear that minors in certain circumstances should not be treated in the same way as adults, repeatedly upholding laws that treat them differently.*fn137 Because the treatment of minors by the Supreme Court has varied across a wide range of circumstances, lower courts have had to wrestle with some uncertainty in assessing when the state's power can trump the rights of children, but not those of adults. Indeed, the Supreme Court itself acknowledged that uncertainty: "The question of the extent of state power to regulate conduct of minors not constitutionally regulable when committed by adults is a vexing one, perhaps not susceptible of precise answer." Carey v. Population Services International, 431 U.S. 678, 692 (1977). Two years later the Supreme Court shed greater light on the matter in Bellotti v. Baird, when it identified certain reasons that justify the disparate treatment:
We have recognized three reasons justifying the
conclusion that the constitutional rights of children
cannot equated with those of adults: the peculiar
vulnerability of children; their inability to make
critical decision in an informed, mature manner; and
the importance of the parental role in child rearing.
443 U.S. at 634.
While these reasons provide clearer guidance on when children can be treated differently from adults, they do not, however, explain whether a court, having found one of those reasons present, should employ a lesser standard of review in evaluating children's constitutional rights or merely rely upon one of the reasons as a factor in recognizing a government interest justifying the regulation. In this jurisdiction, the D.C. Circuit seemingly answered that question for certain circumstances.
In Hutchins v. D.C., where the D.C. Circuit upheld the District of Columbia's imposition of a curfew on minors, 188 F.3d 531, 541 (1999) (en banc), the Circuit Court, in applying the Baird reasons, concluded that children may be more "vulnerable to harm during curfew hours than adults," "are less able to make mature decisions in the face of peer pressure, and "are more in need of parental supervision during curfew hours." Id. For those reasons, it decided to review the curfew statute under intermediate scrutiny and found the curfew was substantially related to the achievement of important government interests. Id. Here, however, I do not believe that we should lower the level of scrutiny. In Hutchins, and other cases in which courts applied a lesser standard of review, the courts identified paternalistic state interests in protecting children from harm, or acting in loco parentis. The D.C. Circuit, in Hutchins, was particularly concerned that children are "vulnerable to harm during curfew hours." Id. And in cases concerning decisions by children that affect procreation — cases in which the Supreme Court has applied a lesser standard of review the Court has been equally concerned that children may make decisions that harm themselves.*fn138
Section 318 of BCRA was not drafted out of a concern to safeguard children against harming themselves in the absence of their parents (i.e., the state acting in loco parentis), but to prevent parents from using their children to circumvent existing donation limitations to political parties and politicians. Because it involves political expression, this case is not unlike Tinker v. Des Moines Independent Community School District, in which the Supreme Court rejected a school district's attempt to discipline students wearing black armbands to express their opposition to the Vietnam War. 393 U.S. 503 (1969). Even in a case where the students were in the custody of the state, the Supreme Court recognized that the speech caused no harm to, nor interrupted the learning of, the state's charges. Id. at 508-09. It emphasized that "[s]tudents in school as well as out of school are `ersons' under our Constitution. They are possessed of fundamental rights which the State must respect." Id. at 511. Such cases involving government interests, unrelated to the protection of children, do not warrant review under any scrutiny less than strict. The political expression of children, especially if they are old enough to work and pay taxes, surely deserves the same level of constitutional scrutiny as a young adult old enough to attend college and vote.
This does not mean, of course, that the government need entirely ignore the fact that some children do not possess "that full capacity for individual choice which is the presupposition of First Amendment guarantees," Ginsberg, 390 U.S. at 649-50, and that they sometimes cannot make "critical decisions in an informed, mature manner," Baird, 443 U.S. at 634. It simply means that the government, and the courts, can take into account these concerns when evaluating whether there is in fact a compelling government interest. Here, for example, the government could claim that children under thirteen who generally have no means independent of their parents and rarely make financial decisions independent of their parents, are vulnerable to being represented by their parents as having made donations which, in effect, circumvent contribution limits. If there were in fact more substantial evidence of such circumvention, see J. Kollar-Kotelly Op. at Part 111.111, and the provision were more narrowly tailored to serve the circumvention concern, see J. Henderson Op. at Part IV.E, then restrictions, which are somewhat more onerous on children than on adults given a child's lack of independence, may be justifiable based on a compelling government interest. That is not the case here. For these reasons and for those set forth, in part, by Judge Kollar-Kotelly and Judge Henderson, I agree that the prohibition on donations by children is unconstitutional.
IV. Section 504: Public Access to Broadcasting Records
Section 504 requires broadcast licensees to collect and disclose records of any "request to purchase broadcast time" that "is made by or on behalf of a legally qualified candidate for public office" or that relates "to any political matter of national importance," including communications relating to "a legally qualified candidate," "any election to Federal office," and "a national legislative issue of public importance." BCRA § 504; FECA § 315(e)(1); 47 U.S.C. § 315 (e)(1).*fn139 Since "compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights," Buckley, 424 U.S. at 66, the Supreme Court insisted that any law compelling disclosure of campaign information must be reviewed under "exacting scrutiny," id. at 64, such that the government interest served is "substantial," id. at 80, and "sufficiently important to outweigh the possibility of infringement," id. at 66. For the following reasons, I find that the record does not establish the existence of a substantial governmental interest necessary to warrant the disclosure requirements set forth in Section 504.
Section 504 is different from the other disclosure provisions in BCRA in two important ways: (1) broadcast licensees, not the purchasers, are required to make the disclosures; and (2) the disclosures are required for broadcasts on "political matters of national importance" as well as on federal candidates. In relation to disclosure of communications by, and relating to, federal candidates, the government has provided no evidence that Section 504 serves any of the government interests specified in Buckley.*fn140 Indeed, Section 201, which this Court finds constitutional in part, already requires purchasers of "electioneering communications" to disclose a wide array of information, including the amount of each disbursement and the elections to which the electioneering communications pertain. BCRA § 201(a); FECA § 304(f)(2); 2 U.S.C. § 434(f)(2). These disclosure requirements for purchasers in Section 201 mirror many of the provisions for broadcast licensees in Section 504, and the defendants have provided no evidence that such a belt-and-suspender approach is necessary. Moreover, they have provided no evidence suggesting, let alone proving, that purchasers have evaded, or will evade, disclosure requirements. And though the defendants made an offhanded reference to the importance of ensuring that broadcast requests are processed in an "even-handed fashion," Gov't Opp'n Br. at 134-35, there is nothing in the record which demonstrates that broadcast licensees have treated purchasers unfairly.
As to noncandidate-focused communications which supposedly relate to "political matters of national importance" (e.g., "a national legislative issue of public importance"),*fn141 disclosure requests are even more difficult to justify. First, such disclosure requirements fail to serve any of the three sufficient government interests set forth in Buckley because those interests are specific to evaluating, and preventing corruption of, federal candidates. See supra note 135. Second, the defendants' contention that there is a substantial government interest in helping the public identify the sponsors of political broadcasts and evaluate the credibility of the political message, see Gov't Reply Br. at 89-90, does not quite square with the holding in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999). In American Constitutional Law Foundation, the Supreme Court did recognize a substantial government interest in disclosing the names and addresses of ballot-initiative proponents who pay circulators to collect signatures, explaining that disclosure was "a control or check on domination of the initiative process by affluent special interest groups." Id. at 202. Here, however, the defendants have provided no evidence that "special interest groups" have, as yet, dominated or co-opted broadcast communications relating to political issues of national importance. See id. at 203 (refusing to require disclosure of petition circulators' names and amounts paid because the "lower courts fairly determined from the record as a whole" that the benefit of such information had not been demonstrated).
Absent such evidence, the government lacks a constitutionally acceptable justification to enact a disclosure provision that imposes an onerous collection and disclosure system on broadcast licensees; infringes the associational rights of groups and their members who engage in broadcasting; and potentially curtails political speech invaluable to an informed electorate. In Buckley v. Valeo, the D.C. Circuit rejected FECA Section 437a, a disclosure requirement that also encompassed "completely nonpartisan public discussion of issues of public importance." See Buckley v. Valeo, 519 F.2d 821, 870, 869-78 (D.C. Cir. 1975).*fn142 In so doing, the court explained:
[I]ssue discussions unwedded to the cause of a
particular candidate hardly threaten the purity of
elections. Moreover, and very importantly, such
discussions are vital and indispensable to a free
society and an informed electorate. Thus the interest
of a group engaging in nonpartisan discussion ascends
to a high plane, while the governmental interest in
disclosure correspondingly diminishes.
Id. at 873. I could not agree more. In the absence of evidence that disclosure of nonelection-related broadcasts serves a substantial government interest, Section 504 cannot withstand scrutiny.
V. Findings of Fact
Despite our best efforts to produce a complete set of Findings of Fact, in which two or more members of this Court concur, we were unable to do so.
Because of the critical importance of the facts to the holdings in the case, and the sheer enormity of the record developed by the parties, I believe it necessary to set out, for the most part,*fn143 those facts which in my judgment are sufficiently relevant and probative to rely upon in reaching my conclusions. Accordingly, while there may be other relevant and probative facts in the record, I do not accord them sufficient weight to warrant either relying on them in my judgments, or including them in my Findings.
Moreover, in some instances where evidence was submitted by one side or another (or both) on a particular point, but in my judgment that evidence did not meet this standard, I have either commented specifically to that effect, or simply stated that there was "no probative evidence in the record" as to that point. In other instances, where I accorded great weight to the relevant and probative evidence submitted on a particular point, I have specifically acknowledged that that evidence was "substantial" or "overwhelming" as to that point. In those limited circumstances where the evidence submitted by one side was not controverted by the other, I have acknowledged the "uncontroverted" nature of the evidence on that point.
Finally, I would be remiss to not acknowledge the herculean effort expended by the parties in assembling this "elephantine"*fn144 record over a seven-month time period. It is a testament, indeed, to their sense of professionalism and duty on a matter of utmost importance to our system of government. Moreover, the job of reviewing and evaluating this record would have been substantially more difficult, and less reliable, in my judgment, if they had not assembled these factual materials with such extraordinary care.
That said, upon reviewing the record as a whole, I make the following Findings of Fact:
As to BCRA's restrictions on nonfederal funds, I find that
National Parties and Their Congressional Campaign Committees
1. The national committees of the two major political parties are: the
Republican National Committee ("RNC"); the National Republican
Senatorial Committee ("NRSC"); the National Republican Congressional
Committee ("NRCC"); the Democratic National Committee ("DNC"); the
Democratic Senatorial Campaign Committee ("DSCC"); and the
Democratic Congressional Campaign Committee ("DCCC"). Vogel*fn145
Decl. ¶ ¶ [DEV 9-Tab 41]; McGahn*fn146 Decl. ¶ ¶
[DEV 8-Tab 30]; Jordan*fn147 Decl. ¶ ¶ [DEV 7-Tab 21];
Wolfson*fn148 Decl. ¶ ¶ [DEV 9-Tab 44].
National Party Nonfederal Fundraising and Spending
2. According to defendants' expert Mann
In 1980 the national Republican party spent roughly $15 million in
soft money, the Democrats $4 million. This constituted 9% of total
spending by the two national parties. In 1984 the amount of soft
money spent by the national parties increased marginally to $21.6
million but it constituted a smaller share (5%) of total national
party activity. In 1988. . . . [p]arty soft money spending more
than doubled to $45 million, which was 11% of national party
totals. . . . By 1988, both parties had developed effective means
of courting large soft money donors. After the election,
Republicans revealed that they had received gifts of $100,000 each
from 267 donors; Democrats counted 130 donors contributing $100,000
or more. . . .
Mann Report at 12-13 [DEV 1-Tab 1] (citations omitted).
3. The 1992 election cycle was the first in which nonfederal donations
were tracked by the FEC. During that cycle the Democratic and
Republican parties together raised $86. 1 million in nonfederal
funds. During the 1994 election cycle the two major parties raised
$101.6 million in nonfederal funds. During the 1996 cycle the
combined total rose to $263.5 million but dropped to $222.5 million
during the 1998 cycle. During the presidential election cycle of
2000 they raised a combined total of $487.5 million in nonfederal
funds. In the past election cycle of 2002 cycle they raised $495.8
million in nonfederal funds. See Press Release, FEC, Party
Fundraising Reaches $1.1 Billion in 2002 Election Cycle (Dec. 18,
2002), available at
4. There was
a threefold increase in national party soft money
activity between 1992 and 1996 from $80 million
to $272 million. Soft money as a share of total
national party spending jumped from 16% to 30%.
Both parties and their elected officials worked
hard to solicit soft money donations from
corporations, wealthy individuals, and labor
unions. During the 1996 election the national
party committees received . . . approximately
27,000 contributions from federally prohibited
sources . . . Less than $10 million of the $272
million was contributed directly to state and
local candidates in the 1996 cycle. The two
parties transferred a total of $115 million in
soft money to state party committees, which
financed two-thirds of state party soft money
expenditures. . . . State party soft money
expenditures for political
communication/advertising jumped from less than
$2 million in 1992 to $65 million in 1996.
Mann Report at 21-22 [DEV 1-Tab 1] (citation omitted). During the
1996 election cycle, the top 50 nonfederal money donors made
contributions ranging from $530,000 and $3,287,175. Id. at 22.*fn149
"The total amount of soft money spent [in the 1998 midterm election
cycle] — $221 million was less than in 1996 but more than
double the previous midterm election. And soft money as a share of
total spending by the national parties jumped to 34%. The
congressional party campaign committees put a premium on raising and
spending soft money to advance the election prospects of their
candidates. . . . Both national party committees had discovered they
could finance campaign activity on behalf of their senatorial
candidates with soft money in the form of `issue advocacy.' The same
pattern, more pronounced with the Democrats than the Republicans,
was evident in the House campaign committees." Mann Report at 23
[DEV 1-Tab 1] (citation omitted).
5. Defense expert Mann has reported that "soft money financing of party
campaigning exploded in the 2000 election cycle. Soft money spending
by the national parties reached $498 million, now 42% of their total
spending. Raising a half billion dollars in soft money [in 2000]
took a major effort by the national parties and elected officials,
but they had the advantage of focusing their efforts on large
donors. That focus paid substantial dividends: 800 donors (435
corporations, unions and other organizations and 365 individuals),
each contributing a minimum of $120,000, accounted for almost $300
million or 60 percent of the soft money raised by the parties. The
top 50 soft money donors . . . each contributed between $955,695 and
$5,949,000. Among the many soft money donors who gave generously to
both parties were Global Crossing, Enron and WorldCom." Mann Report
at 24-25 [DEV 1-Tab 1] (citation omitted). "A total of $280 million
in soft money well over half the amount raised by the six national
party committees was transferred to state parties [in 2000], along
with $135 million in hard money." Id. at 26. In 2000, thirty-five of
the top 50 donors were corporations. Most of the other top 50 donors
were unions and plaintiff attorneys. Mann Expert Report at tbl. 6.
6. During the first 18 months of the 2001-2002 election cycle the
parties reported nonfederal receipts of $308.2 million, which is a
21 percent increase over the same period during the 1999-2000
cycle. The FEC notes that this increase is "all the more significant
given that typically parties raise more in Presidential campaign
cycles than in non-presidential campaigns." Press Release, FEC,
Party Fundraising Growth Continues (Sept. 19, 2002), available at
October 16, 2002, the parties had raised over $421 million in
nonfederal funds. Press Release, FEC, National Party Fundraising
Strong in Pre-Election Filings (Oct. 30, 2002), available at
7. Experts attribute the accelerated rise in nonfederal money
expenditures to President Bill Clinton and his political consultant
Dick Morris' use of such funds during the 1996 campaign to fund
television ads designed to promote Clinton's
reelection. While the ads prominently featured
the President, none of these costs were charged
as coordinated expenditures on behalf of
Clinton's campaign. Instead the party paid the
entire cost, based on a legal argument never
before made: that party communications which did
not use explicit words advocating the election or
defeat of a federal candidate could be treated
like generic party advertising and financed,
according to the FEC allocation rules, with a mix
of soft and hard money.
Mann Report at 18 [DEV 1-Tab 1]. Defense Expert David Magleby notes
that this development
ran counter to the stated purposes of soft money
which were to permit parties to raise unlimited
amounts of money for `party building' purposes,
unlike hard money which is subject to the
contribution limits given to the parties to help
elect or defeat candidates. . . . The strategy to
deploy soft money for these purposes is described
in a series of memos from Dick Morris. . . .
Morris says, "I met with . . . attorney[s] . . .
and explained the kinds of ads I had in mind.
Fortunately, they said the law permitted
unlimited expenditures by a political party for
such "issue-advocacy" ads. By the end of the
race, we had spent almost thirty-five million
dollars on issue-advocacy ads (in addition to
about fifty million dollars on conventional
candidate-oriented media), burying the Republican
proposals and building a national consensus in
support of the president on key issues."
8. Magleby Expert Report at 11 (quoting Dick Morris, Behind the Oval
Office: Getting Reelected Against All Odds 141, 624 (1999) [DEV
4-Tab 8]. "The national Democratic party managed to finance
two-thirds of its pro-Clinton `issue ad' television blitz by taking
advantage of the more favorable allocation methods available to
state parties. They simply transferred the requisite mix of hard and
soft dollars to party committees in the states they targeted and had
the state committees place the ads." Mann Expert Report at 22 [DEV
1-Tab 1]; see also Plaintiff's Expert Raymond La Raja Dep. Exhibit 3
at 14, 37-48 [JDT 15] (Raymond Joseph La Raja, American Political
Parties in the Era of Soft Money (2001) (unpublished Ph.D.
dissertation, University of California at Berkeley) (discussing the
emergence of "party soft money").
9. According to Defense experts, "It did not take the Republican party
long to respond in kind by promoting Bob Dole and Jack Kemp."
Magleby Expert Report at 11 [DEV4-Tab8].
In May of 1996, the Republican National Committee
announced a $20 million "issue advocacy"
advertising campaign. Its purpose, in the words
of the chairman, would be "to show the
differences between Dole and Clinton and between
Republicans and Democrats on the issues facing
our country, so we can engage full-time in one of
the most consequential elections in our history."
These presidential candidate-specific ads, like
the Democratic ones, were targeted on key
battleground states and financed with a mix of
hard and (mostly) soft money. Both parties were
now financing a significant part of the campaigns
of their presidential candidates outside of the
strictures of the FECA and well beyond the bounds
of the 1979 FEC ruling that national parties may
raise corporate and union funds and solicit
unlimited donations from individuals "for the
exclusive and limited purpose of influencing the
nomination or election of candidates for
Mann Expert Report at 20 (citation omitted) [DEV 1-Tab 1].
10. This approach for the use of nonfederal funds spilled over into
congressional races. Mann Expert Report at 20 [DEV 1-Tab 1]; see
also Lamson*fn150 Decl. ¶ 9 (describing both parties' national
committees' use of soft money to run advertisements in a race for
Congress in Montana).
11. Senator McConnell routinely participates in political and
fundraising events for state and local candidates and party
12. Since his election to the Senate, Senator McConnell has been a
member of the NRSC, which promotes the Republican position on a wide
range of issues and supports Republican candidates at the federal,
state, and local levels. Senator McConnell chaired the NRSC in the
1998 and 2000 election cycles and, as chairman, he raised funds not
subject to the restrictions and prohibitions of federal law. These
nonfederal funds were used for voter registration and
identification, get-out-the-vote activities, "issue advocacy,"
building funds, and national support for state and local
candidates. As NRSC Chairman, Senator McConnell directed nonfederal
NRSC donations to dozens of state and local candidates, including
Virginia Republican gubernatorial candidate Jim Gilmore (in 1997);
California Republican gubernatorial candidate Dan Lungren (in
1998); and the Republican candidate for mayor of Warwick, Rhode
Island (in 2000). Id. ¶ 8.
13. The overwhelming majority of the people with whom Senator McConnell
has met during his tenure in the Senate do not donate funds to the
Republican Party at the national, state, or local level. Typically
Senator McConnell is unaware of the donation history of the
individuals with whom he meets. Id. ¶ 13.
14. Thomas McInerney, a resident of New York, shares the Republican
Party's general philosophy on policy issues such as lower taxes,
smaller government, free trade, and a strong national defense. He
has pursued his political and public policy goals by making
donations to Republican organizations at the national, state, and
local levels in order to promote Republican principles and
candidates at the federal, state, and local levels. McInerney Aff.
15. Prior to BCRA's enactment in 2002 McInerney donated amounts in
excess of BCRA's aggregate amount limit of $57,500 per cycle to the
national political party committees of the Republican Party and in
excess of $10,000 per year to state and local Republican party
organizations. His donations were intended to support state and
local candidates voter registration activities for state and local
parties; voter identification activity; get-out-the-vote activity;
generic campaign activity for state and local parties, including
broadcast communications that promote the Republican party when a
federal candidate is on the ballot; slate cards, palm cards, and
sample ballots for state and local parties; absentee ballot programs
for state and local parties; phone bank programs for state and local
parties; public communications discussing policy issues, including
communications that mention federal candidates in a manner that
could be construed to "promote, support, attack or oppose" such
candidates; staff salaries of employees who spend 25 percent of
their time in any given month on any of these activities. Id. ¶
16. In the 2002 election cycle McInerney donated more than $57,500 to
Republican Party organizations at the national, state, and local
levels "to be used on certain activities" described above. Id.
17. In the 2000 election cycle McInerney donated more than $57,500 to
Republican Party organizations at the national, state, and local
levels "to be used on certain activities" described above. See Id.
18. McInerney's support for Republican Party organizations at the
national, state, and local levels reflect his shared philosophy and
values with the Party.
19. Nothing in the record suggests that McInerney's support for the
Republican Party at the national, state, and local levels is
dependent upon gaining access to federal officeholders. McInerney
would support the Republican Party whether or not he was solicited
by a federal officeholder and whether or not his contribution
resulted in attendance at an event that included federal
officeholders. See id. ¶ 17.
The Role of Political Parties in Democracies
20. Both sides experts testify that political parties play a critical
role in democracies. See Mann Expert Report at 28 ("Political
parties play an indispensable role in democratic
societies. . . ."); Krasno & Sorauf Expert Report at 21-22 ("While
most political scientists may not literally agree with E.E.
Schattschneider that `parties created democracy, and . . . democracy
is unthinkable save in terms of parties' they would recognize and
appreciate the sentiment. We certainly place ourselves in their
number."); La Raja Decl. ¶ 11 ("Political parties are essential
institutions in democracies."). Experts testify that political
parties have played and continue to play certain critical roles in
helping us to maintain a stable political order.
21. First, they note that the parties have coordinated and reconciled
various national, state, and local entities within our federal
system of government. See Milkis Expert Report at 13-14; Keller*fn151
Expert Report at 6-7.
22. Next, they state that the parties encourage "democratic nationalism"
by nominating and electing candidates and by engaging in dialogues
concerning public policy issues of national importance. Milkis
Expert Report at 14-19. An example of this is the RNC's recent
participation in public policy debates concerning a balanced budget
amendment, welfare reform, and educational policy. See Josefiak*fn152
Decl. ¶ 91; RNC Exhibit 1711, Exhibit 2428, Exhibit 2440.
23. Experts note that the parties recruit and nominate candidates,
aggregate public preferences, and provide a means of democratic
accountability. See D. Green Expert Report at 7; Magleby Expert
Report at 33; Mann Expert Report at 28. Political scientists also
credit parties with increasing voter turnout, encouraging volunteer
grassroots political participation, fostering broader electoral
competition by supporting challengers against incumbents, and
diluting the influence of organized interests. See Cross Exam. of
Green at 83-84; Cross Exam. of Mann at 53; Keller Expert Report at
5-6; Milkis Expert Report at 12-13; La Raja*fn153 Expert Report at
24. Plaintiffs' expert Keller states that party competition in general
is healthy for democracy; it was a major force behind the expansion
of the electorate through the enfranchisement of blacks in the
South, reduction of the voting age to eighteen, and the elimination
of poll taxes and other constraints on voting registration. See
Keller Expert Report at 15. Intense competition among the post-Civil
War parties led to increased voter turnout and close presidential
elections. See id. at 11-12.
25. In addition, experts find that the parties act as critical agents in
developing consensus in the United States. See Milkis Expert Report
at 19. In the words of one defense expert, parties are "the main
coalition building institution[s] . . . by a good measure." Cross
Exam. of Green at 84; see Cross Exam. of Mann at 53, 56 ("[n]o other
group could come close to political parties" in moderating extreme
views); Krasno & Sorauf*fn154 Expert Report at 24 ("Parties
with their necessary `big tent' compete for the allegiances of
multiple groups. . . .").
26. Furthermore, experts find that the parties cultivate a sense of
community and collective responsibility in American political
culture. See Milkis Expert Report at 19-21; La Raja Expert Report at
3-4. Parties have been integral in forming a consensus on publicly
divisive issues. See Milkis Expert Report at 4.
27. Finally, it is also noted by experts that it is a major purpose of
the political parties to elect candidates to office. See
Bumpers*fn155 Decl. ¶ 4 [DEV 6-Tab 10]; Wolfson Decl.
¶ [DEV 9-Tab 44]; Jordan Decl. ¶ [DEV 7-Tab 21]; Shea Dep. Tr
(Sept. 24, 2002) at 15, 88-90; Knopp Cross Tr. at 10; Brister Decl.
¶ 4 ("The Republican Party of Louisiana's primary purpose is to
help elect Republicans to office `from the courthouse to the White
House'"); ODP0021-02001-19, ODP0021-02386-90, ODP002S-02641-45 [DEV
70-Tab 48] (internal RNC Memoranda from then-Chairman Haley
Barbour); RNC's Resp. to FEC RFA's in RNC, No. 40 [DEV 68-Tab 35];
ODP0021-02003 [DEV 70-Tab 48] (RNC Chairman Haley Barbour stated:
"The purpose of a political party is to elect its candidates to
public office, and our first goal is to elect Bob Dole
president. . . . Electing Dole is our highest priority, but it is not
our only priority. Our goal is to increase our majorities in both
houses of Congress and among governors and state legislatures.");
see generally ODP0021-02001 to 19; ODP0021-02386 to 90;
ODP002S-02641 to 45 [DEV 70-Tab 48] (internal RNC memoranda from
then-Chairman Haley Barbour).
Republican National Committee
28. As a national party, the RNC has historically participated and
participates today in electoral and political activities at the
federal, state, and local levels. According to its general counsel,
"[t]he RNC's national focus should not be misunderstood as a federal
focus." See Josefiak Decl. ¶¶ 19, 41-59. The RNC seeks to advance
its core principles a smaller federal government, lower taxes at all
levels of government, individual freedom, and a strong national
defense by promoting an issue agenda advocating Republican
positions, electing Republican candidates, and encouraging
governance in accord with these Republican views. See Josefiak
Decl. ¶ 22; see also La Raja Expert Report ¶¶ 11, 16.
29. In pursuit of its objectives, the RNC engages in frequent
communications with its members, officeholders, candidates, state
and local party committees, and the general public. These
communications occur both during campaign seasons and at all other
times. See Banning*fn156 Decl. ¶¶ 28(d)-28(f); Josefiak Decl.
¶¶ 88-89, 100-101.
The RNC's Federal Election Activities
30. The RNC, and its national party committees, engage in a wide range
of activities that influence federal elections. For example, the RNC
spends federal funds on: (i) recruiting and training candidates;
(ii) contributing to federal candidate campaign committees; (iii)
making coordinated expenditures on behalf of federal candidates;
(iv) making communications calling for the election or defeat of
federal candidates; (v) funding, in part, research and issue
development; and (vi) funding, in part, voter registration, voter
identification, and get-out-the-vote campaigns. See Banning Decl.
¶ 28(d); Josefiak ¶¶ 26, 35, 89; see also La Raja Decl.
¶ 11(d); Magleby Expert Report at 33-34. Prior to the enactment
of BCRA, some of these activities were funded only with federal
money; others were funded with a combination of federal and
National Party Use of Nonfederal Money to Benefit Federal Candidates
31. Nonfederal money is often given to national parties with the
understanding that it will be used to assist the campaigns of
particular federal candidates, and, indeed, it is often used for
32. Senator Simpson*fn157 testified that "[d]onors do not really
differentiate between hard and soft money; they often contribute to
assist or gain favor with an individual politician. When donors give
soft money to the parties, there is sometimes at least an implicit
understanding that the money will be used to benefit a certain
candidate. Likewise, Members know that if they assist the party with
fundraising, be it hard or soft money, the party will later assist
their campaign." Simpson Decl. ¶ ¶ [DEV 9-Tab 38]. "Although
soft money cannot be given directly to federal candidates, everyone
knows that it is fairly easy to push the money through our tortured
system to benefit specific candidates." Id. ¶ 7; see also
Bumpers Decl. ¶¶ 10-12 [DEV 6-Tab 10]; McCain Decl. ¶ 7
("[P]arties encourage Members of Congress to raise large amounts of
soft money to benefit their own and others' election."); Simon*fn158
Decl. ¶ 10 [DEV 9-Tab 37]; Beckett*fn159 Decl. ¶ ¶
[DEV6-Tab 3], Bloom*fn160 Decl. ¶ 3 [DEV 6-Tab 7];
Buttenwieser*fn161 Decl. ¶ 16 [DEV 6-Tab 11]; ODP0018-00501-02
[DEV 69-Tab 48] (letter from federal candidate regarding "how you
can further help my campaign by assisting the Colorado Republican
Party"); Shays Decl. ¶ 12 [DEV 68-Tab 40]; Hiatt*fn162 Dep. at
114-16 [JDT Vol. 10] (explaining that anyone donating nonfederal
money is indirectly giving it to the campaigns of federal candidates
and officeholders); Buttenwieser Decl. ¶ 15 [DEV 6-Tab 11]
(explaining that there is little difference between federal and
nonfederal money beyond the source and amount limitations on federal
money, because national and state political parties use nonfederal
money to influence federal elections); Rudman Decl. ¶ 19 [DEV
33. Senator Wirth*fn163 understood that when he raised funds for the
DSCC, donors expected that he would receive the amount of their
donations multiplied by a certain number that the DSCC had
predetermined, assuming that the DSCC had raised other funds. Wirth
Decl. Exhibit A ¶¶ 5, 8 [DEV 9-Tab 43]; see also Colorado II, 533
U.S. at 458.
34. In 2000, a Fortune 100 company agreed to contribute $25,000 to the
NRSC at the request of George Allen, the then Republican candidate
in the 2000 Senatorial race in Virginia against incumbent Senator
Chuck Robb. An employee noted that the company had donated to
Senator Robb's Leadership PAC and that a similar contribution to the
NRSC was necessary to balance out the company's support to the
candidates. Internal memorandum (Oct. 26, 2000) [citation sealed].
35. Individual nonfederal money donors have made specific requests that
the RNC apply their nonfederal money gifts to particular campaigns.
RNC 0035464 [DEV99], RNC0032733-34 [DEV 92] (fundraising letters
requesting that soft money donations be used for particular federal
elections); see Hiatt Dep. at 90-91, 117-18 [JDT Vol. 10] (stating
that soft money donations to the DNC are earmarked for particular
candidates, but saying he does not know if the money was actually
spent on those candidates).
National Party Use of Nonfederal Money for Federal-Candidate Advocacy
36. The national parties spend a large proportion of their nonfederal
money on socalled "issue advertisements" that are really designed to
help elect specific federal candidates. In 2000, for example, the
RNC spent a large portion of their nonfederal money, an estimated
$70-75 million dollars, on the production and broadcasting of
television and radio "issue ads." Oliver*fn164 Dep. at 148-49 [DEV
Supp.-Tab 1]. of that amount, approximately $14 million were
coordinated expenditures, and the rest were so-called "issue ads."
Id.; see also Marshall*fn165 Decl. ¶ 3 (largest single portion
of DNC budget during 2000 election cycle was used for issue ads)
[DEV 8-Tab 28].
37. By the end of the 2000 election cycle, it was clear that parties
were using corporate and labor union soft money donations to
influence federal elections, often through candidate-specific issue
ads, and not primarily for state and local elections. Mann Expert
Report at 25-26.
38. The RNC has offered to run these so-called "issue ads" for Members
of Congress in their districts, and to have the national committees
provide the soft money portion of the funds required to place the
ads, if those Members provide the federal portion. See ODP0021-01365
to 67 [DEV 70-Tab 48], ODP002S-02936 [DEV 70-Tab 48] (memorandum and
email from the RNC offering to pay the soft money portion of
political advertisements for Members of Congress who are willing to
pay the federal portion).
39. Evidence submitted suggests that during the 2000 election, party ads
were not aimed at party building. Almost 92% of party ads never even
identified the name of a political party in the body of the
advertisement, let alone encouraged voters to register with or
support the party or to volunteer with the local party
organization. Buying Time 2000 at 64 [DEV 46].
40. Defendants' expert Green states:
[T]he original exemptions for soft-money were
justified partly on the grounds that
get-out-the-vote activity would help strengthen
parties. As it happened, only a small fraction of
the soft money (or hard money, for that matter)
that flowed to state and national parties was
spent on voter mobilization activity, even
broadly conceived to include direct mail and
commercial phone banking. According to the
classification system presented by La Raja and
Javish Shean (2001, p.13), 8.5% of national party
soft money expenditures went to `mobilization'
and `grassroots.' The figures for state and local
parties are each 15%.") (citing Raymond La Raja
and Elizabeth Jarvis-Shean, Assessing the Impact
of a Ban on Soft Money: Party Soft Money Spending
in the 2000 Elections. (Unpublished manuscript:
Institute of Governmental Studies and Citizens'
Research Foundation 2001).
D. Green Report at 14 n. 17 [DEV 1-Tab 3].
41. What has been permitted as "issue advocacy" has not only included
genuine issue ads that promote legislation and public policy
positions but communications, paid for in whole or part with
nonfederal money, that attack or support a candidate by name without
using the "magic words" described in Buckley.*fn166 See 144 Cong.
Rec. S10071-73 (1999) (Sen. Levin) ("issue ads" indistinguishable
from candidate ads which are subject to contribution limits and
disclosure requirements); 146 Cong. Rec. H428 (2000) (Rep. Ganske);
0DP0021-01365-67 [DEV 70-Tab 48]; 0DP0022-00277-88 [DEV 70-Tab 48];
0DP0023-02358-65 [DEV 70-Tab 48]; 0DP0023-03560-660 [DEV 70-Tab
48]; 0DP0025-01560 [DEV 70-Tab 48]; 0DP0025-02720-21 [DEV 70-Tab
48]; ODP0031-00424 [DEV 71-Tab 48]; 0DP0033-00534 [DEV 71-Tab 48];
0DP0036-03603 [DEV 71-Tab 48]; 0DP0037-00062 [DEV 71-Tab 48];
0DP0037-00884 [DEV 71-Tab 48]; 0DP0037-02271 [DEV 71-Tab 48]
(examples of advertisements); see also Shays Decl. in RNC ¶¶ 7, 8
[DEV 68-Tab 40]; Meehan Decl. in RNC ¶ 13 [DEV 68-Tab 30],
Rudman Decl. ¶ 12 [DEV 8-Tab 34]; Beckett Decl. ¶ 11,
Exhibit 3 [DEV 6-Tab 3]; Chapin*fn167 Decl. ¶ 11 [DEV 6-Tab
12]; Lamson Decl. ¶¶ 9, 17, Exhibits 2-4 [DEV 7-Tab 26];
Pennington*fn168 Decl. ¶ 13 [DEV 8-Tab 31]; Brock*fn169 Decl.
¶ 8 [DEV 6-Tab 9]; Williams*fn170 Cross Exam. at 47 [JDT Vol.
42. Whether or not party ads used so-called "magic words" — and
only about 2.3 percent of party spots did in 2000 — all
231,000 party spots viewed by coders in the Buying Time 2000 study
were perceived as electioneering in nature — that is, designed
to campaign for or against candidates. These ads — 96 percent
of which mentioned or depicted a candidate — were focused on
electing candidates. Buying Time 2000 at 64 [DEV 46].
43. Defense expert David Magleby finds that over half, and sometimes as
much as three-quarters, of party soft money expenditures go to
broadcast advertising. The focus and content of these ads is
candidate centered. "The content, tactics and strategy are generally
indistinguishable from the candidate campaigns, except that party
campaign communications are generally more negative in tone." Id. at
44. The RNC's expert Professor La Raja acknowledges that so-called
"issue ads" are intended to and do support the campaigns of federal
candidates. La Raja Cross, Exhibit 3 at 14, 15, 101, n. 11 [JDT
Vol. 15]. RNC political operations director Terry Nelson*fn171
testified that the RNC engages in so-called "issue advocacy in order
to achieve one of our primary objectives, which is to get more
Republicans elected." Nelson Dep. at 191.
45. Many so-called "issue ads" by political parties were actually
electioneering advertisements that focused on the positions, past
actions, or general character traits of federal candidates, but not
on upcoming federal executive action or pending legislation. See,
e.g., ODP0021-01393 [DEV 70-Tab 48]; 0DP0023-02288-95 [DEV 70-Tab
48]; 0DP0023-02308 [DEV 70-Tab 48]; 0DP0023-02312-13 [DEV 70-Tab
48]; 0DP0023-02314 [DEV 70-Tab 48]; 0DP0023-02326-28,
0DP0025-01729-32 [DEV 70-Tab 48]; 0DP0025-01811-12 [DEV 70-Tab 48];
0DP0025-01861-64 [DEV 70-Tab 48]; 0DP0025-02227-28 [DEV 70-Tab 48];
0DP0023-00327-28 [DEV 70-Tab 48]; 0DP0023-02389-92 [DEV 70-Tab 48];
0DP0029-00010-25 [DEV 70-Tab 48]; 0DP0029-00031-33 [DEV 70-Tab 48];
0DP0029-00041 [DEV 70-Tab 48]; 0DP0029-00114 [DEV 70-Tab 48];
0DP0029-00169 [DEV 71-Tab 48]; 0DP0029-00177-79 [DEV 71-Tab 48];
0DP0029-00235-37 [DEV 71-Tab 48]; 0DP0029-00329 [DEV 71-Tab 48];
0DP0029-00339 [DEV 71-Tab 48]; ODP0041-00177-78 [DEV 71-Tab 48];
ODP0041-00202-06 [DEV 71-Tab 48]; ODP0041-00220-23 [DEV 71-Tab 48];
ODP0041-00280-82 [DEV 71-Tab 48]; ODP0041-00352-54 [DEV 71-Tab 48];
ODP0041-01261 [DEV 71-Tab 48]; ODP0041-01275 [DEV 71-Tab 48];
0DP0029-00138-47 [DEV 71-Tab 48]; 0DP0036-01403-06 [DEV 71-Tab 48];
0DP0036-02931-32 [DEV 71-Tab 48]; ODP0041-00269-71 [DEV 71-Tab 48];
ODP0041-01024-27 [DEV 71-Tab 48]; ODP0041-01219 [DEV 71-Tab 48]
(scripts of so-called "issue ads" by political parties).
