The opinion of the court was delivered by: Karen Lecraft Henderson, United States Circuit Judge
"To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas." — Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 478 (1897).
I believe the statute before us is unconstitutional in virtually all of its particulars; it breaks faith with the fundamental principle — understood by our nation's Founding Generation, inscribed in the First Amendment and repeatedly reaffirmed by the United States Supreme Court — that "debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). My colleagues' per curiam opinion and their other opinions ignore the statute's transparent infirmity and leave standing its most pernicious provisions, apparently on the ground that candidate-focused political speech inevitably "corrupts" the individuals to whom it refers. Their reasoning and conclusions treat a First Amendment with which I am not familiar. See Renne v. Geary, 501 U.S. 312, 349 (1991) (Marshall, J., dissenting) ("[T]he prospect that voters might be persuaded by . . . endorsements is not a corruption of the democratic political process; it is the democratic political process." (emphasis in original)). Further, the opinions are similarly flawed in their dissection of the statute's dense and interlocking provisions, upholding a portion here and striking down a fragment there until they have drafted legislation the Congress would never have enacted — all in the name of deference to that body. See, e.g., Per Curiam Op. at Part I; Memo Op., RJL, at Parts I.A.2, I.A.3, I.B, II.C.*fn1
On March 27, 2002 — after nearly seven years of congressional wrangling — the President signed into law the Bipartisan Campaign Reform Act of 2002, Pub.L. No. 107-155, 116 Stat. 81 (BCRA) (codified at 2 U.S.C. § 431 et seq.),*fn2 which amends and supplements the Federal Election Campaign Act of 1971 (FECA or Act), Pub.L. No. 92-225, 86 Stat. 3 (1971 Provisions) (codified as amended at 2 U.S.C. § 431 et seq.). Among BCRA's most significant and controversial features are provisions: prohibiting any corporation or labor organization from making a disbursement for any "electioneering communication," BCRA § 203, which is defined as "any broadcast, cable, or satellite communication which . . . refers to a clearly identified candidate for Federal office . . . [and which] is made within . . . 60 days before a general, special, or runoff election . . . or . . . 30 days before a primary or preference election . . . for the office sought by the candidate," id. § 201; requiring any person who "makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any calendar year" to file certain disclosures with the Federal Election Commission (FEC or Commission), id.; limiting the source and amount of disbursements that are "coordinated" with a federal candidate or a national, state or local political party committee, id. §§ 202, 214; severely restricting any national, state or local political party committee and its agents from soliciting, receiving or transferring non-federal (i.e., "soft money") funds, which are not subject to FECA's source-and-amount limitations and reporting requirements but are subject to state regulation, see id. § 101; and prohibiting any individual who is 17 years old or younger from making any contribution whatsoever to any candidate for federal office or any contribution or donation to any political party committee, see id. § 318. The Congress enacted these and other innovations in response to perceived regulatory gaps in the Act. By many popular accounts, a "soft money loophole" had allowed corporations, unions, wealthy individuals and political parties themselves to distort the political process in violation of the spirit, if not the letter, of the Act. 148 CONG. REC. S2104 (daily ed. Mar. 20, 2002) (statement of Sen. Feingold); see Gov't Br. at 3 (contending "soft money loophole has grown from a narrow exception to FECA's limitations into a huge and ever-growing means of circumventing" them). More troubling, according to BCRA's proponents, was that corporations and unions had used vast portions of their treasury funds — and political parties had used a large percentage of their non-federal funds — to pay for campaign advertisements that steered clear of FECA's limits only by "masquerading" as ads about issues of public concern. E.g., Regarding the First Amendment and Restrictions on Issue Advocacy: Hearings Before the Subcomm. on the Constitution of the House Judiciary Comm., 105th Cong. (1997) (statement of Donald J. Simon), available at http://www.house.gov/judiciary/22343.htm; see Intervenors Br. at 72 ("The parties spent much of [the] soft money on broadcast advertising that supposedly addressed only `issues,' but in fact was designed to influence the election of candidates for federal office." (citing Mann Expert Report at 18-26)).
As soon as BCRA was signed into law, Senator Mitch McConnell and the National Rifle Association (NRA) filed separate suits in this court challenging the statute's constitutionality. Since then, nine additional complaints have been filed and a total of 75 additional plaintiffs have joined Senator McConnell and the NRA in challenging the validity of the new law.*fn3 The plaintiffs pray for relief in the form of (1) an order and judgment declaring the challenged provisions of BCRA unconstitutional; (2) an order and judgment permanently enjoining the defendants*fn4 and their agents from enforcing, executing or otherwise applying the challenged provisions; (3) costs and attorneys' fees pursuant to any applicable statute or authority; and (4) any other relief the court in its discretion deems just and appropriate. See, e.g., McConnell Second Am. Compl. (McConnell Compl.) at 51. In my view, all of the challenged provisions except the one discussed in Part IV.D.4 (which I believe must be sustained) and those discussed in Parts IV.F and IV.G (as to which I would pass no judgment*fn5) are unconstitutional. Accordingly, and for the reasons stated infra in Parts III and IV of this opinion, I would (1) declare that BCRA sections 201, 202, 203, 204, 212, 213, 214, 311, 318 and 504 violate the First Amendment to the United States Constitution; (2) declare that new FECA sections 301(20), 323(a), 323(b), 323(c), 323(d) and 323(f) — as added by BCRA section 101 — violate the First Amendment to the United States Constitution; (3) permanently enjoin the defendants and their agents from enforcing, executing or otherwise applying BCRA sections 201, 202, 203, 204, 212, 213, 214, 311, 318 and 504; and (4) permanently enjoin the defendants and their agents from enforcing, executing or otherwise applying new FECA sections 301(20), 323(a), 323(b), 323(c), 323(d) and 323(f), as added by BCRA section 101.
This opinion begins with a factual recitation divided into two Parts.*fn6 Part I provides a history of congressional efforts to regulate campaign finance and discusses the Supreme Court's seminal decision in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), the jurisprudential starting point of my analysis. Part II describes BCRA's interwoven provisions; it details the ways in which BCRA changes the existing regulatory scheme and it catalogues the constitutional bases upon which the plaintiffs in these consolidated actions challenge the new statute. With that foundation established, Part III addresses in limine matters including, most importantly, the findings of fact that I would make (in lieu of those of the majority) and the standards of review that guide my substantive analyses. Part IV then addresses the myriad constitutional questions raised by the new law. Part V provides a brief conclusion. Given the complexity of the undertaking, the number of issues to be addressed, the plain need for clarity and the length of this opinion, I provide a table of contents on the following pages.
I. A Brief History of Campaign Finance Regulation
Although federal campaign finance legislation dates back at least to the late nineteenth century,*fn7 federal campaign contributing and spending were not heavily regulated until the 1970s. In 1971, following an expensive 1968 presidential election, the Congress enacted FECA, which relied upon public disclosure of campaign contributions*fn8 and expenditures*fn9 as the primary method of identifying and weeding out political quid pro quos.*fn10 See 1971 Provisions §§ 301-311; see also ACLU v. Jennings, 366 F. Supp. 1041, 1054 & nn. 18-20 (D.D.C. 1973) (three-judge court) (describing FECA's Title III, which "establishe[d] an elaborate system of record keeping and public disclosure of campaign contributions and expenditures"), vacated as moot sub nom., Staats v. ACLU, 422 U.S. 1030 (1975). By 1974 many legislators who were not content to rely exclusively on a "disclosure-centered regime" to prevent corruption called for tighter campaign finance restrictions. Joel M. Gora, "No Law . . . Abridging," 24 HARV. J.L. & PUB. POL'Y 841, 856-57 (2001) ("Even though not all of the abuses that we put under the rubric of `Watergate' involved illegal or questionable campaign funding, Watergate seemed to have become at least in part a poster child for campaign finance excess and corruption."). The resulting amendments to FECA, see Federal Election Campaign Act Amendments of 1974, Pub.L. No. 93-443, 88 Stat. 1263 (1974 Amendments) (codified as amended at 2 U.S.C. § 431 et seq.), included several innovations warranting a detailed recitation here.
The 1974 Amendments prohibited any person*fn11 from contributing more than $1,000 per election*fn12 — and any political committee*fn13 from contributing more than $5,000 per election — to any one candidate*fn14 for federal office. See 1974 Amendments § 101. They also barred any person from contributing more than an aggregate of $25,000 to all recipients per election cycle. See id.
In addition, the 1974 Amendments sharply curtailed the amount of money that could be spent for the purpose of influencing any election for federal office. For instance, they prohibited any person from spending more than $1,000 "relative to a clearly identified candidate" during any calendar year. Id. They precluded any candidate from spending more than a given amount of personal funds — $50,000 in the case of a presidential or vice-presidential candidate, $35,000 in the case of a senatorial candidate and $25,000 in the case of any other congressional candidate*fn15 — "in connection with his campaigns during any calendar year." Id. And they placed restrictions on overall campaign spending by candidates: a presidential candidate could spend a maximum of $10,000,000 in seeking nomination for office and a maximum of an additional $20,000,000 in the general election campaign; in any senatorial primary election, a candidate was limited to spending either $100,000 or eight cents times the relevant voting-age population, whichever was greater; in the general election, a senatorial candidate could spend either $150,000 or 12 cents times the relevant population, whichever was greater; in both the primary campaign and the general election campaign for the House of Representatives, the limit was $70,000.*fn16 See id.
Finally, the 1974 Amendments expanded the disclosure and reporting requirements of the 1971 Provisions. See id. §§ 201-209. Together with the earlier provisions, the 1974 Amendments mandated, inter alia, that each political committee*fn17: register with the FEC, see id. §§ 208-209; keep detailed records of both contributions and expenditures, see 1971 Provisions §§ 302-304, 1974 Amendments §§ 202-204; include in its records the name and address of anyone who made any contribution in excess of $10,*fn18 together with the date and amount of the contribution, see 1971 Provisions § 302, 1974 Amendments § 202; and include as well the occupation, employer and/or principal place of business of anyone contributing more than $100*fn19 during any calendar year, see 1971 Provisions § 302, 1974 Amendments § 202. The disclosure provisions also required each candidate to file with the FEC quarterly reports containing detailed financial information, including the full name, mailing address, occupation and principal place of business of each person contributing more than $100*fn20 during any calendar year, as well as the amount and date of the contributions. See 1971 Provisions § 304, 1974 Amendments § 204. Further, the provisions required the Commission to make the reports "available for public inspection . . . and copying." 1971 Provisions § 311, 1974 Amendments § 208. Finally, they mandated that any individual or group (other than a political committee) making independent expenditures of over $100*fn21 during any calendar year file a statement to that effect with the Commission. See 1974 Amendments § 204.