46. Many so-called "issue ads" by political parties were actually
electioneering advertisements that compared the positions, or past
actions, of two competing federal candidates, rather than focusing
on pending federal legislation. See, e.g., 0DP0023-02375-80 [DEV
70-Tab 48]; 0DP0023-02387 [DEV 70-Tab 48]; 0DP0023-02393-94 [DEV
70-Tab 48]; 0DP0029-00149 [DEV 71-Tab 48]; 0DP0029-00159 [DEV 71-Tab
48]; 0DP0029-00329 [DEV 71-Tab 48]; 0DP0036-02984 [DEV 71-Tab 48];
ODP0041-00457-61 [DEV 71-Tab 48]; ODP0041-00585-86 [DEV 71-Tab 48];
ODP0041-00729-32 [DEV 71-Tab 48]; ODP0041-01152 [DEV 71-Tab 48];
ODP0041-01164 [DEV 71-Tab 48]; ODP0041-01177 [DEV 71-Tab 48];
ODP0041-01189 [DEV 71-Tab 48]; ODP0041-01198 [DEV 71-Tab 48];
ODP0041-01266 [DEV 71-Tab 48]; ODP0041-01337 [DEV 71-Tab 48];
ODP0041-01474-76 [DEV 71-Tab 48]; ODP0041-01479-81 [DEV 71-Tab 48];
ODP0041-01850 [DEV 71-Tab 48]; ODP0041-01854 [DEV 71-Tab 48];
ODP0041-01859 [DEV 71-Tab 48]; ODP0041-01884 [DEV 71-Tab 48]
(scripts of political party advertisements).
47. Parties aim their nonfederal money largely at competitive races. The
party committees spend millions of soft dollars in competitive U.S.
Senate races and hundreds of thousands of dollars or more in
competitive U.S. House races. Magleby Report at 39 [DEV 4-Tab 8];
see also Bumpers Decl. ¶ 4 [DEV 6-Tab 10]; McCain Decl. ¶ 22
[DEV 8-Tab 29] ("parties generally focus their soft money spending
first on taking care of the parties' current officeholders and on
the candidates running for open seats and after that on the
challengers running against incumbents"); McConnell Dep. at 237 [JDT
Vol. 19] ("I think every Senator realizes that the resources of the
[NRSC] are going to be deployed to the . . . maximum extent in
places where there are competitive races").
48. From late March 1996 through the Republican National Convention, the
RNC spent approximately $20 million on advertisements designed to
boost Senator Dole's image at a time when he had virtually run out
of federal matching primary funds. The RNC paid for a portion of its
issue advocacy advertisements with nonfederal funds, including the
costs of creating and/or disseminating advertisements that attacked
President Clinton's record on welfare reform, taxes, and budgetary
policy. Huyck*fn172 Decl. in Mariani ¶¶ 3, 5 [DEV 79-Tab 60];
see also id. at Attach. A [DEV Supp.-Tab 9] (text of advertisements
paid for by the RNC and other Republican party committees in part
with soft money). The RNC conducted a detailed analysis of several
advertisements it was planning to run in various markets. The
advertisements consisted essentially of two themes: build up Bob
Dole and attack Bill Clinton. These advertisements were tested in
focus groups to see the effects they had on undecided voters. The
advertisement used to build up Bob Dole told his life story and
never mentioned the words "vote for," "elect," or any of the
so-called "magic words" of express advocacy. The second set of
advertisements showed Bill Clinton speaking on a certain issue, then
publicly stating the opposite. All of the ads were tested to see
which would most help Bob Dole and hurt Bill Clinton in the polls.
Memorandum to Haley Barbour from Charlie Nave and Joel Mincey, dated
May 28, 1996, FEC MUR 4553, Fabrizio Dep., Exhibit 5 [DEV 55-Tab
113]; FEC MUR 4553, Fabrizio Dep. at 83-94 [DEV 55-Tab 113] (despite
working as a consultant for Senator Dole, Fabrizio McLaughlin and
Associates were sharing their data with the RNC, NRSC, and NRCC).
49. An example of a 1996 RNC "issue ad" is "The Story":
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. The RNC paid for
"The Story," in part with soft money even though it was obviously
intended to help Bob Dole in the Presidential election. Huyck Decl.
in Mariani ¶ 3 [DEV 79-Tab 60]; FEC MUR 4553, Fabrizio Dep. at
50 [DEV 55-113]; McCain Decl. ¶ 15 [DEV 8-Tab 29]. The RNC's
Curt Anderson and Wes Anderson wrote to the RNC Chairman regarding
the Dole "Story" advertisement, stating: "We could run into a real
snag with the Dole Story spot. Certainly, all the quantitative and
qualitative research strongly suggests that this spot needs to be
run. Making this spot pass the issue advocacy test may take some
doing." ODP0025-02018-20 [DEV 70-Tab 48]. "Any reasonable person
looking at that ad at that particular time in the Presidential
season would say: It's not an ad about welfare or wasteful
spending; it is an ad about why should we elect that particular
nominee." 145 Cong. Rec. S12747 (1999) (Sen. Levin). Senator Dole
himself stated that "The Story" "never says I'm running for
President. I hope that it's fairly obvious since I'm the only one in
the picture." Center for Responsive Politics, A Bag of Tricks:
Loopholes in the Campaign Finance System (1996) at 13, ODP0018-00172
[DEV 69-Tab 48]; see also McCain Decl. ¶ 15 (citing Attach. D)
[DEV 8-Tab 29].
50. During the 1998 election cycle, the NRCC in coordination with the
RNC conducted "Operation Breakout," an "issue advocacy" campaign
designed to expand the Republican majorities in Congress.
ODP0031-00299 [DEV 71-Tab 48] (September 25, 1998, letter from RNC
Chair Nicholson to donor thanking him for his donation to "Operation
Breakout," describing it as an issue advocacy campaign designed to
expand the Republican majorities in Congress); 0DP0043-00679 [DEV
71-Tab 48]. See generally 0DP0043-00673-703 [DEV 71-Tab 48];
0DP0033-00258 [DEV 71-Tab 48]; ODP0041-00176-78 [DEV 71-Tab 48];
0DP0029-00138-49 [DEV 71-Tab 48]; see also ODP0030-00002-3
(fundraising letter requesting support for coalition of Republican
state and national campaign organizations to mount the largest issue
advocacy campaign in party history) [DEV 71-Tab 48].
51. Television and radio electioneering advertising by political parties
played an important role in the 2000 congressional elections in
Florida's Eighth and 22nd Districts. Political parties on both sides
of these campaigns ran so-called "issue ads" that were financed
partly with nonfederal money, but clearly directed at influencing
the outcome of the election. In the Eighth District, for example,
the DCCC ran television advertising praising Linda Chapin, the
Democratic candidate, or criticizing the Republican candidates,
through the Democratic State Party in order to take advantage of the
more favorable hard money-soft money allocation ratios enjoyed by
state parties. Beckett Decl. ¶ 9, Exhibit 1 [DEV 6-Tab 3];
Chapin Decl. ¶ 9 [DEV 6-Tab 12]; see also Bloom Decl. ¶ 10,
Exhibits 1-1, 1-4, (Democratic party ads in 2000 Florida 22nd
congressional district race) [DEV 6-Tab 7]. The NRCC and the Florida
Republican Party also ran television ads in the two months prior to
the general election, most of which criticized Chapin's record or
positions, and which witnesses testify were clearly intended to
influence the election results. Chapin Decl. ¶ 10 Exhibit 2 [DEV
6-Tab 12]; Beckett Decl. ¶ 10 Exhibit 2 [DEV 6-Tab 3];
Pennington Decl. ¶ 14 Exhibit 3 [DEV 8-Tab 31]; see also Bloom
Dec 1. ¶ 11 Exhibit 2 (Republican party ads in 2000 Florida 22nd
district congressional race) [DEV 6-Tab 7].
52. For example, one so-called "issue ad" stated the following:
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
Chapin Decl. Exhibit 2; Chapin Decl. ¶ 10; Beckett Decl. ¶
10; Pennington Decl. ¶ 14.
The RNC's Involvement in Nonfederal Activities
53. The RNC also undertakes activities exclusively in connection with
state and local elections. RNC General Counsel Josefiak testified
that "given the RNC's statebased structure, it is not surprising
that the RNC actually focuses many of its resources on purely state
and local election activity. This frequently involves significant
resources to grassroots activities, some of which exclusively
benefit state and local candidates." Josefiak Decl. ¶ 19.
54. Testimony by RNC officials states that for elections in which there
is a federal candidate on the ballot, the RNC still funds the
training state and local candidates, contributes to state and local
candidate campaign committees, and supports get-out-the-vote
55. In 2000 the RNC donated approximately $5.6 million in nonfederal
funds to state and local candidates. Josefiak Decl. ¶ 61.
56. The RNC devotes resources to state and local political activities
during federal election years even when the federal races are not
competitive in a particular state in the hopes of influencing a
gubernatorial race (as in California in 2002 and Indiana in 2000).
Josefiak Decl. ¶ 62 (testifying that "the RNC sometimes devotes
significant resources toward states with competitive gubernatorial
races even though the races for federal offices are less
competitive"); Peschong*fn173 Decl. ¶¶ 4, 8-9 (stating that "the
RNC typically provides a very substantial share of the funding of
state victory programs," which are "programs designed to support the
entire Republican ticket, and frequently place more emphasis on high
profile statewide races than on federal races, especially when no
federal candidate is running state-wide."). In 2000, according to
Josefiak, most observers believed that Indiana was a "safe" state
for George Bush and that it also did not have a competitive Senate
race. Nevertheless, the RNC "committed significant resources to the
state in hopes of influencing the gubernatorial race." Josefiak
Decl. ¶ 62.
57. For elections in which there is no federal candidate on the ballot,
the RNC frequently trains state and local candidates, contributes to
state and local candidate campaign committees, funds communications
calling for the election or defeat of state and local candidates,
and supports get-out-the-vote activities. See Banning Decl. ¶
28(a); Josefiak Decl. ¶¶ 19, 41-59; La Raja Decl. ¶ 14; cf.
Bok*fn174 Cross Exam. at 34-35.
58. Five States Kentucky, Louisiana, Mississippi, New Jersey and
Virginia — hold elections for state and local office in
odd-numbered years when there are normally no federal candidates on
the ballot. See Josefiak Decl. ¶ 41. Likewise, numerous cities
including Houston, Indianapolis, Los Angeles, Minneapolis and New
York City hold mayoral elections in odd-numbered years. See id.;
Erwin*fn175 Decl. ¶ 5; Green Reb. Decl. App. C at 10 (GOTV
study conducted on 2001 elections in Bridgeport, Columbus, Detroit,
Minneapolis, St. Paul, and Raleigh).
59. For the 2001 election, an "off-year" election with no federal
candidates on the ballot, the RNC spent more than $15.6 million in
nonfederal funds on state and local election activity through
contributions to state and local candidates, transfers to state
parties, and direct spending. See Banning Decl. ¶ 28(a). In the
last two off-year elections combined, the RNC spent over $21 million
in nonfederal funds to support state and local election activity,
not including substantial commitments of staff time and other
resources. Id. This includes over $9.5 million in direct
contributions to state and local candidates, over $10 million
dollars to state parties, and over $1 million dollars in direct
expenditures. Id.; see also Duncan*fn176 Decl. ¶¶ 14-15
(discussing RNC contributions to state and local races); Josefiak
Decl. ¶¶ 19, 41-59 (discussing RNC electoral activity when no
federal candidates appear on the ballot); Cross Exam. of Defense
Expert Mann at 71 (agreeing that donations gubernatorial candidate
in an odd-numbered year is not something that is intended to affect
a federal election); La Raja Expert Report ¶ 15. For example,
the RNC contributed approximately $500,000 to the Republican
gubernatorial candidate in Virginia in 1999. La Raja Decl. ¶
60. Until BCRA's effective date the RNC maintained twelve nonfederal
accounts, known as RNSEC accounts. See Banning Decl. ¶¶ 6, 17.
61. Because of the variations among state campaign finance laws, the RNC
set up different rules to govern each RNSEC account according to the
type and amount of contributions that could be deposited therein and
the type of disbursements that could be made therefrom. See id.
62. Some RN SEC accounts were reserved for corporate funds, which were
used to make contributions or expenditures in states permitting the
use of such funds in connection with state and local elections. See
id. ¶ 8.
63. Other RN SEC accounts were reserved for individual funds, which were
used to make contributions or expenditures in states not permitting
the use of corporate funds in connection with state and local
elections. See id. ¶ 10.
64. Still other RNSEC accounts held funds raised and spent pursuant to
the unique legal requirements of particular states; the RNC set up
state-specific RNSEC accounts for California, Massachusetts,
Michigan, Missouri, New York, North Carolina, and Rhode Island. See
id. ¶¶ 11-12, 17.
The RNC's Involvement in "Mixed" Activities
65. Prior to the effective date of BCRA the RNC also engaged in "mixed"
activities that is, activities that indirectly influence both
federal and state or local elections (e.g., administrative
overhead, genuine issue ads, nonbroadcast party building
communications, state redistricting litigation, training for state
party officials, and generic voter registration and get-out-the-vote
activities). As required by the FEC, the RNC paid for these
activities with a combination of federal and nonfederal funds.
66. The FEC historically allowed the RNC to pay for its administrative
overhead — including salaries, benefits, equipment, and
supplies for party operations at RNC headquarters in Washington,
D.C. with a mix of federal and nonfederal funds. See Banning Decl.
¶ 27; see also Bowler*fn177 Decl. ¶ 15.
67. "During the 2000 election cycle, the RNC spent $35.6 million of
nonfederal funds and $52.9 million of federal funds on
administrative overhead." Banning Decl. ¶ 27. "Administrative
overhead includes the operating costs of RNC facilities, such as
utility bills and maintenance, fundraising costs, and routine
expenses for travel and supplies. Administrative overhead also
includes the salaries of RNC employees." Id.; see also Bowler Decl.
¶ 15 (stating that allocation is required for administrative
expenses like rent, utilities, and salaries).
68. The RNC regularly broadcasts ads for the purpose of influencing an
issue or policy. See, e.g., Josefiak Decl. ¶ 91(e); La Raja
Decl. ¶ 16(b) ("Political parties use nonfederal money to
develop and disseminate political me sages.").
69. According to Josefiak: "The RNC seeks to educate the public about
the positions for which the Republican Party stands." Josefiak
Decl. ¶ 91(e).
70. According to Josefiak: "The RNC is currently airing a 60-second
radio spot entitled "Leave No Child Behind.' This genuine issue
advertisement, which features a man and a woman discussing education
issues, states 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.
Anncr: Learn how Republican education reforms can
help your children. Call: . . . Help President
Bush and leave No Child Behind.
The advertisement mentions President Bush's name for the purpose of
identifying the precise proposal supported by the Republican Party
("President Bush's No Child Left Behind Law'), but mentions no
federal candidate currently facing reelection. It concludes with a
request that listeners call a toll-free number to learn more about
Republican education reform." Josefiak Decl. ¶ 91(e); RNC
71. The RNC has used a mix of federal and nonfederal funds to engage in
nonbroadcast communications with its supporters. The RNC's magazine
"Rising Tide," is designed to provide readers with "a more in-depth
education about the Republican issue agenda than is possible in the
more traditional 30-second television advertisements." Josefiak
Decl. ¶ 99; RNC Exhibit 977. Also, political parties use the
internet, e-mail, and direct mail to spread their messages to
adherents. See La Raja Expert Report ¶ 16(a); Magleby Expert
Report at 42.
72. The RNC used a mix of federal and nonfederal funds to support
redistricting efforts, including state redistricting litigation.
Josefiak Decl. ¶ 74. In 2002, for example, the RNC budgeted
approximately $4.1 million on redistricting. Seventy percent of the
redistricting budget was to be funded with nonfederal money. Banning
Decl. ¶ 28(i). The RNC spends more overall on state legislative
redistricting than on congressional redistricting. Josefiak Decl.
73. The RNC has used a mix of federal and nonfederal funds to conduct
training seminars for Republican candidates, party officials,
activists and campaign staff, many of whom are involved in state and
local campaigns and elections. Topics included grassroots
organizing, fundraising and compliance with campaign finance
regulations. During the 2000 election cycle at least 10,000 people
attended RNC-sponsored training sessions, including 117 "nuts and
bolts" seminars on grassroots organizing and get-out-the-vote
activities. During the same cycle the RNC spent $391,000 in
nonfederal funds and $671,000 in federal funds on such training and
support. See Banning Decl. ¶ 28(c); see also La Raja Expert
Report at 11 (parties "help candidates by training them and their
campaign staff," support which "can make an important difference in
whether a candidate chooses to run for office, particularly in an
era of cash-intensive campaigning that requires skillful application
of advanced campaign technologies").
74. The RNC has used a mix of federal and nonfederal funds to support
interstate cooperation on state issues among Republican state and
local activities. For example, the RNC provided $100,000 of seed
money for the formation of a Republican state attorneys general
association that focuses on state issues. RNC Exhibit 978; see also
Josefiak Decl. ¶¶ 82-84. In addition, during the 2000 election
cycle the RNC spent $199,000 in nonfederal funds and $33,500 in
federal funds on state and local governmental affairs. See Banning
Decl. ¶ 28(b).
75. The RNC has used a mix of federal and nonfederal funds to support
efforts to increase minority involvement and membership in the
Republican Party. During the 2000 election cycle, for example, the
RNC spent $1,211,000 in nonfederal funds and $2,163,000 in federal
funds on support of allied groups and minority outreach. See id.
76. Pursuant to FECA and FEC regulations in force prior to BCRA's
effective date, the RNC paid for mixed activities using a
predetermined "allocation" formula for federal and nonfederal
funds. Josefiak Decl. ¶ 23 ("Since the FEC has long recognized
that the RNC is heavily involved in activities at the federal and
state levels, the RNC has historically paid for its overhead using
an allocation, or `split,' between federal and nonfederal funds:
activities that are purely federal are paid for with 100% federal
funds; activities that are purely state or local are paid for with
100% nonfederal funds; and activities that relate to both federal
and state elections are paid for with a combination of federal and
77. During presidential election years national party committees were
required to pay for their mixed activities with at least 65 percent
in federal funds. See 11 C.F.R. § 106.5(b)(2)(i) (2001).
78. During nonpresidential election years national party committees were
required to pay for their mixed activities with at least 60 percent
in federal funds. See id. at § 106.5(b)(2)(ii).
The RNC's Assistance to State and Local Parties for Nonfederal and Mixed Activities
79. Prior to BCRA's effective date the RNC also provided financial and
fundraising assistance to state and local candidates and parties
through a variety of means. See B. Shea*fn178 Decl. ¶¶ 32-40;
Josefiak Decl. ¶¶ 63-72; Banning Decl. ¶ 28.
80. During the 2000 election cycle the RNC made transfers of
approximately $129 million — $93.2 million in nonfederal funds
and $35.8 million in federal funds to state and local parties. See
Press Release, FEC, National Party Transfers to State/Local
Committees: January 1, 1999 to December 31, 2000, available at
81. The RNC helped state and local parties through donor list
exchanges; joint fundraising events; promotion of state party
fundraising events; facilitating contributions from interested
donors; providing matching incentives to encourage state parties to
develop their in-house fundraising capabilities through the RNC's
"Finance PLUS" program; and devoting personnel to state party
fundraising needs. See Dendahl*fn179 Decl. ¶ 10; Duncan Decl.
¶ 13; Josefiak Decl. ¶ 44, 65-72; B. Shea Decl. ¶¶
32-40; see also La Raja Expert Report ¶ 12(b) (discussing
national party support for state parties generally).
82. RNC officers have sent fundraising letters on behalf of state and
local candidates even during off-years. See, e.g., Josefiak Decl.
RNC Exhibit 292 (RNC 0332976) (fundraising letter signed by Deputy
RNC Chairman Jack Oliver on behalf of Bret Schundler's New Jersey
gubernatorial campaign); Josefiak Decl. RNC Exhibit 1162
(fundraising letter signed by Haley Barbour on behalf of George
Allen's Virginia gubernatorial campaign); RNC Exhibit 1766
(fundraising letter signed by Haley Barbour on behalf of New Jersey
Republican Party); Feingold Dep. Exhibit 12 [JDT Vol. 6]
(fundraising letter from Jim Nicholson on behalf of Norm Coleman's
Minneapolis mayoral campaign).
83. RNC officers have been involved in helping state and local parties
and candidates raise money in accordance with state and federal
84. After becoming Chairman of the RNC in February 2002, Marc Racicot
made 82 trips to 67 cities in 36 states in his capacity as
Chairman. "The majority of these trips have had significant
fundraising components to them." Josefiak Decl. ¶ 70.
85. RNC Co-Chairwoman Ann Wagner and Deputy Chairman Jack Oliver
respectively made 31 and 33 trips. "The majority of these trips have
had significant fundraising components to them." See id.
86. Robert Duncan, current General Counsel and former Treasurer of the
RNC, was actively involved in fundraising activities for the
Republican Party of Kentucky and for Kentucky state candidates.
Since 1992 when he became a member of the RNC, Duncan has sponsored
a reception to support the reelection of a Kentucky state senator
and he also hosted and attended numerous fundraising dinners in
support of the Kentucky Republican Party. Duncan Decl. ¶¶ 5-6.
87. RNC support has been used by state and local parties to engage in
voter registration, get-out-the-vote, and generic grassroots
organizing. See Banning Decl. ¶ 31.
88. "RNC transfers of non-federal funds to the state parties play a
critical role in subsidizing the activities of the state parties.
The state parties depend on these funds to pay for everything from
their own administrative overhead to voter mobilization, grass roots
organizing, and media." Banning Decl. ¶ 31; see also Duncan
Decl. ¶¶ 11-12.
89. The RNC also helped state and local parties fundraise for these
voter mobilization efforts. See Josefiak Decl. ¶¶ 63, 65-72;
Benson*fn180 Decl. ¶ 10 ("[T]he Republican national party
committees also assists [the Colorado Republican Party] in raising
money for these party building programs.").
90. Evidence presented shows that the RNC cooperates and works closely
with state and local political parties to support the entire
Republican platform and ticket at the federal, state, and local
91. Both sides' experts agree that "relationships among local, state,
and national organizations have strengthened in the past three
decades" and they attribute the cohesion to "the role of the
national parties in providing resources and expertise to lower
levels of the party." La Raja Expert Report at 7 (citations
omitted); see Mann Expert Report at 30-31 ("The relationship between
the national parties and their state parties has never been closer
than it is today.").
92. Plaintiff's expert La Raja states that cooperation among national,
state, and local parties is generally healthy for American
Cohesive parties enhance electoral accountability
by linking the campaigns and platforms of
federal, state and local candidates. In this
way, they provide voters with clear signals about
what the party stands for collectively. The joint
campaigns of political parties across federal,
state and local candidates also generate
electoral economies of scale that mobilize
greater numbers of voters. The national parties
have been catalysts for party integration because
they possess the resources to coordinate such
La Raja Rebuttal Report ¶ 9.
93. Examples of national, state, and local political parties working
together are the Republican Party "Victory Plans" and the Democratic
Party "Coordinated Campaigns." All levels of the Republican party
structure actively participate in the design, funding, fundraising
and implementation of Victory Plans, see Josefiak Decl. ¶¶
26-40, just as all levels of the Democratic Party participate in the
design, funding, fundraising, and implementation of Coordinated
Campaigns, see Bowler Decl. ¶ 29.
94. The RNC's Victory Plans are voter contact programs designed to
support the entire Republican ticket at the federal, state, and
local levels. The RNC works with every state party to design, fund,
and implement the Plans. See Benson Decl. ¶ 8; Josefiak Decl.
¶ 26; Peschong Decl. ¶¶ 4-5.
95. Victory Plans are formulated and implemented after extensive and
continuous collaboration between the RNC and the state parties; each
Plan is tailored to the unique needs of each state and designed to
stimulate grassroots activism and increase voter turnout in the
hopes of benefitting candidates at all levels of the ticket.
Josefiak Decl. ¶¶ 25-40.
96. In 2000 the RNC transferred approximately $42 million to state
parties to use in Victory Plan programs, 60 percent (about $25
million) of which was nonfederal money and none of which was spent
on broadcast "issue advertising." Josefiak Decl. ¶ 31.
97. Although Victory Plans are designed to benefit Republican candidates
at the federal, state, and local levels, they often place the
greatest emphasis on state and local races because in most instances
there are far more state and local candidates than federal
candidates on the ballot. See Benson Decl. ¶ 8; Bennett*fn181
Decl. ¶ 17.k (stating that the average ratio of state and local
candidates to federal candidates in Ohio in 2002 is 18 to 1).
98. "By their nature, the Victory Plans and the programs specified in
them span the calendar year, not just the 60 or 120 days prior to
the election." Peschong Decl. ¶ 4.
99. The Victory Plans generally incorporate rallies, direct mail,
telephone banks, brochures, state cards, yard signs, bumper
stickers, door hangers, and door-to-door volunteer activities. Id.
100. In 2000 the RNC raised $99,178,295 in nonfederal funds and
$152,127,759 in federal funds. See Shea Decl. RNC Exhibit 2259.
101. The RNC engages in fundraising through direct marketing —
i.e., direct mail, telemarketing and internet solicitations —
and through "major donor" programs. In 2000 the RNC raised
$105,860,700 through direct marketing and $146,929,900 through major
donor programs. B. Shea Decl. ¶ 7. In 2001 the RNC raised
$56,117,600 through direct marketing and $25,909,700 through major
donor programs. See id.
102. On average, 60 percent of the total amount the RNC raises each year
is obtained through direct marketing. See id.; Knopp*fn182 Decl.
¶ 5. Ms. Knopp testifies that she has observed that direct
marketing messages that "perform the best are those that emphasize
the Republican Party's core political philosophy of lower taxes and
less government and the RNC's important role in federal and state
elections. In short, the RNC's fundraising success depends on its
appeal to persons desiring to associate with its governing
philosophy." Knopp Decl. ¶ 25.
103. "Major donors" are defined by the RNC as individuals who give $1,000
or more per year. See B. Shea Decl. ¶ 6. In Ms. Shea's
experience, like its smaller donors, the RNC's major donors are most
responsive to appeals based on the RNC's ideology. See id. ¶¶
23-24. The RNC has six major programs: the President's Club is
designed to raise federal contributions of $1,000 per person or
$2,000 per couple per year, see id. ¶ 14.b; the Chairman's
Advisory Board is designed to raise federal or nonfederal
contributions of $5,000 per year, id. ¶ 14.c.; the Eagles
program, the RN C's oldest major donor program, is designed for
members who either contribute $15,000 in federal funds or donate
$20,000 in nonfederal funds per year, id. ¶ 14.d; the Majority
Fund is directed at PACs that donate $15,000 in either federal or
nonfederal funds per year, id. ¶ 14.e; Team 100 is designed for
members who donate $100,000 in nonfederal funds upon joining and
then donate $25,000 in each of three subsequent years, id. ¶
14.f; and the Regents program is designed for members who give an
aggregate amount of $250,000 in nonfederal funds per two-year
election cycle, id. ¶ 14g. In addition, every four years the RNC
establishes a special "Presidential Trust," designed for
contributions of $20,000 in federal funds. See id. ¶ 15.
104. Over the last nine years the average donation to the RNC, including
both federal and nonfederal funds, has been approximately $57. Knopp
Decl. ¶ 5; RNC Exhibit 2430.
105. In 2000 the RNC raised the majority of its nonfederal money from
individuals not corporations — and the average corporate
donation of nonfederal funds is significantly lower than the average
individual donation. In 2000, for example, the average corporate
donation on nonfederal funds was $2,226, while the average
individual donation of nonfederal funds was $10,410. Knopp Decl.
¶ 9. Knopp further testifies that in the 2000 election cycle the
RNC raised $65 million in nonfederal funds from individuals, and $51
million from corporations. Id.*fn183 However, it should be noted
that out of the top 50 soft money donors to both parties combined,
thirty-five corporations gave 11.4 percent ($29,447,350) of all
nonfederal money received by the Republican national committees in
the 2000 election cycle. See Mann Expert Report at tbl. 6.
The California Democratic Party ("CDP") and the California Republican Party ("CRP")
106. The CDP and the CRP each maintain a federal committee registered
with the FEC. In turn, the federal committee maintains a federal
account, contributions to which comply with FEC A's
source-and-amount limitations and reporting requirements. See Bowler
Decl. ¶ 9; Morgan*fn184 Aff. ¶ 3.
107. The CDP and the CRP are each registered as political party
committees in accordance with California law. Each maintains a
nonfederal account into which contributions permissible under
California law are deposited. The parties' nonfederal campaign
activities are subject to direct regulation by the California Fair
Political Practices Commission and each party regularly files
disclosure reports of receipts and expenditures with the Secretary
of State. See Bowler Decl. ¶ 11; Morgan Aff. ¶ 3.
108. Prior to BCRA's effective date the costs of the CDP's and the CRP's
"mixed" activities were "allocated" between each party's federal
account and nonfederal account.
109. The CDP was required to allocate funds for administrative expenses
such as rent or employee salaries; generic voter identification
activities; voter registration activities; get-out-the-vote
activities that were not candidate-specific; fundraising expenses;
and communications on behalf of both federal and nonfederal
candidates. See Bowler Decl. ¶ 15.
110. Bowler testifies that the CDP allocated funds in accordance with the
FEC's regulations. They allocated funds for administrative
expenses, generic voter identification activities, voter
registration activities, and get-out-the-vote activities based on a
"ballot composition" formula that calculated the ratio of federal
offices and nonfederal offices expected to be on the general ballot
in a given election cycle. They allocated funds for public
communications supporting or opposing federal and nonfederal
candidates using a "time-and-space" formula. And they allocated
funds for fundraising expenses on a "funds raised" basis. See id.
111. In November 2000 California voters adopted Proposition 34 to govern
campaign contributions in the state. Under Proposition 34,
expenditures by political party committees on behalf of state
candidates are unlimited. Contributions by political party
committees to state candidates are likewise unlimited, although
contributions by other contributors other than political parties to
state candidates are limited depending upon the elective office.
Contributions to state and local political parties for the purpose
of making contributions to state candidates are limited to $25,000
per year per contributor. Contributions to state and local political
parties for other purposes — e.g., funding administrative and
overhead costs, voter registration or generic get-out-the-vote
activities or supporting ballot measures or issue advocacy are
unlimited. Contributions to state and local political parties are
not source-limited; that is, corporations and labor unions may
contribute funds in accordance with generally applicable limits. See
id. ¶ 11; Erwin Aff. ¶ 5; see also CAL. GOVT CODE §§
85301, 85303(B), 85303(C), 85312.
112. By adopting Proposition 34, California voters approved the statement
that "[p]olitical parties play an important role in the American
political process and help insulate candidates from the potential
corrupting influence of large contributions." CDP App. at 1193
("Proposition 34: Text of Proposed Law").
The CDP's and CRP's Focus on State and Local Activities
113. The CDP and CRP focus the majority of their resources on supporting
state and local candidates, participating in state and local
elections, and influencing state and local policies.
114. In California, state and local races on any particular ballot
substantially outnumber federal races, of which there will be, at
most, three in any election cycle. See Bowler Decl. ¶ 13; id.
¶ 15 (explaining that in the 2002 cycle, where the only Federal
office on the California ballots was a congressional race,
administrative expenses were required to be allocated 12.5 percent
federal and 87.5 percent nonfederal based on the ballot composition
formula; in the 2000 cycle which included a Presidential race,
administrative expenses were required to be allocated 43 percent
federal and 57 percent nonfederal).
115. California holds elections for 120 legislative officers, eight
statewide-elected officers and four members of the State Board of
Equalization. It holds still more elections for judicial office and
local office and ballot measures at both the state and local
levels. See id. ¶ 13; Erwin Aff. ¶ 5.
116. During the 2002 election cycle — in which, according to CDP
Chair Art Torres, there was only one "contested" congressional race
"as a practical matter" the CDP was actively involved in eight
statewide nonfederal races and a dozen state legislative races. See
Torres*fn185 Decl. ¶ 8.
117. The CDP actively participates in municipal elections. In recent
years the CDP has spent several million dollars in nonfederal funds
supporting candidates in major cities such as Los Angeles and San
Francisco. Torres Decl. ¶ 8.
118. The CDP actively supports and opposes state and local ballot
measures. Bowler Decl. ¶ 8.
CDP & CRP Voter Registration Activities
119. Evidence shows that the CDP and the CRP conduct voter registration
primarily for state and local elections.
120. Erwin testified that "[t]he overwhelming amount of [voter
registration] activity is `generic' voter registration activity
urging potential registrants to `Register Republican.'" Erwin Aff.
121. CDP and CRP officials testified that "it is often the case that
voter registration activities are primarily driven by the desire to
affect State and local races." Erwin Aff. ¶ 14a; Bowler Decl.
122. The CDP actively registered over 300, 000 Democratic voters
throughout California during 2002 even though there was "only one
closely contested Congressional race" among the 52 races for the
U.S. House of Representatives. See Bowler Decl. ¶ 20.a.
123. The CDP's expenditures on voter registration — consisting of a
mix of federal and nonfederal funds — were approximately
$145,000 in the 1996 election cycle; $300,000 in the 1998 cycle;
$100,000 in the 2000 election cycle; and $185,000 during the period
from January 1, 2001 to June 30, 2002. See id.
124. The CDP's expenditures for voter registration were higher in 1998 (a
year with eight statewide elections) than in 2000 (a presidential
election year). Id.
125. The CRP has paid for voter registration — with a mix of
federal and nonfederal funds — through its "Operation Bounty"
program, in which Republican county central committees, Republican
volunteer organizations, and Republican candidates for federal and
state office participate. Through Operation Bounty drives, the CRP
has typically registered over 350,000 Republican voters in each
election cycle since the 1984 cycle (except 1997-98). See Erwin
Aff. at 13; see also CDP App. at 1185 (charting CRP's voter
registration activity by election cycle since 1984 cycle).
CDP and CRP Direct Mail Activities
126. The CDP and the CRP conduct direct mail campaigns primarily for
state and local elections.
127. The CDP typically spends approximately $7 million to $8 million in
nonfederal funds on its mail program in support of state and local
candidates that does not include federal candidates. See Bowler
Decl. ¶ 20(b).
128. In 2000, the CDP produced and sent out over 350 different mail
pieces for its state and local candidates and ballot measures. These
mailings do not reference federal candidates or any federal races.
Bowler Decl. ¶ 20(b). This mail often gives both the election
date and the person's polling places. Id.
129. In most election cycles the CRP mails an absentee ballot application
to registered Republican households. In the 1994, 1996, and 1998
cycles the CRP sent between 2.25 and 2.5 million absentee ballot
mailers to Republican voters. In the 2000 cycle the CRP sent
approximately 5.2 million absentee ballot mailers. Erwin Aff. ¶
CDP and CRP Get-Out-the-Vote Activities
130. The CDP conducts get-out-the-vote telephone banks primarily for
state and local elections.
131. Approximately 40 to 50 percent of the CDP's paid phone banking is
conducted in connection with a specific state or local race and does
not make reference to any federal candidate. See Bowler Decl. ¶
132. Prior to BCRA's effective date, to the extent the CDP's phone
banking referred to both federal and nonfederal candidates,
expenditures therefor consisted of a mix of federal and nonfederal
133. Prior to BCRA's effective date, to the extent the CDP's phone
banking did not endorse any federal candidate, expenditures therefor
consisted entirely of nonfederal funds. Id.
134. The CDP and the CRP conduct get-out-the-vote door-to-door canvassing
campaigns primarily to influence state and local elections.
135. The CDP and the CRP routinely mail slate cards and hand deliver door
hangers listing endorsed candidates, urging voters to vote on
election day, and informing voters of the date of the election and
the polling place. Id.; Erwin Aff. ¶ 10.c; Bowler Decl. Exhibit
H, Exhibit I.
136. Slate cards and door hangers are usually tailored for a particular
local area, and state and local races dominate numerically over
federal races. Bowler Decl. ¶ 20.b; Erwin Aff. ¶ 10.c.
137. Prior to BCRA's effective date, to the extent slate cards or door
hangers mentioned both federal and nonfederal candidates,
expenditures therefore consisted of a mix of federal and nonfederal
funds. See id.; Bowler Decl. ¶ 20.b.
State Party "Issue Ads" that Directly Affect Federal Elections
138. State parties also use nonfederal money to fund federal-candidate
centered "issue ads" that are really electioneering advertisements
intended to directly affect federal elections.
139. State parties use a large portion of the transferred nonfederal
money to finance public communications (principally broadcast and
cable advertisements) that support or oppose a federal candidate.
See Wolfson Decl. ¶ 63; Marshall Decl. ¶ 3 (noting that in
2000, the largest single portion of the DNC budget was used for
issue advertising, but that "[t]he DNC typically did not expend
money for these issue ads itself, but instead transferred both
federal and non-federal money to the state parties to make these
expenditures"); Nelson Dep. Tr. at 121, 123. National party "issue
advocacy" advertising focusing on electing federal candidates is
often bought by state parties, but funded by national party
committees, who transfer the funds needed to the state parties.