A diverse group of plaintiffs — including United States Senator James L. Buckley, who was seeking re-election, a candidate for the presidency of the United States, a potential contributor, the Committee for a Constitutional Presidency, the Conservative Party of the State of New York, the Mississippi Republican Party, the Libertarian Party and the New York Civil Liberties Union — challenged FECA's provisions on a variety of constitutional grounds, spawning the massive and now-legendary litigation known as Buckley v. Valeo. What follows is a synopsis of the United States Supreme Court's decision in Buckley.*fn22
Although the Buckley Court recognized that monetary contributions to candidates and political committees play an "important role . . . in financing political campaigns," Buckley, 424 U.S. at 21, that contribution limitations "implicate fundamental First Amendment interests," id. at 23, and that such limitations "could have a severe impact on political dialogue if [they] prevented candidates and political committees from amassing the resources necessary for effective advocacy," id. at 21, it upheld all three of the Act's major contribution limits because there was "no indication" that they would have "any dramatic adverse affect on the funding of campaigns," id. More specifically, the Court rejected free speech and equal protection challenges to the provision barring any person from contributing more than $1,000 per election to any one candidate. See id. at 23-35. "[U]nder the rigorous standard of review established by our prior decisions," the Court held, "the weighty interests served by restricting the size of financial contributions to political candidates" — namely, "limit[ing] the actuality and appearance" of quid pro quo corruption of federal candidates and officeholders — "are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling." Id. at 26, 29. It upheld as well the provision prohibiting any political committee from contributing more than $5,000 per election to any one candidate, see id. at 35-36, concluding that it "serve[s] the permissible purpose of preventing individuals from evading the applicable contribution limitations by labeling themselves committees," id. And it sustained the provision prohibiting any person from contributing more than $25,000 in the aggregate per election cycle, see id. at 38, holding that "this quite modest restraint upon protected political activity" likewise "serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party," id.
The Court found, however, that in contrast to the Act's contribution restrictions, the limits on expenditures "impose[d] direct and substantial restraints on the quantity of political speech." Id. at 39; see id. at 19-20 (expenditure ceilings "would appear to exclude all citizens and groups except candidates, political parties, and the institutional press from any significant use of the most effective modes of communication" (footnotes omitted)). Rejecting the notion that "the dependence of a communication on the expenditure of money operates itself to . . . reduce the exacting scrutiny required by the First Amendment," id. at 16, the Court held that
[a] restriction on the amount of money a person or
group can spend on political communication during a
campaign necessarily reduces the quantity of
expression by restricting the number of issues
discussed, the depth of their exploration, and the
size of the audience reached. This is because
virtually every means of communicating ideas in
today's mass society requires the expenditure of
money. The distribution of the humblest handbill or
leaflet entails printing, paper, and circulation
costs. Speeches and rallies generally necessitate
hiring a hall and publicizing the event. The
electorate's increasing dependence on television,
radio, and other mass media for news and information
has made these expensive modes of communication
indispensable instruments of effective political
Id. at 19; see id. at 19 n. 18 ("Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.").*fn23
Addressing first the $1,000 limit on any person's expenditure "relative to a clearly identified candidate," the Court observed that no provision of the Act lent potential spenders (and, therefore, speakers) any interpretive aid in discerning what "relative to" might mean. Id. at 41. Because the use of such an "indefinite phrase" failed to "clearly mark the boundary between permissible and impermissible speech," id., offered "no security for free discussion," id. at 43 (quotation omitted), "blanket[ed] with uncertainty whatever may be said," id. (quotation omitted), and would "compel the speaker to hedge and trim," id. (quotation omitted), the Court — in order to preserve the provision from invalidation — construed it to apply only to expenditures "for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office," id. at 44; see id. at 44 n. 52 ("This construction would restrict the application of [the provision] to communications containing express words of advocacy of election or defeat, such as `vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject.'"). Even so construed, however, the provision failed the Court's scrutiny:
[T]he governmental interest in preventing corruption
and the appearance of corruption is inadequate to
justify [the $1,000] ceiling on independent
expenditures. . . . The absence of prearrangement and
coordination of an expenditure with the candidate or
his agent not only undermines the value of the
expenditure to the candidate, but also alleviates the
danger that expenditures will be given as a quid pro
quo for improper commitments from the candidate. . . .
[Moreover, the ceiling] heavily burdens core First
Amendment expression. . . . Advocacy of the election
or defeat of candidates for federal office is no less
entitled to protection under the First Amendment than
the discussion of political policy generally or
advocacy of the passage or defeat of legislation.
Id. at 45-48; see id. at 39-51. For similar reasons, the other expenditure restrictions under review failed the First Amendment test as well. The limit on a candidate's spending of personal resources was not justified given that: (1) "[t]he candidate, no less than any other person, has a . . . right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates," id. at 52; and (2) "the use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's . . . limitations are directed," id. at 53 (emphasis added); see id. at 51-54. Likewise infirm were the limits on overall candidate campaign spending — which, the government stressed, were designed to reduce allegedly "skyrocketing" costs of campaigns, id. at 57 — because "[t]he First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise," id.; see id. at 54-59.
Finally, although the Buckley Court recognized that "compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment," id. at 64 (citing, inter alia, NAACP v. Button, 371 U.S. 415 (1963); NAACP v. Alabama, 357 U.S. 449 (1958)), it upheld the Act's numerous disclosure and reporting requirements, see id. at 60-84, concluding that they vindicated three governmental interests "sufficiently important" to outweigh their infringement of First Amendment freedoms:
First, disclosure provides the electorate with
information "as to where political campaign money
comes from and how it is spent by the candidate" in
order to aid the voters in evaluating those who seek
federal office. . . . The sources of a candidate's
financial support also alert the voter to the
interests to which a candidate is most likely to be
responsive and thus facilitate predictions of future
performance in office. Second, disclosure requirements
deter actual corruption and avoid the appearance of
corruption by exposing large contributions and
expenditures to the light of publicity. . . . Third,
and not least significant, recordkeeping, reporting,
and disclosure requirements are an essential means of
gathering the data necessary to detect violations of
the [Act's] contribution limitations. . . .
Id. at 66-68 (quoting, inter alia, LOUIS D. BRANDEIS, OTHER PEOPLE'S MONEY 62 (National Home Library Foundation ed. 1933) ("Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.")). Specifically, the Court sustained the disclosure provisions against the plaintiffs' contentions that they were overbroad both in their application to minor-party and independent candidates and in their extension to de minimis contributions, see id. at 68-74, 82-84; the Court found that "any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors" was "highly speculative," id. at 70. Not without apparent misgivings, it also sustained the provision requiring any individual or group (other than a political committee or candidate) making expenditures of over $100 during any calendar year (other than by contributions to political committees or candidates) to file a statement with the FEC. See id. at 74-82. The plaintiffs had contended that the provision would impose "very real, practical burdens . . . certain to deter individuals from making expenditures for their independent political speech." Id. at 75. Noting that the Act's definition of "expenditure" spoke in terms of funds used "for the purpose of . . . influencing" the nomination or election of any candidate for federal office, id. at 77, the Court recognized that the $100 disclosure provision could indeed have a drastic chilling effect on protected speech in the form of campaign spending, see id. at 76-77. Thus, in order to steer the provision clear of the "shoals of vagueness," id. at 78, and "[t]o insure that [its] reach [was] not impermissibly broad," id. at 80, the Court construed the term "expenditure" under the disclosure provision in the same way it construed the Act's $1,000 spending cap — "to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate," id. (footnote omitted).
Buckley left in its wake a regime that has been described as a "nonsensical, loophole-ridden patchwork," FEC v. National Conservative Political Action Committee, 470 U.S. 480, 518 (1985) (NCPAC) (White, J., dissenting), one that some observers believed was not worth the regulatory candle. See, e.g., Buckley, 424 U.S. at 236 (Burger, C.J., concurring in part and dissenting in part) ("[W]hat remains after today's holding leaves no more than a shadow of what Congress contemplated. I question whether the residue leaves a workable program."); see also, e.g., Sanford Levinson, Regulating Campaign Activity: The New Road to Contradiction?, 83 MICH. L. REV. 939, 939 n. 1 (1985) (expressing doubt that "a rational legislature would ever have passed" as "a unified package" the "crazy quilt" of statutes and regulations governing campaign finance after Buckley).*fn24 The following paragraphs describe the regulatory scheme that unfolded after Buckley; the discussion is included to provide a context for BCRA's enactment and to help make clearer what BCRA is designed to accomplish.
As noted, the Buckley Court left in place several of the Act's major components. Significantly, all of the Act's contribution limits remained (and, indeed, the Congress even added some more in the 1976 amendments): no person could contribute to any candidate more than $1,000 per election,*fn25 see 2 U.S.C. § 441a(a)(1)(A); no person could contribute to the committees of a national political party more than $20,000 during any calendar year,*fn26 see id. § 441a(a)(1)(B); no person could contribute to any political committee (other than a national political party committee) more than $5,000 during any calendar year,*fn27 see id. § 441a(a)(1)(C); no political committee could contribute to any candidate more than $5,000 per election, see id. § 441a(a)(2)(A); no political committee could contribute to the committees of a national political party more than $15,000 during any calendar year, see id. § 441a(a)(2)(B); and no political committee could contribute to any other political committee more than $5,000 during any calendar year, see id. § 441a(a)(2)(C). Moreover, if any national or state political party committee coordinated its expenditures with a specific candidate for the purpose of benefiting the candidate, i.e., if the committee spent funds "in connection with" the candidate's campaign, the expenditures were treated like contributions — they were subject to formula-driven monetary ceilings, albeit ones that were slightly higher than the $5,000 limit on any political party committee's contributions to any candidate.*fn28 Compare id. § 441a(a)(2)(A), with id. § 441a(d); see FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 465 (2001) (Colorado Republican II) (holding section 441a(d) not facially unconstitutional because "a [political] party's coordinated expenditures . . . may be restricted to minimize circumvention" of FECA's contribution-to-candidate limits (emphasis added)); Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 613-23 (1996) (Colorado Republican I) (plurality opinion) (holding section 441a(d) unconstitutional as applied to political party's independent expenditures). Finally, a sweeping source restriction not challenged in Buckley prohibited (and still prohibits) any national bank, corporation or labor organization from making — or any officer thereof from approving — a contribution "in connection with" any federal election.*fn29 2 U.S.C. § 441b(a). The same provision also forbade (and still forbids) "any candidate, political committee, or other person knowingly to accept or receive" any corporate or labor contribution. Id.
FECA's post-Buckley source-and-amount provisions thus restricted all of the money contributed — and much of the money spent — "in connection with" or "for the purpose of influencing" federal elections. In a 1978 advisory opinion, however, the FEC made clear that these "federal" or "hard" money restrictions extended only so far and that the Act permitted political parties to use funds, including corporate and union funds, not subject to source-and-amount limits to pay for activities benefiting both federal and state candidates. See generally FEC Advisory Op. 1978-10: Allocation of Costs for Voter Registration, available at http://herndon3.sdrdc.com/ao/ao/780010.html. Commission regulations then in effect permitted parties to "allocate" administrative expenses — including rent, utilities and supplies — between federal and state candidates based upon the proportionate benefit received. Under the allocation regime, amounts spent on administrative expenses for state candidates were not subject to FECA's source-and-amount restrictions. That is, administrative expenses could be paid for with state-regulated "non-federal" funds — a.k.a. "soft money"*fn30 — because such funds were not given or spent "for the purpose of influencing any election for Federal office." 2 U.S.C. § 431(8)(A)(i), (9)(A)(i) (defining "contribution" and "expenditure"). When the Kansas Republican State Committee asked the FEC whether it was permitted to allocate expenses for voter registration and get-out-the-vote drives that benefited both the state and federal candidates on a given ticket, the FEC responded that
the costs of [such activities] should be allocated
between Federal and non-Federal elections in the same
manner as other general party expenditures. . . . That
portion of the costs allocable to Federal elections
. . . must come from funds . . . contributed in
accordance with the limitations and prohibitions
contained in 2 U.S.C. § 441a, 441b, 441c, 441e,
441f and 441g. . . . The costs allocable to
non-Federal elections may be paid out of party funds
raised and expended pursuant to applicable Kansas
law. . . . [W]ith respect to an election in which
there are candidates for [both non-Federal] and
Federal office, expenditures for registration and
get-out-the-vote drives need not be attributed as
contributions to [Federal] candidates unless the
drives are made specifically on their behalf.
FEC Advisory Op. 1978-10. Because "applicable Kansas law" did not prohibit corporate and union donations and placed no ceilings on donations for state and local campaigns, federal candidates in Kansas were able to benefit — albeit indirectly — from such donations. See TWENTY YEAR REPORT, supra, at ch.3 (detailing history and pre-BCRA treatment of non-federal funds and explaining "[t]he origins of `soft money' lie in the United States' federal system of government," under which "each [S]tate may establish its own rules for financing the nonfederal elections held within its borders").
The use of non-federal funds grew during the 1980s. New FEC regulations permitted political committees to allocate expenses between federal and non-federal accounts on a "reasonable basis." Proponents of tighter campaign finance restrictions criticized the standard, claiming that committees underestimated the federal share of their contributions and expenditures and thereby influenced federal elections with funds that would otherwise be subject to FECA's source-and-amount restrictions. In 1984 Common Cause petitioned the FEC to promulgate more stringent regulations to close the perceived loophole. After the FEC denied its petition, Common Cause sought relief in this court, which ordered the Commission to clarify its rules. See generally Common Cause v. FEC, 692 F. Supp. 1391 (D.D.C. 1987).
The amended regulations — which took effect on January 1, 1991 — served as the basis of the federal/non-federal funding system until BCRA's enactment. The regulations set forth several formulae fixing the maximum amount of money a political committee could use for an activity benefiting both federal and non-federal candidates, see 11 C.F.R. § 106.5(b)-(d) (1997), and required expanded reporting of mixed federal and non-federal giving and spending, see TWENTY YEAR REPORT, supra, at ch.3. "Despite the new rules," the Commission reported in 1995, some legislators and "reform" groups remained troubled by the growing influence of non-federal funds:
They say, for example, that soft money spending
— even for the non-federal share of expenses
— influences federal elections because it
permits committees to conserve federal funds that can
later be spent to support federal candidates. Many are
also concerned about the way committees raise soft
money. They believe that the active role federal
candidates and their associates play in raising large
sums of soft money, at the very least, creates an
appearance of undue influence by the contributors on
the federal candidates involved.
Id. at ch.3. Non-federal donations to the two major political parties did, in fact, grow exponentially during the 1990s — from $86.1 million in the 1992 election cycle to $487.5 million in the 2000 cycle. See infra Findings of Fact (Findings) 65-66 at pages 139-40.
Proponents of tighter restrictions were disturbed by this trend not simply because, in their view, corporations and unions were effectively contributing funds to federal campaigns. See Mann Expert Report at 15 & Tbl.4. They worried as well about the parties' spending of non-federal funds on "issue ads" — issue-based but, at least to their ears, candidate-focused advertisements that do not expressly advocate the election or defeat of an identifiable federal candidate. See Intervenors Br. at 8-9 (discussing expanded role of non-federal funds in issue advertising during 1996 campaign); see infra note 75 (defining "issue ad" for purposes of this opinion). They lamented that permitting such ads — which might discuss, for example, a candidate's record, ideological bent, accomplishments or failures but do not "exhort the viewer to take a specific electoral action for or against a particular candidate" — would "allow individuals and organizations to circumvent [FECA's restrictions] simply by omitting from their communications the genre of words and phrases" found in Buckley's famous footnote 52. Chamber of Commerce v. Moore, 288 F.3d 187, 195 (5th Cir.) (holding that, under Buckley, political advertisement may be regulated constitutionally only if it contains explicit words advocating election or defeat of clearly identified candidate), cert. denied, 123 S.Ct. 536 (2002); see Buckley, 424 U.S. at 44 n. 52 (express words of advocacy include "`vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject'").
BCRA's provisions, to which I now turn, embody the first congressional response to these and other perceived dropped stitches in the federal election law patchwork.
II. A Catalogue of BCRA's Provisions and the Challenges Thereto
BCRA contains 38 sections that, inter alia, prohibit corporate and labor disbursements for "electioneering communications," require certain disclosures to the FEC, limit the source and amount of "coordinated expenditures," severely restrict the use of non-federal funds, bar minors from making contributions or donations, condition the lowest unit charge for broadcast ads on their content and increase the Act's existing contribution limits. The plaintiffs in these consolidated actions challenge — on free speech, free association, free press, right-to-petition, vagueness, equal protection and federalism grounds — nearly half of them. The following sections describe the provisions at issue and catalogue all of the plaintiffs' constitutional challenges to the new law.*fn31
A. The Ban on Corporate and Labor Disbursements for "Electioneering Communications"
Section 203 of BCRA amends the Act to prohibit any corporation or labor organization from making any disbursement "for any applicable electioneering communication." BCRA § 203(a); FECA § 316(a), (b)(2); 2 U.S.C. § 441b(a), (b)(2). Under BCRA section 201,
[t]he term "electioneering communication" means any
broadcast, cable, or satellite communication which
(I) refers to a clearly identified candidate for
(II) is made within —
(aa) 60 days before a general, special, or runoff
election for the office sought by the candidate;
(bb) 30 days before a primary or preference
election, or a convention or caucus of a political
party that has authority to nominate a candidate,
for the office sought by the candidate; and
(III) in the case of a communication which refers to
a candidate for an office other than President or
Vice President, is targeted to the relevant
BCRA § 201(a); FECA § 304(f)(3)(A)(i); 2 U.S.C. § 434(f)(3)(A)(i). Section 201 provides a fallback definition set to take effect in the event the primary definition is invalidated:
[T]he term "electioneering communication" [in that
event] means any broadcast, cable, or satellite
communication which promotes or supports a candidate
for [Federal] office, or attacks or opposes a
candidate for [Federal] office (regardless of whether
the communication expressly advocates a vote for or
against a candidate) and which also is suggestive of
no plausible meaning other than an exhortation to vote
for or against a specific candidate.
BCRA § 201(a); FECA § 304(f)(3)(A)(ii); 2 U.S.C. § 434(f)(3)(A)(ii). Additionally, section 201 exempts from either definition of electioneering communication
(i) a communication appearing in a news story,
commentary, or editorial distributed through the
facilities of any broadcasting station, unless such
facilities are owned or controlled by any political
party, political committee, or candidate;
(ii) a communication which constitutes an expenditure
or an independent expenditure under [FECA]; [or]
(iii) a communication which constitutes a candidate
debate or forum conducted pursuant to regulations
adopted by the Commission, or which solely promotes
such a debate or forum and is made by or on behalf of
the person sponsoring the debate or forum. . . .
BCRA § 201(a); FECA § 304(f)(3)(B); 2 U.S.C. § 434(f)(3)(B). While section 201 purports to authorize the Commission to exempt by regulation certain communications from either definition, see BCRA § 201(a); FECA § 304(f)(3)(B)(iv); 2 U.S.C. § 434(f)(3)(B)(iv), the Commission may not under any circumstances exempt
a public communication that refers to a clearly
identified candidate for Federal office (regardless of
whether a candidate for State or local office is also
mentioned or identified) 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)[.]
BCRA § 101(b); FECA § 301(20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii). Because the language of section 101(b) prohibits promulgation of a regulation that retreats from either the primary or fallback definition of electioneering communication, it leaves the Commission no room to adopt a more permissive restriction than that set forth in section 201.*fn32
BCRA's ban on corporate and labor disbursements for electioneering communications applies to entities other than unions and for-profit corporations. Section 203(a) extends to any incorporated entity and therefore bars both incorporated non-profit organizations (as defined by section 501(c) of the Internal Revenue Code) and incorporated political organizations (as defined by section 527 of the Internal Revenue Code) from making disbursements for electioneering communications.*fn33 True, section 203(b) provides that
the term "applicable electioneering communication"
does not include a communication by a section
501(c)(4) organization or a political organization (as
defined in section 527(e)(1) of the Internal Revenue
Code of 1986) . . . if the communication is paid for
exclusively by funds provided directly by individuals
who are United States citizens or nationals or
lawfully admitted for permanent residence[.]