See, e.g., ODP0021-01365-67, 0DP0023-02358-65, 0DP0023-03560-660,
ODP002S-01560, ODP002S-2720-21 [DEV 70-Tab 48] (internal RNC
correspondence referencing "issue ads" to be run through state
140. Defense Expert Magleby states that
Parties can stretch their soft money even further
by transferring soft and hard money to state
parties where they can achieve a better ratio of
soft to hard dollars than if they spent the money
themselves. This is because the ratio of soft to
hard dollars for party spending if done by the
national patty committees is 35 percent soft and
65 percent hard for presidential years, and 40
percent soft and 60 percent hard for off years,
but if done by state parties the ratio of soft to
hard dollars is greater. The reason for this
difference is state parties are allowed to
calculate their soft/hard ratio based on the
ratio of federal offices to all offices on the
ballot in any given year. Both political parties
have found spending soft money with its
accompanying hard money match through their state
parties to work smoothly, for the most part, and
state officials readily acknowledge they are
simply "pass throughs" to the vendors providing
the broadcast ads or direct mail.
Magleby Expert Report at 37 [DEV 4-Tab 8]; see also Marshall Decl.
¶ 3 [DEV 8-Tab 28] (testifying that in 2000 the DNC transferred
funds to the state parties to take advantage of their allocation
rates); ODP0021-1365 to 1367 [DEV 70-Tab 48] (memorandum from Haley
Barbour to the California House Republicans, discussing the need to
make a media buy in California and stating that "[t]o accomplish
this buy, the [RNC] would transfer funds to the California
Republican Party, which would actually buy the advertising. Under
FEC regulations, the California Republican Party must pay for the
advertising with one-third FEC contributions and two thirds
nonfederal dollars"); McConnell Dep. at 267-77 [JDT Vol. 19]
(stating that the NRSC prefers to transfer funds to state parties
who then purchase NRSC advertisements with a more favorable
federal/nonfederal fund allocation ratio); Nelson Dep at 76-77 [JDT
Vol. 24] (stating that purchasing political advertisements through
state parties has two advantages: (1) better federal/nonfederal fund
allocation ratios and (2) "having [a] state disclaimer [on the
advertisement] is generally better than having a national disclaimer
141. The national party committees transferred $9,710,166 in federal
funds to state party committees during the 1992 election cycle,
$9,577,985 during the 1994 election cycle, $49,967,893 during the
1996 election cycle, $30,475,897 during the 1998 election cycle, and
$131,016,957 during the 2000 election cycle. The national party
committees transferred $18,646,162 in nonfederal funds to state
party committees during the 1992 election cycle, $18,442,749 during
the 1994 election cycle, $113,738,373 during the 1996 election
cycle, $69,031,644 during the 1998 election cycle, and $265,927,677
during the 2000 election cycle. Biersack Decl. tbls. 4, 8 [DEV 6-Tab
142. The RNC transferred federal and nonfederal money to state Republican
party committees to pay for electioneering "issue ads." Huyck Decl.
in Mariani ¶ 4 [DEV 79-Tab 60]; Josefiak Dep. at 97; Hazelwood
Dep. at 118-19; see also INT810-1605 to 12 (RNC NM0406326-33) [DEV
114] (1998 financial statement for the Republican Party of New
Mexico ("RPNM") shows that it received revenues of $1,524,634 in
nonfederal transfers from other Republican organizations, $1,110,987
in individual contributions, and just $389,552 in federal transfers
from Republican organizations; the RPNM spent over one-third of its
1998 revenues, $1,062,095, on "issue advocacy — television,
radio and mail"). In 2000, the RNC raised $254 million, a majority
of which was transferred down to the state parties for various
activities, including issue advertising. Josefiak Dep. at 76 [JDT
Vol. 11]. Most of the transfers are used to pay for issue ads. See
Vogel Decl. ¶ 63; McGahn Decl. ¶ 55.
143. The DSCC and DCCC support Democratic state political party
committees in producing and disseminating electioneering
communications, and the large majority of their nonfederal transfers
to state and local party committees have been to support the
nonfederal share of issue advocacy communications. These
communications frequently refer to Democratic Senate or House
candidates or their Republican opponents, even though "not expressly
advocating any candidate's election or defeat." Wolfson Decl. ¶¶
63, 71 [DEV 9-Tab 44]; Jordan Decl. ¶¶ 68, 77 [DEV 7-Tab 21]; CDP
02095-101, 2103-04, 2106 [IER Tab 12] (wire transfer instructions
from the DNC to the CDP for media buys); CDP 02984-89 [IER Tab 12]
(detailing transfer of funds from DCCC to CDP for media buy).
144. When the national parties transfer money to state parties to fund
so-called "issue ads," they insist on control of the
communications, participate in the creative process, and work with
the consultants to determine the content, timing, and placement of
the communications. Wolfson Decl. ¶¶ 65-67, 70 [DEV 9-Tab 44];
Jordan Decl. ¶¶ 71-73, 76 [DEV 7-Tab 21]; Vogel Decl. ¶ 63,
67-68 [DEV 9-Tab 41]; McGahn Decl. ¶ ¶ 55, 58-59 [DEV 8-Tab
30]; Castellanos Dep. Tr. (Sept. 27, 2002) at 111-12 (stating that
when working on ads for state parties, National Media dealt with an
RNC representative, not a state party member); Marshall Dec 1.
¶ 4 (noting that the DNC normally approved the content of the ad
and the amount of money to be spent before calling the state party
in question "to let it know that an ad was coming").
145. These so-called "issue ads" are intended to and do support the
campaigns of federal candidates. See La Raja Cross Exhibit 3 at 15,
101-04; Pennington Decl. ¶¶ 10, 13, 14 [DEV 8-Tab 31]; see also,
e.g., CRP 0369, 371, 373 [IER Tab 12] (transcripts of television
advertisements paid for with nonfederal money transferred from NRCC
146. Certainly, party communications that promote, support, attack, or
oppose a clearly identified candidate for federal office directly
affect federal elections. See McCain Decl. ¶¶ 15-18; Beckett
Decl. ¶¶ 8-9 [DEV 6-Tab 3]; Chapin Decl. ¶¶ 8-10; Lamson
Decl. ¶ 9; Pennington Decl. ¶¶ 10, 13-14; 148 Cong. Rec.
52138 (daily ed. Mar. 20, 2002) (statement of Sen. McCain).
147. Out of the estimated $25.6 million spent by political parties on ads
in the 1998 election cycle, $24.6 million went to fund ads that
referred to a federal candidate. See Krasno & Sorauf Expert
Report at tbl. 1. Out of 44,485 ads, 42,599 referred to a federal
candidate. Id. Viewers perceived 94 percent of these ads as
electioneering in nature. Id. at tbl. 7.
148. National party committees have directed donors to give nonfederal
money to state parties in order to assist the campaigns of federal
candidates. Kirsch*fn186 Decl. ¶¶ 6, 9 [DEV 7-Tab 23];
Hassenfeld*fn187 Decl. ¶¶ 9-10 [DEV 6-Tab 17]; Hickmott*fn188
Decl. ¶ 8 [DEV 6-Tab 19]; Randlett*fn189 Decl. ¶ 9 [DEV
149. Both federal officeholders and the national parties have directed
contributors to the state parties when the contributors have "maxed
out" to the candidate or when it appears that the state party can
most effectively use additional money to help that officeholder or
other federal candidates. See Kirsch Decl. ¶¶ 8-9; Philp*fn190
Dep. Tr. at Exhibit 14 [IER Tab 1.F]; CRP 07164 [IER Tab 1.F]; La
Raja Cross Exhibit 3 at 54 ("it is common practice for a candidate
to encourage donors to give to the party when they have `maxed'
their federal contributions to his or her committee"); Josefiak
Decl. ¶ 68; MMc0014 [DEV 117-Tab 2] (letter to a contributor
stating "Since you have contributed the legal maximum to the
McConnell Senate Committee, I wanted you to know that you can still
contribute to the Victory 2000 program. . . . This program was an
important part of President George W. Bush's impressive victory in
Kentucky last year, and it will be critical to my race and others
next year" signed by Senator McConnell with the handwritten note:
"This is important to me. Hope you can help"); Buttenwieser Decl.
¶¶ 15-16 [DEV 6-Tab 11] ("Federal candidates have often asked me
to donate to state parties, rather than the joint committees, when
they feel that's where they need some extra help in their
campaigns. I've given significant amounts to the state parties in
South Dakota and North Dakota because all the Senators representing
those states are good friends, and I know that it's difficult to
raise large sums in those states. The DSCC has also requested that I
provide assistance to state parties."); Has senfeld Decl. ¶ 9
[DEV 6-Tab 17] ("In 1992, when I told the Democratic Party that I
wanted to support then-Governor Bill Clinton's presidential
campaign, they suggested that I make a $20,000 hard money
contribution to the DNC, which I did. The Democratic Party then made
clear to me that although there was a limit to how much hard money I
could contribute, I could still help with Clinton's presidential
campaign by contributing to state Democratic committees. There
appeared to be little difference between contributing directly to a
candidate and making a donation to the party. Accordingly, at the
request of the DNC, I also made donations on my own behalf to state
Democratic committees outside of my home state of Rhode
Island. . . . Through my contributions to the political parties, I was
able to give more money to further Clinton's candidacy than I was able
to give directly to his campaign."); [IER Tab 9] (letter from
Congressman Wayne Allard, paid for by the Colorado Republican
Party, informing contributor that he was "at the limit of what you
can directly contribute to my campaign" but at a future breakfast
the contributor would be told how he could "further help my campaign
by assisting the Colorado Republican Party").
150. While state parties invest much of their nonfederal money
transferred to them from the national parties into federal races, La
Raja Dep. at 139, they spend the majority of the nonfederal money
they raise on administrative overhead, voter registration, voter
mobilization, and other party building activities and not on "issue
ads." See La Raja Decl. ¶ 22.a; Bowler Decl. ¶ 15
(explaining that "[t]he majority of [national transfers] were for
issue advocacy, although money has been transferred for voter
registration, get-out-the-vote activities, and even administrative
expenses. We are able to raise a substantial amount of money for our
non-Federal activities and do not rely on national party transfers
for those purposes"); Bowler Decl. ¶ 12 (explaining that in the
1999-2000 cycle, the CDP raised $15,617,002 in nonfederal funds,
which it used to fund state and local activities); Bowler Rebuttal
Decl. ¶ 3-4 (explaining that the CDP pays for much of its voter
registration and get-out-the-vote activities with money raised by
the state party).
151. The amount of nonfederal money the CRP and CDP raises themselves is
much more than the nonfederal funds it receives from transfers from
the national party. CDP/CRP 1171 (in 1999-2000, which was a
presidential election year, only 19.1 percent of all CRP nonfederal
money was from national party transfers); CDP/CRP 35, 37, 39 (in
2000 only 36 percent of all CDP nonfederal money was from national
CDP and CRP Cooperation with the National Parties
152. The CDP and the CRP cooperate and work closely with their national
counterparts to support their candidates and platforms at all levels
of the ticket.
153. Ms. Bowler testifies that the CDP works closely with the DNC in
planning and implementing Coordinated Campaigns, the purpose of
which is to allocate resources and coordinate plans for the benefit
of Democratic candidates up and down the entire ticket. Party
officials, candidates at all levels of the ticket, and their agents
participate in Coordinated Campaigns and collectively make decisions
regarding the solicitation, receipt, directing, and spending of the
CDP's funds, both federal and nonfederal. Bowler Decl. ¶¶ 5, 29.
According to Bowler, the CDP is "integrally related to the [DNC]."
Id. ¶ 5.
154. The CRP works closely with the RNC in planning and implementing a
Victory Plan, the purpose of which is to allocate resources and
coordinate plans for the benefit of Republican candidates up and
down the entire ticket. The Victory Plan is implemented in the
general election cycle with the full involvement of RNC staff, CRP
staff, state legislative leadership, and representatives from the
top of the ticket campaigns. See Erwin Aff. ¶ 4.
Reduction in CDP and CRP Fundraising and Voter Mobilization Efforts
155. The CDP has always raised more nonfederal money than federal money.
156. The CDP has raised a relatively constant amount of federal money. It
raised $4,316,528 in federal funds in the 1996 election cycle;
$4,076,870 in federal money in the 1998 cycle; $4,837,967 federal
money in the 2000 cycle; and $3,455,887 in federal money during the
2002 election cycle as of June 30, 2002. The funds were raised
directly by the CDP; the figures do not include any transfers from
other party committees or from candidates. See Bowler Decl. ¶
10, Exhibit A.
157. Ms. Bowler believes that even with increased efforts, it may be
difficult for the CDP to raise substantially more federal money than
it has in the past. Id. ¶ 10.
158. The CDP has tried many methods of raising more federal funds, with
little success. Through the telemarketing program, which Bowler
states has been its most successful method of raising federal
funds, the CDP has raised between $800,000 and $2 million with an
average contribution of $27. The telemarketing program, however, is
very expensive to run; it costs approximately $0.40 to $0.50 for
every dollar raised. Id. ¶ 35.
159. Since 1995 the number of contributions made to the CDP at the $5,000
level — the FECA federal maximum — was very small,
usually accounting for less than five percent of the CDP's total in
federal contributions. The total amount the CDP has received from
maximum federal contributions has ranged from $170,000 (in the 2000
election cycle) to $355,000 (in the 1996 cycle). Because the number
of contributions at the $5,000 level make up a small percentage of
CDP's federal money fundraising, Bowler does not believe BCRA's
doubling the limit from $5,000 to $10,000 will result in a
substantial increase in federal funds contributed to the CDP. See
id. ¶ 35.
160. Prior to BCRA's effective date the CDP raised a relatively constant
amount of nonfederal money. It raised $12,991,251 in nonfederal
funds in the 1996 election cycle; $15,957,831 in nonfederal money in
the 1998 cycle; $15,617,002 in nonfederal money in the 2000 cycle;
and $13,928,496 in nonfederal money during the 2002 election cycle
up to June 30, 2002. The funds were raised directly by the CDP; the
figures do not include any transfers from other party committees or
from candidates. See Id. ¶ 12, ExhibitA.
161. Approximately 76 percent to 86 percent of the nonfederal donations
the CDP has received have been from donations exceeding $10,000. See
id. ¶ 19, Exhibit A; Torres Decl. ¶ 7.
162. The CRP has employed a wide variety of fundraising techniques to
raise more federal money. See Erwin Aff. ¶ 12.a.
163. The CRP raises federal funds through direct mail. Erwin states that
to maintain a current and effective direct mail fundraising donor
list, the CRP must continually spend funds prospecting for new
donors and that such prospecting is expensive and often loses
money. Federal returns on direct mailings range, on average, from
$20 to $40 per contributor and that CRP direct mail returns reached
a high in 1986 of over $2 million and have declined to under $1
million since 1997. Id.; CDP App. at 1189 (charting CRP's major
funding sources by year since 1985).
164. The CRP also uses telemarketing to raise federal funds. Federal
returns on the CRP's telemarketing range, on average, from $20 to
$40 per contributor. Erwin testifies that like direct mail
prospecting, telemarketing prospecting is "expensive and often
unproductive." See Erwin Aff ¶ 12.b; CDP App. at 1189. The CRP
also relies on "Major Donor Programs" and "Event Fundraising" for
its federal money fundraising. Erwin Aff. ¶ 12.c-d.
165. During the 2000 election cycle, the CRP raised $5,397,400 in
nonfederal funds from the 166 donors who gave $10,000 or more. Erwin
Aff. ¶ 13(B); Erwin Aff. Chart 5. Those donations totaled
$5,397,400. The aggregated amount above $10,000 from those donations
accounted for $3,737,400 ($5,397,400 minus $1,660,000 (166 donors
multiplied by $10,000)). Erwin Aff. Chart 5, Chart 6A. Thus, if the
CRP had been limited in funding certain electoral activities with
donations raised within the $10,000 limit specified in the Levin
Amendment, $3,737,400 of the $5,397,400 raised from donations above
$10,000 would have been unavailable for those purposes. Erwin Chart
Aff. Chart 6B. This also means that the CRP would have had 10.5
percent less total revenue to use for Levin-Amendment activities
(i.e., $3,737,400 of $35,649,993, the total revenue for the 2000
election cycle, could not have been used for those activities).
Erwin Aff. Chart 1.
166. Erwin testifies that BCRA's ban on national party transfers will
reduce the CRP's available budget by approximately 40 percent in
presidential election cycles and 20 percent in nonpresidential
election cycles. Erwin Aff. ¶ 15.a.
167. On average, Erwin attests that between 1993 and 2000 BCRA would have
reduced the CRP's overall spending from $30 million to $18 million
during presidential election cycles and from $17.5 million to $14
million during nonpresidential election cycles. Id.
168. Party officials believe that under BCRA the CDP will have to reduce
their communications with voters. Not only will administrative costs
have to be reduced, accounting costs will likely increase because of
BCRA's additional reporting requirements. Moreover, fundraising
costs will increase because only federal money can be used to raise
federal or Levin funds. Thus, even maintaining current fundraising
efforts will come at a direct cost to the parties' programmatic and
candidate-support activities. Because candidate support and
get-out-the-vote activities are likely to remain the parties' first
priorities, voter registration, generic party-building and
grassroots activities will likely be reduced or even eliminated.
Bowler Decl. ¶ 23; Torres Decl. ¶ 9.
Federal Officeholder Solicitation of Nonfederal Money
169. It is a common practice for Members of Congress to be involved in
raising both federal and nonfederal dollars for the national party
committees, sometimes at the parties' request. McCain Decl. ¶¶
2, 21 [DEV 8-Tab 29] ("Soft money is often raised directly by
federal candidates and officeholders, and the largest amounts are
often raised by the President, Vice President and Congressional
party leaders."); Feingold Dep. at 91-93 [JDT Vol. 6]; Shays Decl.
¶ 18 [DEV 8-Tab 35] ("Soft money is raised directly by federal
candidates, officeholders, and national political party leaders.
National party officials often raise these funds by promising donors
access to elected officials. The national parties and national
congressional campaign committees also request that Members of
Congress make the calls to soft money donors to solicit more
funds."); see also Rudman Decl. ¶ 12 [DEV 8-Tab 34]; Bumpers
Decl. ¶¶ 7-8 [DEV 6-Tab 10]; Simon Decl. ¶ 7 [DEV 9-Tab 37];
Wolfson Decl. ¶¶ 34-35 [DEV 9-Tab 44]; Randlett Decl. ¶¶ 6-9
[DEV 8-Tab 32]; Murray*fn191 Dep. in Mariani at 41-42 [DEV 79-Tab
58]; Rozen*fn192 Decl. Exhibit A ¶ 7 [DEV 8-Tab 33]; Simpson
Decl. ¶ 4 [DEV 9-Tab 38]; Jordan Decl. ¶¶ 32-33 [DEV 7-Tab
170. Federal officeholders and candidates solicit large nonfederal
donations for their parties. ODP0031-00440 (letter from donor to
RNC, stating that "I am happy to deliver a check for one hundred
thousand dollars to you that fulfills the commitment I made to my
good friend Bob Dole in a letter I sent him); ODP0031-00821 (letter
from contributor to RNC with contribution, stating "Congressman
Scott McInnis deserve [sic] most of the recruitment credit"),
0DP0037-00882 (a solicitation letter from Senator McConnell to
potential donor at Microsoft Corporation, expressing the hope that
this person would "take a leadership role with [McConnell] at the
NRSC in support of the Committee's issue advocacy campaign. The
resources we raise now will allow us to communicate our strategy
through Labor Day. . . . Your immediate commitment to this project
would mean a great deal to the entire Republican Senate and to me
personally"); 0DP0037-01171-72 [DEV 71-Tab 48] (correspondence
referencing solicitations by federal officeholders and candidates);
Shays Decl. in RNC ¶ 12 [DEV 68-Tab 40]. In general, the
personal involvement of high-ranking leaders of Congress is a
significant component of raising federal and nonfederal money from
major donors. See Bumpers Decl. ¶¶ 8-9 [DEV 6-Tab 10]; Meehan
Decl. ¶ ¶ [DEV 68-Tab 30]; Simon Decl. ¶ 7 [DEV 9-Tab
37]; Rozen Decl. ¶ 15 [DEV 8-Tab 33]; Kolb Decl. II, Exhibit A
¶ 8 [DEV 7-Tab 25].
171. However, the Finance Director of the RNC stated that it is
"exceedingly rare" for the RNC to rely on federal officeholders for
personal or telephonic solicitations of major donors. See B. Shea
Decl. ¶ 17. She states that by RNC policy and practice, the RNC
Chairman, Co-Chairwoman, Deputy Chairman, fundraising staff or
members of major donor groups — not federal officeholders
— undertake initial contact and solicitation of major donors
of both federal and nonfederal funds. Id.
172. Republican incumbents and candidates solicit donations of federal
and nonfederal money for both the NRSC and the NRCC. Vogel Decl.
¶¶ 25-28, 32 [DEV 9-Tab 41]; McGahn Decl. ¶¶ 27-30, 33-37 [DEV
8-Tab 30]; ODP0018-00137 (Victory `96 Brochure outlining the RNC's
donor programs and describing the uses of Victory `96 proceeds and
Presidential candidate Dole's assistance raising these funds);
ODP0018-00139-41, ODP0018-00151-52 [DEV 69-Tab 48] (Victory `96
solicitation letters signed by Senator Dole).
173. "National party committees often feel they need to raise a certain
amount of soft money for a given election cycle. To reach that
overall goal, they may divide up potential donors by geography,
affiliated organization, or issue interests. The party committees
decide which Members of Congress should contact these potential
donors, and these Members then put in a certain amount of call time
at the national committee soliciting the money. A Member and a
potential donor may be matched because the Member is on a
legislative committee in which the donor has a particular interest,
whether economic or ideological." Randlett Decl. ¶ ¶ [DEV
8-Tab 32]; see Rozen Decl. ¶ 15 [DEV 8-Tab 33]; Krasno and
Sorauf Report at 12-13 [DEV 1-Tab 2].
174. The House and Senate congressional campaign committees and their
leadership ask Members of Congress to raise funds in specified
amounts or to devote specified periods of time to fundraising.
Jordan Decl. ¶ 33 [DEV 7-Tab 21]; Vogel Decl. ¶¶ 32-33 [DEV
9-Tab 41]; McGahn Decl. ¶¶ 34-35 [DEV 8-Tab 30]; Wolfson Decl.
¶ 35 [DEV 9-44] (stating that the DSCC, NRSC, NRC C, and DCCC
ask members of Congress to raise money for the committees).
175. The DSCC maintains a "credit" program that credits nonfederal money
raised by a Senator or candidate to that Senator or candidate's
state party. Jordan Decl. ¶¶ 36-39 [DEV 7-Tab 21]. Amounts
credited to a state party can reflect that the Senator or candidate
solicited the donation, or can serve as a donor's sign of tacit
support for the state party or the Senate candidate. Jordan Decl.
¶¶ 37-40, Tabs F, G [DEV 7-Tab 21].
176. Both the NRCC and NRSC are aware of which Members have raised funds
for their committees, and may advise Members of amounts they have
raised. McGahn Decl. ¶¶ 34-35 [DEV 8-Tab 30]; Vogel Decl. ¶¶
33, 36 [DEV 9-Tab 41]. Similarly, although the DCCC uses "no formal
credit or tally program," it "advises Democratic House Members of
the amounts they have raised for the DCCC, ascribing particular
contributions to the fundraising efforts of the Member in question."
Wolfson Decl. ¶ 36 [DEV 9-Tab 44]; Thompson Dep. at 28-29 [JDT
177. Federal candidates of both parties raise nonfederal money through
joint fundraising committees formed with national committees. See
Buttenwieser Decl. ¶¶ 8-14 [DEV 6-Tab 11].
178. One common method of joint fundraising is for a national committee
to form a separate joint fundraising committee with a federal
candidate committee. A joint fundraising committee collects and
deposits contributions, pays related expenses, allocates proceeds
and expenses to the participants, keeps required records, and
discloses overall joint fundraising activity to the FEC. Wolfson Dec
1. ¶ 40 [DEV 9-Tab 44]; Vogel Decl. ¶¶ 39-45 [DEV 9-Tab 41];
Jordan Decl. ¶¶ 41, 50 [DEV 7-Tab 21]; Oliver Dep. at 258 [DEV
Supp.-Tab 1]. Similarly, the most common method of NRSC joint
fundraising activity is for the NRSC to form a separate joint
fundraising committee under FEC regulations with a Republican Senate
candidate. Vogel Decl. ¶¶ 39-45.
179. Parties often ask officeholders to solicit soft money from
individuals who have maxed out to the officeholder's campaign.
Simpson Decl. ¶ ¶ [DEV 9-Tab 38]. See Bumpers Decl. ¶¶
9-11 [DEV 6-Tab 10]; Meehan Decl. in RNC ¶ ¶ [DEV 68-Tab
30]; Billings Decl. Exhibit A ¶ 12 [DEV 6-Tab 5]; Jordan Decl.
¶ 27 [DEV 7-Tab 21]; Oliver Dep. at 188 [DEV Supp.-Tab 1]
(pertaining to 2000 Bush/Cheney legal defense fund); Sorauf/Krasno
Report in Colorado Republican, at 13-14 [DEV 68-Tab 44];
ODP0018-00620-21 [DEV 69-Tab 48] (federal candidate noting that he
"recently sent a letter to [his] maxed out donors suggesting
contributions to the NRCC"). The parties prefer that donors first
"max out" on federal money gifts before contributing nonfederal
money. Kirsch Decl. ¶ 8 [DEV 7-Tab 23]. As one candidate
stated, "[Y]ou are at the limit of what you can directly contribute
to my campaign," but "you can further help my campaign by assisting
the Colorado Republican Party." FEC v. Colorado Republican Fed.
Campaign Comm., 533 U.S. 431, 458 (2001) (quoting an August 27, 1996
fundraising letter from then-Congressman Allard).
Political Parties and Nonprofit Groups
180. Political parties and federal candidates work with nonprofit groups
on campaign activities. Moreover, they have raised nonfederal money
for, directed nonfederal money to and transferred nonfederal money
to nonprofits for use in federal elections.
181. The national party committees direct donors to donate nonfederal
money to certain interest groups for broadcast issue advertisements
and other activities to influence federal elections. For example,
Steve Kirsch testified that the national Democratic Party played an
important role in his decisions to donate soft money to "certain
interest groups that were running effective ads in the effort to
elect Vice-President Gore, such as NARAL. The assumption was that
the funds would be used for television ads or some other activity
that would make a difference in the Presidential election." Kirsch
Decl. ¶ 10 [DEV 7-Tab 23]; see also 144 Cong. Rec. S1048 (1998)
182. Parties raise funds for, or donate nonfederal money to, tax-exempt
organizations, which in turn use funds to influence federal
elections. Kirsch Decl. ¶ 10 [DEV 7-Tab 23]; Marshall Dec 1.
¶ 9 [DEV 8-Tab 28].
183. The RNC, NRSC, and NRCC have all made nonfederal donations to the
National Right to Life Committee, an independent group that assists
Republican candidates through "issue advocacy" activities. Resps.
Nat'l Rt. Life Pls. To Defs.' First Interrogs., No. 3 [DEV 10-Tab
5]; RNC0065691A, RNC0065691 [DEV 134-Tab 8, DEV Supp.-Tab 3, DEV
101]. After the NRSC's 1994 donation, then-NRSC Chairman Senator
Phil Gramm told The Washington Post that the party made this
donation because it knew the funds would be used on behalf of
several specific Republican candidates for the Senate, saying he had
"made a decision . . . to provide some money to help activate
pro-life voters in some key states where they would be pivotal to
the election." Id. at 5975; see also RNC 0373365 [IER Tab 31]
(letter from the Republican National State Elections Committee to
the American Defense Institute notifying the group of a $300,000
donation from the RNSEC's "`non-federal component" to assist the
groups "`efforts to educate and inform Americans living overseas of
their civic responsibilities"); RNC 0373370, 0373376, 0373381 (three
letters to Americans for Tax Reform all dated in October 1996
providing the group $1,000,000, $2,000,000, $600,000 donations in
recognition of the group's "efforts to educate and inform the
184. The National Right to Work Committee "pays for its advertising from
its treasury, [and] admits that certain Members or Executive Branch
Officials have generally encouraged financial support for the Right
to Work cause and, specifically, for the support of NRTWC in
advocating for these issues, through lobbying as well as issue
advertising." Resp. Nat'l Rt. Work Comm. to Defs. First RFAs, No. 17
[DEV 12-Tab 2]; see also NRW-2812 [DEV 129-Tab 2] (letter from
Congressman Pete Sessions asking the recipient to meet with National
Right to Work Committee personnel regarding the Committee's effort
to "stop Big Labor from seizing control of Congress in November").
185. Congressman Ric Keller signed a Club for Growth fundraising letter
dated July 20, 2001 which credited the Club for his own 2000
electoral success and assured potential donors that their money
would be used to "help Republicans keep control of Congress."
CFG00208-10 [DEV 130-Tab 5]; see Pennington Decl. ¶¶ 15, 19 [DEV
186. The 2000 Democratic coordinated campaign in Florida's Eighth
Congressional District was funded primarily by EMILY's List through
its Florida Women's Vote project, though the DCCC and Congressional
candidate Linda Chapin also raised funds for it. Florida Women's
Vote gave money to the State Party, which then set up the
coordinated campaign and hired the staff. EMILY's List also sent
some staff to assist in the coordinated campaign, which they also
did in their other targeted races throughout the country. Beckett
Decl. ¶ ¶ [DEV 6-Tab 3]; Chapin Decl. ¶ 6 [DEV 6-Tab
187. Defendants' expert Green testifies that "[n]ational parties . . .
transferred large sums of money to tax-exempt organizations
because, unlike state parties, these tax-exempt organizations are
not bound by allocation formulas that specify how much hard money
must be spent in conjunction with soft money expenditures." Green
Expert Report at 17-18 n. 17 [DEV 1-Tab 3].
188. Most committees that are organized to support or oppose ballot
measures in California are organized as 501(c)(4) committees. Bowler
states that virtually all of the ballot measure committees in
California engage in activity that can be characterized as
get-out-the-vote activity under BCRA. Bowler Decl. ¶ 30.
189. Most Members of Congress either in a formal leadership position, or
aspiring thereto, have his or her own 527 group. Public Citizen
Congress Watch, Congressional Leaders' Soft Money Accounts Show Need
for Campaign Finance Reform Bills, Feb. 26, 2002, at ¶ [DEV
29-Tab 3]. "For congressional leaders, 527 groups appear to collect
about as much money as their campaign committees and often as much
as their leadership PACs." Id. at 9.
190. Most of the 527s active in federal politics exist to either promote
certain politicians (which Public Citizen calls "politician 527s")
or promote certain ideas, interests and partisan orientations in
election campaigns. "Politician 527s generally serve as soft money
arms of `leadership PACs,' which incumbents use to aid other
candidates and otherwise further their own careers. Like the
campaign committees of members of Congress, leadership PACs can
receive only `hard money' contributions, which are limited in
amounts and may not come directly from corporations or unions.
Politician 527s use their soft money mainly to sponsor events that
promote their own careers, help create a `farm team' of successful
state and local candidates, and spur partisan `get-out-the-vote
(GOTV)' efforts." Id. at 6.
191. Many donors to Member 527 organizations donate with the intent of
influencing federal elections. For example, Peter Buttenwieser
testified that in early 2002 he donated $50,000 to a 527
organization, Daschle Democrats, which ran broadcast ads in South
Dakota supporting Senator Tom Daschle in response to the attacks
that had been made against him. Mr. Buttenwieser stated: "I was
willing to do this because I felt that the attacks were hurting
Senator Daschle and Senator Tim Johnson's re-election campaign as
well." Buttenwieser Decl. ¶ 20 [DEV 6-Tab 11].
192. Twenty-seven industries (including individuals, such as executives,
associated with the industries) contributed $100,000 or more in just
a single year to the top 25 politician 527 groups. These industries
accounted for 52 percent of all contributions to the top 25
politician 527s. The top 10 industries contributing were:
computers/Internet, securities & investments, lawyers/law
firms, telephone utilities, real estate, TV/movies/music, air
transport, tobacco, oil & gas, and building materials and
equipment. Top corporate contributors included AT&T, SBC
Communications, Philip Morris, Mortgage Insurance Companies of
America, Clifford Law Offices, U.S. Tobacco and American Airlines.
Overall, only 15 percent of total contributions to the top 25
politician 527's came in amounts of less than $5,000. Democratic
party committees and unions also contributed over $100,000 to the
top politician 527s. In fact, Democratic party committees (mainly
the DNC) were the single largest contributor to politician 527s.
Almost all of this money (81 percent) went to the Congressional
Black Caucus 527. Public Citizen Congress Watch, Congressional
Leaders' Soft Money Accounts Show Need for Campaign Finance Reform
Bills, Feb. 26, 2002, at 10-11 [DEV 29-Tab 3].
193. Section 527 organizations include political clubs. The CDP has
contributed to Democratic clubs engaged solely in state-focused
grassroots, voter registration, and get-out-the-vote activities. See
id. ¶ 31. Likewise, most of the organizations participating in
the CRP's Operation Bounty Program are Section 527 organizations.
Erwin Aff. ¶ 9.
194. Interest groups are funded by persons and entities — whether
corporations, unions, trade associations, advocacy groups, or the
like — that (1) are intensely concerned about a particular
issue or set of issues; (2) participate in the political process;
and (3) associate with others of like mind.
195. "Most interest groups, in contrast [to political parties], seek to
build relationships with officeholders as a way of improving access
to the legislative process and lobbying their position. In political
science, there is strong empirical support for the theory that
interest groups allocate resources primarily to pursue the "access"
strategy, meaning they give to candidates who are most likely to win
office, which is usually the incumbents (see, for example, Herrnson
2000). Political parties, however, allocate resources for electoral
strategies, meaning they contribute money to a party candidate who
is in a potentially close election." La Raja Expert Report ¶
196. Interest groups are subject to less regulation than political
parties. Unlike political parties, for example, special interest
groups have rarely been required to make public disclosure of their
receipts, donors, disbursements, and activities. See Beinecke*fn193
Decl. ¶¶ 3, 9 (prior to BCRA, National Resources Defense Council
did not have to file disclosure forms with FEC or disclose to the
public amounts donated by foundations); Gallagher Decl. ¶ 15
(prior to BCRA National Abortion and Reproductive Rights Action
League ("NARAL") was not required to track whether it received
donations from persons outside United States); Sease*fn194 Decl.
¶ 11 (Prior to BCRA, Sierra Club was not generally required to
report identity of individual donors to any government entity); see
also Keller Expert Report ¶ 42 (stating that the political
activities of interest groups "are far less transparent than those
Interest Groups Compared to Political Parties
197. Interest groups engage in voter registration, voter identification,
get-out-the-vote activities, and lobbying of officeholders, Dendahl
Decl. ¶ 11, and witnesses predict that under BCRA such
activities by interest groups will expand, see Bennett Decl. ¶
11; Benson Decl. ¶ 12; Cross Exam. of Green at 158-59.
198. Interest groups have increased their grassroots, direct mail,
telephone bank, and door-to-door mobilization efforts and they
increasingly distribute absentee ballots and provide supporters with
transportation to the polls. See Peschong Decl. ¶¶ 13-14; Cross
Exam. of Green at 21-22.
199. During the closing weeks of the 2000 campaign the NAACP National
Voter Fund registered over 200, 000 people, put 80 staff in the
field, contacted 40, 000 people in each target city, promoted a
get-out-the-vote hotline, ran three newspaper print ads on issues,
made several separate direct mailings, operated telephone banks, and
provided grants to affiliated organizations. See Cross Exam. of
Green at 15-20, Exhibit 3; Cross Exam. of McCain at 70-72. The NAACP
reports that the program turned out a million additional black
voters and increased turnout (over 1996 numbers) among targeted
groups by 22 percent in New York, 50 percent in Florida and 140
percent in Missouri. See Cross Exam. of Green Exhibit 3. The NAACP's
effort, which cost approximately $10 million, was funded in large
part by a single $7 million donation by an anonymous individual. See
id. at 20, Exhibit 3; Cross Exam. of McCain at 73-74.
200. NARAL's Executive Vice President, in 2000 NARAL spent $7.5 million
and mobilized 2.1 million pro-choice voters. The group also made 3.4
million phone calls and mailed 4.6 million pieces of election mail.
See Gallagher Decl. ¶ 24.
The Record Contains No Evidence of Quid Pro Quo Corruption
201. The record does not include any evidence that nonfederal donations
to political parties have resulted in "actual" quid pro quo
corruption, such as vote buying.
202. There is no evidence presented in the record that any Member of
Congress has ever changed his or her vote on any legislation in
exchange for a donation of nonfederal funds to his or her political
party. See Resp. of FEC to RNC's First and Second Reqs. for Admis.
at 2-3 (conceding lack of evidence); McCain Dep. at 171-74 (unable
to identify any federal officeholder in quid pro quo corruption);
Snowe Dep. at 15-16 (same); Jeffords Dep. at 106-07 (same); Meehan
Dep. at 181-83 (same); Shays Dep. at 171 (same); see also 148 Cong.
Rec. S2099 (daily ed. March 20, 2002) (statement of Sen. Dodd) ("I
have never known of a particular Senator whom [sic] I thought cast a
ballot because of a contribution."); 147 Cong. Rec. S2936 (daily
ed. March 27, 2001) (statement of Senator Wellstone) ("I don't know
of any individual wrongdoing by any Senator of either party.").
203. Testimony from other former Members of Congress describe, at best,
their personal conjecture regarding the impact of soft money
donations on the voting practices of their present and former
colleagues. See Simpson Decl. ¶ 10 ("Too often, Members' first
thought is not what is right or what they believe, but how it will
affect fundraising. Who, after all, can seriously contend that a
$100,000 donation does not alter the way one thinks about —
and quite possibly votes on — an issue? . . . When you don't
pay the piper that finances your campaigns, you will never get any
more money from that piper. Since money is the mother's milk of
politics, you never want to be in that situation."). Senator Simon
It is not unusual for large contributors to seek
legislative favors in exchange for their
contributions. A good example of that which
stands out in my mind because it was so stark and
recent occurred on the next to last day of the
1995-96 legislative session. Federal Express
wanted to amend a bill being considered by a
Conference Committee, to shift coverage of their
truck drivers from the National Labor Relations
Act to the Railway Act, which includes airlines,
pilots and railroads. This was clearly of benefit
to Federal Express, which according to published
reports had contributed $1.4 million in the last
2-year cycle to incumbent Members of Congress and
almost $1 million in soft money to the political
parties. I opposed this in the Democratic
Caucus, arguing that even if it was good
legislation, it should not be approved without
holding a hearing, we should not cave in to
special interests. One of my senior colleagues
got up and said, `I'm tired of Paul always
talking about special interests; we've got to pay
attention to who is buttering our bread.' I will
never forget that. This was a clear example of
donors getting their way, not on the merits of
the legislation, but just because they had been
big contributors. I do not think there is any
question that this is the reason it passed.
Simon Decl. ¶¶ 13-14 [DEV 9-Tab 37]; see also Colorado II,
533 U.S. 431, 451 n. 12 (2001); Feingold Dep. at 62 [JDT Vol.6]
(testifying that in the fall of 1996 a senior Senator suggested to
Senator Feingold that he support the Federal Express amendment
because "they just gave us $100,000").
204. To the extent that there is any statistical evidence in the record
which would support the conclusion that nonfederal donations to
political parties or their committees has resulted in actual quid
pro quo corruption of federal candidates or officeholders, it has
been so seriously called into question that it is of no probative
205. Defense expert Green testified that there are no statistically valid
studies showing a correlation between political donations (either
federal or nonfederal) and legislative voting behavior. See Cross
Exam. of Green at 58-61. Indeed, Green acknowledged that "[s]ome
studies have even found a negative correlation." Id. at 54-55; see
also Cross Exam. of Sorauf at 132 ("political scientists lack the
means to observe . . . such things"; Cross Exam. of Bok at 18-21,
35-36 (some existing studies erroneously assume "that because money
goes to people who vote a particular way, the money must have caused
the vote"). Moreover, Green opines in his expert report that "the
literature on the relationship between roll call votes and money is
murky because the problem is an extremely difficult one to solve,
statistically." Cross Exam. of Green at 67-68. Green further
explained in his expert report that the "[c]orrelations between
contributions and legislative behavior cannot disentangle whether
contributions reward fealty, create it, or merely affect ideological
affinity between legislators and their financial backers." Green
Expert Report at 24. But Green does note that corruption, whether
quid pro quo or otherwise, "redound[s] to the personal benefit of
the candidate seeking to win election." Id. at 20.
206. To the extent that there is any statistical evidence presented in
support of the conclusion that nonfederal donations influence other
legislative actions such as committee voting, offering amendments,
or filibustering, it is so undermined by challenges to its validity
that it has no probative value. See Cross Exam. of Green at 55,
68-72, 95 (noting that one study that attempts to find such evidence
fails to take lobbying and other activities into account); Cross
Exam. of Primo at 136-38, 142-43 (existing study's findings are
mathematically unsupported); Snyder Rebuttal Report at 7-9 (existing
study critically flawed). Defendants' expert Mann acknowledges that
"[t]here is little statistical evidence that campaign contributions
to members of Congress directly affect their roll call decisions:
Party, ideology, constituency, mass public opinion and the president
correlate much more with voting behavior in Congress than do PAC
contributions." Mann Expert Report at 32 [DEV 1-Tab 1]; Milkis
Expert Report ¶ 41 (political parties reduce the risk of quid
pro quo corruption by providing a "protective layer of decision
makers between candidates and donors"). However, he notes that
"[w]hen these variables are less significant, there is evidence that
interest group contributions, particularly to junior members of
Congress, have influenced roll call votes — for example, on
financial services regulation." Id. at 32-33 (citing Thomas
Stratmann, Can Special Interests Buy Congressional Votes? Evidence
from Financial Services Legislation. Paper (prepared for delivery at
the 2002 Annual Meeting of the American Political Science
Association, Boston, 29 August — 1 September), available
While Some Federal Candidates Are Aware of the Identities of Part Contributors Others Are Not
207. Some federal candidates and officeholders are unaware of who donates
money to either their campaigns, the parties, or both. See e.g.,
Feingold Dep. at 115-16 ("Q: How generally are . . . Senators made
aware of, if at all, the amounts and identities of soft money donors
to the national committees? A: I don't know exactly how that's done
or how much it's done."); Snowe Dep. at 223-24 (unaware of
nonfederal donors to the RNC); Jeffords Dep. at 94-97 (generally
unaware of nonfederal donors to RNC and DNC); Meehan Dep. at 179
(aware of few nonfederal donors to national party committees, and
only because "from time to time I read who they are in the
newspaper"); see also, e.g., Rudman Dep. at 76 (unaware); Wirth
Dep. at 66-67 (unaware); Hickmott Dep. at 66-68 (noting that as
Deputy Chief of Staff to former Senator Wirth he was unaware who
donated nonfederal funds to national party committees).
208. Others, however, not only acknowledged their own awareness but their
belief that other federal officeholders and candidates are typically
aware of who donates to their campaigns and to their parties.
Indeed, one Member of Congress suggested that he did not know the
identity of contributors to his party because he made a conscious
effort to remain unaware. Bumpers Decl. ¶¶ 18, 20 (explaining
that officeholders of both parties are aware of contributors'
identities, and that he had "heard that some Members even keep lists
of big donors in their offices" and that "`you cannot be a good
Democratic or a good Republican Member and not be aware of who gave
money to the party. If someone in Arkansas gave $50,000 to the DNC,
for example, I would certainly know that"); Senator Rudman Decl.
¶ 6, Rudman Dep. at 75-78 (explaining that while he did not know
the identity of contributors who donated "either hard or soft money"
to the RNC, that the RNC "probably" provided him with that
information and that "if they came to the office, the
[administrative assistant] took them and probably read them." Rudman
also explains that sitting Members of Congress are the ones raising
nonfederal and federal party donations, and that the party
committees decide which donors should contact which members);
Congressman Shays, 148 Cong Rec. H352 (2002) (recognizing that "it's
the candidates themselves and their surrogates who solicit soft
money. The candidates know who makes these huge contributions and
what these donors expect"); Randlett Decl. ¶ 10 ("Information
about what soft money donors have given travels among the Members in
different ways. Obviously the Member who solicited the money knows.
Members also know who is involved with the various major donor
events which they attend, such as retreats, meetings and conference
calls. And there is communication among Members about who has made
soft money donations and at what level they have given, and this is
widely known and understood by the Members and their staff."); Wirth
Decl. Exhibit A ¶ 17 ("[C]andidates were generally aware of the
sources of the funds that enabled the party committee to support
their campaigns."); Senator Simpson Decl. ¶ 5 (explaining that
"[p]arty leaders would inform Members at caucus meetings who the big
donors were. If the leaders tell you that a certain person or group
has donated a large sum to the party and will be at an event
Saturday night, you'll be sure to attend and get to know the person
behind the donation. . . . Even if some members did not attend these
events, they all still knew which donors gave the large donations,
as the party publicizes who gives what."); Senator Boren Decl.
¶ 6 (testifying that "[e]ach Senator knows who the biggest
donors to the party are" because "[d]onors often prefer to hand
their [nonfederal money contribution] checks to the Senator
personally, or their lobbyist informs the Senator that a large
donation was just made."); McCain Decl. ¶ ¶ ("Legislators of
both parties often know who the large soft money contributors to
their party are, particularly those legislators who have solicited
soft money," and "[d]onors or their lobbyists often inform a
particular Senator that they have made a large donation."); Vogel
Decl. ¶¶ 25-28 (explaining that the parties distribute lists of
potential donors to incumbents so that they can solicit donations);
McGahn Decl. ¶¶ 21, 34-37 (same); Jordan Decl. ¶¶ 20, 25-28
(same); Wolfson Decl. ¶¶ 21, 28-31 (same); Jordan Decl. ¶¶
52, 58; Wolfson Decl. ¶ 49; JosefiakDep. at 117-18; Andrews*fn195
Decl. ¶ 14; Letter from RNC Chairman Jim Nicholson to Donald
Fisher, August 18, 1998, (copies to House Speaker Newt Gingrich,
House Majority Leader Dick Armey and Congressman John Linder
(stating "I appreciate your interest in helping us hold onto our
majority in the House. . . . I can tell you every single dollar of
your contribution will go directly into Operation Breakout. . . . If
you will make your check out (which can be personal or corporate) to
the Republican National Committee and annotate it for Operation
Breakout I will personally show a copy of it to Newt, Dick Armey and
John Linder. Please feel free to accompany it with a transmittal
letter containing any other message that you choose."); Senator
Feingold Dep. at 115 (explaining that while he does not know how
Senators are made aware of the identity of donors of nonfederal
money to national parties, it is because he "made a real effort to
be far away from that part of the process so [he is] not privy to or
aware of exactly how that's done and to what extent it's done.");
Congressman Meehan Dep. at 178-79 (explaining that he was unaware of
the Democratic National Committee's "tallying" process, by which the
amount of money the DNC spends on a particular candidate is related
to the amount of nonfederal money that candidate raised for the
DNC, however, that he was "probably one of the last people that they
would let know about the tallying process"). One lobbyist, and
former DNC official, observed that
[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.
There is No Probative Evidence That National Parties Use Nonfederal Donations to Induce Federal Officeholders to Support or Oppose Legislation
209. There is no probative evidence that national parties have
attempted, through the use of nonfederal donations, to get federal
officeholders to change their position on legislation. Senator
Rudman testifies that the RNC never asked him to take a particular
position because a donor had contributed soft money to the party.
Rudman Dep. at 77-82. Senator McCain testifies that "there are many
times where the Republican National Committee tried to change my
votes and other votes of other Republicans . . . [T]he Republican
National Committee constantly weighs in on legislation before the
Congress of the United States," McCain Dep. at 171-72 but he also
states that he does not "know [if it was] in exchange for donations
210. There is no probative evidence in the record which suggests that
national party committees support or withhold support from federal
officeholders based on their voting records. See, e.g., Vosdingh
Dep. at 89 (FEC unaware of any national party committee using
nonfederal funds to induce federal officeholder to support or oppose
specific legislation); Mann Cross Exam. at 113-15 ("I would be
shocked if [the RNC] ever did such a thing. . . . [T]he point is to
win the margin seat, to control the majority for the party, not to
weaken a potentially vulnerable candidate. . . . It would be
self-defeating. That isn't how it works.").
The Relationship Between Access and Donations
211. The record contains substantial probative evidence that donors of
both federal and nonfederal donations to parties receive greater
access, both in the amount of time they spend with federal
officeholders and in the priority with which their interests are
accorded in comparison to nondonors. See Bumpers Decl. ¶ 14;
McCain Decl. ¶ 6; Boren Decl. ¶ 9; Senator Glenn (144 Cong.
Rec. S 1048 (1998); Shays Decl. ¶ 9 (the overall message of the
statements of these current and former federal officeholders is that
the expectation of the donor is that he or she has access when
needed by virtue of his contribution, and that donors often give
soft money in response to an invitation for an event that will allow
them face-to-face access with a federal officeholder); see also
Senator Simon Decl. ¶ 16 (stating that he was more likely to
first return the telephone call of a donor to his campaign than
someone who had not donated, and that increased access for those who
give large contributions to the party is not fair to those who
cannot afford to give contributions at all).
212. The RNC's Finance Director Beverly Shea testifies that the RNC does
not arrange meetings with government officials for any of its donors
— federal or nonfederal and whenever a donor attempts to
condition a donation on obtaining such a meeting, the RNC rejects
the donation. See B. Shea Decl. ¶ 44. Ms. Shea maintains that
the RNC Finance Division, "[a]s a matter of policy," passes along
requests from donors for meetings with a federal officeholder to
that officeholder's scheduling staff "without inquiring into the
purpose of the proposed meeting"; to "neither to advocate a meeting
nor ascertain whether a meeting has been arranged"; to not provide
to the officeholder's scheduler the amount of the money that donor
has contributed to the party; and to reject any donation that is
conditioned on obtaining a meeting with an officeholder. Id. at 44,
46. The record, however, includes examples of documents provided by
a national party which suggest a link between contributions to the
party and the occurrence of meetings with party leadership. See
e.g., ODP002S-02456 to 57 [DEV 70-Tab 48] (RNC Chair asking Senate
Majority Leader Dole to meet with the "loyal and generous" CEO of
Pfizer); RNC0044465 [DEV 93] (RNC employee asking to establish a
contact in Senator Dole's office for a "generous" RNC contributor);
ODP0030-035 12 to 13 [DEV 71-Tab 48] (notes of RNC Chair Jim
Nicholson stating he will take up a donor's issue with Senator Trent
213. Based upon a review of the RNC's donor files, the RNC's Finance
Director, Beverly Shea, testifies that during each two-year election
cycle the RNC receives no more than 15 requests — most from
contributors of federal funds — for meetings with Members of
the Congress. See B. Shea Decl. ¶ 45.
214. Federal candidates and officeholders appear at events held for
donors of federal funds as well as for donors of nonfederal funds.
See id. at 22; see also Resp. of FEC to RNC's First and Second
Reqs. for Admis. at 4-5 (conceding that both federal and nonfederal
donors attend political party fundraisers and that all six major
national political party committees' fundraisers are open to both
types of donors).
Statistical Evidence Regarding Donations and Access
215. No valid statistical evidence supports the conclusion that
nonfederal donations secure any different access to federal
candidates and officeholders. Experts for the plaintiffs and for the
defendants agree that there exists no valid study linking types of
donations and "access" or "legislative effort." Cross Exam. of
Defense Expert Green at 55, 69-72 (existing studies fail to control
for effect of lobbying expenditures and are not "statistically
sound"); id. at 95 (studies make no effort to "track access
specifically"); Krasno & Sorauf Expert Report at 5 ("[T]he
absence of systematic data on access . . . prevents political
scientists from searching for relationships between access and
policy-makers' behavior."); Primo Expert Report at 8-9 (noting only
"scant evidence in the political science literature that money
secures access" and stating that existing literature is
statistically flawed); see also RNC v. FEC, Civ. No. 98-CV-1207
(D.D.C.) (Herrnson Dep. at 300 (testifying on behalf of FEC and
stating that existing studies on "access" are "kind of weak and
Federal Officeholders Are Not More Likely to Meet With Non federal
Donors Than Federal Donors
216. The defendants have submitted no probative evidence that federal
officeholders are more likely to meet with nonfederal donors than
with federal donors. In fact, certain legislators testifying in this
case stated that they personally do not provide special access to
individuals or corporations that provide large contributions to
parties based upon whether the donation was federal or nonfederal.
See Resp. of FEC to RNC's First and Second Reqs. for Admis. at 4
(conceding lack of evidence); see also Feingold Dep. at 116 ("I
cannot imagine a situation where . . . I would meet with somebody
because they gave soft money."); Snowe Dep. at 210-11 (stating she
has never given preferential access to any donor, federal or
nonfederal, and that "[e]verybody has access to my office to the
extent that I have time available"); Jeffords Dep. at 96-97 (stating
person's status as a donor to national party committee does not
"affect [his] decisions as to who [he] meet[s] with or give[s]
access to"); Meehan Dep. at 180 (stating he provides no preferential
access to nonfederal donors); Cross Exam. of Shays at 20-21
(acknowledging that, like most congressman, he "pretty much [has] an
open door policy to meet people who want to talk to [him] about
important legislative issues").
Lobbyists, Former Members of Congress, Business Leaders, and Donors
Believe that Soft Money Donations to Parties Increase Access to
217. Lobbyist Robert Rozen testifies:
I know of organizations who believe that to be
treated seriously in Washington, and by that I
mean to be a player and to have access, you need
to give soft money. As a result, many
organizations do give soft money. While some soft
money is given for ideological purposes,
companies and trade associations working on
public policy for the most part give to pursue
their economic interests. In some cases, that
might limit their contributions to one political
party. More often, they give to both. They give
soft money because they believe that's what helps
establish better contacts with Members of
Congress and gets doors opened when they want to
meet with Members.
Rozen Decl. ¶ 10 [DEV 8-Tab 33]; see also id. ¶ 14.
218. Lobbyist Daniel Murray's testimony in a prior case, which has been
incorporated into the records of this case, states that
"contribution of soft money . . . has proven to provide excellent
access to federal officials and to candidates for federal elective
office. Since the amount of soft money that an individual,
corporation or other entity may contribute has no limit, soft money
has become the favored method of supplying political support. . . .
[S]oft money begets both access to law-makers and membership in
groups which provide ever greater access and opportunity to
influence." Murray Aff. in Mariani ¶ 14 [DEV 79-Tab 59].
219. Senator Rudman explains: "By and large, the business world,
including corporations and unions, gives money to political
parties . . . [because] they believe that if they decline solicitations
for such contributions, elected and appointed officials will ignore
their views or, worse, that competing business interests who do make
large contributions to the party in question will have an advantage
in influencing legislation or other government decisions. The same
is true in the preponderance of cases where wealthy individuals give
$50,000, $100,000, $250,000, or even more to political parties in
soft money donations." Rudman Decl. ¶ 5 [DEV 8-Tab 34]; see also
id. ¶ ¶ (stating that sitting members of Congress raise
money from these entities knowing that they contribute large sums to
the parties in order to achieve such access). Senator Rudman also
[s]pecial interests who give large amounts of
soft money to political parties do in fact
achieve their objectives. They do get special
access. Sitting Senators and House Members have
limited amounts of time, but they make time
available in their schedules to meet with
representatives of business and unions and
wealthy individuals who gave large sums to their
parties. These are not idle chit-chats about the
philosophy of democracy. In these meetings, these
special interests, often accompanied by
lobbyists, press elected officials —
Senators who either raised money from the special
interest in question or who benefit directly or
indirectly from their contributions to the
Senator's party — to adopt their position
on a matter of interest to them. Senators are
pressed by their benefactors to introduce
legislation, to amend legislation, to block
legislation, and to vote on legislation in a
certain way. No one says: "We gave money so you
should do this to help us.' No one needs to say
it — it is perfectly understood by all
participants in every such meeting."
Id. ¶ 7.
220. Chairman Gerald Greenwald*fn196 testifies that some unions and corporations
give large soft money contributions to political
parties — sometimes to both political
parties — because they are afraid to
unilaterally disarm. They do not want their
competitors alone to enjoy the benefits that come
with large soft money donations: namely, access
and influence in Washington. Though a soft money
check might be made out to a political party,
labor and business leaders know that those checks
open the doors to the offices of individual and
important Members of Congress and the
Administration, giving donors the opportunity to
argue for their corporation's or union's position
on a particular statute, regulation, or other
governmental action. Labor and business leaders
believe — based on experience and with good
reason — that such access gives them an
opportunity to shape and affect governmental
decisions and that their ability to do so derives
from the fact that they have given large sums of
money to the parties."
Greenwald Decl. ¶ 12 [DEV 6-Tab 16]; see also Greenwald Decl. ¶ 10 [DEV 6-Tab 16.
"[L]abor and business leaders are regularly
advised that and their experience directly
confirms that organizations that make large soft
money donations to political parties in fact do
get preferred access to government officials.
That access runs the gamut from attendance at
events where they have opportunities to present
points of view informally to lawmakers to
direct, private meetings in an official's office
to discuss pending legislation or a government
regulation that affects the company or union.").
221. Individual donor Peter Buttenwieser testifies:
Events, meetings and briefings held for soft
money donors provide opportunities for the donors
to hear speeches and engage in policy discussions
with federal office holders. There is also a
certain amount of politicking and lobbying at
these events. This is true particularly in the
side discussions, in which donors can approach
office holders and discuss their issues.
Buttenwieser Decl. ¶ 25 [DEV 6-Tab 11]. Arnold Hiatt testifies that
[A]s a result of my $500,000 soft money donation
to the DNC, I was offered the chance to attend
events with the President, including events at
the White House, a number of times. I was offered
special access as a result of the contributions I
had made, though I generally never took advantage
of that access. One event that I did attend was a
dinner at the Mayflower Hotel in Washington,
D.C. in approximately March 1997 with President
Clinton and Vice-President Gore. The dinner was
for the largest donors to the DNC, about thirty
people. I did not plan on attending but I went
because several people urged me to use the
occasion to speak in favor of campaign finance
reform. I used the opportunity to talk to the
President about how the campaign finance system
in this country had become a crisis, and argued
that the crisis provided an opportunity for the
President to provide some leadership. I don't
think that we got the leadership I was seeking on
the campaign finance issue, but I did get the
chance to make a personal pitch to the President
as a result of my donation.
Hiatt Decl. ¶ 9 [DEV 6-Tab 18]. Hiatt testifies that others in
attendance also shared their views on policy matters of importance
to them as the event was advertised as an opportunity to "give
advice to the president." Hiatt Dep. at 119-21 [JDT Vol. 10]; see
also Hassenfeld Decl. ¶ 12-13 [DEV 6-Tab 17] ("[W]hen given the
opportunity, some donors try to pigeonhole or corner Members, in a
less than diplomatic way, to discuss their issues at these
events."); Geschke Decl. ¶ S [DEV 6-Tab 14] (testifying that in
connection with $50,000 in donations made to the DNC he and his wife
attended a dinner of 10 to 12 people with President Clinton
"last[ing] two or three hours, and consist[ing] primarily of a
conversation about issues of importance to the nation and the
222. Evidence shows that party leaders have in some instances facilitated
direct communications between soft money donors and officeholders on
certain policy matters. A handwritten note dated October 27, 1995,
from RNC Chairman Haley Barbour asks Senate Majority Leader Bob Dole
to meet with the CEO of Pfizer, a member of the RNC's "Team 100"
soft money donor group, to discuss an extension of the lucrative
Section 936 tax credit:
Dear Bob Bill Steere, CEO of Pfizer, has asked to
see you on Wed. 11/1. He is extremely loyal and
generous. He also is not longwinded. He'll tend
to his business and not eat up extra time. They
have proposed a [Internal Revenue Code §] 936
solution that [Republican Senator William] Roth
and [Republican Congressman Bill] Archer are
considering. I'm sure that is the issue. I'd
appreciate it if you'd see Bill. [signed] Haley.
ODP002S-02456 to 57 [DEV 70-Tab 48]; see also July 10, 1996, letter
from John Palmer to [redacted addressee] (reminding addressee that
Palmer had asked him to join the RNC's Team 100, and noting that RNC
Chair Barbour escorted new Team 100 member and Energy CEO Lupberger
on four appointments that were "very significant" in legislation
affecting companies like his and made him "a hero in his
industry"); 0DP0023-02043 [DEV 70-Tab 48]; RNC0240565-RNC0240566
[DEV 97], Sept. 28 [no year] (discussing an upcoming meeting
requested by Bristol-Myers Squibb, in connection with its
consideration of joining the RNC's "Season Pass" major donor
program; scheduled attendees included representatives of major
pharmaceutical companies and "Active Team 100 members" Bristol-Myers
Squibb, Glaxo Wellcome, and Pfizer; the memo stated: "This group is
particularly interested in the White House's proposal to add a
prescription drug benefit to the Medicare program. They vehemently
oppose it and are helping to fund a million-dollar campaign that
began in July and features an older woman named Flo, who declares,
`I don't want bureaucrats in my medicine cabinet.'" The memorandum
includes as a "Key Talking Point" the directive to "[l]et them know
how crucial it is we have their financial support this election
cycle"); see also Vogel Decl. Tab D at NRSC 066-000009 (draft letter
from chairmen of the NRSC and NRCC Technology Committees inviting
High Technology CEOs to the 1998 Republican House-Senate Dinner in
response "to your industry's plea for a voice on the cutting edge
issues so important to the future of high technology" and noting
that the dinner is the "most prestigious annual event, and all
Republican members of the U.S. House and Senate will be in
attendance") [DEV 9-Tab 41]. Former Senator Wirth testifies:
The Democratic national campaign committees
sometimes asked me to meet with large donors to
the party whom I had not met before. At the
party's request, I met with the donors. I
understood that the donors' goal in making the
large contributions was often to occasion
meeting(s) with me or other prominent Democratic
congressional leaders to press their positions on
legislative issues. On these occasions, sometimes
all I knew about the donor would be the issue in
which he was interested.
Wirth Decl. Exhibit A ¶ 15 [DEV 9-Tab 43]; RNCO 177216 [DEV 95]
(note written on stationery of RNC's Team 100 Director, Haley
Barbour, stating "they have pretty much decided to join
T-100. . . . They want access to political players. . . . Their top
issue is tort reform"); RNC 0044465 [DEV 93] (Memorandum from Tim
Barnes of the RNC to Royal Roth noting that someone from Moore Capital
Management had been "trying to establish a contact in Senator Dole's
office for Mr. Bacon. As you know, Mr. Bacon [of Moore Capital
Management] has been very generous to the RNC. If there is any way
you can assist, it would be greatly appreciated.").
Party Donation Programs Show That Increased Access Corresponds With
223. RNC documents show that the RN C's donor programs offer greater
access to federal office holders as the donations grow larger, with
the highest level and most personal access offered to the largest
soft money donors. ODP0018-00113 to 36 [DEV 69-Tab 48] (RNC Brochure
"Donor Programs"); see also Resps. RNC to FEC's First RFA's, No. 62
[DEV 12-Tab 10]. The RNC offers its donors a range of different
donor programs, for a range of different donor financial levels and
interests. ODP002S-00375 to 79 [DEV 70-Tab 48] ("Summary of RNC's
Donor Programs"). The RNC President's Club required a $1,000 annual
contribution and offered at least one meeting per year, which
included policy briefings and discussions led by Republican
congressional and other leaders. Id. at ODP002S-00375. The
Chairman's Advisory Board required a $5,000 annual hard money
contribution and offered a "vigorous and informal exchange of views
among Board members and party leaders. . . . Board meetings include
three or four panel discussions, each chaired by a Congressional
leader or senior policy adviser with particular expertise in the
area under consideration." Id. at ODP002S-00375 to 77 [DEV 70-Tab
48]. According to the document, the Chairman's Advisory Board was
established "to enlist the personal energy and professional
expertise of Republican leaders in business and community affairs in
developing policy and campaign strategies at the highest levels for
the party." Id. The Republican Eagles required an annual
contribution of $15,000 (individual) or $20,000 (with spouse or
corporate). Id. at 0DP0025-00377-0378, ODP0025-00429 [DEV 70-Tab
48]. The Eagles program offered a series of national and regional
meetings with elected Republican congressional leaders, special
access to Republican events, and other benefits. ODP002S-00428 [DEV
70-Tab 48]; ODP0030-02838-39 [DEV 71-Tab 48]. The Team 100 program
required a donation of $100,000 upon joining and every fourth year
thereafter, with $25,000 donations required in each of the three
intervening years; ODP0014-00983, ODP0014-01457 to 58 [DEV 69-Tab
48]. The Team 100 program offered members national and regional
meetings with the Republican Party leadership throughout the year,
special events, membership in the Eagles program, the opportunity to
participate in international trade missions, and other benefits.
ODP0025-00377, ODP0025-00424, ODP0025-01705 to 13 [DEV 70-Tab 48].
The Season Ticket program required a donation of $250,000 upon
joining and renewals thereafter. 0DP0022-03045-46, 0DP0023-02480,
ODP0025-01569 [DEV 70-Tab 48]; ODP0030-03408 [DEV 71-Tab 48]. The
"Season Ticket" or "Season Pass" program offered the greatest and
most exclusive range of RNC donor program benefits, including one
Team 100 membership, two Eagle memberships, special access to a
range of Republican Party events, and the assistance of RNC support
staff. ODP002S-01569 [DEV 70-Tab 48].
224. The NRSC offered several major donor programs. In 1995 and 1996, the
NRSC offered a corporate donor program called "Group 21" or "G21,"
which required an annual donation of $100,000. 0DP0037-02246,
0DP0037-02275, 0DP0037-02281 [DEV 71-Tab 48]. The "Group 21" program
offered donors "small dinners with [then-NRSC Chairman] Senator
D'Amato and other senators" and other "VIP benefits." 0DP0037-02275
[DEV 71-Tab 48]. The Chairman's Foundation required an annual
corporate (meaning nonfederal funds) donation of $25,000.
0DP0036-03603 [DEV 71-Tab 48]. The Senatorial Trust required an
annual donation of $10,000 (personal) or $15,000 (corporate).
0DP0036-03873-74 [DEV 71-Tab 48]. The Presidential Roundtable
required an annual donation of $5,000 in personal or corporate
funds. 0DP0037-00315 [DEV 71-Tab 48]; see also 0DP0036-03525 (letter
signed by Senator McConnell to NRSC member asking him to renew his
membership, noting that "[y]our non-federal contribution to the
Chairman's Foundation will allow us to put our federal dollars
directly towards the Senate campaigns, where they are desperately
needed."); 0DP0036-3562 (letter signed by Senator McConnell thanking
addressee for joining the Chairman's Foundation); 0DP0036-03595
(letter signed by Senator McConnell soliciting someone to join the
Chairman's Foundation); 0DP0037-01861-69 (NRSC brochure) [DEV 71-Tab
48]; Vogel Decl. ¶¶ 20 ("When donors have reached their federal
contribution limit, the NRSC may encourage them to make additional
donations to the NRSC's nonfederal account."), 51, Tabs A, J [DEV
9-Tab 41] (2002 Senatorial Trust materials).
225. The NRCC Congressional Forum "has been designed to give its members
an intimate setting to develop stronger working relationships with
the new Republican Congressional majority," 0DP0042-01226 [DEV
71-Tab 48], and the "benefit that attracts most Forum members are
the dinners with Committee Chairmen and the Republican members from
each Committee." 0D00042-00028 [DEV 71-Tab 48]; see also CDP 0098
[DEV 106] (CDP brochure showing that those who contribute $100,000
to the CDP are classified by the party as "Trustees," and that the
CDP "`recognizes its extraordinary supporters with extraordinary
opportunities," and provides "Trustees" with "[e]xclusive
briefings, receptions and meetings with officials such as U.S.
Senator Dianne Feinstein, U.S. Senator Barbara Boxer, Lt. Governor
Gray Davis, Controller Kathleen Connell and other national
226. The evidence shows that contributors request to be seated with
certain lawmakers at these donor events. For example, an RNC "Table
Buyer's Guest List" sheet for "The Official 1995 Republican
Inaugural Gala" filled out by "Am. Banker's Ass'n/Nation's Bank"
contained a request to sit with certain Members of Congress and
"anyone on House Banking Comm." 0DP0023-3288 [DEV 70-Tab 48]; see
also 2000 RNC Gala Leadership Levels, undated, RNC 0022509 [DEV
92]; 2000 RNC Attendance Forms, April 20, 2000, RNCO236323 [DEV 97]
(filled out by Microsoft attendee requesting to be seated with a
particular Senator or "Leadership Commerce Comm. or Judiciary"); RNC
0032805-32806, RNC 0032799 [DEV 92] (request for Burger King
Chairman and Team 100 member who donated $100,000 to be seated with
Senator Fred Thompson and three other Senators, and document showing
Senator Thompson was placed at the Burger King table). PhRMA's
Judith Bello testified that the five Members of Congress that PhRMA
listed as options for the "VIP" to be seated at its table at the
2000 Republican House-Senate dinner were all Members who had
responsibility or oversight over issues of importance to the
pharmaceutical industry. Bello Dep. at 82 [JDT Vol. 1].
227. The parties appear to have used such opportunities to promote their
various donor clubs. For example, a letter from the chairmen of the
Congressional Forum of the NRCC sent a letter to the Association of
Trial Lawyers of America regarding an upcoming Congressional Forum
Chairman's Dinner, in which they wrote: "[o]ur event will give you
an excellent opportunity to meet with the Members of the [Judiciary
Committee] to discuss issues relevant to your organization."
0DP0042-00025 [DEV 71-Tab 48]; see also 0DP0042-000654 (memorandum
to all Congressional Forum members from the chairmen, informing them
of an upcoming dinner featuring members of the Banking Committee,
noting that "[o]ur event will give you an excellent opportunity to
meet with members of the committee to discuss issues relevant to
your organization"); Fowler Decl. ¶ 8 [DEV 6-Tab 13] (testifying
that "[p]arty and government officials participate in raising large
contributions from interests that have matters pending before
Executive agencies, the Congress, and other government agencies.
Party officials, who are not themselves elected officials, offer to
large money donors opportunities to meet with senior government
officials. Donors use these opportunities White House and
congressional meetings — to press their views on matters
pending before the government."); RNC 0026901 [IER Tab 7] (note from
the director of the RNC's Team 100 program thanking a donor for
"facilitating Dow [Chemical]'s generous contribution to the
Republican Party. It's a timely donation as we head into the final
hours of the campaign. Give me a call . . . and we can figure out
when is a good time to bring your Dow [Chemical] leadership into
town to see [RNC Chairman] Haley [Barbour], [Senate Majority Leader
Robert] Dole & [Speaker of the House] Newt [Gingrich]."); RNC
0194817 [IER Tab 1.E] (letter from RNC to a pharmaceutical company
asking the company for its opinion and suggestions on the enclosed
RNC "health care package" and a $250,000 donation to join the RNC's
Season Pass program).
228. According to lobbyist Robert Rozen:
[S]oft money contributions built around sporting
events such as the Super Bowl or the Kentucky
Derby, where you might spend a week with the
Member, are even more useful. At the events that
contributors are entitled to attend as a result
of their contributions, some contributors will
subtly or not-so-subtly discuss a legislative
issue that they have an interest in. Contributors
also use the events to establish relationships
and then take advantage of the access by later
calling the Member about a legislative issue or
coming back and seeing the Member in his or her
office. Obviously from the Member's perspective,
it is hard to turn down a request for a meeting
after you just spent a weekend with a contributor
whose company just gave a large contribution to
your political party.
Rozen Decl. ¶ 11 [DEV 8-Tab 33].
229. Some evidence shows the connection between large donations and
access to elected officials as being even more direct. A call sheet
prepared for then-DNC Chair Fowler instructs him to call a number of
large givers ask for donations, and invite them for lunch with the
President of the United States ("POTUS"). DNC 113-00137 to 38 [DEV
134-Tab 7] ("Ask her to give 80k more this year for lunch with Potus
on October 27th.") ("Ask him to write another look to become a
Managing Trustee for the campaign and come to lunch with POTUS on
Oct. 27."). A CDP call sheet entitled "Child Call List, 5/16/96"
includes the notation that a potential donor should be asked "if
they might be able to do $25,000 for a small mtg with the
President, you know it's steep, but want to include them in these
types of meetings." CDP 00124 [IER Tab 11].
Donors Make Donations to National Parties With the Expectation of Building Relationships and Receiving Access
Lobbyists Believe That Donations Will Enable Donors to Establish
Relationships With Officeholders
230. Lobbyist Robert Hickmott testifies that he advises his clients to
make contributions in order to "establish relationships. Having
those relationships in many ways then helps us get meetings and
continue that relationship." Hickmott Dep. at 50 [JDT Vol. 10].
Hickmott testifies that when Senator Robb was chairman of the DSCC
he would go to the DSCC offices where he would "accept checks from
individuals or organizations who wanted to give money to the DSCC
and they wanted face time with Chairman Chuck Robb." Id. at 94-95.
Donors would "use this as an opportunity not only to make a
contribution to the DSCC, but also to convey to Senator Robb what
their group or individual position was on an issue." Id. at 95; see
also Hickmott Decl. Exhibit A. ¶ 46 (stating that "[t]here is a
very rare strata of contributors who contribute large amounts to the
DSCC because they actually believe in Democratic politics. . . . The
majority of those who contribute to political parties do so for
business reasons, to gain access to influential Members of Congress
and to get to know new Members.").
231. As Wright Andrews explains:
Sophisticated political donors —
particularly lobbyists, PAC directors, and other
political insiders acting on behalf of specific
interest groups are not in the business of
dispensing their money purely on ideological or
charitable grounds. Rather, these political
donors typically are trying to wisely invest
their resources to maximize political return.
Sophisticated donors do not show up one day with
a contribution, hoping for a favorable vote the
next day. Instead, they build longer term
relationships. The donor seeks to convey to the
member that he or she is a friend and a supporter
who can be trusted to help the federal elected
official when he or she is needed. Presumably,
most federal elected officials recognize that
continued financial support from the donor often
may be contingent upon the donor feeling that he
or she has received a fair hearing and some
degree of consideration or support.
Andrews Decl. ¶ 8 [DEV 6-Tab 1].
232. Some lobbyists believe that donations to parties are beneficial to
their clients' business interests. See Rozen Decl. ¶ 10
("[L]arge political contributions are worthwhile because of the
potential benefit to the company's bottom line.") [DEV 8-Tab 33].
Current and Former Federal Officeholders Acknowledge That Donors
Expect to Establish Relationships With and Obtain Access to Federal
233. Some former and current federal officeholders acknowledge that
donors expect to establish relationships with officeholders in
return for their nonfederal donations to the national parties.
Senator Bumpers Dec 1. ¶ 13 (testifying that people that give
money to party committees feel that they are "ingratiating
themselves" with the federal officeholder who solicits the
donation); Wirth Decl. Exhibit A. ¶ S (stating that those donors
who made contributions to the state party "almost always did so
because they expected that the contributions would support my
campaign," and that, generally, "they expected that [the Senator]
would remember their contributions"); Brock Decl. ¶ 5(a)
(testifying that "contributors . . . feel they have a call'
on . . . officials" when they contribute soft money); Senator Boren
Decl. ¶ 8 (testifying that he knows from "first hand experience and
from [his] interactions with other Senators that they feel beholden
to large donors."); Senator Simpson testifies that groups used "to
give to someone who was for your philosophy," but now "[i]t's giving
so you can get access and kiss butt and do all the rest of the
things so you won't get knocked off the perch." Simpson Dep. at
11-12 [JDT Vol. 30].