BCRA § 203(b); FECA § 316(c)(2); 2 U.S.C. § 441b(c)(2). But section 204 — referred to by the parties as the "Wellstone Amendment" — eliminates the section 203(b) exception:
EXCEPTION DOES NOT APPLY. — [FECA section
316(c)(2)] shall not apply in the case of a targeted
communication that is made by an organization described
in such paragraph. . . . [T]he term "targeted
communication" means an electioneering communication (as
defined in [FECA] section 304(f)(3)) that is distributed
from a television or radio broadcast station or provider
of cable or satellite television service and, in the
case of a communication which refers to a candidate for
an office other than President or Vice President, is
targeted to the relevant electorate.*fn34
BCRA § 204; FECA § 316(c)(6)(A), (B); 2 U.S.C. § 441b(c)(6)(A), (B). By definition, an "electioneering communication" is "distributed from a television or radio broadcast station or provider of cable or satellite television service" and either refers to a candidate for President or Vice President or is "targeted to the relevant electorate" of any other candidate. The Wellstone Amendment therefore ensures that no electioneering communication made by an incorporated political organization or non-profit corporation can shelter under section 203(b) — if a communication is an "electioneering communication," it fails a fortiori to qualify for the exception.
The McConnell, NRA, Chamber of Commerce, NAB and AFL-CIO plaintiffs challenge the ban on corporate and labor disbursements for electioneering communications on several interrelated constitutional grounds. First, they allege that the ban abridges their First Amendment rights to engage in core political speech and expressive association by "limiting speech that does not expressly advocate the election or defeat of a clearly identified candidate, either under the original definition or the fall-back definition of `electioneering communication,'" McConnell Compl. at ¶¶ 48, 62; see also, e.g., McConnell Br. at 44-56; Chamber of Commerce Br. at 4-5; AFL-CIO Br. at 3-11; ACLU Br. at 4-7, 11-16; and by failing to exempt non-profit advocacy organizations like those identified in FEC v. Massachusetts Citizens for Life, 479 U.S. 238 (1986) (MCFL), see, e.g., McConnell Compl. at ¶ 49; see also, e.g., ACLU Br. at 16-17.
Second, these plaintiffs claim that the ban — under either the primary or the fallback definition and even without reference to Buckley's express advocacy test — is unconstitutionally overbroad, void for vagueness and so underinclusive that it fails to serve a compelling governmental interest. See, e.g., McConnell Br. at 56-77; NRA Br. at 14-39.
Third, these plaintiffs assert that the ban violates the First Amendment and the equal protection component of the Fifth Amendment by (1) prohibiting non-media corporations, labor organizations, section 501(c) non-profit organizations and section 527 political organizations from engaging in certain broadcast speech while permitting individuals, unincorporated organizations and corporations that own broadcast stations to engage in the same or similar speech, see, e.g., NRA Br. at 39-48; and (2) prohibiting disbursements for broadcast, satellite and cable communications while permitting disbursements for other communications, including the printed word, see, e.g., NAB Compl. at ¶ 24; McConnell Br. at 77-81.*fn35
I consider the constitutionality of the ban on corporate and labor disbursements for electioneering communications in Part IV.A infra.
B. Disclosure and Reporting Requirements
Section 201 of BCRA amends the Act to require "[e]very person who makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any calendar year" to file with the FEC, under penalty of perjury and "within 24 hours of each disclosure date,"*fn36 BCRA § 201(a); FECA § 304(f)(1); 2 U.S.C. § 434(f)(1), a "statement" containing, inter alia:
* The identification of the person making the
* The principal place of business of the person making
the disbursement, if the person is not an individual;
* The amount of any single disbursement over $200;
* The identification of persons to whom any
disbursement over $200 is made;
* The election to which an electioneering
* The candidate identified, or to be identified, in an
electioneering communication; and
* If an organization makes the disbursement from funds
donated by individuals, the names and addresses of any
individuals donating $1,000 or more.
See BCRA § 201(a); FECA § 304(f)(2); 2 U.S.C. § 434(f)(2).*fn37
A person must disclose the foregoing information not only when he makes a disbursement for electioneering communications but also when he contracts to make the disbursement.*fn38
See BCRA § 201(a); FECA § 304(f)(5); 2 U.S.C. § 434(f)(5).*fn39
BCRA section 212 contains disclosure requirements pertaining not to electioneering communications but to "independent expenditures."*fn40 Amending section 304 of the Act, section 212 requires any person (including any individual) who disburses more than $1,000 in independent expenditures within 20 days of an election, BCRA § 212(a); FECA § 304(g)(1); 2 U.S.C. § 434(g)(1) — or more than $10,000 at any time up to and including the twentieth day before an election, BCRA § 212(a); FECA § 304(g)(2); 2 U.S.C. § 434(g)(2) — to file with the FEC, under penalty of perjury, a "report" specifying:
* The name and address of the recipient of any
* The date, amount and purpose of the expenditure(s); and
* The name of, and office sought by, the candidate
supported or opposed by the expenditure(s).
See BCRA § 212(a); FECA § 304(g)(3)(B), (b)(6)(B)(iii); 2 U.S.C. § 434(g)(3)(B), (b)(6)(B)(iii). A report on an independent expenditure made within 20 days of an election must be filed with the FEC within 24 hours of the expenditure; a report on an independent expenditure made at any time up to and including the twentieth day before an election must be made within 48 hours of the expenditure. See BCRA § 212(a); FECA § 304(g)(1), (2); 2 U.S.C. § 434(g)(1), (2). Just as a contract to make a disbursement for an electioneering communication triggers the pertinent disclosure requirements, see BCRA § 201(a); FECA § 304(f)(5); 2 U.S.C. § 434(f)(5), so does a contract to make an independent expenditure, see BCRA § 212(a); FECA § 304(g)(1), (2); 2 U.S.C. § 434(g)(1), (2).*fn41
A final cluster of new disclosure rules under challenge is found in Title V of BCRA. Section 504, which amends section 315 of the Federal Communications Act of 1934 (FCA), mandates disclosure of certain broadcast records. It requires broadcast licensees to "maintain, and make available for public inspection, a complete record" of any "request" of any person "to purchase broadcast time" for communications "relating to any political matter of national importance."*fn42 BCRA § 504; FCA § 315(e)(1); 47 U.S.C. § 315(e)(1). Each record maintained must include the following information:
* Whether the request to purchase broadcast time is
accepted or rejected by the licensee;*fn43
* The rate charged for the broadcast time;
* The date on which and the time at which the
communication is to be aired;
* The name of the candidate to which the communication
refers and the office to which the candidate is
seeking election, the election to which the
communication refers or the issue to which the
* In the case of a request made by or on behalf of a
candidate, the name of the candidate, his authorized
committee and the treasurer of that committee; and
* In the case of any other request, the name of the
person seeking to purchase the time, the name, address
and phone number of "a contact person for such person"
and a list of the chief executive officers or members
of the board of directors of the person (if the person
is not an individual).
BCRA § 504; FCA § 315(e)(2); 47 U.S.C. § 315(e)(2).
The McConnell, NRA, Chamber of Commerce, NAB and AFL-CIO plaintiffs challenge BCRA's disclosure and reporting requirements on three First Amendment grounds. First, they allege that the provisions mandating detailed statements about disbursements for electioneering communications, see BCRA §§ 201 and 311, violate their First Amendment rights to free political expression and association by restricting in an overbroad, vague and underinclusive fashion their airing of communications that do not contain express advocacy. See, e.g., McConnell Br. at 44-77; NRA Br. at 48-50; Chamber of Commerce Br. at 18-20; ACLU Br. at 11-19.
Second, these plaintiffs claim that the reporting requirements of BCRA section 212, pertaining to independent expenditures, impermissibly burden their First Amendment rights to free political expression and association by requiring "advance disclosures of planned and prospective communications, including communications that ultimately are never made." AFL-CIO Compl. at ¶ 35 (emphasis added); see, e.g., AFL-CIO Br. at 14-17.
Third, these plaintiffs assert that the disclosure requirement of section 504, pertaining to requests to purchase broadcast time, burdens their First Amendment rights to engage in political expression and association by, inter alia, imposing vague and overbroad recordkeeping requirements that "lack any rational relationship to a legitimate governmental objective." McConnell Br. at 99; see, e.g., id. at 98-100; AFL-CIO Br. at 18-20.
I consider the constitutionality of the disclosure and reporting provisions in Part IV.B infra.
C. Limits on "Coordinated Expenditures"
BCRA section 202 amends the Act to provide that if
(i) any person makes, or contracts to make, any
disbursement for any electioneering communication
(within the meaning of [FECA] section 304(f)(3)); and
(ii) such disbursement is coordinated with a candidate
or an authorized committee of such candidate, a
Federal [sic], State, or local political party or
committee thereof, or an agent or official of any such
candidate, party, or committee;
then the disbursement or contract to disburse "shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate's party and as an expenditure by that candidate or that candidate's party." BCRA § 202(2); FECA § 315(a)(7)(C); 2 U.S.C. § 441a(a)(7)(C). By treating a "coordinated" disbursement for an electioneering communication as a "contribution" to the supported candidate, section 202 subjects it to the Act's source-and-amount limitations.*fn44
Moreover, as amended by BCRA, the Act equates "cooperation," "consultation," "concert" and "suggestion" with "coordinat[ion]" — a disbursement made in any such fashion will be treated as a contribution. See BCRA § 214(a); FECA § 315(a)(7)(B); 2 U.S.C. § 441a(a)(7)(B). BCRA directs the FEC to define "coordination" broadly; section 214, which repeals the Commission's existing regulations on coordinated communications, provides that in prescribing the prerequisites for coordination, the new regulations "shall not require agreement or formal collaboration to establish coordination" between a candidate (or political party committee) and a person making a disbursement.*fn45
BCRA § 214(c); FECA § 315(a)(7) note; 2 U.S.C. § 441a(a)(7) note.