Donors Hope to Establish Relationships or Receive Access With Their Donations
234. Steven Kirsch testifies that:
Policy discussion with federal officials occurs
at major donor events sponsored by political
parties. I have attended many such events. They
typically involve speeches, question and answer
sessions, and group policy discussions, but there
is also time to talk to Members individually
about substantive issues. For example, at a
recent event. I was able to speak with a Senator
representing a state other than California and we
had a short conversation about how our respective
staffers were working together on a particular
Kirsch Decl. ¶ 12 [DEV 7-23]; see also Hiatt Decl. ¶ 11
(stating that "[l]arge soft money donors give in order to obtain
access and influence."). In fact, corporate donors view nonfederal
donations as the "cost of doing business." Hassenfeld Decl. ¶ 16
(testifying that nonfederal donations are viewed by the "corporate
world" as "a good investment relative to the potential economic
benefit to their business."); Hassenfeld Decl. ¶¶ 23-24 ("I think
companies in some industries have reason to believe that because
their activities are so closely linked with federal government
actions, they must participate in the soft money system in order to
succeed.") [DEV 6-Tab 17]; Randlett Decl. ¶ 5 (stating that
"many soft money donations are not given for personal or
philosophical reasons. They are given by donors with a lot of money
who believe they need to invest in federal officeholders who can
protect or advance specific interests through policy action or
inaction. Some soft money donors give $250,000, $500,000, or more,
year after year, in order to achieve these goals. For most
institutional donors, if you're going to put that much money in, you
need to see a return, just as though you were investing in a
corporation or some other economic venture."); Randlett Decl. ¶
14 (explaining that "many members of the business community
recognize that if they want to influence what happens in
Washington, they have to play the soft money game. They are caught
in an arms race that is accelerating, but that many feel they cannot
afford to leave or speak out against."); Kirsch Decl. ¶ 14
(stating that "[major] donors perceive that they are getting a
business benefit through their special access, and that it is a good
investment for them") [DEV 7-Tab 23].
235. Roger Tamraz, an American businessman involved in investment banking
and international energy projects, made donations to the DNC during
the 1996 election cycle. When asked during congressional hearings by
Senator Levin whether one of the reasons he made the contributions
was because he "believed it might get [him] access?," Mr. Tamraz
responded: "Senator, I'm going even farther. It's the only reason
— to get access. . . ." Thompson Comm. Report at 2913 n. 46
(quoting page 63 of Mr. Tamraz's testimony before the committee).
236. Donor Peter Buttenwieser, a large donor to Democratic party
committees, testified that
[t]here is no question that those who, like me,
make large soft money donations receive special
access to powerful federal office holders on the
basis of the donations. I am close to a number of
Senators, I see them on a very consistent basis,
and I now regard the Majority Leader as a close
friend. I understand that the unusual access I
have correlates to the millions of dollars I have
given to political party committees, and I do not
delude myself into thinking otherwise. Not many
people can give soft money on that scale, and it
naturally limits the number of those with that
level of access.
Buttenwieser Decl. ¶ 22.
237. An Eli Lilly and Company memorandum states that its 1995-96
political "contributions and the related activities we have
participated in have been key to our increased role and ability to
get our views heard by the right policy makers on a timely basis; in
other words, a smart investment." Eli Lilly and Company Memorandum
(Jan. 15, 1997), ODP0018-00481-86 [DEV 69-Tab 48].
238. Documents submitted indicate that a Fortune 100 company contributes
nonfederal money to national party committees with the expectation
that its contributions will cultivate or strengthen its
"relationships" with particular Members of Congress. See internal
Fortune 100 company memorandum titled "Senator Earnest
Hollings/South Carolina Democratic Party" (June 29, 2000) [citation
sealed] (requesting a "check for $10,000.00 on behalf of Senator
Ernest `Fritz' Hollings to the South Carolina Democratic Party,"
noting that "Senator Hollings has been a friend to [our company] for
many years and he has shown himself to be a thoughtful voice
regarding issues in our industry," that "[h]e currently serves on
the Commerce, Science and Transportation Committee, the Budget
Committee and the Appropriations Committee," and concluding "I feel
this would be a great opportunity to strengthen our relationship
with Senator Hollings."). An internal Fortune 100 company memorandum
entitled "Justification for donation to [DSCC]" (October 25, 2000)
[citation sealed], stated
I am requesting a check for $50,000.00 to the
Democratic Senatorial Campaign Committee (DSCC).
Senator Robert Torricelli is the chairman for the
DSCC and in a recent conversation with the
Senator, he requested the above amount from [our
company]. Senator Torricelli has been a friend to
[our company] for many years and he has shown
himself to be a thoughtful voice regarding issues
in our industry. He currently serves on the
Judiciary, Foreign Relations & Governmental
Affairs and Rules and Administration Committees.
I feel this would be a great opportunity to
strengthen our relationship with Senator
Torricelli and the DSCC.
One legislative advocate from this company described the benefits
reaped from contributing $100,000 to the NRCC: "I think we
established some goodwill with [Congressman] Tauzin, both by [our
company] contributing at the $100,000 level to the NRCC dinner he
chaired last month and by my participation in the NRCC Finance
Committee for the dinner. Tauzin understood that [our company]
participated at the same level as [others in our industry] did, and
he expressed genuine interest in trying to begin to reach out to the
competitive industry. In sum, I think the event was a real positive
for [our company]." Internal Fortune 100 company memorandum entitled
"NRCC Leadership Winner 2000," dated April 4, 2000, [citation
Effectiveness of Giving Nonfederal Donations as Opposed to Federal Donations
239. Some donors give nonfederal money, rather than federal money to
parties or direct contributions to a candidate's campaign, because
they believe nonfederal money is more effective than several small
contributions in obtaining access. See, e.g., Hickmott Decl. Exhibit
A. ¶ 47 (explaining that "[i]f you want to get to know Members
of Congress, or new Members of Congress, it is more efficient to
write a $15,000 check to the DSCC and to get the opportunity to meet
them at the various events than it would be to write fifteen $1,000
checks to fifteen different Senators, or Senators and
candidates."); Wright Andrews, a lobbyist, stated that
a properly channeled $100,000 corporate soft
money donation to the national Republican or
Democratic congressional campaign committees can
get the corporate donor more benefit than several
smaller hard dollar contributions by that
corporation's PAC. Although the donations are
technically being made to political party
committees, savvy donors are likely to carefully
choose which elected officials can take credit
for their contributions. If a Committee Chairman
or senior member of the House or Senate
Leadership calls and asks for a large
contribution to his or her party's national House
or Senate campaign committee, and the lobbyist's
client is able to do so, the key elected official
who is credited with bringing in the
contribution, and possibly the senior officials,
are likely to remember the donation and to
recognize that such big donors' interests merit
Andrews Decl. ¶ 14; Randlett Decl. ¶ 13 [DEV 8-Tab 32]
("[Soft money donors] get a level of attention that a $1,000 hard
money donor never will. Even someone who wrote 25 $1,000 hard money
checks but no soft money is going to get much less attention and
appreciation than someone who wrote one large soft money check.").
Rozen, a lobbyist, stated that
Donors to the national parties understand that if
a federal officeholder is raising soft money
supposedly `non-federal' money they are raising
it for federal uses, namely to help that Member
or other federal candidates in their elections.
Many donors giving $100,000, $200,000, even $1
million, are doing that because it is a bigger
favor than a smaller hard money contribution
would be. That donation helps you get close to
the person who is making decisions that affect
your company or your industry. That is the reason
most economic interests give soft money,
certainly not because they want to help state
candidates and rarely because they want the party
to succeed. . . . The bigger soft money
contributions are more likely to get your call
returned or get you into the Member's office than
smaller hard money contributions.
Rozen Decl. ¶¶ 12-13 [DEV 8-Tab 33]; Geschke*fn197 Decl. ¶ 9
[DEV 6-Tab 14] ("Corporations and individuals can use soft money
donations to get special access to federal office holders and at
least the appearance of influence on issues that are important to
them financially or politically. Hard money contributions do not
provide the same opportunities for influence on federal policy as
soft money donations do."); Fowler*fn198 Decl. ¶ ¶ [DEV
6-Tab 13] ("Many contributors of large sums of money both
Republicans and Democrats gain access to party and governmental
officials that they otherwise would not have. With this access,
contributors are able to make their cases to people who make public
policy and take official governmental action. Those who contribute
small amounts of money do not have this advantage and thus are
unable to influence government with the same effectiveness.").
240. In a memorandum to a high-level Fortune 100 company executive
outlining a proposed $1.4 million nonfederal fund budget for FY
1999, members of the Company's governmental affairs staff noted
With both houses of Congress and the White House
hotly contested this cycle, the importance of
soft money, and consequently the efforts by the
parties to raise even more soft money, is greater
than ever. On the Democratic side, [our
company's] advocates have already fielded soft
money calls from House Democratic Leader
Gephardt, House Democratic Caucus Chairman
Frost, Democratic Congressional Campaign Chairman
Kennedy, and Democratic Senatorial Campaign
Chairman Torricelli. Similar contacts to soft
money have been made by Republican congressional
leaders. In addition to the increased pressure
from party and congressional leaders, it is clear
that our direct competitors and potential
competitors are weighing in with big soft money
Memorandum from a Fortune 100 company's legislative advocate to a
high-level executive, dated March 4, 1999, [citation sealed].
Donors Often Times Give to Both National Parties in Order to Receive Access to Members of Both Parties
241. Evidence presented shows that many "companies and associations that
do give soft money typically contribute to both parties . . .
because they want access to Members on both sides of the aisle."
Rozen Decl. ¶ 7 [DEV 8-Tab 33]; see also Hiatt Decl. ¶ 12
[DEV 6-Tab 18] (testifying "[p]eople give soft money donations to
both parties because they want to make sure they have access
regardless of who's in the White House, filling the Senate seat, or
representing the Congressional district."); RNC OH 0418778 [IER Tab
1.H] (an Ohio Republican Party document entitled "Why People Give,"
including the observation: "many people give to both sides so that
they will have access to whoever is the winner").
242. An Eli Lilly and Company memorandum indicates the company was
worried about a Washington Post article listing it as a significant
donor to the Republican party. The memorandum discusses
contributions being made at Democratic party events occurring in the
near future. The memorandum concludes with: "Jay has talked to the
White House and we can get back into this by giving $50,100,000 to
the DNC says they would be pleased with this." ODP0018-00463 [DEV
69-Tab 48]; see also id. at ODP0018-00461 (the Washington Post
article), ODP0018-00462 (photocopy of part of the article with
handwritten note stating "Dems are upset. Calls from employees about
imbalance. White House says Dem we are in trouble").
243. CEO Randlett comments that "[a]s a donor with business goals, if you
want to enhance your chances of getting your issues paid attention
to and favorably reviewed by Members of Congress, bipartisanship is
the right way to go. Giving lots of soft money to both sides is the
right way to go from the most pragmatic perspective." Randlett
Decl. ¶ 11 [DEV 8-Tab 32]. He explains
[I]f you're giving a lot of soft money to one
side, the other side knows. For many
economically-oriented donors, there is a risk in
giving to only one side, because the other side
may read through FEC reports and have staff or a
friendly lobbyist call and indicate that someone
with interests before a certain committee has had
their contributions to the other side noticed.
They'll get a message that basically asks: "Are
you sure you want to be giving only to one side?
Don't you want to have friends on both sides of
the aisle?" If your interests are subject to
anger from the other side of the aisle, you need
to fear that you may suffer a penalty if you
don't give. First of all, it's hard to get
attention for your issue if you're not giving.
Then, once you've decided to play the money
game, you have to worry about being imbalanced,
especially if there's bipartisan control or
influence in Washington, which there usually is.
In fact, during the 1990's, it became more and
more acceptable to call someone, saying you saw
he gave to this person, so he should also give to
you or the person's opponent. Referring to
someone's financial activity in the political
arena used to be clearly off limits, and now it's
Id. ¶ 12. See also Buttenwieser Decl. ¶ 23 [DEV 6-Tab 11]
("I am aware that some soft money donors, such as some
corporations, give substantial amounts to both major political
parties. Based on my observations, they typically do this because
they have a business agenda and they want to hedge their bets, to
ensure they get access to office holders on the issues that are
important to them. This occurs at the national and state levels.");
Geschke Decl. ¶ 10 [DEV 6-Tab 14] ("In my view, donors who give
large amounts of soft money to both major parties are probably
hedging their bets in trying to get influence. They may feel that
influence with one party is not sufficient to achieve their
financial or policy goals, especially now that power in Congress is
pretty evenly balanced.").
Lobbying and Donations of Nonfederal Money
244. According to some national party officials and former Members of
Congress, lobbying is more effective in obtaining access to
legislators than donations to campaigns and parties.
245. According to the RNC Finance Director, lobbying is far more
effective in securing "access" to federal officeholders than
donating campaign funds. See B. Shea Decl. ¶ 45 ("It is obvious
why major donors to the RNC do not regularly use their donations as
a means to obtain `access.' All or virtually all who have personal
or organizational business with the federal government retain or
employ professional lobbyists."); see also Primo Cross Exam. at
246. As Former Senator Bumpers (who testified on behalf of the defendants
in this case) has testified previously, lobbying expenditures are
more likely to obtain nonincidental contact with a federal
officeholder than are campaign donations. See RNC v. FEC, Civ. No.
98-C V-1207 (D.D.C.); Bumpers Dep. at 38-40.
247. Many entities and individuals who donate federal funds to political
parties also spend considerable sums of money lobbying federal
officeholders. Indeed, the amount of money spent by such
organizations on lobbying is often geometrically larger than the
amount they donate to political parties. See Resp. of Intervenors to
RNC's First and Second Reqs. for Admis. at 23-24 (admitting that top
five corporate donors of nonfederal funds during 1995 and 1996
donated $9,009,155 to national party committees and same five
corporations spent $27,107,688 on lobbying during 1996 along); see
id. at 24-25 (admitting that top five corporate donors of nonfederal
funds during 1997 and 1998 donated $7,774,020 to national party
committees and same five corporations spent $42,000,000 on lobbying
during that same period).
248. Some of the lobbyists who testified in depositions and on cross
examination state that their corporate clients hire them in large
part because of their contacts on Capitol Hill and because they have
access to federal officeholders whether or not their clients have
donated money to candidates, officeholders, or parties. See Hickmott
Dep. at 46-47, 50-51; Cross-Exam. of Andrews at 19-20. However, the
evidence clearly shows that some lobbyists believe that
contributions help them gain access to lawmakers. Lobbyist Andrews
The amount of influence that a lobbyist has is
often directly correlated to the amount of money
that he or she and his or her clients infuse into
the political system. Some lobbyists help raise
large "soft money" donations and/or host many
fundraising events for key legislators. Some
simply represent a single client with very deep
pockets and can easily reach into large corporate
or union funds for "soft money" donations or
other allowable expenditures that may influence
legislative actions. Those who are most heavily
involved in giving and raising campaign finance
money are frequently, and not surprisingly, the
lobbyists with the most political clout.
Andrews Decl. ¶ 12 [DEV 6-Tab 1]. Andrews testifies that it has
become a common practice for lobbyists to "host a number of
fundraisers." He explains that "[w]hereas the political parties
periodically organize `gala' events in large ballrooms filled with
hundreds of donors, lobbyists now often prefer attending smaller
events hosted by other lobbyists, with only ten or fifteen people
participating, all sitting at a dinner or breakfast table with the
invited guest elected official. This type event allows lobbyists a
better opportunity to build more personal relationships and to
exchange views." Id. ¶ 16.
249. Some lobbyists maintain that "basic" or traditional lobbying
activities are alone insufficient to be effective in many instances
in lobbying endeavors. To have true political clout, the giving and
raising of campaign money for candidates and political parties is
often critically important." Andrews Decl. ¶ S [DEV 6-Tab 1].
Lobbyist Daniel Murray testified that
[a]long with each . . . legislative plan [a plan
to "advance the client's legislative agenda"],
and essential to achieving the client's goals, I
develop a parallel political financial support
plan. In other words, I advise my clients as to
which federal office-holders (or candidates) they
should contribute and in what amounts, in order
to best use the resources they are able to
allocate to such efforts to advance their
legislative agenda. Such plans also would include
soft money contributions to political parties and
interest groups associated with political
Murray Aff. in Mariani ¶¶ 6-7 [DEV 79-Tab 58]; see also Meehan
Dep. in RNC at 40-41 [DEV 66-Tab 4] ("[P]ower and influence in
Washington is not just the amount of soft money an industry
contributes to the political parties. I would say that also it's the
amount of PAC money that they contribute to the political
candidates, it's the amount of hard money they contribute, it's the
amount of lobbying money that they expend in order to influence
members of Congress.").
Public Perception of Corruption
250. The defendants have offered substantial evidence that the public
believes there is a direct correlation between the size of a donor's
contribution to a political party and the amount of access to, and
influence with, the officeholders of that party that the donor
251. The principal evidence submitted by the defendants in support of
their contention that the public perceives an appearance of
corruption due to large nonfederal donations to parties is a
research poll of 1,300 adult Americans conducted by two prominent
pollsters: Mark Mellman*fn199 and Richard Wirthlin*fn200 ("Mellman
and Wirthlin Report").
252. The survey was conducted over a period of five days (August 28,
2002, through September 1, 2002), and the pollsters made an average
of 4.58 dialings per telephone number in the sample set in order to
ensure that the sample was representative. See Mellman and Wirthlin
Report at 22-23.
253. The study's contact rate was 38 percent, more than double the
industry average of 15 percent. See Mellman and Wirthlin Report at
254. The rate of refusal of the respondents who refused to be polled was
within the normal range for a random telephone survey conducted in
the United States. See Mellman and Wirthlin Report at 23.
255. The pollsters took several steps to avoid bias. See Mellman and
Wirthlin Report at 24. See also Wirthlin Cross Exam. at 40
(explaining that the pollsters took steps to avoid bias by randomly
ordering the questions, "so that there is no sequence developed
where one question may, if always asked in the same order, affect
the second question.").
256. The statistical margin of sampling error, that is, the error due to
sampling versus if the pollsters talked to every American in the
United States, is 2.7 percentage points: the actual opinions of
Americans will be within 2.7 percentage points of those reported in
the study 95 percent of the time. See Mellman and Wirthlin Report at
22. All regions of the United States were represented in the study,
based on 2001 Current Population Survey results. Id. at 24.
257. No evidence has been presented to show that the methodology used by
Mellman and Wirthlin is improper or invalid. See generally Wirthlin
Cross Exam. (demonstrating that while plaintiffs generally dispute
the wording of the questions, they do not contest the validity of
the sampling or methodology for conducting the poll).
258. The principal finding of the Mellman and Wirthlin Report relating to
whether an appearance of corruption arises out of large
contributions to political parties is that: "A significant majority
of Americans believe that those who make large contributions to
political parties have a major impact on the decisions made by
federally elected officials." In addition, Mellman and Wirthlin find
that many Americans believe that the "views of these big
contributors sometimes carry more weight than do the views of
constituents or the best interests of the country." Mellman and
Wirthlin Report at 6.
259. The Mellman and Wirthlin Report established that 77 percent of
Americans believe that big contributions to political parties have
at least some impact on decisions made by the federal government.
Fifty-five percent thought big contributions had a great deal of
impact; 23 percent thought it had some impact. Id.
260. The Mellman and Wirthlin Report established that 71 percent of
Americans "think that members of Congress sometimes decide how to
vote on an issue based on what big contributors to their political
party want, even if it's not what most people in their district
want, or even if it's not what they think is best for the country."
Id. at 7.
261. According to the Mellman and Wirthlin Report, a "large majority
(84%) think that members of Congress will be more likely to listen
to those who give money to their political party in response to
their solicitation for large donations." Id. at 8.
262. According to the Mellman and Wirthlin Report, "[o]ver two-thirds of
Americans (68%) . . . think that big contributors to political
parties sometimes block decisions by the federal government that
could improve people's everyday lives." Id. at 8.
263. Further, the Mellman and Wirthlin Report found that "about four in
five Americans think a Member of Congress would be likely to give
special consideration to the opinion of an individual, issue group,
corporation, or labor union who donated $50,000 or more to their
political party (81%) or who paid for $50,000 or more worth of
political ads on the radio or TV (80%). By contrast, only one in
four Americans (24%) think that a member of Congress is likely to
give the opinion of someone like them special consideration." Id. at
264. The Mellman and Wirthlin Report did not measure the public's
understanding of the campaign finance system, and did not ask if the
respondents understood the difference between nonfederal and federal
donations. See Cross Exam. of Mellman at 31-35. Mellman testifies
that the purpose of the poll was to measure the public's
perceptions. Id. at 31.
265. The public does not understand the distinction between federal and
nonfederal donations and is not aware of campaign finance
regulations. See Ayres Expert Report ¶ 8(a).
266. The Mellman and Wirthlin Report did not show, nor is there any
evidence to suggest, that a correlation exists in the public's mind
between the amount of a donor's contribution to a party and the
amount of access and influence the donors enjoys thereafter with
officeholders, exists independent of the use to which the money is
used by parties.
267. Moreover, there is no evidence, either in the Mellman and Wirthlin
Report or elsewhere in the record, that the public would hold to the
same conclusion if it believed that no portion of nonfederal
donations could be either given to any federal candidate, or used by
the parties to directly affect the election of any federal
268. Robert Shapiro, a professor at Columbia University, also analyzed
public perception of soft money contributions to political parties,
by reviewing all publicly available opinion survey data sources.
See Shapiro Expert Report at 7-8. [DEV 2, Tab 6]. The survey data
Shapiro examined was comprised mostly of telephone opinion polls.
Id. at 8. Specifically, Shapiro focused on "public opinion data
based on responses to surveys that were fielded since 1990" to
determine the public's answers to several questions, including two
questions which read: "To what degree has the public perceived
corruption in politics connected to the influence of money and large
campaign donations?" and "What have been the public's perceptions
and opinions toward the substantial political donations in the form
of soft money contributions to political parties?" Id. at 3, 8.
According to Shapiro, poll results show that the "public has opposed
large unregulated soft money contributions to political parties
[and] that the public has been troubled by large soft money
donations." Id. at 13. In addition, Shapiro concluded that the poll
data showed "that a substantial proportion of the public has
perceived corruption in the political system, and that we have been
losing ground." Id. at 11.
269. The defendants also submitted substantial, anecdotal evidence from
former and current Members of Congress that their constituents
believe that these large contributions to parties present an
appearance of corruption. See Simpson Decl. ¶ 14 (testifying
that "[b]oth during and after my service in the Senate, I have seen
that citizens of both parties are as cynical about government as
they have ever been because of the corrupting effects of unlimited
soft money donations"); Senator Baucus, 1445. Cong. Rec. S 1041
(1998) (stating that "[p]eople tell me they think that Congress
cares more about `fat cat special interests in Washington' than the
concerns of middle class families like theirs. or they tell me they
think the political system is corrupt."); Senator Feingold, 146 Cong
Rec. S4262 (2000) (stating that "[t]he appearance of
corruption. . . . We all know it's there. We hear it from our
constituents regularly. We see it in the press, we hear about it on
the news."); Letter from Representative Asa Hutchinson to RNC Chairman
Nicholson dated July 9, 1997, ODP0014-00003-4 (declining to support
Nicholson's proposed campaign finance legislation because Hutchinson
had to balance Nicholson's concerns "with a concern of my
constituents which is that their influence in politics is being
diminished by the abuses of soft money. . . . If our party is unable
to enact meaningful campaign-finance reform while we're in control
of Congress, then I believe this failure to act will result in more
cynicism and create a growing lack of confidence in our efforts.");
Senator Feingold stated that "[t]he appearance of corruption is
rampant in our system, and it touches every issue that comes before
us," 147 Cong. Rec. S2446 (Mar. 19, 2001), but also acknowledged
that soft money being used for generic campaign activity is less
likely to create an appearance of corruption, Feingold Dep. at
126-27; 147 Cong. Rec. S3248-49 (April 2, 2001) (Sen. Levin)
("[P]ermitting the appearance of corruption undermines the very
foundation of our democracy the trust of people in the system.").
270. The defendants have also submitted a substantial number of press
reports which suggest that large donations present the appearance of
corruption. See, e.g., Jackie Koszczuk, Soft Money Speaks Loudly on
Capitol Hill This Season, Cong. Q., June 27, 1998, at 1736; Jill
Abramson, Money Buys A Lot More Than Access, N.Y. Times, Nov. 9,
1997, at 4; Jane Mayer, Inside the Money Machine, The New Yorker,
Feb. 3, 1997, at 32; Don Van Atta, Jr. and Jane Fritsch, $25,000
Buys Donors `Best Access to Congress', N.Y. Times, Jan. 27, 1997. at
Al; Dan Morgan and Juliet Eilperin, Campaign Gifts, Lobbying Built
Enron's Power in Washington, Wash. Post, December 25, 2001, at A01;
R.G. Ratcliffe and Alan Bernstein, Political Donors Have the Money,
and Get the Time, Houston Chron., May 23, 1999, at 1; see also
Rudman Decl. ¶ 11; Krasno and Sorauf Report at 19-20; Primo
Rebuttal at ¶ 7 (stating that "[t]he news media reinforces this
view [that money distorts the political process] by portraying the
political process as being driven by campaign contributions. . . .").
Senator Rudman has also commented on the press's reporting that
soft money donations create an appearance of corruption: "Almost
every day, the press reports on important public issues that are
being considered in Congress. Inevitably, the press draws a
connection between an outcome and the amount that interested
companies have given in soft money. . . . Even if a senator is
supporting a position that helps an industry for reasons other than
that the industry gave millions to his party, it does not appear
that way in the public eye." Rudman Dec 1. ¶ 11.
271. Finally, the defendants have submitted no evidence that the public
either believes, or perceives, that federal officeholders are
motivated by anything other than the receipt of financial assistance
for their own campaigns when they raise funds for their respective
As to BCRA's restrictions on noncandidate campaign expenditures, I find that
Issue Advocacy in Modern Campaigns
272. The record convincingly demonstrates that the overwhelming majority
of modern political advertisements do not use words of express
advocacy,*fn201 whether they are financed by candidates, political
parties, or other organizations. As a result of this development,
Congress found that FECA, as construed by the courts to only limit
independent expenditures containing express advocacy, as defined by
Buckley, was no longer relevant to modern political advertisement.
See, e.g., 148 Cong. Rec. S2117 (2002) (Senator James Jeffords)
("The `magic words' standard created by the Supreme Court in 1976
has been made useless by the political realities of modern political
advertising. Even in candidate advertisements, what many would say
are clearly advertisements made to convince a voter to support a
particular candidate, only 10 percent of the advertisements used the
Federal candidate ads appeared nearly 236, 000
times in the top 75 media markets in 1998, 430,
000 times in 2000. In 1998, just 4 percent of
these spots used verbs like `vote for', `elect',
or `defeat'; in 2000, just 5 percent did.
Including slogans like `Smith for Congress,' 10
percent of the candidate ads aired in 2000 would
qualify as electioneering using the magic words
test. The remaining 90 percent could have been
categorized as issue advocacy had a party or
group sponsored them.
Krasno & Sorauf Expert Report at 53-54 [DEV 1-Tab 2] (citing
Jonathan Krasno & Kenneth Goldstein, "The Facts about Television
Advertising and the McCain-Feingold Bill," (PS: Political Science
and Politics, No. 2:207-212), 2002).
273. The absence of "magic words" does not impede the ability of media
consultants to create an electioneering message. "In fact,
candidates rarely use the magic words in their own ads.'" Magleby
Expert Report at 15 [DEV 4-Tab 8]. Former Senator Warren Rudman
observed that "[m]any, if not most, campaign ads run by parties and
by candidates themselves never use . . . `magic words.' It is
unnecessary." Rudman Decl. ¶ 18 [DEV 8-Tab 34].
274. Political consultants clearly support the conclusion that modem
political advertisements rarely use the "magic words" to convey
Republican Political Consultant Douglas L. Bailey*fn202
In the modern world of 30 second political
advertisements, it is rarely advisable to use
such clumsy words as "vote for" or "vote
against." If I am designing an ad and want the
conclusion to be the number "20," I would use the
ad to count from 1 to 19. I would lead the viewer
to think "20," but I would never say it. All
advertising professionals understand that the
most effective advertising leads the viewer to
his or her own conclusion without forcing it down
their throat. This is especially true of
political advertising, because people are
generally very skeptical of claims made by or
The notion that ads intended to influence an
election can easily be separated from those that
are not based upon the mere presence or absence
of particular words or phrases such as "vote for"
is at best a historical anachronism.
Bailey Decl. ¶¶ 3-8 [DEV 6-Tab 2].
Democrat Political Media Consultant Raymond Strother*fn203
[M]edia consultants prefer putting across
electioneering messages without using words such
as "vote for." Good media consultants never tell
people to vote for Senator X; rather, you make
your case and let the voters come to their own
conclusions. In my experience, it actually proves
less effective to instruct viewers what you want
them to do. They have to come to their own
conclusion. Americans like to think they make up
their own minds and determine their own fate.
Without even mentioning an upcoming election, the
media consultant can count on the electoral
context and voters' awareness that the election
is coming. Voters will themselves link your ad to
the upcoming election. When viewed months or
years after the election a particular ad might
look like pure issue advocacy unrelated to a
federal election. However, during the election,
political ads — whether candidate ads, sham
issue ads, true issue ads, positive ads, negative
ads or whatever — are each seen by voters
as just one more ingredient thrown into a big
Strother Decl. ¶ 4 [DEV 9-Tab 40]; see also Strother Cross
Exam. at 44 (observing that 90 percent of candidate advertisements
Strother has put together in his career have not used express
The Distinction Between Candidate-Centered Advocacy and Pure Issue Advocacy Is Not a Function of the Presence or Absence of the Buckley "Magic Words"
275. The presence or absence of "magic words," as defined in Buckley v.
Valeo, does not alone determine whether the advertisement was
designed to, and will, support or oppose a particular candidate.
See Magleby Expert Report at 5 [DEV 4-Tab 8]; see also Krasno &
Sorauf Expert Report at 58 [DEV 1-Tab 2] ("The magic words test,
however, does not distinguish between [candidate-oriented issue
advertisements and pure issue advertisements]; indeed it does not
distinguish between ads sponsored by candidates and any type of
issue ad, or even between political and commercial advertising.
Whatever its utility might once have been, this standard is now
irrelevant to how political ads are designed.").
276. Some current and former elected officials also believe that "magic
words" no longer help distinguish genuine issue advertisements from
electioneering advertisements. 147 Cong. Rec. S3072 (2001) (Senator
Russ Feingold) ("People didn't need to hear the so-called magic
words to know what these ads were really all about."); 147 Cong.
Rec. S3036 (Senator John McCain) ("[W]e can demonstrate that the
Court's definition of "express advocacy" — magic words
— has no real bearing in today's world of campaign ads.").
277. Indeed, Senator Carl Levin made the following statement on the floor
of the Senate in 1998:
To show the absurd state of the law, at least in
some circuits, we can just look at one of the
1996 televised ads that was paid for by the
League of Conservation Voters and which referred
to House Member Greg Ganske, a Republican
Congressman from Iowa, who was then up for
reelection. This is the way the ad read:
It's our land; our water. America's environment
must be protected. But in just 18 months,
Congressman Ganske has voted 12 out of 12 times
to weaken environmental protections. Congressman
Ganske even voted to let corporations continue
releasing cancer-causing pollutants into our
air. Congressman Ganske voted for the big
corporations who lobbied these bills and gave him
thousands of dollars in contributions. Call
Congressman Ganske. Tell him to protect America's
environment. For our families. For our future.
The ad sponsor claimed that was an issue ad, an
ad that discussed issues rather than a
candidate, and so could be paid for by unlimited
and undisclosed funds. If one word were changed,
if instead of `Call Congressman Ganske,' the ad
said, `Defeat Congressman Ganske,' it would
clearly qualify as a candidate ad subject to
contribution limits and disclosure requirements.
In the real world, that one word difference
doesn't change the character or substance of that
ad at all. Both versions unmistakably advocate
the defeat of Congressman Ganske.
144 Cong. Rec. S 10073 (1998) (Senator Carl Levin) (advertisement
text in italics); see also Bloom Decl. ¶ 5 [DEV 6-Tab 7] ("In my
experience in campaigns for federal, state and local office,
including my involvement in the television advertising we ran in my
race for Congress, no particular words of advocacy are needed for an
ad to influence the outcome of an election. Many so-called `issue
ads' are run in order to affect election results.").
278. In addition, former Senator Dale Bumpers testified:
Soft money also finds its way into our system
through so-called "issue advertisements'
sponsored by outside organizations that mostly
air right before an election. Organizations can
run effective issue ads that benefit a candidate
without coordinating with that candidate. They
have experienced professionals analyze a race and
reinforce what a candidate is saying. These ads
influence the outcome of elections by simply
stating "tell him [the opponent] to quit doing
this." The "magic words" test is completely
inadequate; viewers get the message to vote
against someone, even though the ad may never
explicitly say "vote-against-him."
Bumpers Decl. ¶ 26 [DEV 6-Tab 10];*fn204 see also Chapin Decl.
¶ 7 [DEV 6-Tab 12] ("Based on my experience in campaigns for
federal and local office, including the television advertising we
ran in my races for County Chairman and Congress, I am familiar with
political campaign ads. No particular words of advocacy are needed
in order for an ad to influence the outcome of an election."); see
also Paul Dep. at 27-28 [JDT Vol. 25] (Plaintiff Congressman Ron
Paul testified that the outside group issue ads run in his 2000
Congressional campaign were intended to influence the election.).
Congressman Christopher Shays also testified:
Although the Supreme Court has identified a
limited category of "magic words" that make an
advertisement a campaign advertisement, my
experience as a candidate and a Member of the
House is that this limited test is inadequate to
identify campaign ads. Campaign ads need not
include phrases such as "vote for," "re-elect" or
"vote against" to be effective campaign tools,
and the practice of large numbers of so-called
"issue ads" before an election proves it.
Shays Decl. ¶ 12 [DEV 8-Tab 35].*fn205
279. Some political consultants believe that there is no difference
between political advertisements that contain words of express
advocacy (i.e., "magic words") and advertisements that are designed
to influence federal elections but do not use the "magic words" of
Democrat Political Media Consultant Raymond Strother*fn206
Because it is so easy for consultants in my
business to make ads that will influence federal
elections without triggering the need to use hard
dollars to pay for them, the difference between
hard money and soft money is a joke. If I want to
use soft money to influence an election, there is
no real difference in what I do to create the
ad. The only thing that is different is the tag
line at the end. From the point of view of a
media consultant, there is no real difference
between ending an advertisement with "Vote for
Senator X" versus ending an advertisement with
"Tell Senator X to continue working hard for
America's families." The public simply does not
differentiate between ads that are otherwise
identical, but contain these slightly different
tag lines at the very end.
Strother Decl. ¶¶ 3, 8, 11 [DEV 9-Tab 40].
Republican Political Consultant Rocky Pennington
Many soft money ads that avoid the magic words
are clearly intended to affect federal
elections. Parties and interest groups would not
spend hundreds of thousands of dollars to runs
[sic] these ads 15 days before an election if
they were not trying to affect the result. These
candidate-specific ads are not usually run the
year before the election or the week after.
Pennington Decl. ¶ 10 [DEV 8-Tab 31].*fn207
Democrat Political Consultant Terry S. Beckett
I am aware of the idea that particular "magic
words" might be required in order for an
advertisement to influence an election. However,
in fact no particular words of advocacy are
needed in order for an ad to influence the
outcome of an election. No list of such words
could be complete: if you list 50, savvy
political actors will find 100 more. For
example, many so-called "issue ads" run by
parties and interest groups just before an
election attack a candidate, then end by
supposedly urging the viewer to "tell" or "ask"
the candidate to stop being that way. These ads
are almost never really about issues. They are
almost always election ads, designed to affect
the election result. You can see this most
clearly in the ones that amount to personal
attacks, or that criticize a candidate on several
Beckett Decl. ¶ 8 [DEV 6-Tab 3].
Democrat Political Operative Joe Lamson
Based on my experience in managing many federal
election campaigns, I am familiar with campaign
advertising. No particular words of advocacy are
needed in order for an advertisement to influence
the outcome of an election. When political
parties and interest groups run "`issue ads" just
before an election that say "`call" a candidate
and tell her to do something, their real purpose
is typically not to enlighten the voters about
some issue, but to influence the result of the
election, and these ads often do have that
effect. Parties and groups generally run these
pre-election "issue ads" only in places where the
races are competitive. These "issue ads"
generally stop on the day of the election. For
example, these groups could run ads explaining
Nancy Keenan's position on the issues after the
November general election so that people could
discuss them over the Thanksgiving dinner table,
but it doesn't seem to work that way.
Lamson Decl. ¶ ¶ [DEV 7-Tab 26].
Former Chair of Plaintiff NRA Political Victory Fund Tanya K. Metaksa*fn208
Today, there is erected a legal, regulatory wall
between issue advocacy and political advocacy.
And the wall is built of the same sturdy material
as the emperor's clothing. Everyone sees it. No
one believes it. It is foolish to believe there
is any practical difference between issue
advocacy and advocacy of a political candidate.
What separates issue advocacy and political
advocacy is a line in the sand drawn on a windy
day. We engaged in issue advocacy in many
locations around the country. Take Bloomington,
Indiana, for example. Billboards in that city
read, "Congressman Hostettler is right." "Gun
laws don't take criminals off Bloomington's
streets." "Call 334-1111 and thank him for
fighting crime by getting tough on criminals."
Guess what? We really hoped people would vote for
the Congressman, not just thank him. And people
did. When we're three months away from an
election, there's not a dime's worth of
difference between "thanking" elected officials
and "electing" them.
INT 015987, Opening Remarks at the American Ass'n of Political
Consultants Fifth General Session on "Issue Advocacy," Jan. 17,
1997, at 2 [DEV 38-Tab 25].
The Rise of "Issue Advocacy" Campaigns Funded by Corporate and Labor Union General Treasuries
280. The Annenberg Center for Public Policy ("Annenberg Center") has been
studying "issue advocacy" since the early 1990s. See Annenberg
Public Policy Center, Issue Advocacy Advertising During the
1999-2000 Election Cycle ("Annenberg Report 2001") at 1 [DEV 38
Tab-22]. Based on their research, the Annenberg Center concluded
that "[o]ver the last three election cycles the numbers of ads,
groups, and dollars spent on issue advocacy has climbed." Id.