The other "coordinated expenditure" provision at issue, BCRA section 213, amends the Act to provide that
[o]n or after the date on which a political party
nominates a candidate, no committee of the political
party may make —
(i) any coordinated expenditure under this
subsection with respect to the candidate during the
election cycle at any time after it makes any
independent expenditure (as defined in [FECA]
section 301(17)) with respect to the candidate
during the election cycle; or
(ii) any independent expenditure (as defined in [FECA] section
301(17)) with respect to the candidate during the election cycle at any
time after it makes any coordinated expenditure under this subsection
with respect to the candidate during the election cycle.
BCRA § 213; FECA § 315(d)(4)(A); 2 U.S.C. § 441a(d)(4)(A). In other words, section 213 compels a political party committee, at the time the party's candidate is nominated, to make a binding choice between independent expenditures and "coordinated" disbursements in support of the candidate. In addition, "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) shall be considered to be a single political committee" under the provision. BCRA § 213; FECA § 315(d)(4)(B); 2 U.S.C. § 441a(d)(4)(B). That is, regardless whether any of the related political committees has any control over, influence on or knowledge of the disbursement decisions of the others, the first disbursement decision made on behalf of the "single political committee" binds the other component committees.
The McConnell, Chamber of Commerce, AFL-CIO, RNC and CDP plaintiffs challenge BCRA's "coordinated expenditure" provisions primarily on two constitutional grounds. First, they allege that sections 202 and 214 infringe their First Amendment rights to free speech, association and petition for redress of grievances by defining coordination too broadly. See, e.g., McConnell Br. at 82-85; Chamber of Commerce Br. at 6-18; AFL-CIO Br. at 12-14; ACLU Br. at 7-9, 19-20.
Second, the political party plaintiffs claim that the binding choice provision, section 213, burdens their First Amendment freedoms of speech, association and petition by requiring them to forgo "future coordinated expenditures as the `price' of exercising their constitutional right to make independent expenditures." RNC Compl. at ¶ 60; see, e.g., McConnell Br. at 85-88; RNC Br. at 72; CDP Br. at 47-49.
I consider the constitutionality of the limits on "coordinated expenditures" in Part IV.C infra.
D. Restrictions on Non-Federal Funds
The most publicized provision of BCRA, section 101, is also the statute's lengthiest and most complex. Section 101, in a nutshell, curtails political party committees' use of non-federal funds — funds not subject to FECA's source-and-amount limitations, see supra note 30 and accompanying text — in order to reduce such funds' allegedly corrupting influence on federal officeholders. In the following paragraphs, I discuss in turn (and, for the sake of precision, reproduce at length) the provision's major components.
Adding section 323 ("Soft Money of Political Parties") to the Act, section 101 first prohibits, in FECA section 323(a), any national political party committee from soliciting, receiving, directing or spending non-federal funds for any purpose whatsoever:
A national committee of a political party (including a
national congressional campaign committee of a
political party) may not solicit, receive, or direct
to another person a contribution, donation, or
transfer of funds or any other thing of value, or
spend any funds, that are not subject to the
limitations, prohibitions, and reporting requirements
of this Act.
BCRA § 101(a); FECA § 323(a)(1); 2 U.S.C. § 441i(a)(1). The ban, which has no exceptions, applies broadly to
any such national committee, any officer or agent
acting on behalf of such a national committee, and any
entity that is directly or indirectly established,
financed, maintained, or controlled by such a national
BCRA § 101(a); FECA § 323(a)(2); 2 U.S.C. § 441i(a)(2).
Adding section 323(b) to the Act, BCRA further prohibits any state, district or local political party committee from spending or disbursing non-federal funds for any "Federal election activity":
[A]n amount that is expended or disbursed for Federal
election activity by a State, district, or local
committee of a political party (including an entity
that is directly or indirectly established, financed,
maintained, or controlled by a State, district or
local committee of a political party and an officer or
agent acting on behalf of such committee or entity),
or by an association or similar group of candidates
for State or local office or of individuals holding
State or local office, shall be made from funds
subject to the limitations, prohibitions, and
reporting requirements of this Act.
BCRA § 101(a); FECA § 323(b)(1); 2 U.S.C. § 441i(b)(1). "Federal election activity" is defined to include:
(i) voter registration activity during the period that
begins on the date that is 120 days before the date a
regularly scheduled Federal election is held and ends
on the date of the election;
(ii) 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 (regardless of whether a
candidate for State or local office also appears on
(iii) a public communication that refers to a clearly
identified candidate for Federal office (regardless of
whether a candidate for State or local office is also
mentioned or identified) 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); or
(iv) services provided during any month by an employee
of a State, district, or local committee of a
political party who spends more than 25 percent of
that individual's compensated time during that month
on activities in connection with a Federal election.
BCRA § 101(b); FECA § 301(20)(A); 2 U.S.C. § 431(20)(A). The definition of "Federal election activity" excludes any "amount expended or disbursed by a State, district, or local committee of a political party" for
(i) a public communication that refers solely to a
clearly identified candidate for State or local
office, if the communication is not a Federal election
activity described in subparagraph (A)(i) or (ii);
(ii) a contribution to a candidate for State or local
office, provided the contribution is not designated to
pay for a Federal election activity described in
(iii) the costs of a State, district, or local
political convention; and
(iv) the costs of grassroots campaign materials,
including buttons, bumper stickers, and yard signs,
that name or depict only a candidate for State or
BCRA § 101(b); FECA § 301(20)(B); 2 U.S.C. § 431(20)(B). At paragraph (2) — commonly known as the "Levin Amendment" — section 323(b) provides a narrow exception to the general rule against state-party spending of non-federal funds on "Federal election activity." The Levin Amendment allows state and local parties to use an FEC-specified amount of federally-regulated "Levin funds" for voter registration, voter identification, "generic campaign activity" and get-out-the-vote activity as long as
(i) [such] activity does not refer to a clearly
identified candidate for Federal office;
(ii) the amounts expended or disbursed are not for the
costs of any broadcasting, cable, or satellite
communication, other than a communication which refers
solely to a clearly identified candidate for State or
(iii) . . . no person . . . donate[s] more than
$10,000 to a State, district, or local committee of a
political party in a calendar year for such
expenditures or disbursements; and
(iv) the amounts expended or disbursed are made solely
from funds raised by the State, local, or district
committee which makes such expenditure or
disbursement. . . .
BCRA § 101(a); FECA § 323(b)(2)(B); 2 U.S.C. § 441i(b)(2)(B) (emphasis added); see RNC Br. at 22-23 (discussing Levin Amendment's conditions, including "homegrown" funds requirement of subsection (iv), which prohibits a state party committee from receiving transferred funds from a national party committee or another state or local committee of a political party).
At new FECA section 323(c), BCRA requires every political party committee — national, state or local — to use federal funds to raise any money that will be used, in turn, on "Federal election activity." BCRA § 101(a); FECA § 323(c); 2 U.S.C. § 441i(c).
Under new FECA section 323(d), BCRA prohibits any political party committee — national, state or local — or its agents from "solicit[ing] any funds for, or mak[ing] or direct[ing] any donations to" (1) any organization that is described in section 501(c) of the Internal Revenue Code of 1986, is exempt from taxation and "makes expenditures or disbursements in connection with an election for Federal office (including expenditures or disbursements for Federal election activity)"; or (2) any organization (other than a political committee) that is described in section 527 of such Code. BCRA § 101(a); FECA § 323(d); 2 U.S.C. § 441i(d).
At new FECA section 323(e), the statute prohibits any federal candidate or officeholder (or any agent of a federal candidate or officeholder) from soliciting, receiving, directing, transferring or spending non-federal funds "in connection with an election for Federal office, including funds for any Federal election activity."*fn46 BCRA § 101(a); FECA § 323(e)(1)(A); 2 U.S.C. § 441i(e)(1)(A).
Finally, at new FECA section 323(f), the statute bars any state candidate or officeholder (or any agent of a state candidate or officeholder) from spending any non-federal funds for
a public communication that refers to a clearly
identified candidate for Federal office (regardless of
whether a candidate for State or local office is also
mentioned or identified) 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).
BCRA § 101(a); FECA §§ 323(f)(1), 301(20)(A)(iii); 2 U.S.C. § 441i(f)(1), 431(20)(A)(iii).
The McConnell, RNC and CDP plaintiffs challenge BCRA's restrictions on non-federal funds on three grounds. First, they allege that the restrictions "intrud[e] upon the sovereign power of the [S]tates to regulate the financing of their own elections" and thereby violate the Tenth Amendment to the United States Constitution. RNC Compl. at ¶ 39; see, e.g., McConnell Br. at 9-25 (challenging restrictions on their face and as applied to Libertarian National Committee); RNC Br. at 25-37; CDP Br. at 20-27.
Second, these plaintiffs assert that section 101 violates their rights to engage in free speech and expressive association by, inter alia: preventing "the funding of core political speech that does not expressly advocate the election or defeat of a clearly identified federal candidate," RNC Compl. at ¶ 48, restricting "the amount of speech in which political parties are able to engage," id., preventing political parties from "pooling the resources of party members and contributors in support of campaigns for office," McConnell Compl. at ¶ 100, and precluding them from raising funds for or accepting funds from "like-minded party committees and non-party organizations and individuals," id. See, e.g., McConnell Br. at 25-40; RNC Br. at 37-56; CDP Br. at 27-46.
Third, these plaintiffs charge that section 101 denies them equal protection (and violates their First Amendment rights) to the extent that it subjects them to speech restrictions not placed upon similarly situated entities.*fn47 See, e.g., McConnell Br. at 40-43; RNC Br. at 57-70.
I consider the constitutionality of section 101 in Part IV.D infra.
E. The Ban on Minors' Contributions and Donations
In contrast to most of BCRA's provisions, section 318 is quite simple — it prohibits any person under the age of 18 from making (1) any contribution whatsoever to any federal candidate; or (2) any contribution or non-federal "donation" to any political party committee. See BCRA § 318; FECA § 324; 2 U.S.C. § 441k ("An individual who is 17 years old or younger shall not make a contribution to a candidate or a contribution or donation to a committee of a political party."). Period.
The McConnell and Echols plaintiffs contend that such a "sweeping restriction" on an entire class of expressive and associational activity by minors cannot be upheld under the First Amendment's guarantees or the Fifth Amendment's equal protection component.*fn48 E.g., Echols Am. Compl. at ¶¶ 55, 57, 62, 65; see also, e.g., McConnell Compl. at ¶ 93; McConnell Br. at 91-95. I address this challenge in Part IV.E infra.
F. The Conditions on the Lowest Unit Broadcast Charge
Until BCRA's enactment, section 315 of the FCA required licensed broadcast stations to provide a candidate for public office — during the 45 days before a primary election and the 60 days before a general or special election — the benefit of "the lowest unit charge of the station" on any broadcast advertisement "in connection with" the candidate's campaign. FCA § 315(b); 47 U.S.C. § 315(b). BCRA section 305, however, amends the FCA to deny a candidate the lowest unit charge for television or radio broadcast advertisements unless the candidate "provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office." BCRA § 305(a)(3); FCA § 315(b)(2)(A); 47 U.S.C. § 315(b)(2)(A). If the candidate does make a direct reference to another candidate, he can nonetheless meet the content requirements for the lowest unit charge if, in the case of a television broadcast,
at the end of such broadcast there appears
simultaneously, for a period no less than 4 seconds
(i) a clearly identifiable photographic or similar
image of the candidate; and
(ii) a clearly readable printed statement,
identifying the candidate and stating that the
candidate has approved the broadcast and that the
candidate's authorized committee paid for the
or if, in the case of a radio broadcast,
the broadcast includes a personal audio statement by
the candidate that identifies the candidate, the
office the candidate is seeking, and indicates that
the candidate has approved the broadcast.
BCRA § 305(a)(3); FCA § 315(b)(2)(C), (D); 47 U.S.C. § 315(b)(2)(C), (D).
The McConnell plaintiffs contend that BCRA section 305 violates the First Amendment's guarantee of free speech by "conditioning the cost of advertisements on their content." McConnell Compl. at ¶ 96; see McConnell Br. at 89-91. I discuss section 305 in Part IV.F infra.
G. Increased Contribution Limits
BCRA contains two types of provisions that increase the contribution limits of the Act. The first type raises the "hard money" ceilings of the Act by permitting individual donors to contribute greater amounts to candidates and national and state political party committees. The second type permits a candidate for either house of the United States Congress to accept and spend contributions in excess of otherwise applicable limits if his opponent expends a substantial amount in personal funds. I discuss these two types of provisions, and the plaintiffs' challenges thereto, in turn.
BCRA section 307 raises the Act's limit on any individual's contribution to any given candidate (or his authorized political committee) from $1,000 to $2,000.*fn49 See BCRA § 307(a)(1); FECA § 315(a)(1)(A); 2 U.S.C. § 441a(a)(1)(A). It also changes the aggregate limit an individual contributor may give to all candidates from $25,000 during any calendar year to $37,500 over a two-year period and changes the aggregate limit an individual contributor may give to all political party committees to $57,500 over a two-year period.*fn50 See BCRA § 307(b); FECA § 315(a)(3); 2 U.S.C. § 441a(a)(3). Together with BCRA section 102, section 307 increases as well the Act's limits on an individual's contributions to a national political party committee (from $20,000 to $25,000 per calendar year) and to a state political party committee (from $5,000 to $10,000 per calendar year). See BCRA §§ 102, 307(a)(2); FECA § 315(a)(1)(B), (D); 2 U.S.C. § 441a(a)(1)(B), (D). The provisions leave in place, however, the Act's $5,000 limit on an individual's contributions to "any other political committee." See 2 U.S.C. § 441a(a)(1)(C). Finally, BCRA section 307 indexes for inflation all but the $10,000 limit on any individual's contributions to a state political party committee and the $5,000 cap on any individual's contributions to "any other political committee."*fn51
The Adams and CDP plaintiffs challenge BCRA's general contribution increases on rather novel constitutional grounds. The Adams plaintiffs charge that the higher ceilings violate their Fifth Amendment right to equal protection by "precluding equal participation in the political process on the basis of economic status." Adams Compl. at ¶ 60; see Adams Br. at 9-18. The CDP plaintiffs allege that to the extent BCRA indexes for inflation the limits on contributions to national party committees and federal candidates but does not index the limits on contributions to state and local party committees, it "severely erode[s]" their ability to engage in political communications and thus deprives them of equal protection.*fn52 CDP Compl. at ¶ 105; see CDP Br. at 50.
2. The "Millionaire Provisions"
BCRA section 304 amends the Act to permit a candidate for the United States Senate to accept and spend individual contributions in excess of otherwise applicable "hard money" limits in order "to allow response to expenditures from personal funds" of a wealthy opponent. BCRA § 304(a)(2); FECA § 315(i); 2 U.S.C. § 441a(i) (capitalization altered). For example, if a candidate's opponent spends over two but less than four times a specified "threshold amount"*fn53 in "opposition personal funds,"*fn54 the candidate may accept individual contributions of $6,000 per donor per election. See BCRA § 304(a)(2); FECA § 315(i)(1)(C)(i); 2 U.S.C. § 441a(i)(1)(C)(i) ("[I]f the opposition personal funds amount is over . . . 2 times the threshold amount, but not over 4 times that amount . . . the increased limit shall be 3 times the applicable limit. . . ."). If the opponent spends from four to ten times the threshold amount in personal funds, the candidate may accept individual contributions of $12,000 per donor per election. See BCRA § 304(a)(2); FECA § 315(i)(1)(C)(ii); 2 U.S.C. § 441a(i)(1)(C)(ii). And if the opponent spends over ten times the threshold amount in personal funds, not only may the candidate accept individual contributions of $12,000 per donor per election but also, significantly, the restrictions on any political party committee's spending "in coordination with" the candidate are lifted. See BCRA § 304(a)(2); FECA § 315(i)(1)(C)(iii); 2 U.S.C. § 441a(i)(1)(C)(iii).
Likewise, BCRA section 319 amends and supplements the Act to permit a candidate for the United States House of Representatives to accept and spend individual contributions of $6,000 per donor per election if his opponent spends over $350,000 in personal funds. See BCRA § 319(a); FECA § 315A(a)(1)(A); 2 U.S.C. § 441a-1(a)(1)(A). Again, significantly, in that same circumstance the restrictions on any political party committee's spending "in coordination with" the candidate are lifted. See BCRA § 319(a); FECA § 315A(a)(1)(C); 2 U.S.C. § 441a-1(a)(1)(C).
Finally, BCRA sections 304 and 319 impose reporting requirements on Senate and House candidates who intend to expend substantial personal funds in support of their candidacy. Section 304 requires a Senate candidate to file with his opponent(s) and the FEC — within 15 days of becoming a candidate — "a declaration stating the total amount of expenditures from personal funds that [he] intends to make, or to obligate to make, with respect to the election that will exceed the State-by-State competitive and fair campaign formula." BCRA § 304(b); FECA § 304(a)(6)(B)(ii); 2 U.S.C. § 434(a)(6)(B)(ii). It also requires the candidate to file with his opponent(s) and the FEC a notification if and when he spends more than twice the threshold amount and, thereafter, each and every time he spends more than $10,000 in additional personal funds. See BCRA § 304(b); FECA § 304(a)(6)(B)(iii), (iv); 2 U.S.C. § 434(a)(6)(B)(iii), (iv). Section 319 imposes similar requirements on a candidate for the House of Representatives. See BCRA § 319(a); FECA § 315A(b)(1); 2 U.S.C. § 441a-1(b)(1).
The RNC and Adams plaintiffs challenge BCRA's "millionaire provisions" on separate constitutional grounds. The RNC plaintiffs claim that the provisions "discriminate among similarly situated federal candidates and thereby violate the equal protection component of the Fifth Amendment." RNC Br. at 73 (capitalization altered); see id. at 73-75; RNC Compl. at ¶ 74. The Adams plaintiffs assert that they are denied equal protection as well, to the extent that the millionaire provisions "preclud[e] [their] equal participation in the political process on the basis of economic status." Adams Compl. at ¶ 62; see Adams Br. at 9-18.
I discuss the two types of increased contribution limits in Part IV.G infra.
Before reaching the merits of the plaintiffs' claims, I first attend to important preliminary matters.
In these consolidated actions, the panel is asked to declare most of BCRA unconstitutional and to enjoin the defendants and their agents from enforcing, executing or otherwise applying several of its provisions to anyone. See, e.g., McConnell Compl. at 51. In other words, the plaintiffs bring a facial challenge to the statute. As the Supreme Court emphasized in United States v. Salerno, 481 U.S. 739 (1987), a facial challenge is "the most difficult challenge to mount successfully" because, in the usual case, "the challenger must establish that no set of circumstances exists under which the [statute] would be valid," id. at 745. The case before us, however, is not the usual case. Where, as here, First Amendment freedoms are at stake, a facial challenge will succeed if there exists "a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." City Council v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984) (citing, inter alia, Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975)); see Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973) (facial invalidation "is, manifestly, strong medicine" that will be invoked only if statute's provisions are substantially overbroad when "judged in relation to the statute's plainly legitimate sweep"); see also Salerno, 481 U.S. at 745 (recognizing First Amendment overbreadth doctrine as exception to general "no-set-of-circumstances" principle). In my view, all of the challenged provisions of BCRA — except the one discussed in Part IV.D.4 (which I believe must be sustained) and those discussed in Parts IV.F and IV.G (as to which I would pass no judgment) — are substantially overbroad when "judged in relation to [their] plainly legitimate sweep" and are therefore facially unconstitutional. Broadrick, 413 U.S. at 615.
Because my view that most of BCRA is unconstitutional rests squarely and solely on First Amendment free association and free speech grounds, I would not reach the merits of the plaintiffs' federalism, free press or equal protection claims except with respect to the provision discussed in Part IV.D.4. Thoroughgoing discussion of these subjects would further complicate an already difficult task; more importantly, it would be unnecessary to the disposition of these actions and, as such, would fly in the face of the "venerable principle of [federal] adjudicatory processes," Webster v. Reproductive Health Services, 492 U.S. 490, 525 (1989) (O'Connor, J., concurring in part and concurring in judgment), to abstain from "anticipat[ing] a question of constitutional law in advance of the necessity of deciding it," Ashwander v. TVA, 297 U.S. 288, 346 (1936) (Brandeis, J., concurring) (quotation omitted).