281. The Annenberg Center estimated that, during the 1996 election
cycle, $135 million to $150 million was spent on multiple broadcasts
of about 100 advertisements. Annenberg Report 2001 at 1 [DEV 38-Tab
22]. In the next election cycle (1997-98), the Annenberg Center
found that 77 organizations aired 423 advertisements at a cost of
between $250 million and $340 million. Id.*fn209 In the 1999-2000
election cycle, the Annenberg Center found that 130 groups spent
over an estimated $500 million on 1,100 distinct advertisements.
282. After studying "issue advocacy" over a seven year period, the
Annenberg Study, which was relied on by Congress in drafting BCRA,
concluded inter alia that:
1) The amount of money spent on "issue advocacy"
is rising rapidly. 2) Instead of creating the
number of voices Buckley v. Valeo had hoped,
"issue advocacy" allowed groups such as the
parties, business and labor to gain a louder
voice. 3) The distinction between "issue
advocacy" and express advocacy is a fiction. 4)
"Issue advocacy" masks the identity of some key
players and by so doing, it deprives citizens of
information about source of messages which
research tells us is a vital part of assessing
Annenberg Report 2001 at 1 [DEV 38-Tab 22]. As plaintiffs' expert
Raymond J. La Raja stated, "`Over the last three election cycles,
the number of groups sponsoring ads has exploded, and consumers
often don't know who these groups are, who funds them, and whom they
represent.'" La Raja Dec 1. ¶ 24(h) (quoting Annenberg Report
2001 at 1).
283. The Annenberg Center estimated that in the 1999-2000 election
cycle, more than $509 million was spent on television and radio
"issue advocacy." Annenberg Report 2001 at 4-5 [DEV 38-Tab 22]. The
Republican and Democratic parties accounted for almost $162 million
(31%) of this spending; Citizens for Better Medicare, $65 million
(13%); Coalition to Protect America's Health Care, $30 million
(6%); U.S. Chamber of Commerce, $25.5 million (5%); AFL-CIO, $21.1
million (4%); National Rifle Association, $20 million (4%); U.S.
Term Limits, $20 million (4%). Id. These groups and the two parties
accounted for two out of every three (67%) dollars spent on issue
ads in the 2000 cycle. Id. (noting that other groups spent a
combined $166.2 million (33%) on issue advocacy during the 1999-2000
election cycle); see also La Raja Decl. ¶ 20(b) & fig. 10
(quoting Annenberg data and noting that "[t]hese figures . . .
closely match my own data on party-based issue ads collected by
examining financial reports filed with the FEC").
284. Interest groups developed a strategy "by the early 1990s, and
especially by 1996 . . . to effectively communicate an
electioneering message for or against a particular candidate without
using the magic words and thus avoid disclosure requirements,
contribution limits and source limits." Magleby Expert Report at 10
[DEV 4-Tab 8]. Indeed, defendants' witness and political consultant
Douglas L. Bailey noted that it was not until the 1996 election
cycle that corporations and labor unions began to make heavy use of
"issue advocacy" as a tool of electioneering. Bailey Decl. ¶ 14
[DEV 6-Tab 2].
Explaining the Shift Toward "Issue Advocacy"
285. According to defense expert Magleby, the shift toward using "issue
advocacy" can be explained by three phenomena. "First, it permits
groups and individuals to avoid disclosure. Second, it allows them
to avoid contribution limits. Third, it permits some groups (such as
corporations and labor unions) to spend from generally prohibited
sources." Magleby Expert Report at 18-19 [DEV 4-Tab 8]; see also
Krasno & Sorauf Expert Report at 50 [DEV 1-Tab 2] ("Avoiding
FECA allows advertisers to collect any sum of money from any source
they can. Avoiding FECA allows advertisers to conduct their
operations without disclosing their activities to the public.").
286. The corresponding rise in "issue advocacy" between the 1996 and 2000
election cycles highlighted the fact that disclosure information
relating to the organization purchasing the advertisement was not
available because the advertisement was not subject to FECA's
restrictions. Magleby Expert Report at 18 [DEV 4-Tab 8] ("The 1996,
1998 and 2000 election cycles all saw examples of groups who sought
to avoid accountability for their communications by pursuing an
electioneering advertising/election advocacy strategy rather than
limiting their activities to independent expenditures or other
activities expressly permitted by the FECA.").
287. Groups can raise larger amounts of money in a shorter time frame if
they are not bound by FECA's contribution limitations. Magleby
Expert Report at 19 [DEV 4-Tab 8] (stating, for example, "groups
like Citizens for Better Medicare, Pharmaceutical Research and
Manufacturers of America, NAACP National Voter Fund, and NARAL, were
able to far exceed what individuals, PACs or parties could do
through hard money contributions.").
Candidate-Centered "Issue Advertisements" That Do Not Contain Words of Express Advocacy Are Distinguishable from "Genuine" Issue Advertisements
288. "Issue advertisements," according to one study, fall into three
categories: candidate-centered, legislation-centered, and general
image-centered. Annenberg Report 2001 at 13 [DEV 38-Tab 22].
"Candidate-centered advertisements make a case for or against a
candidate but do so without the use of the ten words delineated in
Buckley." Id. (noting that these advertisements "usually present a
candidate in a favorable or unfavorable light and then urge the
audience to contact the candidate and tell him or her to support the
sponsoring organization's policy position."). Legislation-centered
advertisements "seek to mobilize constituents or policy makers in
support of or in opposition to pending legislation or regulatory
policy." Id. (noting that these advertisements usually mention
specific, pending legislation). Finally, general image-centered
advertisements are "broadly written to enhance the visibility of an
organization or its issue positions, but are not tied directly to a
pending legislative or regulatory issue." Id.
289. Other commentators separate "issue advertisements" into two types of
categories: candidate-centered (also called electioneering) issue
advertisements and genuine issue advertisements. Advertisements
designed to genuinely influence debate over a particular issue are
known as "true" or "genuine" issue advertisements, while those issue
advertisements designed to influence a federal elections are known
as "electioneering" or "candidate-centered" issue advertisements.
Krasno & Sorauf Expert Report at 65 [DEV 1-Tab 2] ("Advertising
data show that there are two distinct types of issue ads, those that
are basically candidate-oriented and electioneering in nature, and
those that only present or urge action on an issue. The former are
nearly identical in format, structure, and timing to ads produced by
candidates, while the latter bear little or no resemblance to
290. Defendant's expert Magleby testified, in effect, that although
mentioning a candidate's name is an indicia of an electioneering
advertisement, it is not per se determinative, as some
advertisements that refer to a candidate by name are nonetheless
genuine issue advocacy. Defense expert David Magleby wrote:
A number of indicia make clear that the ads run
by individuals and interest groups are in reality
electioneering ads that are meant to influence,
and do influence, elections: These electioneering
ads generally name a candidate, run close in time
to the election, target the named candidate's
district, are run primarily in competitive
races, and generally track the themes in the
featured candidate's campaign.
Magleby Expert Report at ¶ [DEV 4-Tab 8] (emphasis added).
Later, when questioned about whether the "presence of the name or
likeness of a candidate [in an ad] preclude[s] it from being treated
a as . . . genuine issue" advocacy in his study, Magleby stated that
he and his team of academics would "presume [an ad] was
electioneering" if it referred to a candidate by name or by image
and was aired "within the district or state in which the person
named or whose image is represented is the incumbent" and "that
person is running for office." Magleby Cross Exam. at 79-80. Upon
further questioning, however, it became clear that the type of
reference to a candidate to which Magleby was referring was not the
type exclusively contained in a call-to-action line at the end of an
advertisement, but rather one or more references to the candidate in
the "body of the ad" in connection with either what the candidate
has said about an issue, or how the candidate has voted on an
issue. See Magleby Cross Exam. at 103-105.
Q. Didn't you tell me a few minutes ago that
there is no such thing as an election issue ad
that — well, first of all, haven't you told
me that a genuine issue ad, to be characterized
as a genuine issue ad, you cannot mention a name
of a candidate? A. No. In the context of the ad,
not the call lines and so forth. It doesn't
mention how [the candidate] voted. It doesn't
represent what [the candidate] has said about the
issue. The body of the ad has no referent to [the
candidate] whatsoever. The only referent to [the
candidate] is the call line.
291. Defendants' political consultant Raymond Strother testifies, in
effect, that it is very difficult to determine the objective behind
an advertisement, particularly when that advertisement is viewed
outside the context and time of the election:
None of us, without understanding the context and
the time, can tell you what a sham ad is and a
nonsham ad. You can't do that by looking at
pictures or even looking at the ads. When I was
teaching at Harvard, I brought Doug Bailey up to
lecture my class. He showed series of
commercials, and he said, "Okay, which is the
best commercial," and everybody voted. "The worse
commercial," and everybody voted. He said,
"You're all wrong. There is no best or worse
commercial because none of you are qualified to
judge these commercials because you don't know
the context in which they were run or the
problems they were to solve." When I look at
storyboards, I have no way of knowing if they're
fake, real, et cetera, because I don't know the
time — I don't know anything about them.
Strother Cross Exam. at 90-91.
292. While electioneering issue advertisements almost always refer to
specific candidates by name, especially those seeking to influence
an officeholder's upcoming vote on pending legislation, genuine
issue advertisements are less likely to refer to a federal candidate
Raymond Strother testified:
In addition to our work for candidates, my firm
has also done some (though limited) advertising
work for the political parties and for third
parties. I would characterize these ads as
falling into two distinct categories: true
issue ads and electioneering or "sham" issue
True issue advocacy does exist. Over the
years, I have designed issue advertising
campaigns for, among other issue, tightening
seat belt laws, education reform, and the
removal of the confederate battle cross from
the Mississippi state flag. The education
reform ads promoted policies such as reducing
class sizes and loosening the protections
afforded by tenure so that bad teachers could
be more easily fired. These ads were run all
across the South; and their sole purpose was
simply to educate the public. In Mississippi,
my client wanted to change attitudes about the
confederate cross on the flag, and explain how
it was holding back the state economically.
These advertisements were not made to elect or
These true issue ads did not mention any
candidates by name. Indeed, there is usually no
reason to mention a candidate's name unless the
point is to influence an election.
Strother Decl. ¶¶ 5-7 [DEV 9-Tab 40]. During Strother's cross
examination, he candidly admitted that during the course of his 35
year career, less than 10 percent of his work was for issue
organizations as opposed to candidates, Strother Cross Exam. at 48
[JDT Vol. 15], and that he had never spent much time working for an
ideological organization. Id. at 56-59. Indeed, he admitted on cross
examination that he did not think he had "ever advised a client who
wanted to run an advertisement campaign of some kind that spoke to
pending legislation before a sitting legislature." Strother Cross
Exam. at 119.
293. Political consultant Raymond Strother, further acknowledged when
questioned regarding advertisements that specifically encourage
voters to call their legislators regarding pending legislation that
a candidate's name would be mentioned in the context of this type of
Q. Have you ever advised a client who wanted to
run an advertisement campaign of some kind that
spoke to pending legislation before a sitting
legislature? A. I don't think so, but I could be
wrong. Maybe my memory isn't good, but I don't
think so. Q. Do you have any reason to believe,
if you were to do that, that you would not want
to run advertisements that specifically encourage
the voters to call their member and to tell them
which way they should vote on that pending
legislative initiative? A. Yes, there's a good
chance we would say, "Call Candidate X and let
your views be known."
Strother Cross Exam. at 119. See also Huard Decl. ¶ 12 ("There
are many reasons that an issue ad may need to refer to the name of
an elected official or candidate. Many bills are identified with
particular sponsors and may be known by the sponsors names. Also,
both incumbents and candidates may be prominent people whose support
or opposition to a bill or policy may have important persuasive
effect. . . . Also, if an issue ad is used to explain why a
legislative position of a particular Member of Congress is good for
his or her district or state, the member generally must be
mentioned. The same is true if the purpose of the ad may be to
induce viewers to contact the Member and communicate a policy
position.") (emphasis added); Mitchell Decl. ¶ 11 (stating that
"[t]he express or implied urging of viewers or listeners to contact
the policymaker regarding [an] issue is . . . especially effective
by showing them how they can personally impact the issue debate in
294. Political consultant Doug Bailey testifies:
In addition to the work we did for candidates at
Bailey, Deardourff, we also did political ads for
political parties and issue groups. When we were
creating true issue ads (e.g, for ballot
initiatives or more general issues such as
handgun control), and when we were creating true
party building ads, it was never necessary for us
to reference specific candidates for federal
office in order to create effective ads. For
instance, we created a serious [sic] of ads
opposing a gambling referendum in Florida which
made no reference to any candidates. We were
successful in conveying our message, and the
referendum failed two to one.
Bailey Decl. ¶¶ 9-11 [DEV 6-Tab 2] (emphasis added).
295. In contrast, expert testimony in the record also indicated that
candidate-centered issue advertisements almost always mention the
name of the federal candidate. Krasno & Sorauf Expert Report at
55-56 ("The most obvious characteristic shared by candidate ads and
candidate-oriented issue ads is their emphasis on candidates.
Candidate names appear in virtually all of these spots, with
candidates most likely to identify themselves in their ads and
candidate-oriented issue ads most likely to identify the opposing
candidate (in some pejorative way).").
The Use of Issue Advocacy by Organizations For Electioneering Purposes
296. Defense experts Krasno and Sorauf stated:
Many of [the sponsors of issue advocacy designed
to influence federal elections] have been frank
about their intent to influence elections. For
example, the AFL-CIO in the first issue ad
campaign in House elections in 1996 acknowledged
its intent to help Democratic candidates, and its
results were measured accordingly. The Club for
Growth, a conservative Republican group, bluntly
discusses its electioneering activities on its
website; they include direct contributions,
bundled contributions, and issue ads. The goals
of the parties, especially in presidential
elections where candidates and their agents have
been intimately involved in planning and paying
for their party's ads, can hardly be doubted.
Survey results show that citizens overwhelmingly
view these advertisements as intended to
influence their support or opposition to
particular federal candidates.
Krasno & Sorauf Expert Report at 65 [DEV 1-Tab 2].
297. Defense expert Magleby explains in his expert report that both labor
unions and corporations engaged in extensive electioneering
communications during the 1996 election cycle.
The 1996 initiative by labor into unregulated and
unlimited electioneering communications was
substantial. The AFL-CIO spent a reported $35
million dollars, much of it on television, aimed
at defeating 105 members of Congress, including
32 heavily targeted Republican freshmen. Labor
broadcast television commercials in forty
districts, distributed over 11.5 million voter
guides in twenty-four districts and ran radio ads
in many others. The labor campaign triggered a
complaint to the Federal Election Commission by
the National Republican Congressional Committee,
which charged that when the AFL-CIO's ads are
"heard, read, and seen" as a whole "a reasonable
person can only view them as advocating the
defeat of a clearly identified candidate in the
1996 Congressional election." See In the Matter
of AFL-CIO Project `95 (complaint filed with the
Federal Election Commission Feb. 13, 1996).
The business community responded to this major
effort by labor with their own unlimited and
undisclosed communications, again avoiding any of
the magic words. Partners in the business
response were the National Federation of
Independent Business (NFIB), U.S. Chamber of
Commerce, the National Association of
Wholesaler-Distributors, the National Restaurant
Association and the National Association of
Manufacturers. Their group, called the "Coalition
— Americans Working for Real Change," was
active in thirty-seven House races, spent an
estimated $5 million on over thirteen thousand
television and radio commercials, and mailed over
two million letters mainly in support of
Republicans, to owners of small business. Others
using this tactic in 1996 included Triad
Management Services. The activity of Triad
Management Services is documented at Center for
Public Integrity, "The `Black Hole' Groups," The
Magleby Expert Report at 10 n. 7 [DEV 4-Tab 8] (citations omitted);
see also Mitchell Dep. at 96-97 [JDT Vol. 23] (stating that in
1996, in the 60 days before the election, in terms of dollars spent
by the AFL-CIO on broadcast advertising, the substantial majority of
that money was spent on ads that mentioned members of the House of
298. Evidence presented in the record demonstrates that electioneering
advocacy is, at times, a consideration of the AFL-CIO. For example:
1) Mitchell testified that after Congress
adjourned on October 3, 1996, the AFL-CIO
discontinued its broadcast advertisements "aimed
at immediately pending legislative issues."
Mitchell Decl. ¶ 42 [PCS 6]. The AFL-CIO then
began to run "electronic voter guides" which
compared the positions of congressional
candidates on various issues. Id.; see also FEC
MUR No. 4291, General Counsel's Report, June 9,
2000, at 6, 1NT003838 [DEV 52-Tab 3].
2) A September 18, 1996, memorandum from a
polling firm analyzed the likely impact of five
issue advertisements in terms of their likely
effect on voters. Memorandum from Guy Molyneux
and Molly O'Rourke of the polling firm Peter D.
Hart Research Associates, Inc., to the AFL-CIO's
Special Assistant for Public Affairs, Denise
Mitchell, "Ad Targeting" (Sept. 18, 1996),
AFL-CIO 001614-16 [DEV 124] ("[The advertisement]
Taxes appears to be the single strongest spot, in
terms of reaching the widest range of voters and
affecting people's impression of the incumbent's
Issue position. It should especially be directed
to younger voters. [The advertisement] Kids is
also very strong, and again should be directed to
young people. [The advertisements] Medicare,
Homes, and Retire are most effective with older
audiences. If you can only run 4 spots, [the
advertisement] Retire is probably the one to
drop.") (emphasis added); see also Memorandum
from Geoff Garin and Guy Molyneux of Peter D.
Hart Research Associates, Inc. to Denise
Mitchell, "AFL-CIO Mall Intercepts Survey"
(Sept. 13, 1996), AFL-CIO 001582-84 [DEV 124]
(Mall Intercept Survey of individuals' reactions
to these advertisements including how the
advertisements made the respondents feel about
fictitious congressman's position on each
issue); see also Mitchell Cross Exam. at 66-75
[JDT Vol. 23]. But see Proposed Findings of Fact
of the AFL-CIO and AFL-CIO COPE PCC ¶ 19
("[t]he selection of these subjects [for its
broadcast advertising campaign between 1995 and
2001] was not motivated by partisan political
considerations"); Mitchell Decl. ¶ 70 [6 PCS]
("[The indirect effect on election outcomes] has
never been the point of our broadcast advertising
program, within or outside the 30-and 60-day
3) On March 29, 1996, Mitchell received a
memorandum from a campaign consultant who
analyzed political media consultants for the
AFL-CIO. The memorandum stated:
Political campaigns are superheated
environments where the objective is not,
always, to make the best looking spot. The
objective is to communicate with the
persuadables at the time they are making their
decision. Being able to pivot the entire
campaign at exactly the right time is the real
talent of a media consulting firm.
Consequently, there is little reward for great
spots. No one knows better than you how
consuming this can be. . . . [These
advertisements can be done], but you must
understand that you will be asking these
political consultants to do it under rules they
have never had to follow before. . . . What
[all of these firms can do] is manage the
political message in a volatile environment.
Memorandum from Joe Cowart of Joseph Cowart
Campaign Consulting to Denise Mitchell,
"Political Media Consultants" (Mar. 29, 1996),
AFL-CIO 001702-04 [DEV 124]. But see Proposed
Findings of Fact of the AFL-CIO and AFL-CIO COPE
PCC ¶ 19 ("[t]he selection of these subjects
[for its broadcast advertising campaign between
1995 and 2001] was not motivated by partisan
political considerations"); Mitchell Decl. ¶
70 [6 PCS] ("[The indirect effect on election
outcomes] has never been the point of our
broadcast advertising program, within or outside
the 30-and 60-day periods.").
4) An October 9, 1996, internal memorandum from
the AFL-CIO's Brian Weeks to AFL-CIO's Mike Klein
discussed where media buys might be placed to
help Dick Durbin in his Illinois Senate race,
based on Mr. Durbin's lack of resources to air
advertisements in certain markets. Memorandum
from Brian Weeks to Mike Klein, "Electronic Buy
for Illinois Senator" (Oct. 9, 1996), AFL-CIO
005244 [DEV 125]. But see Proposed Findings of
Fact of the AFL-CIO and AFL-CIO COPE PCC ¶ 19
("[t]he selection of these subjects [for its
broadcast advertising campaign between 1995 and
2001] was not motivated by partisan political
considerations"); Mitchell Decl. ¶ 70 [6 PCS]
("[The indirect effect on election outcomes] has
never been the point of our broadcast advertising
program, within or outside the 30-and 60-day
5) Denise Mitchell indicated that in 1996, in the
60 days before the election, in terms of dollars
spent by the AFL-CIO on broadcast advertising,
the substantial majority of that money was spent
on ads that mentioned members of the House of
Representatives. Mitchell Dep. at 96-97 [JDT
299. Bruce Josten, Executive Vice President for Government Affairs for
the U.S. Chamber of Commerce, testified repeatedly that the purpose
of the electioneering communications aired during the 1996 federal
election was not to influence the election of any federal
candidate, but to respond to attack ads paid for by the AFL-CIO and
organized by its president, Mr. John Sweeney. Mr. Josten explained
that there "were TV markets where John Sweeney ran an ad accusing a
member of Congress about their votes on the issues that I mentioned
earlier, and in the spring he started running ads that were not
true, and we would follow him" with television ads paid for by the
Coalition. Josten Cross Exam. at 44. According to Mr. Josten, the
AFL-CIO ads attacked Members of Congress who had supported
pro-business initiatives and legislation favored by the Coalition.
"My objective was to knock down impressions that Mr. Sweeney and his
advertisers and campaigns were trying to undertake and express our
viewpoints exactly the opposite of that and let the viewers make
their own decision about that dialogue that was being imposed on
them." Id. at 88. See also Proposed Findings of Fact of Chamber,
NAM, Associated Builders and Contractors, et. al. ¶ 24
("Defendants' assertion that The Coalition's 1996 activities show
that preelection issue ads are merely candidate ads in disguise is
mistaken. Participants in The Coalition were unanimous that its ads
were intended to respond to issue ads being run by the AFL-CIO.").
300. There is other probative evidence presented in the record, however,
that influencing the elections of federal candidates was also a
consideration for the U.S. Chamber of Commerce when crafting "issue
In 1996, the Coalition sought proposals from
advertising firms for a "campaign to re-elect a
pro-business Congress." TC00698 [DEV 121]. Media
consultant Alex Castellanos of National Media,
Inc. opened his proposal to the Coalition by
stating, "Thank you for the opportunity to
present two 30 second television and one 60
second radio scripts, as requested, to your
campaign to re-elect a pro-business Congress."
The Coalition commissioned firms to conduct polls
and focus groups to measure voter responses to
their advertisements. AV0024-40, 0046-47,
0060-64, 0106-118, 0139-41 [DEV 121]. The
Coalition retained two polling organizations in
1996, the Tarrance Group and American Viewpoint,
to test whether specific Coalition and AFL-CIO
advertisements would make participants more or
less likely to vote for particular federal
candidates. FEC MUR No. 4624, General Counsel's
Report, April 20, 2001, at 22-23 [DEV 53-Tab 6];
Josten Dep. at 68-114 [JDT Vol. 12]. One firm
surveyed "voter attitudes nationwide," TC
00513-37 [DEV 121], and another survey tested
possible Coalition ads on focus groups, including
one of "Swing Voters." AV0139-41, AV0037-40 [DEV
A June 28, 1996, Tarrance Group memorandum to the
Coalition stated that "The net result among swing
voters in Cleveland was that 25% of participants
were moved closer to voting for a Republican
candidate for Congress and about half of the
participants were moved against national labor
leaders. In other words, the response ads not
only leveled the playing field, but put some
points on the board for Republican candidates as
well." AV139 [DEV 121] (stating that Republican
Members of Congress are "`currently under attack
by AFL-CIO advertising" and are "`outgunned and
outclassed" and if "targeted Republicans ever
hope to be operating on an even playing field
during the 1996 election, it will require that an
outside voice come to their defense.").
A July 12, 1996, memorandum to the Coalition from
American Viewpoint on "Key Findings of the
Pre-Test in Des Moines Media Market of Iowa 4"
concludes that Congressman "Greg Ganske is in
deep trouble in the Des Moines Market," stating
that "this is one of the most challenging
districts that could have been chosen to assess
the impact of your advertising. . . . If
advertising can move numbers in this district, it
should be effective in most other districts.
Voters have not yet focused on the union's
campaign as only 25% has seen the commercials. As
a result, there is still time to reach them with
a substantial buy." Memorandum from Gary Ferguson
to the Coalition Steering Committee, "Key
Findings of the Pre-Test in the Des Moines Market
of Iowa 4" (July 12, 1996), NAW0002, 05 [DEV
In late 1996, the Coalition commissioned the
Tarrance Group to conduct a detailed
post-election analysis. The Tarrance Group,
Coalition Post-Election Survey Analysis,
NAM0206-27, at NAMO213 [DEV 121]. The Tarrance
The Coalition commissioned this research to
assess the impact of their two-month
advertising campaign and its relative effect on
voters in the face of the very aggressive,
year-long campaign sponsored by the AFL-CIO.
Given that four of the six Republican
candidates tested in this research won their
respective races, one could conclude that the
Coalition's efforts were a success — as
they were in the vast majority of the targeted
districts in which the Coalition was involved.
301. There is substantial evidence in the record which shows that
candidate advocacy was also a consideration for Citizens for Better
Medicare ("CBM"), an organization that was primarily financed by
major drug companies and sponsored by PhRMA, an industry trade
association. Ryan Dep. at 13 [JDT Vol. 27] ("We solicited funding
from the pharmaceutical companies to underwrite our efforts."); id.
at 10-11 ("PHRMA was really the leading organization to organize and
fund CBM."); PH 0379 [DEV 128-Tab 2]; CBM 0029 [DEV 128-Tab 1]
(tally of donations from major drug companies to CBM in FY 2001,
totaling $39,586,892.32). CBM describes itself as "a grassroots
organization representing the interests of patients, seniors,
disabled Americans, small businesses, pharmaceutical research
companies and many others concerned with Medicare reform." According
to the Annenberg Report, CBM spent $65 million on broadcast advocacy
in the 60 days prior to the 2000 general election. Annenberg Report
2001 at 4, 20-22 [DEV 38-Tab 22]. There is substantial evidence in
the record that this advocacy was candidate-centered. Alex
Castellanos, a political consultant with National Media, testified
that CBM advertisements often mentioned Members' names. Castellanos
Dep. at 63-66; see also Ryan Dep. at 68-72, 79-85. Timothy Ryan,
former executive director of CBM, testified that much of CBM's ad
strategy leading up to the 2000 election was aimed at supporting
candidates attacked in AFL-CIO advertising. Ryan Dep. at ¶
8-72; Castellanos Dep. at 63-66.
302. The NRA's media consultant noted that the first objective of its
advertising campaign was to "influence outcome of presidential
election and other key congressional seats in 10 `battle ground'
states." McQueen Cross Exam. Exhibit 2, NRA-ACK 17913-15 [JDT Vol.
303. According to its mission statement, the Club for Growth "is
primarily dedicated to promoting the election of pro-growth,
pro-freedom candidates through political contributions and issue
advocacy campaigns." CFG 000217 [DEV 130-Tab 5]. In a brochure
soliciting donations, the Club for Growth noted that "Before the
elections, the Club plans to invest $1 million in television
advertising in key congressional districts to advance our pro-growth
issues. This is a tactic the unions have used so effectively against
pro-growth candidates. These issue advocacy campaigns can make all
the difference in tight races." CFG 000223 [DEV 130-Tab 5]; cf.
NRW-02814 [DEV 129-Tab 2] (January 2, 2001, fundraising letter from
the National Right to Work Committee noted that it had run "more
than 1,000 television ads in Virginia, Nevada, Florida and Nebraska
shining a spotlight on the differences between the candidates in
those states on Right to Work").
304. More than two-dozen organizations, including "political parties,
labor unions, trade associations and business, ideological and
single-issue groups" spent an estimated $135 million to $150 million
worth of "issue advertisements" during the 1995-96 campaign,
compared to the $400 million spent on advertising by the federal
candidates running for office. See Annenberg Report 1997 at 3 [DEV
38 Tab-21]. Almost 86.9 percent of these advertisements mentioned a
candidate for office or public official by name. Id. at 8. "Most" of
the groups running these advertisements "declined to make known the
identities of their donors." Id. at 4.
305. The Annenberg Center reported in 1998 that at least 77 groups ran
issue advertisements during the 1997-1998 election cycle costing
between $275 and $340 million." Annenberg Report 1998 at 1 [DEV
66-Tab 6]. Overall, 53.4 percent of these advertisements mentioned
candidates by name, although 80.1 percent of those advertisements
run in the final two months of the campaign mentioned candidates.
306. The Annenberg Center further finds that during the 1999-2000
election cycle 130 groups aired 1,100 distinct advertisements, at an
estimated cost of over $500 million. Annenberg Report 2001 at 1 [DEV
38-Tab 22]. The report found that 60 percent of distinct radio and
television issue advertisements (689 out of 1,139) aired from
January 1, 1999, to November 7, 2000, were broadcast for the first
time during the final two months of the election cycle. Id. at 12.
In addition, 73 percent of all the distinct advertisements mentioned
a candidate. Id. at 14. In terms of television advertisements, the
closer the advertisement was aired to election day, the more likely
it contained a candidate mention. Id. at 15. Between March 8 and
August 31, 2000, candidates were mentioned in 72 percent of the
television issue advertisements aired. Id. After August, 95 percent
of the television commercials broadcast mentioned a candidate. Id.
The report found that during the 2000 election cycle, 89 percent of
unique advertisements were "candidate-centered," meaning they made
"a case for or against a candidate" without using express advocacy.
Id. at 13, 14.
Electioneering Advertisements Have Been Run About Issues In Which the Groun Running Them Has No Particular Interest
307. Candidate-centered issue advertisements, designed to directly affect
federal elections but not employing the "magic words" of express
advocacy, have been run about issues not pending before Congress.
See Chapin Decl. ¶ 13 [DEV 6-Tab 12] (testifying that "[t]he
Florida Women's Vote project of EMILY's List also ran a television
ad in the [2000 Florida Eighth district Congressional] campaign[,]
which as I recall was run in the two months prior to the general
election[.] The ad praises my record on gun safety and ends with the
line: `Tell Linda Chapin to continue fighting.' This ad is clearly
intended to influence the election result. Based on my
observations, EMILY's List is not particularly interested in gun
control issues. However, they are interested in supporting
pro-choice female candidates like me, and this ad serves that
purpose."). The Associated Builders and Contractors ("ABC") have
also run advertisements that discuss issues that are not of concern
to its members. See Monroe Dep. at 65-67, 90-91 [JDT Vol. 23]
(answering a question regarding advertisements run by the Associated
Builders and Contractors which discussed penalties for child
molesters, Monroe stated "no, [stronger penalties for child
molesters] is not a particular concern to the general public of
contractors or general group of contractors." Id. at 91; but see
Proposed Findings of Fact of Chamber, NAM, Associated Builders and
Contractors, et. al. ¶ 26 ("In fact, ABC's witness explained
that the cited ABC ads [that Defendants assert address subjects
distant from the policy concerns of the ABC] reflected public policy
concerns of ABC's membership.").
308. During the 2000 election cycle, the Club for Growth gave $20,000 to
the American Conservative Union to support an issue advertisement
which discussed Senate candidate Hillary Clinton's residency in New
York. Keating Dep. at 59 [JDT Vol. 12] ("Q. Whether or not Hillary
Clinton is a resident of New York State really doesn't have anything
to do with the Club for Growth's interest in pro-growth conservative
Republican elected officials, does it? A. It doesn't seem to
The Buying Time Studies
309. The Brennan Center for Justice at New York University Law School
("Brennan Center") produced two studies entitled Buying Time 1998
and Buying Time 2000 which examined television advertising during
the 1998 and 2000 election cycles. See BT 1998; BT 2000. Both Buying
Time studies were funded by the Pew Charitable Trust. See BT 1998;
BT 2000. The Brennan Center is "primarily a law firm that also does
research on a variety of social science issues that includes
campaign finance along with criminal justice and other electoral
issues and poverty issues." Holman Dep. at 10. The Brennan Center
was also involved in the crafting of BCRA and providing analysis of
issues being debated in Congress to legislators, the media, and the
public. Id. at 11. Representatives of the Brennan Center testified
in favor of the McCain-Feingold bill, id. at 22, and during Senate
debate on the legislation, Senators cited to Buying Time data and
Brennan Center analyses. Holman Dep. Exhibit 3 at 2 [JDT Vol. 10].
310. While the Brennan Center's funding proposal for Buying Time 1998
states that the study had an academic purpose, evidence in the
record demonstrates that the primary purpose was "`to fuel a
continuous and multi-faceted campaign to propel reform forward."
Holman Dep. Exhibit 4 at 2 [JDT Vol. 10]. The proposal reveals that
the study was part of a larger strategy to overcome the "obstacles
to reform," and notes that the first step in achieving the goal was
"to develop a reliable source of information on the nature of the
problem." Id. at 7. The study had two phases, and it would not even
proceed to the second phase if it did not "provide a sufficiently
powerful boost to the reform movement." Id. at 6; Krasno Cross
Exam. Exhibit 4 at 1, 3, ¶ [JDT Vol. 14] (explaining that the
first phase was to acquire data "and use it to develop a strategy
for responding to the threat posed by issue advocacy," and the
second phase was to "create policy recommendations and reports, as
well as . . . publiciz[ing] these activities on Capitol Hill and
311. In April or May of 2000, Dr. Kenneth Goldstein of the University of
Wisconsin, who had worked on the data set for Buying Time 1998,
indicated in a request to the Pew Center for another grant that the
purpose of the Buying Time studies was to further campaign finance
reform. Goldstein Dep. (Vol. 1) at 29 [JDT Vol. 8]. Goldstein's
request stated that he was "happy to work with others in the policy
community to make sure that our study is designed and executed in
ways that help move the reform ball forward." Goldstein Dep. (Vol.
1) at 37 & Exhibit ¶ at 5 [JDT Vol. 8]. Mr. Seltz, co-author
of Buying Time 1998, states that while there were a number of
purposes behind the study, "the primary purpose was to contribute to
the body of knowledge about campaign finance reform and specifically
issue advocacy . . . and to fill what we viewed to be an empirical
void in the literature about issue advocacy." Seltz Dep. at 22 [JDT
Vol. 28]. "An independent but related purpose . . . was indeed to
provide information to . . . proponents of campaign finance reform
to help them fashion new and better arguments for reform, but
arguments that would be based on research that was verifiable,
checkable, transparent, reproducible." Id. Mr. Holman, a principal
coauthor of Buying Time 2000, did not approach the project with the
purpose of producing results that would support campaign reform and
had never seen the grant proposal. Holman Dep. at 25-26; see also
id. at 29-30 ("I was mostly excited about the political science
aspect of [the study]. . . . It was not clear at any point and never
explained to me exactly what sort of policy direction that would go
312. Dr. Kenneth Goldstein provided assistance in processing and coding
data for the Buying Time studies. Goldstein Rebuttal Report at 6. In
addition to assembling data sets used in the Buying Time studies,
Dr. Goldstein also produced an expert report for the purpose of this
litigation. See Amended Expert Report of Kenneth M. Goldstein (Oct.
2, 2002) ("Goldstein Expert Report"). As part of processing and
coding data for the studies, he merged CMAG's two data sets to
produce "a single, comprehensive data set." Id. He also had
university students (at the University of Arizona for Buying Time
1998 and the University of Wisconsin for Buying Time 2000) "assess
the content, tone, issues addressed, whether the ads mentioned a
political candidate or provided a toll-free number to call,
etc. . . . In addition to collecting certain specific information
concerning each storyboard reviewed, the study also asked coders:
`In your opinion, is the purpose of the ad to provide information
about or urge action on a bill or issue, or is it to generate
support or opposition for a particular candidate?'" Goldstein Expert
Report at 7. Advertisements that provided information or urged
action on a bill or issue were labeled "genuine issue ads" in both
studies, whereas those communications that generated support or
opposition for a particular candidate were referred to as "sham
issue ads" in Buying Time 1998, see e.g. Buying Time 1998 at 87; and
"electioneering issue ads" in Buying Time 2000, Buying Time 2000 at
30. Each Buying Time database consists of 40 million data points.
Id. at 37.
313. As noted in Findings 316-317, infra, Dr. Gibson criticizes the CMAG
data underlying both reports. Dr. Arthur Lupia was asked by the
Brennan Center to evaluate Dr. Gibson's Expert Report and provided a
report detailing his findings. See Rebuttal Expert Report of Dr.
Arthur Lupia (Oct. 14, 2002) ("Lupia Rebuttal Report").
CMAG Data Set
314. The CMAG data set is the basis of the Buying Time studies as well as
the expert report of Dr. Kenneth Goldstein, which was produced for
315. CMAG tracks political television advertising in the top 75 media
markets, containing more than 80 percent of US. residents. BT 1998
at 6-7; BT 2000 at 18; Gibson Expert Report at 7; see also Goldstein
Dep. (Vol. 1) at 47-49 [JDT Vol. 8] (describing how CMAG compiles
its data). These 75 markets are geographically dispersed. Goldstein
Rebuttal Report at 23; see also Goldstein Expert Report App. G at
1-2 (listing the 75 markets monitored by CMAG). In 1998-99 New York
was the largest media market with 6, 812, 540 television households
representing 6.854 percent of all television households. Gibson
Rebuttal Report Exhibit 2 at 1 (listing 1998-99 Nielson estimates of
media markets in order of size). Shreveport was the seventy-fifth
largest media market, with 370,990 television households, or 0.373
percent of all television households. Id. at 2. For each market,
CMAG monitors the four major broadcast networks (ABC, CBS, NBC, and
Fox), as well as 42 national cable networks. Goldstein Expert Report
App. G at 2-3. The CMAG data sets include two types of data. First,
for every political advertisement aired, CMAG provides a transcript
of the audio portion of the advertisement and a storyboard
consisting of a still capture of every fourth second of the video
portion of the advertisement. Goldstein Expert Report at 6. Second,
CMAG provides data on each airing of an advertisement, including
time, length, station, show, and estimated cost. Id.
316. The CMAG data is underinclusive in that it does not track every
political advertisement that is aired. Goldstein Dep. (Vol. 1) at 52
& Exhibit 9 at 16.
1) The CMAG does not monitor local cable
advertising in the 75 markets it covers. Gibson
Expert Report at 8; Gibson Rebuttal Report at
2) The 1998 and 2000 CMAG data sets did not cover
advertisements broadcast in the nation's 140
smallest media markets, which are more rural than
the 75 captured by CMAG. Goldstein Dep. (Vol. 2)
at 9-10 & Exhibit 9 at 16 [JDT Vol. 8]. For
those markets covered, the evidence shows not all
advertisements are captured by CMAG. Dr.
Goldstein participated in a validity study of the
CMAG data by comparing the CMAG data with a
sampling of invoices from eight television
stations. Id. Exhibit 9 at 16. The results show
that for seven of the stations, 97 percent or
more of the advertisements listed on their
invoices correlated with the CMAG data. Id. at
16-17 & 28 (tbl. 2). For one station,
however, 20 percent of the advertisements
accounted for in the station's invoices could not
be found in the CMAG data. Id.
3) Another shortcoming of the CMAG data is that
although it provides 100 percent of the
advertisements' audio, it only provides snapshots
at four second intervals of the advertisements'
video. As such, 25 percent of the advertisement
storyboards for the 1998 data set do not display
the name of the group sponsoring the
advertisement. Goldstein Dep. (Vol. 2) at 21 [JDT
Vol. 8]; Gibson Expert Report at 8.
4) Another perceived shortcoming of CMAG is that
it tracks markets not electoral districts, and is
unable to distinguish between different versions
of ads that are identical with the exception of
the candidate or officeholder's name (also known
as "cookie cutter" advertisements). Gibson Expert
Report at 7; Gibson Rebuttal Report at 7;
Goldstein Dep. (Vol. 2) at 113 [JDT Vol. 8].
5) The CMAG Data Set does not measure
advertisements aired in the 30-day period
preceding primary elections. See Krasno Rebuttal
Report at 13.
317. In regard to the gaps in station invoices when compared to the
number of advertisements captured by CMAG, see supra Finding 316,
Dr. Goldstein believes it could be the result of inadequate record
keeping by the station as well as CMAG omissions. See Goldstein
Dep. Exhibit 9 at 17 n. 3. Dr. Gibson, however, finds this to be a
major shortcoming of the CMAG data. Gibson Rebuttal Report at 5-6.
He deduces from these missed advertisements that CMAG "likely missed
1, 764 ads," or 5.04 percent of these eight stations' airings, and
using these figures estimates "that 48,864 airings that in fact were
broadcast [nationwide] . . . were not captured by the CMAG
methodology." Id. (applying the 5.04 percent figure to the total
number of advertisements captured by CMAG). Dr. Gibson assumes that
CMAG has missed the same percentage of advertisements in all the
covered media markets. Moreover, although "we do not know any of the
characteristics of these. missing airings," Dr. Gibson believes
those airing were missed because they "did not have a clear
`political purpose' that could be discerned by the CMAG analysts."
Id. at 6; but see Goldstein Dep. (Vol. 2) at 12 [JDT Vol. 8]
(stating that commercials provided to CMAG by Competitive Media
Reporting*fn211 is "overly inclusive," including "ads for the Red
Cross, [and] ads for electric companies").
318. While acknowledging CMAG's underinclusiveness, Dr. Lupia believes
that Dr. Gibson, "presents no evidence or reason to believe
that . . . including advertisements from the markets not covered would
change [the] results [of studies based on the data]." Lupia Rebuttal
Report at 28; see also Goldstein Rebuttal Report at 24 ("Moreover,
Professor Gibson does not offer any reason to believe that the ads
run on local cable advertising are significantly different than the
broadcase ads captured by CMAG.") According to Dr. Goldstein, Dr.
Gibson did not suggest that "CMAG's inability to capture local cable
spots introduced any systematic bias into the data." Goldstein
Rebuttal Report at 24. According to Dr. Goldstein, the "snapshot"
style of the CMAG storyboards does not compromise the "ability to
accurately analyze the content of ads, especially because CMAG
provides a complete transcription of the audio portion of the ad
along with the video captures." Goldstein Rebuttal Report at 24-25.
Furthermore, Dr. Goldstein states, "there is no reason to believe
that the in [sic] any systematic bias associated with the CMAG
terminoloty capturing only one video frame ever four seconds." Id.
at 25. As for the 25 percent of 1998 storyboards which did not
indicate the advertisement's sponsor, the Buying Time 1998 authors
were able to remedy this problem by referring to the "CMAG's
original coding (which accurately provides the sponsor of the ad in
well over 95 percent of cases), examining the content of the ad,
and, in a few cases, by phoning television stations." BT 1998 at 8.
Buying Time Findings
319. Buying Time 1998 drew a number of conclusions with regard to the
nature and effect of political advertising in the United States. The
study's main findings include:
1) Four percent of candidate advertisements used "express advocacy"
terms. BT 1998 at 9.
2) The proportion of issue advertisements
mentioning a candidate rises as the date of the
election approaches. In July and August 1998, 61
percent of issue advertisements mentioned a
candidate. By September, the percentage reached
82 percent and for the remainder of the campaign
remained at 82 percent or higher, reaching a peak
of 97 percent in the first half of October. Id.
at 87, 103 (fig. 4.15).
3) Forty-one percent of issue advertisements that
provided information or urged action appeared
within 60 days of the election, but only 2 of
those advertisements, or seven percent, referred
to a candidate. Id. at 109.
320. Buying Time 2000's key findings from the 2000 election cycle included:
1) Seven percent of all political advertisements
contained express advocacy terms. BT 2000 at 73.
Candidates used express advocacy terminology in
10 percent of their ads, id. at 15, 29, while
political parties and interest groups used such
terms approximately two percent of the time, id.
at 73. 2) "Genuine issue ads" (those urging
action on a public policy or legislative bill)
were "rather evenly dispersed throughout the
year, while group-sponsored electioneering ads
[which promote the election or defeat of a
federal candidate] make a sudden and overwhelming
appearance immediately before elections." Id. at
3) The study found that if BCRA had applied to
the 2000 campaign, three genuine issue ads (which
aired 331 times) would have fallen within the
Act's definition of "electioneering
communication." Id. at 73. Put another way, of
the advertisements run within 60 days of the 2000
election which also depicted a candidate, 99.4
percent constituted electioneering
advertisements, while 0.6 percent were genuine
issue advertisements. Id. at 72 (fig. 8-2).
321. Plaintiffs' expert, Dr. James L. Gibson, while leveling various
criticism at both Buying Time studies, does not dispute that express
advocacy words "are rarely used in political advertising, or that
group sponsored ads that mention candidates tended to be
concentrated before an election." Goldstein Expert Report at 38-39;
see also Lupia Rebuttal Report at 9; see also Gibson Expert Report
at 11 ("Entirely objective characteristics of the ads . . . present
few threats to reliability."). Neither does he challenge the
findings that advertisements sponsored by parties and interest
groups comprise a significant and increasing portion of political
advertising broadcast in federal races. Lupia Rebuttal Report at 9.
Criticism of Buying Time 1998
322. Dr. Gibson raises several objections to Buying Time 1998 and Buying
Time 2000 reports, and ultimately concludes that neither report can
"be accepted as accurate and valid descriptions of the nature of
political advertising in the 1998 and 2000 elections." Gibson Expert
Report at 66. While not listing every objection, Dr. Gibson's chief
objections are as follows: (1) Buying Time is not a product of
scientific inquiry as scientific principles of objectivity were not
adhered to, see Gibson Expert Report at 3 & n. 3, 45; (2)
neither Buying Time study was subject to peer review, id. at 4, 45;
(3) the results of the Buying Time studies could not be replicated,
and social science "demand[s] that statistical analysis be
replicable, id. at 5. See also id. at 47-48; (4) the statistical
techniques employed by the Buying Time authors were questionable,
id. at 5; (5) the shortcomings of the CMAG database preclude
reliance on the Buying Time results, id. at 5-9; (6) the student
coders were not trained, and steps were not taken to ensure their
impartiality, id. at 9-10; (7) the reliability of the coded data due
to the lack of guidelines for coders answering questions and the
coding of subjective characteristics of the advertisements, id. at
11-12; (8) the results cannot be relied upon because the miscoding
of a single document can have "quite large consequences for the
statistical results," id. at 22-23; (9) inaccurate coding of
questions, even if the coding was consistent, id. at 17; (10) the
wording and coding of Question ¶ in Buying Time 1998 is flawed,
and Question 22 is superior, id. at 32-34; and (11) "no single
Buying Time 1998 Data Set exists" due to continual changes by Dr.
Goldstein, id. at 11. Defendants' witnesses Dr. Kenneth Goldstein,
Dr. Jonathan Krasno and Dr. Frank Sorauf, and Dr. Arthur Lupia each
counter Dr. Gibson's allegations in their expert reports and
rebuttal reports. See generally Goldstein Expert Report; Goldstein
Rebuttal Report; Krasno & Sorauf Expert Report; Krasno Rebuttal
Report; Lupia Rebuttal Report. After reviewing the expert reports, I
find that although the Buying Time studies contain some flaws and
shortcomings, as pointed out by Dr. Gibson, those shortcomings do
not detract from the studies' credibility and reliability. I make
the following findings in regard to Dr. Gibson's objections:
323. First, while I agree that the primary purpose of the Buying Time
studies was to further campaign finance reform, I do not find that
this fact has skewed the results of the study. See Krasno Rebuttal
Report at 2 (admitting that Buying Time 1998 is an advocacy
document, but stating that "[s]cholars rarely embark upon research
without some expectations as to its results. But more than most
scholars, we had a compelling reason to insure that our results
could withstand allegations of bias"); Lupia Rebuttal Report at
10-11 (stating that Dr. Gibson's claim that the policy perspective
of the Buying Time 1998 authors "may have undermined the integrity"
of the study "is pure speculation," and that a "person's political
or ideological beliefs need not prevent them from being an effective
scientist," and that he knows of no "conventional canons of
scientific objectivity"); Goldstein Rebuttal Report at 8 (denying
the charge that he or anyone under his supervision "perverted" the
results of the databases, and maintaining that his approach to the
coding was based on nothing other than "the spirit of scientific
inquiry and objectivity"). 324. Second, I find that while the
submission of statistical studies to peer review processes is
preferable, it does not "seriously limit the confidence one can
place in the Report," as Dr. Gibson alleges. Gibson Expert Report at
45; but see Lupia Rebuttal Report at 13 (stating that the
significance of the lack of peer-review is "doubtful . . . at
325. Third, while Dr. Gibson maintains that his inability to replicate
the Buying Time 1998 and Buying Time 2000 results "undermines . . .
any confidence one should place in the findings," Gibson Expert
Report at 5, his inability seems attributable to his using the
incorrect data set. See Krasno Rebuttal Report at 6-7 & n. 6, 8
n. 10 (attributing Dr. Gibson's failure to replicate the results to
Dr. Gibson's not using "the original command files used to produce
the numbers in Buying Time 1998," and maintaining that the original
command files replicate the Buying Time 1998 results); see also
Goldstein Rebuttal Report at 18, 19-20 (stating that the reason Dr.
Gibson could not replicate the results of Buying Time 2000 was
because he was using the wrong data set); id. at 20 (using the
"federal.sav" data set produced by the Brennan Center, Dr. Goldstein
was "able to replicate key findings of the Buying Time 
study," and correlate others "within a fraction of a percentage
point"); Lupia Rebuttal Report at 17 ("It is also worth noting that
the Plaintiffs and their experts passed up the opportunity to
resolve their concerns by replicating the data collection procedure
itself."). Replication, as Dr. Krasno admits, "is a core precept of
science," but Dr. Gibson "overstates the case by insisting on
`exact' replication." Krasno Rebuttal Report at 6. Notwithstanding
the debate between the experts on replication, Dr. Krasno finds, and
I agree, that the discrepancy between Dr. Gibson's findings using
one data set and the findings of the Buying Time 1998 and Buying
Time 2000 studies are statistically insignificant. See Krasno
Rebuttal Report at 7-8 (referring to Gibson Expert Report at 24);
see also Goldstein Expert Report at 18 n. 10 (stating that the
variances in Dr. Gibson's results "are so small as to suggest their
own triviality"); Lupia Rebuttal Report at 43 (stating "the
demonstrated discrepancies are small" and the Gibson Expert Report
"provides no evidence that such changes affect any of Buying Time's
326. Fourth, Gibson alleges that the statistical techniques used by the
Buying Time authors are questionable; despite this charge, Dr.
Gibson does not specifically identify how statistical procedure was
misapplied. See Lupia Rebuttal Report at 18-19; see also id. at 19
(characterizing Dr. Gibson's critique as a "difference in
point-of-view on how to categorize certain events that has nothing
to do with statistical techniques per se.").
327. Fifth, I find that although the CMAG database has some
shortcomings, Dr. Gibson has not demonstrated that these
shortcomings undermine the conclusions of the Buying Time studies.
See Gibson Rebuttal Report at 5-7 (stating he has no basis for
verifying that the CMAG data base is accurate, that there is no way
of knowing the characteristics of the missing airings, but
concluding that the "apparent" errors caution against relying on
the CMAG data for drawing conclusions on the nature of political
communications); see also Goldstein Rebuttal Report at 23 (stating
that Dr. Gibson "does not even attempt to explain how these alleged
limitations undermine the validity of the conclusions set forth in
Buying Time"); Krasno Rebuttal Report at 5.
328. Sixth, I find that the failure to train the student coders is
justified given Dr. Krasno's concerns that a "training program would
have caused complaints that Dr. Goldstein and I were attempting to
impose our standards on the coders" and that the researchers "were
hoping for a (reasonably informed) ordinary viewer's impression of
the ads." Krasno Rebuttal Report at 5 n. 4; see also id. (explaining
that "[l]imited pre-testing of the coding instrument showed that
training was unnecessary because coders were apparently able to
understand and answer the questions without further explanation.");
Goldstein Rebuttal Report at 32 (stating that the lack of training
was "a deliberate choice that is well-supported by social science
principles. . . . aimed at getting the untutored common-sense
impression of the coders, while minimizing the possibility of
biasing coders with any preconceived notions that might have been
implicit in a set of instructions," and that formal training "`would
only undermine the independence of the coders assessments and
possibly introduce systematic bias into the survey."); id.
(contending that the lack of training also made it easier to
"simulate . . . the experience of a typical viewer watching the ads
at home."). Furthermore, although Dr. Gibson is concerned with the
training of the coders, his concerns are, as Dr. Goldstein
explains, speculative because Dr. Gibson did not "conduct his own
survey, using his own coders and his own training techniques, and
compare it to the results reached by the undergraduate coders."
Goldstein Rebuttal Report at 31; see also Lupia Rebuttal Report at
33 ("In this case, such a replication would have been relatively
simple to conduct . . . and would have allowed the [Gibson] report
to rely less on speculation when alleging that measurable attributes
of Goldstein's coders affected the data collection or analysis.").
Finally, I also find that evidence has not been presented to
substantiate Dr. Gibson's concern that the student coders were
unrepresentative of the general population, thereby threatening the
accuracy of the Buying Time results. See Lupia Rebuttal Report at 35
(stating that "only if we had evidence that the way in which the
undergraduates were unrepresentative caused Buying Time's claims to
differ from what a representative population would have produced"
would there be a basis to believe the coders' unrepresentativeness
threatened the quality of the data, but the Gibson "report presents
no such evidence."); Holman Dep. at 241-42 (noting "it's common
practice to use students as survey respondents especially in
329. Seventh, I find that Dr. Gibson's objections regarding the
reliability, or accuracy, of the coded data due to the coding of
"subjective and judgmental" characteristics do not prevent this
Court from relying on these studies as the Buying Time authors were
seeking to measure the coders' opinions and perceptions. Gibson
Expert Report at 12. Dr. Gibson uses Question ¶ as an
example.*fn212 Question ¶ appears in Buying Time
2000 as Question 11, except that the Buying Time 2000
version does not bold the words "particular candidate" and does
not ask the coder to skip Questions. See Goldstein Expert
Report App. F [DEV 3-Tab 7]. Dr. Gibson believes that it is not
always readily apparent who the sponsor of the advertisement is,
making it difficult for the coder to know whose purpose he or she
is supposed to be evaluating. Gibson Expert Report at 12. According
to Dr. Gibson, this problem is exacerbated by the lack of "explicit
guidelines for how to ascertain an `ad's purpose,'" and, given the
subjective nature of this task, "certain procedures are essential so
that the reliability of the data collected can be
assessed." Gibson Expert Report at 12, 16. Further, Dr. Gibson
states that there is "no assessment whatsoever of intercoder
reliability [for Buying Time 1998]. Thus, unlike
academic research based on subjective coding, no empirical evidence
exists to indicate that the coders' subjective assessments of these
ads were accurate." Id. at ¶ 18. Dr. Lupia responds arguing that
the "practice of treating answers to opinion questions as objective
phenomena is common in science." Lupia Rebuttal Report at 38
(describing an article co-authored by Dr. Gibson, the main
conclusion of which is based on a survey where participants were
asked about how they described their own identities). He notes that
Question ¶ begins with "In your opinion," and seeks to
understand how the advertisements are perceived. Id. at 37.
330. Eighth, while I acknowledge that the impact on the Buying Time 1998
results due to miscoding hypothetically could have, in the words of
Dr. Gibson, "quite large consequences for the statistical results,"
Gibson Expert Report at 22-23, Dr. Gibson admits he is providing
only an example of how one error could affect the results. See id.
(explaining that if Advertisement #11 was coded as promoting issues
rather than a candidate, the percentage of pure issue advertisements
in the Buying Time 1998 data set would rise six percentage points).
As the evidence regarding the impact of miscoding is hypothetical,
or speculative, I find that it does not undermine the conclusions of
331. Ninth, I find that Dr. Gibsons' argument that even though the coders
may be consistent in their coding, their coding could still be
incorrect, misrepresents the purpose of the Buying Time studies and
what the coders were asked to do. Gibson contends that:
coders must seek easily discernable `cues' in the
advertisements as a means of making the required
judgment. Since the presence of a political
figure who seems to be a candidate is a readily
accessible cue, the coders then develop an
implicit decision rule that says: `when a
political figure is depicted in the ad, the ad
involves electioneering.' Under this rule, the
variable might be reliably coded. But this does
not mean that the data are valid, since political
figures appearing in ads could well be doing
something other than electioneering.
Gibson Expert Report at 17 (emphasis in original). While Dr. Gibson
may be correct that an advertisement may "be doing something other
than electioneering," the study instead is seeking the coders'
perceptions of the purpose of the advertisements, not the
advertisements' true purpose. See Lupia Rebuttal Report at 39. Just
because coders' perceptions may not comport with reality does not
threaten the validity of the data, because the survey seeks the
coders' mental impressions. Id. However, when codings were changed
on Question 6, the mental impressions of the coders, which were
sought by the question, were overruled. Goldstein Dep. (Vol 2) at
208-209 [JDT Vol. 8].
332. Tenth, I reject Dr. Gibson's argument that Question 22 of Buying
Time 1998 is superior to Question 6, and that where the coding of
Question ¶ and Question 22 are inconsistent, Question 22 should
be relied upon. The text of both questions is listed below:
6. In your opinion is the purpose of this ad to
provide information about or urge action on a
bill or issue, or is it to generate support or
opposition for a particular candidate?
1. Provide information or urge action (If so, skip to Question #19)
2. Generate support/opposition for candidate
22. In your judgement, is the primary focus of
this ad on the personal characteristics of either
candidate or on policy matters?
1. Personal characteristics
2. Policy matters
Gibson Expert Report at 12 (citing Buying Time 1998) (emphasis in
original), 31-32. Dr. Gibson notes that, according to Question 6,
55.6 percent of the advertisements were coded as "promoting
candidates." Id. at 31. Dr. Gibson also notes that, in response to
Question 22, 98.1 percent of the advertisements "aired within 60
days of the election and depicting a candidate were coded as having
a "primary focus" on policy matters." Id. at 32 (emphasis in
original). While Dr. Gibson finds these results contrary to what one
might expect, he also finds it "reasonable" that coders would
conclude that almost all (98.1 percent) advertisements have a
"primary focus" on policy, but also conclude that half of those same
advertisements have the "purpose" of promoting a candidate. Id. at
32-33. Nonetheless, Dr. Gibson argues that coding of Question ¶
is "deeply flawed," and where Question ¶ and Question 22
"clash . . . the coding of Question 22 should be considered more valid
and reasonable." Id. at 34, 35. Although I acknowledge that
Question ¶ does not provide coders the option of finding that the
advertisement promotes both issues and candidates, and "does not ask
the coder to discern the `primary' purpose of the ad" but instead
asks coders to provide their opinion on the advertisement's
"purpose," id. at 33-34, I find that the coding of Question ¶
can be relied upon by this Court. As Dr. Krasno points out, "coders
rated 99 percent of candidate ads (and 93 percent of party ads) as
generating support or opposition for a candidate." Krasno Rebuttal
Report at 10 (citing BT 1998 at 41). This conclusion is bolstered in
Dr. Krasno's opinion by the fact the coders were not asked to
determine the sponsor of the advertisement and that the disclaimers
on the storyboards provided to the coders were often difficult to
read. Id. at 10 n. 14. An electioneering advertisement does not have
to focus primarily on personal characteristics of a candidate; in
fact, "political scientists routinely take the view that politicians
frequently adopt and advertise policy positions in order to appeal
to voters." Id. at 10-11 (citing as an example Anthony Downs, An
Economic Theory of Democracy (1957)); see also Goldstein Rebuttal
Report at 29 n. 16 (citing four articles for the proposition that
"policy issues in electioneering ads is widely noted in the
political science literature"); Seltz Dep. at 188 [JDT Vol. 28].
Moreover, as Dr. Lupia explains, an advertisement's purpose (the
question posed in Question 6) and its primary focus (the question
posed in Question 22) do not have to be the same. Lupia Rebuttal
Report at 46-48. To illustrate this point, Dr, Lupia notes that many
beer commercials do not focus on the product, but rather people
"engaged in a range of activities that we can call `wild nights
out.'" Id. at 47. It would not be unreasonable to "perceive that the
purpose of the ad is to get" the viewer to buy the beer, "but to
judge its primary focus as wild times." Id. at 48. Further, I find
that the evidence supports Dr. Lupia's argument that individuals can
make the same distinction for campaign advertisements, i.e., that
their purpose is to get the person to vote for candidate X, but
their focus is on issue Y. See id. In addition, I do not believe
that Question ¶ must include a qualifier, such as the word
"primary" in Question 22, in order to be valid. A study coauthored
by Dr. Gibson based on a survey question on social identity does not
mention the word "primary," but concludes that the initial responses
given revealed primary social identities. See Lupia Rebuttal Report
at 51 (quoting James L. Gibson & Amanda Gouws, Social Identities
and Political Intolerance: Linkages within the South African Mass.
Public, American Journal of Political Science 278-92 (2000)). Dr.
Gibson's report "provides no tangible evidence or scholarly
reference" that suggests that Question 6's failure to include a
qualifier is "inconsistent with standard scientific practice." Lupia
Rebuttal Report. at 52. Similarly, Dr. Gibson "offers no direct
evidence on how answers to the questions would have changed had we
allowed the responses `both' and `neither' in Question 6 or the
response `unsure/unclear' in Question 22." Id. at 48, 50.
333. Finally, I do not find that the updating and changing of the Buying
Time 1998 Data Set invalidates the database, such that reliance on
the Buying Time 1998 conclusions is unfounded. As Dr. Krasno
explained, the short time frame of the study "inevitably meant that
small changes to the data set would continue even after the release
of Buying Time 1998." Krasno Rebuttal Report at 4. Furthermore, the
changes in the database reflect "the gradual filling in of missing
data and the discovery of internal contradictions. There is no
evidence at all in Dr. Gibson's report that any of the changes in
the successive versions of the data that he examined had any more
than a trivial impact on his results or on those reported in Buying
Time 1998." Id. Dr. Goldstein attributes the changes in the database
to random error inevitable in a database, such as that used in
Buying Time 1998, which consists of 40 million data points,
Goldstein Rebuttal Report at 37; "routine `cleaning' of the data
sets," id. at 10; and the "standard social science practice" of
cleaning "a data set by correcting apparent errors after the codes
have been entered in the database," id. (citing Herbert F.
Weisberg, Jon A. Krosnick & Bruce D. Bowen, An Introduction to
Survey Research, Polling, and Data Analysis (3d ed. 1996)). Dr.
Lupia reviewed the multiple databases and concludes that the changes
are transparent and he finds no reason to conclude that Dr.
Goldstein has attempted to hide anything. Lupia Rebuttal Report at
22. Lupia agrees that Dr. Gibson's concern is a legitimate one;
however, large academic databases change for legitimate reasons, so
the mere existence of the relative small changes cited in the
[Gibson] report provide no basis to negate the project's
credibility." Id. To Lupia, the important question is "why and how
the changes were made," and Dr. Gibson's suggestions of illegitimacy
are, in Lupia's opinion, "of varying and questionable credibility."
Buying Time 1998's Calculation of the Percentage of Genuine Issue Advocacy Captured by BCRA
334. Buying Time 1998's claim that only seven percent of "genuine issue
ads" in the 1998 campaign would constitute electioneering
communications under BCRA is disputed.
335. Buying Time 1998 found that seven percent of all pure issue
advertisements aired in 1998 identified a federal candidate and
appeared within sixty days of the campaign. Krasno Rebuttal Report
at 13. This figure was determined by dividing the number of airings
of genuine issue advertisements mentioning a federal candidate
within 60 days of the election by the total number of genuine issue
advertisements run in 1998. Id.; see also Seltz Dep. at 115-16.
According to Dr. Jonathan Krasno, author of Buying Time 1998, the
question he sought to answer with this formula was "what is BCRA's
impact on pure issue ads?" Id. at 12. The Brennan Center stands by
the seven percent figure, although for a period of time in 2001 it
had questioned its accuracy. Holman Dep. at 142-43. During that
period of time, the Brennan Center ran additional analyses and
determined that seven percent of "unique issue ads — or in
other words . . . special interest groups placing issue ads"
produced in 1998 would be captured unfairly by BCRA, id. at 123,
144, and that 13.8 percent of all issue advertisement airings
mentioning a candidate and broadcast within 60 days of the 1998
election were genuine issue advertisements, id. at 154-55. Dr.
Gibson contends in his rebuttal report that the number of genuine
issue advertisements aired in 1998 that would have been captured by
BCRA represents affects the "communications with a staggering number
of household[s] 30, 108, 857. Thus, were these ads . . .
prohibited, over 30 million group-citizen communications would be
affected." Gibson Rebuttal Report at 25. Defendants' experts do not
address this point in their expert and rebuttal reports.
336. Plaintiffs object to the use of the total number of genuine issue
advertisement run in 1998 as the denominator. Dr. Gibson finds:
using a denominator of all issue ads broadcast in
1998 for these calculations is arbitrary and
makes little sense. Why use January 1, 1998, as
the starting date for the total pool of issue ads
(i.e., the denominator)? Why not include ads from
December 1997, or even the entire election cycle
beginning in November 1996? Why not limit the
denominator to ads shown in the last half of
1998? The selected . . . denominator . . . has no
Gibson Expert Report at 38; see also id. at 41 ("I can see no
justification for making the denominator equal to all issue ads
aired in 1998."). Furthermore, he argues that given his conclusion
that more people are concentrating on political issues as elections
draw near, discussed infra Finding 357, Buying Time 1998's
denominator, by using all issue advertisements run during the course
of the year, makes "the assumption that ads aired anytime throughout
the year are equally as valuable as ads aired in proximity to the
election." Gibson Rebuttal Report at 27. Thus, Dr. Gibson concludes
that the "damage of prohibiting an ad within 60 days of an election
cannot be ameliorated by allowing that ad to be broadcast at some
other point throughout the year." Id. at 27-28.
337. Dr. Krasno explains that the Buying Time 1998 denominator reflects
only advertisements run in 1998 because "we had no data from 1997 or
the last weeks of 1996 to include in the denominator." Krasno
Rebuttal Report at 14. Dr. Krasno believes that the addition of such
data into the denominator would simply "decrease the percentage of
pure issue ads affected by BCRA" because all of those advertisements
would have aired more than 60 days before the election and would
therefore not increase the size of the numerator. Id. at 14-15
(emphasis in original); see also Krasno & Sorauf Expert Report
at 62 ("The data from which these estimates are derived cover
broadcasting only during the 1998 and 2000 calendar years, not the
thirteen-plus months preceding them. Were we able to factor in the
total number of pure issue ads that appeared between elections, the
percentage of pure issue ads affected by BCRA would decline.").
338. Dr. Gibson suggests the better denominator, and one that is not
arbitrary, is that used in Buying Time 2000; namely, all airings of
issue advertisements during the last sixty days of the campaign
which also depict a candidate. Gibson Expert Report at 39. The
Buying Time 2000 formula answers the question: If one were to assume
all issue advertisements mentioning a candidate in the last 60 days
of an election campaign had an electioneering purpose, what
percentage of the time would this assumption be erroneous? Id. at
38-39. By contrast, the Buying Time 1998 formula answers the
question: "What percentage of total ads run throughout the year that
mentioned a candidate by name and were coded as providing
information or urging action appeared within 60 days of the
election, rather than earlier than 60 days before the election?"
Id. at 39 (emphasis in original). Dr. Krasno believes that Dr.
Gibson's denominator would vary in size "with the amount of
candidate-oriented issue advertising before an election. This is
particularly relevant because of the volume of candidate-oriented
issue ads devoted to presidential campaigns. The result . . . is
highly unstable estimates of BCRA's impact from year to year."
Krasno Rebuttal Report at 15.
339. The effect of using the Buying Time 1998 denominator is that the
percentage is affected not only by the amount of genuine issue
advertisements run within 60 days of the election, but also the
number of electioneering advertisements run during that time. Id. at
16 n. 26. When Dr. Krasno applied Dr. Gibson's denominator to the
Buying Time 1998 data he found 14.7 percent of genuine issue
advertisements would be unfairly captured.*fn213 Id.; see also
Krasno & Sorauf Expert Report at 60 n. 143; id. App. at 3
(providing the calculation: 713 airings of three distinct genuine
issue advertisements*fn214 mentioning a candidate and aired within
60 days of an election constitutes the numerator; the denominator is
the 4847 airings of issue advertisements mentioning a candidate
within 60 days of the election).
340. Dr. Lupia concludes that although the Buying Time 1998 and Buying
Time 2000 denominators answer different questions, either formula is
reasonable. "If I were asked to assess the proposed regulation's
restrictiveness, the [Gibson] report's fraction could provide
information about the impact during a particular time period, while
Buying Time 1998's fraction could provide a better measure of the
regulation's impact on issue advocacy more generally." Lupia
Rebuttal Report at 25. Lupia states that Dr. Gibson's denominator is
no less arbitrary than that of Buying Time 1998. Id. at 26. Holman
comments that the Buying Time 1998 denominator is "a justifiable
way" of determining the impact of BCRA on genuine issue
advertisements, although he did not use the same one for Buying Time
2000. Holman Dep. at 140. For Holman, the Buying Time 1998
calculation is "not incorrect. It's a different way of assigning a
number to measure a phenomenon." Id; but see id. at 153-54 (stating
that the text of Buying Time 1998 relating to the seven percent
figure is "[m]isleading" and "ambiguous" in that it did not identify
clearly to what it referred).
341. Plaintiffs' and Defendants' experts also disagree as to what the
appropriate numerator should be. Dr. Gibson rejected the Buying Time
1998 numerator because based on the data he was provided he
concluded that eight advertisements aired 2, 405 times in the last
60 days of the campaign were originally coded as promoting an issue
or urging action (genuine issue advertisements) but were overruled
by Dr. Goldstein and recoded as electioneering advertisements.
Gibson Expert Report at 42. When Dr. Gibson added in these
advertisements he found that "nearly two-thirds of the group ads
that aired within 60 days of the 1998 election were coded by the
students as `genuine issue ads.'" Id. at 43. Dr. Gibson in his
Rebuttal Report revises this figure based on information provided
during the course of the litigation, which indicated that over a
quarter of the advertisements he added to the numerator did mention
candidates, resulting in a figure of 50.5 percent. Gibson Rebuttal
Report at 23; see also Krasno Rebuttal Report at 17-18 (describing
this error). Dr. Gibson concludes that "this 50.5% figure represents
the statistical floor . . . the 64% figure cited in my report . . .
provides the ceiling." Gibson Rebuttal Report at 24. Dr. Gibson, in
his Supplement Report, states that Dr. Krasno had produced
additional data files which included an earlier version of the data
set upon which he had relied. Gibson Supplement to Rebuttal Expert
Report of October 7, 2002: 1998 Data ("Gibson Supplemental Report")
at 1. The data showed that one of the eight advertisements Dr.
Gibson alleged had been recoded (from "genuine issue" to
"electioneering") had originally been coded as promoting the
election or defeat of a candidate, and that another was missing data
as to the nature of the commercial. Id. at 4. As a result of
excluding the airings of these two commercials, Dr. Gibson
calculates that his "ceiling" fell to 60 percent, and his "floor"
remained unchanged. Id. at 5-6.
342. Dr. Krasno rejects the inclusion of any of the airings of these
eight advertisements in the numerator. See Krasno Response to
Professor Gibson's Supplemental Rebuttal (Nov. 13, 2002) ("Krasno
Response"). He objects to the notion that the recoding "reflects a
deliberate effort to manipulate some of the results reported in
Buying Time 1998," stating that the recoding aimed to "make the data
set as sensible and accurate as possible." Id. at 1, 2. Dr. Krasno
explains that the decision to recode five of the advertisements was
based on their contradictory codings. Id. at 2. The survey was
constructed so that when a coder found that an advertisement's
purpose was to "provide information or urge action" (in other
words, was a genuine issue advertisement) in Question 6, the coder
was supposed to skip the next 12 questions. Id. at 2; Gibson
Supplemental Report Exhibit 7. For five of these advertisements,
student coders found the advertisement provided information or urged
action, but went on to answer the next 12 questions. Krasno Response
at 2. In addition, Dr. Krasno states that "all of these ads were
scored in a parallel process on another variable, `favcan,' as
favoring a Democratic or Republican candidate. Again, the potential
conflict between question ¶ and favcan should have attracted
attention as the data set was being prepared." Id. Dr. Krasno
contends that a review of the storyboards for these five
advertisements, as well as other contextual factors such as where
and when they were aired, makes it clear that they should be coded
as "electioneering." Id. at 2-4. Dr. Krasno believes that the
"notion that a small handful of mistakes must be perpetuated because
they were once made is both ludicrous and an extraordinary departure
from the usual practice of compiling data sets. Dr. Gibson's
argument would be more credible if he offered any explanation for
why these commercials really are pure issue ads." Krasno Response at
343. Dr. Lupia weighs in on the fraction debate, contending that the
Gibson and Buying Time reports "are reasonable conceptualizations of
the question about how the proposed regulations will affect groups
in the present and future if groups act exactly as they did in the
past. If, however, we want to evaluate the regulations' likely
future impact we should consider the possibility that groups will
adapt to the new regulations in different ways." Lupia Rebuttal
Report at 26. Both sides seek to predict the impact BCRA will have
if no one alters their behavior. Lupia concludes that to "the extent
that affected groups are able to choose [to alter their behavior],
both estimates in the denomination debate may exaggerate the extent
to which this aspect of the new regulation will restrict the groups'
abilities to express themselves in the future. . . . To the extent
that we agree that such groups will adapt in various ways, the
credibility of the high-percentage estimates of the likely future
impact of the proposed regulations on interest groups is severely
undermined." Id. at 27.
Criticism of Buying Time 2000
344. Many of Dr. Gibson's criticisms of Buying Time 2000 are similar to
those made of Buying Time 1998 and are addressed, supra.
345. Dr. Gibson states that the Buying Time 2000 data base "has numerous
errors and inconsistencies in it," and comments that these changes
preclude him from replicating the findings of Buying Time 2000.
Gibson Expert Report at 46, 47-48.*fn215 He is troubled by the fact
that Dr. Goldstein changed the coded "purpose" of 62 out of 338
advertisements, id. at 52, questions the motivation behind the
changes, and asks what standards Dr. Goldstein employed in making
the changes, id. at 53. Dr. Goldstein states that "most of the 62
`changes' [Gibson] identifies in the 2000 database are not changes
at all, but rather original student coding of additional CMAG
storyboards that had not previously been coded at all, and were not
part of the database used by the authors of Buying Time 2000."
Goldstein Rebuttal Report at 4. The problem stems from Dr. Gibson's
use of the wrong database; he does not analyze the Buying Time 2000
database, but rather "a later iteration of[Dr. Goldstein's] own
version of the database containing [his] own after-the-fact updates
and re-codes, including additional ads later received from
CMAG. . . . [N]one of this re-coding ever made its way into the
Buying Time 2000 report."*fn216 Id. at
14-15. Dr. Goldstein also takes exception to the charge that he
deliberately changed the data in order to decrease the number of
pure issue advertisements, calling it "baseless." Id. at 4.
In addition, Dr. Goldstein notes that he reevaluated the coding of 30
advertisements in the 2000 database in his post-Buying
Time 2000 academic research having nothing to do with
campaign finance or the Buying Time studies and "[i]n 26 of
these instances,  changed the coding from electioneering to
genuine issue." Id. at 5, 14-15. Dr. Lupia comments that Dr. Gibson
fails to connect his bias concerns with actual changes in the
database or demonstrate the effects directly. Lupia Rebuttal Report
at 58. As such, Lupia finds the charge that the investigators were
committed to reaching a particular outcome to be "at best, premature
and, with certainty, not proven in the [Gibson] report." Id.