B. Alternative Findings of Fact
Before proceeding to the facts, I emphasize the Supreme Court's teaching that "casual statements from the floor debates" in the Congress — not to mention "post-legislation legislative history" like that constructed during discovery in these actions — merit little evidentiary weight. See United States v. Carlton, 512 U.S. 26, 39 (1994) (Scalia, J., concurring in judgment) ("post-legislation legislative history" is an "oxymoron"); Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 132 (1974) ("[P]ost-passage remarks of legislators, however explicit, cannot serve to change the [expressed] legislative intent of Congress. . . ."). And while the Congress's factual findings and committee reports are entitled to somewhat greater weight, see Garcia v. United States, 469 U.S. 70, 76 (1984) (Court "eschew[s] reliance on the passing comments of one Member" and has "stated that Committee Reports are more authoritative than comments from the floor" (quotations omitted)); but cf. Int'l Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 715, 718 (D.C. Cir. 1987) (Buckley, J., concurring) (because "Congress is a political as well as a legislative body, and [because] its members will put the privileges and facilities of their respective chambers to political as well as legislative uses," "not every utterance to be found [even] in committee reports . . . may be assumed to represent statutory gold"), such evidentiary sources are negligible or non-existent in the case of BCRA. I point out as well the Court's reminder that "[t]he justification" for a restriction on constitutionally protected liberties "must be genuine, not hypothesized or invented post hoc in response to litigation." United States v. Virginia, 518 U.S. 515, 533 (1996). Finally, I would note that I am in substantial agreement with the plaintiffs' observation that, especially with respect to Title II, their facial challenges to BCRA's provisions are based upon established First Amendment jurisprudence in the campaign finance realm. See, e.g., McConnell Br. at 44 ("[T]his [c]ourt need not go beyond Buckley v. Valeo to determine that Title II cannot possibly stand under the First Amendment."). Accordingly, I believe the constitutional challenges discussed in Part IV can be resolved even without extensive reference to the record. Nonetheless, in recognition of the fact that the Supreme Court may see things differently and may indeed revisit established jurisprudence, I offer the following set of findings — as an alternative to those of the majority — based on my view of the record as a whole.*fn55
As to the litigants in the consolidated actions before us,*fn56 I would find that:
1. Senator Mitch McConnell is the senior United States Senator from Kentucky and is a member of the Republican Party. He has long been active in the Republican Party at the national, state and local levels. He was first elected in 1984 and was reelected in 1990, 1996 and 2002. See McConnell Aff. at 1-3.
2. The National Rifle Association (NRA) is a non-partisan, tax-exempt organization governed by section 501(c)(4) of the Internal Revenue Code. It is dedicated primarily to defending the rights its members believe are guaranteed by the Second Amendment to the United States Constitution; its principal function is to disseminate information regarding those rights. The NRA has approximately four million members and represents their views on legislative and public policy issues before federal, state and local officials and the general public. See LaPierre*fn57 Decl. at 1; NRA App. at 106 (setting forth NRA bylaws).
3. The NRA Political Victory Fund (NRA PVF) is a political committee governed by 2 U.S.C. § 431(4) and section 527 of the Internal Revenue Code and is a separate segregated fund of the NRA pursuant to 2 U.S.C. § 441b(b).
4. Bill Pryor is the current Alabama Attorney General and was a candidate for reelection as Alabama Attorney General in 2002. See Pryor Decl. at 1.
5. The Libertarian National Committee, Inc. (LNC) is the governing body of the Libertarian Party at the national level. The LNC is a non-profit organization incorporated in the District of Columbia and is governed by section 527 of the Internal Revenue Code. The LNC advocates the principle that all individuals have the right to live in whatever manner they choose so long as they do not forcibly interfere with the right of others to do the same. See Dasbach*fn58 Decl. at 2.
6. The American Civil Liberties Union (ACLU) is a tax-exempt organization incorporated in the District of Columbia and is governed by section 501(c)(4) of the Internal Revenue Code. The ACLU is a nationwide, non-profit, non-partisan organization with approximately 300,000 members "dedicated to the principles of liberty and equality embodied in the Constitution." Romero*fn59 Decl. at 1.
7. Club for Growth, Inc. is a nationwide membership organization governed by section 527 of the Internal Revenue Code. It is dedicated to advancing, inter alia, school choice, overall reduction in government spending, personal investment of social security, tax rate reduction, capital gains tax reduction and estate tax repeal. See Keating*fn60 Decl. at 2.
8. The National Right to Life Committee (NRLC) is a tax-exempt organization incorporated in the District of Columbia and is governed by section 501(c)(4) of the Internal Revenue Code. The NRLC is a nationwide, non-profit, non-partisan organization with approximately 3,000 local chapters and fifty state affiliates dedicated to "promoting respect for the worth and dignity of all human life from conception to natural death." O'Steen*fn61 Decl. at 1.
9. The National Right to Life Educational Trust Fund (NRL ETF) is an organization governed by section 501(c)(3) of the Internal Revenue Code. NRL ETF sponsors educational advertising and develops materials detailing "fetal development, abortion's impact on America, and . . . euthanasia." O'Steen Decl. at 3.
10. The National Right to Life Political Action Committee is a political committee governed by 2 U.S.C. § 431(4) and section 527 of the Internal Revenue Code and is a separate segregated fund of the NRLC pursuant to 2 U.S.C. § 441b(b). See O'Steen Decl. at 5.
11. Thomas E. McInerney is a U.S. citizen, a registered voter in the State of New York and a member of and contributor to various Republican Party organizations and committees at the national, state and local levels. See McInerney Aff. at 1.
12. Barret Austin O'Brock is a U.S. citizen and a resident of the State of Louisiana. He is 14 years of age and intends to make contributions to federal candidates in future elections, including the 2004 election. See O'Brock Decl. at 1.
13. Emily Echols, Hannah and Isaac McDow, Zachary White, Daniel Solid and Jessica Mitchell are U.S. citizens who range in age from 12 to 16. They intend to seek out and contribute to federal candidates "who represent their views and beliefs on important questions like the right to life of children before birth, and on the size of government." Echols Pls.' Proposed Findings of Fact at 11.
14. The U.S. Chamber of Commerce is a tax-exempt corporation governed by section 501(c)(6) of the Internal Revenue Code. It is the world's largest not-for-profit business federation, representing over 3,000,000 businesses and business associations. See Josten*fn62 Direct Test. at 1.
15. The U.S. Chamber Political Action Committee (U.S. Chamber PAC) is a political committee governed by 2 U.S.C. § 431(4) and section 527 of the Internal Revenue Code and is a separate segregated fund of the Chamber of Commerce pursuant to 2 U.S.C. § 441b(b). U.S. Chamber PAC is funded by contributions voluntarily made by individual Chamber executives, administrative employees, members and their families. See Josten Direct Test. at 5.
16. The National Association of Manufacturers (NAM) is the oldest and largest broad-based industrial trade association in the United States. Its membership comprises 14,000 companies and 350 member associations. Like many trade associations, NAM is a tax-exempt corporation governed by section 501(c)(6) of the Internal Revenue Code. See Huard*fn63 Direct Test. at 1.
17. Associated Builders and Contractors, Inc. (ABCI) is a non-profit tax-exempt organization governed by section 501(c)(6) of the Internal Revenue Code and is funded primarily by membership dues. It is a national trade association representing more than 23,000 contractors and related firms in the construction industry. ABCI's members, which include both union and non-union employers, "share the philosophy that construction work should be awarded and performed on the basis of merit, regardless of labor affiliation." Monroe*fn64 Direct Test. at 1-2.
18. Associated Builders and Contractors Political Action Committee (ABC PAC) is a political committee governed by 2 U.S.C. § 431(4) and section 527 of the Internal Revenue Code and is a separate segregated fund of ABCI pursuant to 2 U.S.C. § 441b(b). ABC PAC makes contributions to federal candidates who support the principles of ABCI and makes independent expenditures for communications on their behalf. See Monroe Direct Test. at 9.
19. The National Association of Broadcasters (NAB) is a non-profit, incorporated trade association of radio and television stations and broadcasting networks in the United States. See Goodman*fn65 Decl. at 2.
20. The AFL-CIO is a national labor federation comprised of 66 national and international labor unions that, collectively, have a total of approximately 13 million members. The AFL-CIO also includes 51 state labor federations, nearly 580 area and central labor councils and numerous trade and industrial departments. A core mission of the AFL-CIO is to provide "an effective political voice to workers on public issues that affect their lives." G. Shea*fn66 Decl. at 2-3.
21. The Republican National Committee (RNC) is an unincorporated association headquartered in Washington, D.C. It consists of three members each from the Republican Party in each of the fifty States, the District of Columbia, Puerto Rico, American Somoa, Guam and the U.S. Virgin Islands. Each state and territorial Republican Party elects a national committeeman and a national committeewoman. In addition, the state and territorial Republican Party chairmen serve as members of the RNC. See Josefiak*fn67 Decl. at 4; Duncan Decl. at 3.
22. Mike Duncan is a member of the RNC from the State of Kentucky and currently serves as the General Counsel of the RNC. Prior to becoming General Counsel, he was Treasurer of the RNC and in that capacity signed all RNC reports filed with the FEC. See Duncan Decl. at 3. In both his official capacity as an officer of the RNC and his private capacity, Duncan has participated in and (unless prohibited by BCRA) will continue to participate in national, state and local political party activities. He will also (unless prohibited by BCRA) continue to solicit, receive or direct non-federal funds to other persons. See id. at 3-6.
23. The Republican Party of New Mexico is a state committee of the Republican Party under BCRA. It supports federal, state and local candidates for office in New Mexico and promotes Republican positions on public policy issues. See Dendahl*fn68 Decl. at 1. Under New Mexico law, the Republican Party of New Mexico is permitted to raise and spend corporate, labor union and individual funds in unlimited amounts in support of state and local candidates. See N.M. STAT. ANN. §§ 1-19-25 to 1-19-36 (1978); see also Dendahl Decl. at 2.
24. The Dallas County (Iowa) Republican County Central Committee is a local political party committee the FEC has deemed independent of any state or national political party committee. It is actively involved in supporting state and local candidates for office in Iowa. See Josefiak Decl. at 5.