346. Dr. Goldstein does find that three advertisements in the Buying Time
2000 database "were re-coded on Question 11 from `promoting a
candidate' to providing information or urging action on an issue.'"
Goldstein Rebuttal Report at 16. One was a version of a "cookie
cutter" advertisement run by CBM (numbered 1269), which was
"extremely similar" to a number of other CBM-sponsored
advertisements that (Goldstein thought) had all been coded as
"electioneering." Id. This fact was brought to Dr. Goldstein's
attention by the Buying Time authors and, concluding that it was not
"meaningfully distinguishable from the other CBM ads, . . . [he]
recoded it as electioneering." Id. at 17. The second was a National
ProLife Alliance advertisement (numbered 2107) which mentioned
Wisconsin Senators Kohl and Feingold. Again, the Buying Time authors
told Dr. Goldstein that the advertisement was "virtually identical"
to another advertisement run in Virginia mentioning then-Senator
Charles Robb. Id. Dr. Goldstein reviewed the storyboards of the two
advertisements and found them "not meaningfully distinguishable, and
resolved the inconsistency by re-coding [the commercial] as
electioneering." Id. The final advertisement that was changed was
sponsored by the Rhode Island Women Voters (numbered 1367). The
advertisement was originally coded as a "genuine issue
advertisement" but changed by Dr. Goldstein after the Buying Time
authors disagreed with the coding. Id. Dr. Goldstein believes that
the advertisement "is clearly electioneering." Id. As noted infra,
Finding 356, Dr. Goldstein recently discovered that the six
corresponding versions of Advertisement #1269 were originally coded
as "genuine issue advertisements" by the students and later changed
by the Buying Time 2000 authors to "electioneering" commercials.
Goldstein Dep. (Vol. 2) at 158-59 [JDT Vol. 8]. When these six
advertisements are added to the analysis, which Dr. Goldstein terms
"the most conservative standard estimate," one finds that 17 percent
of the advertisements aired within 60 days of the election which
identified a candidate were "genuine issue advertisements." Id. at
169. Defendants' experts personally disagree that all of these
commercials are "genuine issue advertisements." See Holman Dep. at
82-83 (stating he considers Advertisement #1367 to be his "poster
child of sham issue advocacy"); Goldstein Expert Report at 26 n. 21
(noting that he considers all the commercials with the exception of
Advertisement #2107 "were clearly intended to support or oppose the
election of a candidate").
347. Dr. Gibson raises essentially the same concerns about Question 11 in
Buying Time 2000 as he does for the practically identical Question
¶ in Buying Time 1998, discussed supra. Gibson Expert Report at
54-55. Dr. Goldstein states that "79.8 percent of the
group-sponsored ads classified as electioneering were coded as
having run within 60 days of the election, compared to only 18.7
percent of non-electioneering ads." Id. at 28. As one "would
expect . . . that ads designed to promote or oppose a candidate would
air relatively close to Election Day," this objective data, in Dr.
Goldstein's opinion, corroborates the coding in Question 11 and
demonstrates that Dr. Gibson's theory is incorrect. Id. at 28-29.
348. The NRA criticizes the Buying Time 2000 study for not including two
30-minute "news magazines" in the data which it claims are "genuine
issue advertisements," Proposed Findings of Fact of the NRA and the
NRA PVF ¶ 9. "If these airings had been considered, 34% of the
total volume of speech that BCRA in 2000 would have covered in the
60 days prior to the general election would have been genuine issue
advertisements." Id. One of these "news magazines" was titled
"California." LaPierre Decl. ¶ 12 [NRA App. at 5]. "California"
was aired 800 times in California from August 29, 2002, to November
5, 2000. Id. ¶ 14. "During the entirety of the 30-minute
program, there was only one fleeting reference to a federal
candidate for office. Specifically, during a short segment urging
viewers to join the NRA and describing the benefits of membership, a
cover of an issue of the NRA's magazine `First Freedom' depicting
Vice President Gore's image, then a presidential candidate, flashed
on the screen for several seconds." Id. ¶ 13.*fn217 The NRA
does not allege that the study included other 30 minute
advertisements, or that the CMAG monitors such commercial
broadcasts. It does not indicate how other 30 minute "news
magazines" it ran during 2000 would have affected the results of
Buying Time. See Proposed Findings of Fact of the NRA and the NRA
PVF at ¶¶ 3-7.
The Goldstein Expert Report
349. Although Dr. Goldstein was involved in assembling the data sets used
in both Buying Time studies, he did not participate in the writing
of either Buying Time study or play a role in "selecting the
conclusions that the authors of these reports chose to draw from the
database," Goldstein Rebuttal Report at 3-4. His report, therefore,
constitutes a separate assessment of the data collected for the
Buying Time studies. The database he works from differs from that
provided to the Buying Time 2000 authors, as it has corrected
omissions and errors discovered after Buying Time 2000 was
completed. Id. at 4-5. Dr. Goldstein's study produces nine principal
350. Scope of Political Advertising. In the 2000 election cycle (from
January 1, 2000, through election day), interest groups accounted
for 16 percent of all political television advertisements at an
estimated cost of $93 million.*fn218 Goldstein Expert Report at 8.
Political parties accounted for 27 percent of the political
commercials at an estimated cost of $162 million, while candidates
accounted for the remaining 52 percent of advertisements at an
estimated cost of $338 million. Id. Compared to the 1998 campaign,
the increase in interest group spending was the most dramatic,
"rising from approximately $11 million in 1998 to an estimated $93
million in 2000." Id. at 9; see also id. at 10 (tbl. 1A-B) (showing
the increase in candidate spending (from approximately $136.6
million to approximately $338.4 million) and in political party
spending (from approximately $25.6 million to $162.3 million)). The
majority of interest group advertising in 2000 was "not sponsored by
PACs, and fell outside FECA regulation." Id. at 8. According to his
figures, interest group PACs spent roughly $2 million on 3, 688
political advertisements in federal races in 2000, while interest
group non-PAC expenditures constituted $90 million spent on 129, 647
commercials. Id. at 10 (tbl. 1B).
351. The Role of Interest Groups and Political Parties in Political
Television Advertising for the 2000 Presidential Campaign: In terms
of the presidential campaign, political parties purchased 41 percent
of television advertisements aimed at the 2000 presidential race,
while candidates accounted for 38 percent of the commercials, and
interest groups eight percent. Goldstein Expert Report at 11 &
n. 11 (the remaining advertisements were coordinated expenditures).
Interest group advertising in certain "battleground" states,*fn219
however, "rivaled that of the candidates or parties." Id; see also
id. at 12 (tbl. 2). In House elections, interest group
advertisements identifying a candidate and running in the last 60
days of the campaign accounted "for 17 percent of total House ad
broadcasts during the 2000 election cycle," while parties provided
22 percent of advertisements in these races, and candidates 60.6
percent. Id. at 13. Dr. Goldstein finds that 99.8 percent of
political party-financed television advertising mentioned or
depicted a candidate, while only 1.8 percent of the ads "even
mentioned the name of the party and many fewer promoted the
candidate by virtue of his or her party affirmation." Id.*fn220
352. The BCRA Universe of Interest Group Electioneering: Dr. Goldstein
finds that 35 interest groups broadcast commercials on television
during the last 60 days of the 2000 election that mentioned a
candidate. Goldstein Expert Report at 13. These electioneering
advertisements were aired 59,632 times at an estimated cost of
approximately $40.5 million. Id. at 14; see also id. at 14-15 (tbl.
3).*fn221 The top ten of these groups accounted for 87 percent of
these expenditures. Id. at 13.
353. The "Magic Words" Test: The so-called "magic words" test derives
from Buckley's legal standard for determining whether an
advertisement is designed to persuade citizens to vote for or
against a particular candidate. Such advertisements were termed
characterized "express advocacy" by the Supreme Court, and defined
as containing words such as "elect," "defeat" or "support." See
supra Finding ¶ 272 n. 57. Dr. Goldstein finds that 11.4 percent
of the 433, 811 advertisements aired by candidates met the express
advocacy test. Goldstein Expert Report at 16. Conversely, 88.6
percent of candidate advertisements in 2000 "were technically
undetected by the Buckley magic words test." Id. This result
demonstrates to Dr. Goldstein "that magic words are not an effective
way of distinguishing between political ads that have the main
purpose of persuading citizens to vote for or against a particular
candidate and ads that have the purpose of seeking support for or
urging some action on a particular policy or legislative issue."
354. Temporal Distribution of Interest Group-Financed Television
Advertisements Which Mention a Candidate: Dr. Goldstein determines
that the "CMAG database provides empirical evidence of a strong
positive correlation between [advertisements' reference to a
candidate and the proximity in time of their broadcast to the
election] and consequently of their validity as a test for
identifying political television advertisements with the purpose or
effect of supporting or opposing a candidate for public office."
Goldstein Expert Report at 17. He finds that interest group
advertisements that "mention or depict a candidate tend to be
broadcast within 60 days of the election," while those which do not
"tend to be spread more evenly over the year." Id. In addition, Dr.
Goldstein also finds the distribution of those advertisements
mentioning candidates for federal office to be "closely correlated
to the distribution of electioneering communications broadcast by
candidates and political parties." Id.
355. Geographic Distribution of Interest Group-Sponsored Advertisements
Which Mention a Candidate and are Aired within 60 Days of an
Election: Dr. Goldstein finds that interest group advertisements
that mentioned a candidate and were broadcast within 60 days of the
2000 election "were highly concentrated in states and congressional
districts with competitive races." Goldstein Expert Report at 20.
For Senate races, 89.2 percent of these commercials ran in
competitive races. Id. Political parties concentrated 90.6 percent
of their ads in the competitive states. Id. at 21. House races
demonstrated the same pattern, with 85.3 percent of interest group
"electioneering" advertisements, and 98.2 percent of political party
"electioneering" advertisements broadcast in competitive districts.
Id. at 21.
356. Coders' Perceptions of Interest Group Television Advertisements:
Dr. Goldstein had students code each interest group political
television advertisement aired in the 2000 campaign. They could code
the commercials' purpose as either to "`generate support or
opposition for candidate,' or to `provide information or urge
action,'" and "were also given the option of `unsure/unclear.'"
Goldstein Expert Report at 24 & n. 20. The coders found 97.7
percent of the 60, 623 interest group sponsored television
advertisements that mentioned a candidate and were broadcast within
60 days of an election as "electioneering," or supporting or
opposing a candidate. Id; see also id. at 25 (tbl. 7). Dr. Goldstein
finds this result particularly persuasive given the fact that the
students coded one-third of all interest group television
advertisements run over the course of the 2000 campaign to be
genuine issue advertisements. Id.
357. Of the 45,001 advertisements deemed to be "genuine issue
advertisements" by the coders, 3.1 percent would have been covered
by BCRA in that they were run within 60 days of the election and
identified a candidate. Goldstein Expert Report at 27.*fn222 Dr.
Goldstein acknowledges that in Buying Time 2000 and an article he
co-authored with Dr. Jonathan Krasno fewer than six advertisements
were said to be unfairly captured by BCRA. Id. at 26 n. 21. In those
other publications, "`certain of these six ads — particularly
those as to which there was disagreement among the student coders
— were ultimately treated as electioneering. In fact, [Dr.
Goldstein's] own judgment is that five of these six ads were clearly
intended to support or oppose the election of a candidate. . . .
However, in this report, [Dr. Goldstein] chose to take the most
conservative approach and count all six as Genuine Issue Ads." Id.
However, Dr. Goldstein now acknowledges that a "most conservative"
estimate would include ¶ more advertisements listed in footnote
8 of his Rebuttal Report. Goldstein Dep. (Vol. 2) at 160 [JDT Vol.
8]. Adding these six advertisements results in the finding that 17
percent of the advertisements run during the last 60 days of the
2000 campaign which identified candidates were genuine issue
advertisements. Id. at 169; see also Finding 354 supra. Dr. Gibson
objects to Dr. Goldstein's reliance "on the highly subjective
coding" of the student coders to determine the purpose of the issue
advertisements (i.e., to promote a candidate or to urge action on an
issue). Gibson Rebuttal Report at 20; see also Holman Dep. at 73
(noting that the question asks for a subjective assessment).
358. The Effectiveness of Broadcasting Issue Ads Close to an Election:
Dr. Goldstein's final finding is that if an interest group is
genuinely interested in promoting an issue, the least desireable
time to air such an advertisement is in the final 60 days of an
electoral campaign. Goldstein Expert Report at 32. This finding runs
counter to Plaintiffs' argument that BCRA "may harm interest groups
by preventing them from advertising on their issues at a time when
citizens are supposedly paying the most attention to politics." Id.
Dr. Goldstein first comments that "while there is evidence that
interest in politics and elections rises as Election Day
approaches, there is absolutely no evidence to support the position
that interest in public policy issues rises as well during that
time." Id. (emphasis in original).*fn223 Dr. Goldstein notes that
since the last two months of an election campaign is when most
political advertisements are aired (64.2 percent of all political
advertisements run in 2000 were run in the campaign's final 60
days), "an individual interest group's message on a public policy
issue is likely to become lost" if aired during that period. Id.
Dr. Goldstein also posits that "partisan attachments . . . harden
during the last two months of a campaign" which makes it "more
difficult to persuade otherwise open-minded viewers of the merits of
an interest group's policy stance." Id. at 32-33 (citing John
Zaller, Nature and Origins of Mass. Opinion (1992)). According to
Dr. Goldstein's Expert Report, in 2000, 17.7 percent of such
advertisements were aired in the final 60 days of the election
campaign, slightly more than the 16.4 percent "which would have run
if the ads had been equally distributed throughout the year." Id. at
33; see also id. at 31 (tbl. 9). In contrast, during the months of
April through June 2000, 45 percent of such issue advertisements
were aired, "as against an expected 25 percent if the ads were
spread evenly throughout the year." Id. Dr. Goldstein believes this
concentration is "a likely result of groups turning on the heat to
pass or defeat bills before Congress adjourned for the summer." Id.
Dr. Gibson is critical of Dr. Goldstein's finding. Gibson Rebuttal
Report at 26. According to Dr. Gibson, political psychologists, like
William McGuire (whose work Dr. Goldstein cites), have concluded
"that to persuade someone involves two steps. First, one must get
the attention of the person one is attempting to persuade. Second,
one must overcome the strength of existing attitudes if the attempt
at persuasive communication is to result in attitude change." Id.
Given that "those with strong attitudes tend to pay attention to
political communications while those with weak political attitudes
tend to ignore them. . . . [t]hose most easily reached are least
easily changed; those most easily changed are those most difficult
to reach." Id. Since those with "weak attitudes" tend to pay
attention during "the most extreme circumstances," the period
leading up to the election provides the window in which to
communication with these difficult to reach, but easily persuaded
individuals. Id. at 27. Dr. Gibson also rejects the argument that
issue advertising close to an election is unproductive because
partisan allegiances harden as elections approach. Id. He states
that this line of reasoning leads to the strange conclusion that
"candidates should abandon advertising as the election approaches
since these hardened attitudes are difficult to convert." Id. Dr.
Gibson points out that "that does not happen, since, as the election
approaches, candidates try to reach an even greater percentage of
marginal voters, who have little interest in politics, and
relatively pliable issue views." Id.
Genuine Issue Advertisements About Legislation and Public Policy Issues Are Run During the Sixty Days Before A Federal Election Notwithstanding the Competition for Air Time With Candidate-Centered Advertisements
359. Notwithstanding the disadvantages of running genuine issue
advertisements during the 60 day period leading up to a general
election,*fn224 plaintiffs have demonstrated that it can be
effective and necessary for them to run legislation-centered
advertisements in the weeks before an election. Monroe Decl. ¶¶
18-19 [10 PCS] ("The defendants in this proceeding have argued that
ads run near the time of an election are evidence that the
association's actual intent is to advocate the election of one
candidate or another. However, there are other, more valid,
explanations for the timing of our advertising. One is that serious
legislative initiatives or regulatory proposals often are considered
near the time of elections. Also, it is also clear that members of
the public are generally more receptive to and engaged in
considering government policy ideas and issues as elections near. lf
that is the time when people will listen, that is the time to
speak. And once an election occurs, there seems to be a period of
fatigue during which political matters are of less interest, making
issue ads then less effective."); Huard Decl. ¶ 10 [10 PCS]
("NAM has run issue ads at times when no election was impending. In
broad terms, however, Americans tend to have greater interest in
political matters as an election approaches. At the same time,
elected officials are most attuned to the views of their
constituents in the pre-election period. Thus, for many purposes,
the pre-election season is a critical time for issue ads.
Conversely, after an election public interest in public policy
matters fades, perhaps due to fatigue. Then, few issue ads are run
soon after an election."); Murphy Decl. ¶ 12 [3 PCS] ("Finally,
it is important to emphasize that the blackout periods imposed by
the BCRA 60 days before a general election and 30 days before a
primary are often periods of intense legislative activity. During
election years, the candidates stake out positions on virtually all
of the controversial issues of the day. Much of this debate occurs
against the backdrop of pending legislative action or executive
branch initiatives. Some of the President's or Attorney General's
boldest initiatives are advanced during election years — often
within 60 days of a general election. This year, for instance,
legislation creating a new federal department of Homeland Security
is under consideration during this pre-election period.").
Plaintiffs' expert Dr. Gibson agrees that running issue
advertisements in proximity to federal elections is effective. See
Finding 357, supra.
360. The legislative calendar can necessitate the running of issue
advertisements during the final days of an election campaign. Edward
Monroe states that "serious legislative initiatives or regulatory
proposals often are considered near the time of elections," without
providing actual examples of advertisements run in response to the
legislative activity. Monroe Decl. ¶ 18 [10 PCS]; see also Huard
Decl. ¶ 11 L10 PCS] ("[I]ssue ads supporting a particular tax
bill may well be needed as the bill approaches a vote. If it happens
that primaries or elections are imminent, that does not diminish the
need to be able to speak out right then."); Murphy Decl. ¶ 12 [3
PCS] (commenting that "the blackout periods imposed by the
BCRA . . . are often periods of intense legislative activity," noting
consideration of the Homeland Security Department bill occurred
within 60 days of the 2002 election, but listing activities that
would not be affected by BCRA). Some deponents provide concrete
examples of merging electoral and legislative calendars and their
actions during those periods. The AFL-CIO aired advertisements
regarding an "upcoming budget fight over education programs" in
September 1996. Mitchell Decl. ¶ 41 & Exhibit 59 ("No Two
Way"). The labor group ran another "genuine" issue advertisement
between September 21 and 25, 1998, in eight congressional districts
opposing "fast track" trade legislation which was scheduled for a
vote in the House of Representatives on September 25, 1998. Mitchell
Decl. ¶ 52 & Exhibit 116 ("Barker"). During the same month,
the AFL-CIO ran a legislation-centered advertisements aimed at a
scheduled Senate vote on 11MG legislation that the AFL-CIO
considered to be inadequate, id. ¶ 51 & Exhibits 105-07
("Deny"),*fn225 and opposing the Taxpayer Relief Act which had been
recently marked up by the House Ways and Means Committee, Mitchell
Decl. ¶ 52 & Exhibits 108-09 [PCS 6] ("Spearmint" and
"Spear"); Shea Decl. ¶ 43 [PCS 7]. In 2002, the GOA ran a radio
advertisement in New Hampshire within 30 days of the primary
election for the New Hampshire Republican U.S. Senate nominee, which
supported legislation allowing airline pilots to be armed. Pratt
Decl. ¶ 5. See also Mann Cross Exam. at 176 (explaining that a
Hurry of legislative activity occurs near the end of a congressional
session, therefore, often within the 60 day period preceding a
361. The ACLU seeks to influence how members vote on pending legislation
by educating the public about its concerns and using the public to
communicate their concerns to their elected representatives. Murphy
Decl. ¶ 8 [3 PCS/ACLU 9] ("Inevitably, many of the ACLU's
statements involving legislation or executive branch policies,
including print and broadcast communications, refer to a clearly
identified candidate, member or executive branch official."). The
ACLU cites as an example an advertising campaign directed at Speaker
Dennis Hastert, who represents the fourteenth district of Illinois,
in March of 2002 urging him to bring the Employment
Non-Discrimination Act ("ENDA") to a full vote in the House. Id.
¶ 10; see also Text of Advertisement, 3 PCS/ACLU 14-17. The ad
was broadcast on multiple Chicago and Aurora, Illinois radio
stations throughout the weekend of March 15-March 17, 2002. Id.
Since the advertisement was run within thirty days of a primary
election, the commercial would have constituted an electioneering
communication under BCRA and would have violated BCRA because it was
paid for with the general treasury funds of a corporation. Id.
(observing that the "ACLU also hoped to highlight the constitutional
flaws of BCRA").
362. The text of the Hasten ad is as follows:
Sound Effect: Long Tympani/Drum Roll Male
announcer — Master of Ceremonies (during
sound effect): And now Sound Effect: Drum Roll
Ends with Cymbal Crash Sound Effect: 2 Seconds of
Silence Male Announcer: . . . We're waiting.
Sound Effect: Long Tympani/Drum Roll Starts Again
Sound Effect: Drum Roll Ends with Cymbal Crash
Sound Effect: 2 Seconds of Silence Male
Announcer: . . . Still waiting. Female
Announcer: Waiting for our Congressman, (Sound
Effect Music Up — Pop Goes the Weasel or
Circus Music) Dennis Has tert, to protect
everyone from discrimination on the job.
As speaker of the House, Representative Hastert
has the power to stop the delays and bring the
Employment Non-Discrimination Act — ENDA
— up for a vote in Congress. It's about
fairness. It's time to ensure equal rights for
all who work, including lesbians and gay men, and
make sure that it's the quality of our work that
counts, and nothing else. (Music Out.)
Male Announcer: So Congressman Hastert Sound
Effect: Tympani/Drum Roll Male Announcer Master
of Ceremonies (during sound effect): What will it
be? Sound effect: Drum Roll Ends with Cymbal
Crash Male Announcer: Protecting Workers from
discrimination, or more delays? Female
Announcer: Take action now. Send Speaker Hastert
a letter urging him to support fairness and bring
ENDA to the floor by going to
Male Announcer: Paid for by the American Civil
Murphy Decl. Exhibit 15 (script of ACLU radio ad, "ENDA Delays").
363. The ACLU's purpose in running the advertisement was to create a
commercial that would violate BCRA and thereby provide standing to
challenge the constitutionality of the Act. A March 10, 2002, e-mail
from Laura Murphy, legislative director of the ACLU, to colleagues
explained why the ACLU's March 2002 Hastert ad was run:
Anthony wants the ACLU to be in a position to
challenge Shays-Meehan when it becomes law as
early as during the Easter recess. As you know
the issue advocacy restrictions would select
groups like the ACLU if we want to take out and
[sic] ad 30 days before a primary or 60 days
before a general election in broadcast, satellite
or cable outlets. These ads would have to reach
50, 000 people or more and would have to mention
the name of a candidate. Steve thinks that the
ads that we ran during the 2000 election cycle
would not qualify to give us clear standing to
challenge the law.
Email Message Attached as Exhibit to Resps. of American Civil
Liberties Union to Defendant's Second Set of Requests for Production
of Documents, Exhibit B; USA-ACLU-00003 [DEV 130-Tab 4] (italics
364. The ACLU asserts that it does not engage in any federal election
activity as defined by the FECA. A. Romero Decl. ¶ 3, 3 PCS/ACLU
2. The ACLU likewise asserts that it has never taken a position in a
partisan political election in its 82-year history. A. Romero Decl.
¶ 3, 3 PCS/ACLU 2.
365. Krasno and Sorauf comment on the ACLU's Hastert advertisement:
[T]he ACLU has demonstrated with a commercial
about gay rights, aired in House Speaker Dennis
Hastert's district last spring before the GOP
primary, that it is possible to deliberately
create a pure issue ad that runs afoul of BCRA.
Krasno & Sorauf Expert Report at 62 [DEV 1-Tab 2]; see also Text
of ads, 3 PCS/ACLU 16-17 (noting script of advertisement that the
ACLU ran in the print media over this issue).
366. The AFL-CIO's broadcast advertising campaigns were focused, in
part, on issues of importance to AFL-CIO members. In her testimony,
Denise Mitchell,*fn226 Special Assistant for Public Affairs to
AFL-CIO President John J. Sweeney, explains how the AFL-CIO selected
the particular issues discussed in the advertisements:
In both election and non-election years, my goal
in selecting the issues to be addressed in the
AFL-CIO's broadcast advertising has been to focus
attention on a series of national policy issues
of importance to working families. I have been
guided in selecting these issues by input from
the Executive Council of the AFL-CIO, which
regularly discusses and focuses on a legislative
and policy agenda for the organization, the
AFL-CIO's ongoing lobbying program, polling and
other opinion research, conducted primarily by
the Washington, D.C, firm of Peter Hart
Associates, and the views of affiliated unions.
Most of the issues addressed in our
advertisements, such as budget priorities, tax
fairness, Medicare, and health care, recur in
virtually every session of Congress; others, such
as fast-track trade legislation or the trade
status of China, may be current for a period of
years and then become inactive for awhile.
Mitchell Decl. ¶ 10 [6 PCS]; see also id. ¶ 70 [6 PCS]
("[The indirect effect on election outcomes] has never been the
point of our broadcast advertising program, within or outside the
30-and 60-day periods.").
367. Plaintiff AFL-CIO has provided a number of examples of "genuine
issue advertisements" which relate to pending legislation that BCRA
would capture because the commercials ran on television and radio
within 30 days of a primary election. AFL-CIO Opening Br. at 10-11
(citing Mitchell Decl. ¶¶ 32, 34-36, 37-39, 40, 50, 58-59). The
advertisements cited to by the AFL-CIO ran in "flights," aimed at
particular legislation pending at the time. Practically all of these
flights consisted of a variety of "cookie-cutter" advertisements,
meaning advertisements that are virtually identical except that they
reference different candidates. See generally Mitchell Decl. Exhibit
1. Ms. Mitchell describes advertising campaigns comprising 29
different sets of cookie-cutter advertisements, some of which were
run within 30 days of a named candidate's primary election. Mitchell
Decl. ¶¶ 32, 34-36, 37-39, 40, 50, 58-59.*fn227 In addition,
Exhibit 1 shows that four more advertisements would have been
captured by BCRA due to their airing within 30 days of the
identified candidate's primary, but since all of the airings of
three of these commercials would have been captured by BCRA's 60
day-window as well.*fn228
Representative Examples of Genuine Issue Advertisements Aired Within
30 Days of a Primary Election, or 60 Days of a General Election, and
Mentioning the Name of a Federal Candidate
368. The AFL-CIO aired a radio advertisement entitled "Barker" within 60
days of the 1998 general elections.*fn229 Mitchell Decl. Exhibit 1
at 86. The advertisement urged the candidates to Fast Track trade
legislation, and only mentions that candidate's name with respect to
asking the viewer to tell the candidate to "vote no on Fast Track."
The following is the audio of the ad:
Paid for by the Working Men and Women of the
AFL-CIO. [Barker speaking]: Okay ladies and
gents, step right up and see if you can follow
the ball. Is it here? Is it there? Where could it
be? [Voice over]: They're playing games again in
Washington. Without discussion or debate, they're
planning another vote on the controversial Fast
Track law — special powers to ram through
trade deals like NAFTA. Fast Track failed last
year because working families don't want more
trade deals that put big corporations first;
deals that ignore our concerns about lost jobs;
environmental problems on our borders, and
dangerous, imported foods. But Newt Gingrich and
the sponsors of Fast Track hope they can sneak it
by this fall, while public attention is focused
on other issues. [Barker speaking]: Keep your
eyes on the ball now . . . [Voice over]: Call
Representative ___ at xxx-xxx-xxxx and tell him
to vote no on Fast Track. Tell him we're still
paying attention. And Fast Track is still a bad
Mitchell Decl. Exhibit 116. Defense Expert Magleby, examined
"Barker" during his cross examination and stated that he would rate
it as a "genuine" issue ad. Magleby Cross Exam. at 108-109. Even
though "Barker" mentioned the name of a candidate, Magleby
determined that it was a genuine issue advertisement because it
"doesn't mention how [the candidate] voted. It doesn't represent
what [the candidate] has said about the issue. The body of the ad
has no referent to [the candidate] whatsoever. The only referent to
[the candidate] is the call line." Magleby Cross Exam. at 103-105;
see also id. at 106 (explaining that "a generic call your
Congressman, call your Senator, when then linked to a legislation
and call your Congressman or Senator about this legislation without
a referent to their position on the issue, seems to me substantively
different than when they are mentioned in view of what their
position is on that issue. Q. When you say substantively different,
are you referring to a difference with respect to whether the
advertisement communicates an electioneering message? A. Yes.").
369. The AFL-CIO paid for the following television advertisement,
entitled, "Call." "Call" aired within 30 days of the 1998 primary
elections of Congressman Jim Tanner (TN-08) and Senator Kit Bond
(MO). The ad urged the candidates to support the Patient Bill of
Rights Act.*fn230 See Mitchell Exhibit 1 at 80. The following is
the text of the advertisement:
Nurse at nursing station, direct-to-camera: I
love nursing. But it's so much harder that it's
ever been. These bureaucrats from the insurance
companies. They routinely deny care, and they
make decisions that only the doctors should be
making." Today the insurance industry is spending
millions to block a law in Congress that would
protect our rights and our lives in the new world
of HMOs and managed care. Call Congresswoman
Chenowith. Tell her to stand up for us and
support the Patient Bill of Rights Act. "If
Congress would just do their job . . . then I can
Mitchell Exhibit 99 (while the script of "Call" produced by the
AFL-CIO mentions Congresswoman Chenowith's name, a version of "Call"
was broadcast on July 15-21, 1998, but using Congressman Tanner's
name and Senator Bond's name).
370. The AFL-CIO paid for the following television advertisement,
entitled, "Deny." "Deny" aired within 60 days of the 1998 general
elections of Senator Kit Bond (MO), Senator Charles Grassley (IA),
the late Senator Paul Coverdell (GA), and Senator Lauch Faircloth
(NC). Mitchell Decl. Exhibit 1 at 83-84. The advertisement urges the
candidates to oppose S, 2330, a patients' rights bill, and only
mentioned that candidate's name with respect to asking the viewer to
tell the candidate to vote "no" on the legislation. The following is
the audio of the ad:
A young cancer victim needs an outside
specialist . . . But the HMO says no. A man with chest
pains goes to the nearest emergency room . . . But his
HMO won't pay. An elderly patient needs more
hospital time . . . But her doctors are
over-ruled [sic] by bureaucrats. Still,
Republicans in Washington are pushing an empty
HMO proposal that won't stop these abuses. Tell
Senator ___ to vote no on 5. 2330 and demand a
real patient protection law. [Chyron showing
1-800 number for viewers to call].
Mitchell Decl. Exhibit 105.
371. The AFL-CIO paid for the following television advertisement,
entitled, "Spearmint." "Spearmint" aired within 60 days of the 1998
general elections of the following Members of Congress: Congressman
Rick White (WA-01); Congressman Jim Leach (IA-01); Congressman Jim
Nussle (IA-02); Congresswoman Anne Northup (KY-03); Congressman Jim
Bunning (KY-04); Congressman Mike Parker (MS-04); Congressman Virgil
Goode (VA-05); Congressman Scott Klug (WI-02); Congressman Steve
Chabot (OH-01). Mitchell Decl. Exhibit 1 at 84-85. The advertisement
urged the candidates to oppose tax cuts and to protect Social
Security, and only mentioned that candidate's name with respect to
asking the viewer to tell the candidate to "vote no on this tax
scheme." The following is the audio of the ad:
After years of deficits, the politicians in
Washington say we're rolling in money. But here's
something they're not saying. Virtually every
dollar of the budget surplus comes from Social
Security. Now the Republican Congress wants to
spend this Social Security surplus on an eighty
billion dollar election-year tax cut . . . even
as there's talk about cutting Social Security for
future retirees. Call Congressman ___, and tell
him to vote no on this tax scheme. Tell ___ to
put Social Security first!
Mitchell Decl. Exhibit 108.*fn231
372. The AFL-CIO paid for the following television ad, entitled, "Label."
"Label" aired within 30 days of the 2000 primary elections of the
following Members of Congress: Congressman Silvestre Reyes (TX-16)
and Congressman Ron Paul (TX-14). Mitchell Decl. Exhibit 1 at 92.
The ad urged the candidates to oppose a trade bill to benefit
China.*fn232 The following is the audio of the ad:
Behind this label is a shameful story. of
millions herded into forced labor camps, and
average working wages of just thirteen cents an
hour. of a nation that routinely violates trade
agreements; flooding our markets with low-wage
imports; undercutting American jobs. Yet know
Congress is poised to reward China with permanent
free trade status, instead of a one-year deal.
Call Congressman ___, and tell him to keep China
on probation. Until this label stands for
Mitchell Decl. Exhibit 127.*fn233
373. The AFL-CIO paid for the following television advertisement,
entitled, "Endure." "Endure" aired within 30 days of the primary
elections of the following Members of Congress: Congressman Edward
Whitfield (KY-01); Congressman Steve Buyer(IN-05); and Congresswoman
Eva Clayton (NC-01). Mitchell Decl. Exhibit 1 at 95-96. The
advertisement urged the candidate to oppose a trade deal for China.
The following is the audio of the ad:
"I voiced my opinion that China ought to protect
worker's rights, people ought to have human
rights. . . . For that, I spent 18 years in
prison and was very nearly executed." Wei
Jingsheng endured years of torture for
challenging a brutal system of slave wages and
sweat shops, through which Chinese workers are
exploited, and Americans lose jobs. But instead
of pressuring China to stop these practices,
Congress is set to scrap its annual review of
China's record, and reward Beijing with a
permanent trade deal, a permanent trade deal
though China's broken every trade pact it's
signed with the U.S. for the past decade. "If you
give China permanent trade status, and don't talk
about it once a year, every year, and evaluate
how they treat the Chinese people, they'll feel
they can do whatever they want, however they
want. This will be incredibly detrimental to
human rights in China." Tell your member of
Congress to keep China on probation . . . until
China earns our trust. [Text on screen reads:
Call Your Member of Congress 800-378-1844].
Mitchell Decl. Exhibit 129.
Representative Examples of Candidate-Centered Issue Advertisements Aired Within 30 Days of a Primary Election or 60 Days of a General Election
374. The AFL-CIO paid for the following radio advertisement entitled "No
Two Way," which aired in 35 congressional districts within 60 days
of the 1996 general election. Mitchell Decl. ¶ 41. "No Two Way"
targeted those candidates who, as Members of Congress, had voted "to
cut the college loan program in October, 1995." Id.
CAROLYN: My husband and I both work. And next
year, we'll have two children in college. And it
will be very hard to put them through, even with
the two incomes. [Announcer]: Working families
are struggling. But Congresswoman Andrea
Seastrand voted with Newt Gingrich to cut college
loans, while giving tax breaks to the wealthy.
She even voted to eliminate the Department of
Education. Congress will vote again on the
budget. Tell Seastrand, don't write off our
children's future. CAROLYN: Tell her, her
priorities are all wrong.
Mitchell Decl. Exhibit 114.
375. The AFL-CIO paid for the following television advertisement entitled
"Retire," which aired within 60 days of the 1996 general election.
Mitchell Decl. ¶ 42. "Retire" was one of the "`electronic voter
guide'" advertisements run by the AFL-CIO "beginning in late
September and continuing until the November election." Id.
What's important to America's families?
[middle-aged man, interview style]: "My pension
is very important because it will provide a
significant amount of my income when I retire."
And where do the candidates stand? Congressman
Charlie Bass voted to make it easier for
corporations to raid employee pension funds.
Arnie Arnesen opposes that plan. She supports new
safeguards to protect employee pension funds.
When it comes to your pension, there is a
difference. Call and find out.
Mitchell Decl. Exhibit 63.
376. The AFL-CIO paid for the following television advertisement entitled
"Job," which aired in fourteen congressional districts within 60
days of the 2000 general election. Mitchell Decl. ¶ 61 and
Exhibit 1 at 101-102. The advertisement targeted Members of Congress
who had voted "to prevent an important OSHA regulation intended to
prevent repetitive motion injuries from being implemented." Id. at
¶ 61. The regulation was part of the Departments of Labor and
Health and Human Services budget bill, which President Clinton had
threatened to veto if it included a rider removing the OSHA
regulation. Id. Initially, the House leadership had agreed to a
compromise, but then "backed out in October 2000." Id.
[Machine operator]: "Well when you're lifting 70
thousand pounds of castings a day and you do this
for 24 years, you're gonna hurt yourself. I had
surgery on both hands but I'll be in pain the
rest of my life." Every year, tens of thousands
of Americans suffer permanent and crippling
repetitive motion injuries on the job. Yet
Congressman ___ voted to block federal safety
standards that would help protect workers from
this risk. Tell ___ his/her politics causes
pain. [Machine operator]: "We're all human beings
we need to help each other so that this stuff
doesn't happen to us."
Mitchell Decl. Exhibit 141.
For the reasons set forth in my opinion, with regard to Title I of BCRA, I find constitutional: new FECA Section 323(a) only to the extent that it bans national parties from using nonfederal funds for Section 301 (20)(A)(iii) activities; new FECA Section 323(b) as applied to Section 301 (20)(A)(iii) only; new FECA Section 323(e) except to the extent that it prevents federal candidates from soliciting funds for their national parties; and new FECA Section 323(f). I find unconstitutional: new FECA Section 323(a) except to the extent it bans national parties from using nonfederal funds for Section 301 (20)(A)(iii) activities; Section 323(b) as applied to Sections 301 (20)(A)(i), (ii), and (iv); new FECA Section 323(d); and new FECA Section 323(e) to the extent that it prevents federal candidates from soliciting funds for their national parties. With regard to Title II, for the reasons set forth in my opinion, I find constitutional: Section 201's backup definition of electioneering communications as severed and Section 204 to the extent that it applies to non-MCFL organizations. I find unconstitutional: Section 201's primary definition; Section 204 insofar as it applies to MCFL organizations; and Section 213. For the reasons set forth in this opinion, I also find unconstitutional Section 318 and and Section 504. All of my other judgments are set forth in the Per Curiam opinion.