25. The California Democratic Party is an unincorporated association of approximately seven million members and is the authorized Democratic Party of the State of California. Similarly, the California Republican Party is an unincorporated association of over five million members and is the authorized Republican Party of the State of California. The CDP and the CRP perform many functions, among them providing financial and material support to federal, state and local candidates; taking positions on public issues (including state and local ballot measures) and publicizing those positions; engaging in voter registration, get-out-the-vote activities and generic party-building activities; and maintaining an administrative staff and structure to support the parties' goals and activities and to comply with extensive federal and state regulation. See Bowler*fn69 Decl. at 2-3; Morgan Aff. at 2-3.
a. Pursuant to state law, the CDP is governed by the Democratic State Central Committee (DSCC). The DSCC is made up of approximately 2,710 members, about 849 of whom are elected by the 58 county central committees. Other members serve on the DSCC in their capacities as federal or state officials, as nominees of the CDP, as members of the Democratic National Committee (DNC) from California or as elected representatives of 80 Assembly District Committees (AD Committees). See Bowler Decl. at 2-3. CDP bylaws provide for local party AD Committees, which elect delegates to the DSCC and are the district-level organizational blocks of the CDP. The AD Committees are primarily involved in local voter registration, get-out-the-vote and grassroots activities and they act as liaisons with the campaign organizations of Democratic candidates in their area. See id. at 3.
b. The CRP is governed by the Republican State Central Committee (RSCC). The RSCC consists of about 1,500 regular and appointive members. The regular members include federal and state officeholders as well as the CRP's nominees for governor, seven other state constitutional offices, United States Senate, 53 congressional districts, 40 state senate districts, 80 state assembly districts and four state board of equalization districts. The RSCC also includes the chairmen of the 58 county central committees and the chairmen of volunteer party organizations. See Morgan Aff. at 3-5. The CRP operates as well through (1) a 100-member Executive Committee, which includes federal and state officeholders and 16 representatives of county central committees; and (2) a 25-member Board of Directors, which includes a Member of the Congress*fn70 appointed by the delegation, three state elected officeholders and representatives from an association of Republican county central committee chairmen. See id. at 3-4. Under the CRP's bylaws and the RNC's rules, the CRP is part of the RNC. The CRP's elected chairman is a member of the RNC. The CRP elects two other representatives to the RNC — a national committeeman and national committeewoman, each of whom is a member of the CRP Executive Committee and Board of Directors. See id. at 5-6.
26. Art Torres is the elected Chair of the CDP. Torres also serves on the DNC and has been elected by the DNC to serve on the DNC Executive Committee. As Chair of the CDP, Torres assists the CDP and county central committees in fundraising efforts by meeting and talking regularly with potential donors and attending fundraising events. See Bowler Decl. at 4; Torres Decl. at 1-2.
27. The Yolo County Democratic Central Committee and Santa Cruz County Republican Central Committee are two of the 58 county central committees authorized and governed by the California Elections Code. Members of the county central committees are elected at each statewide primary election. All members of the CDP who are also state senators, members of the state assembly or Members of the Congress serve as ex officio members of their respective county central committees. See Bowler Decl. at 3. The county central committees are primarily involved in local voter registration, get-out-the-vote activities and grassroots activities and they act as liaisons with the campaign organizations of Democratic candidates in their area. See id.
28. Timothy J. Morgan is (1) a member of the RNC; (2) a member of the CRP Executive Committee; (3) a member of the CRP Board of Directors; and (4) Chairman of the Santa Cruz County Republican Central Committee. See Morgan Aff. at 1.
29. The FEC is a government agency headquartered in Washington, D.C., constituted pursuant to FECA, 2 U.S.C. § 437c, and charged with enforcing the Act as amended by BCRA.
30. The United States, through the DOJ, is charged with enforcing the criminal provisions of the Act as amended by BCRA.
31. The FCC is a government agency headquartered in Washington, D.C., and is charged with enforcing the FCA as amended by BCRA.
32. The intervenors are Members of the Congress who were principal sponsors and authors of BCRA. Senator John McCain is a Republican United States Senator from the State of Arizona. Senator Russell Feingold is a Democratic United States Senator from the State of Wisconsin. Senators McCain and Feingold face reelection in 2004. Senator Olympia Snowe is a Republican United States Senator from the State of Maine. Senator James Jeffords is an Independent United States Senator from the State of Vermont. Senators Snowe and Jeffords face reelection in 2006. Congressman Christopher Shays is a Republican member of the House of Representatives from the 4th Congressional District in Connecticut. Congressman Martin Meehan is a Democratic member of the House of Representatives from the 5th Congressional District in Massachusetts.
2. The Ban on Corporate and Labor Disbursements for "Electioneering
Communications" and the Disclosure and Reporting Requirements
As to BCRA's ban on corporate and labor disbursements for "electioneering communications" and the statute's disclosure and reporting requirements, see generally supra Parts II.A and II.B, I would find that:
33. After the Buckley decision in 1976 and subsequent amendments to the Act, the Act's prohibition on the use of corporate and union treasury money and its disclosure requirements applied to independent political spending only if it funded express advocacy of the election or defeat of a clearly identified candidate. See 2 U.S.C. § 431(17).
34. Few candidate or party advertisements use words of express advocacy. In the 1998 election cycle only four per cent of ads sponsored by candidates used words of express advocacy. In 2000 only 11.4 per cent of ads sponsored by candidates and only 2.2 per cent of ads sponsored by political parties used words of express advocacy. See Krasno*fn71 & Sorauf*fn72 Expert Report at 53; Goldstein*fn73 Expert Report at 16, 31.
35. Before BCRA was enacted, interest groups*fn74 running issue advertisements*fn75 often did not disclose the sources of their funding. See Krasno & Sorauf Expert Report at 72; Magleby*fn76 Expert Report at 18-19. Among the groups that did not disclose their sources was Citizens for Better Medicare, which is funded by the pharmaceutical industry. In 1999 and 2000 Citizens for Better Medicare was one of the top sponsors of issue advertisements that also name federal candidates; it spent approximately $65 million on television advertising during that period. See Magleby Expert Report at 18-19; Ryan*fn77 Dep. at 13-15.
36. From 1996 to 2000 the majority of advertisements run by interest groups were not regulated by the Act because they did not use words of express advocacy. By 2000, for every interest group ad covered by the Act, 20 interest group ads mentioning federal candidates were not covered. See Krasno & Sorauf Expert Report at 53; Goldstein Expert Report at 10; ANNENBERG PUBLIC POLICY CENTER, ISSUE ADVERTISING IN THE 1999-2000 ELECTION CYCLE 12-15 (2000) (hereinafter ANNENBERG STUDY).
37. From 1996 to 2000 the number of issue advertisements — as well as the number of organizations sponsoring issue ads and the amounts spent on issue advocacy — increased.
a. In the 1996 election cycle a total of approximately $135 million to $150 million was spent on national and local television and radio broadcasts of about 100 distinct ads on national issues sponsored by relatively few organizations. In the 1998 election cycle approximately 77 organizations aired 423 distinct ads at a cost of between $250 million and $341 million. In the 2000 election cycle approximately 130 organizations aired over 1,100 distinct ads at a cost of more than $500 million. In the 2000 cycle the Republican and Democratic parties accounted for almost $162 million (32 per cent) of the spending on issue advocacy; Citizens for Better Medicare accounted for $65 million (13 per cent); the Coalition to Protect America's Health Care accounted for $30 million (six per cent); the Chamber of Commerce accounted for $25.5 million (five per cent); and U.S. Term Limits accounted for $20 million (four per cent). See ANNENBERG STUDY at 1, 4.
b. By way of comparison, a total of approximately $100 million was spent in 1995 alone to advertise syndicated reruns of "Seinfeld," a television sitcom. See BRADLEY A. SMITH, UNFREE SPEECH: THE FOLLY OF CAMPAIGN FINANCE REFORM 42 & n. 4 (2001).
38. In some competitive races, interest group issue advocacy often rivals and even outpaces advertising by federal candidates themselves. See Krasno & Sorauf Expert Report at 51; Goldstein Expert Report at 12, 22; Magleby Expert Report at 20, 22.
39. Many of the interest group issue ads that also name a federal candidate and air near an election avoid using words of express advocacy but end with an exhortation to "call" the named candidate and "tell" him something or "thank" him for his stance on a particular issue. See, e.g., Magleby Expert Report at App. G. Both the Chamber of Commerce and the AFL-CIO agree that "the ultimate way to tell an elective official to do something is through the voting process." G. Shea Dep. at 46; see Josten Dep. at 230.
a. Republican political consultant Rocky Pennington testified that "[t]he usual final tag line [of an issue ad] is to `call' or `ask' or `tell' a candidate to stop or continue doing something, often something vague like fighting for the right priorities. This is pretty silly, because it's hard to imagine thousands of people calling the candidate in response to the ad and saying, keep doing this, this is wonderful." Pennington Decl. at 6. Senator Feingold testified similarly, stating that the plea to "call somebody's office" is at "the heart of the phony issue ad." Feingold Dep. at 14. Senator Feingold acknowledged, however, that his constituents often do contact him in response to television advertisements. See id. at 238-39.
b. In 1996 Citizens for Reform, an interest group, spent $2 million on television issue ads that did not expressly advocate the election or defeat of any candidate but were directed at influencing congressional races. That year it sponsored the notorious "Bill Yellowtail" ad, which aired during the final weeks of a Montana congressional race and accused Yellowtail, the challenger, of spousal abuse: "He preaches family values but he took a swing at his wife." Thompson Comm. Rep. at 6301-05. In addition to its television and radio ads opposing Yellowtail, Citizens for Reform "did direct mail and phone banking against [him]," which would not be prohibited by BCRA. Lamson*fn78 Decl. at 3.
c. The NAB "admits that a [p]olitical [a]dvertisement might conceivably influence a federal election without the use of any particular words as might many other factors depending upon the circumstances of each individual race." Resp. of NAB to FEC's First Reqs. for Admis. at 5.
d. Republican political consultant Douglas Bailey testified that "[i]n the modern world of 30 second political advertisements, it is rarely advisable to use such clumsy words as `vote for' or `vote against.' . . . 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 about politicians." Bailey Decl. at 1-2.
40. Interest group issue advertisements that air near election time more frequently refer to federal candidates than do interest group ads that air at all other times. For example, from January 1, 2000 until September 4, 2000 Citizens for Better Medicare sponsored 28,867 television ad spots, none of which named a federal candidate. See Goldstein Expert Report at App. A & Tbl. 17A. During the three weeks preceding the 2000 election, by contrast, Citizens for Better Medicare sponsored 6,000 ad spots that identified a federal candidate. See id.
41. Beginning in 1996 corporations, unions and interest groups — to which the defendants refer as "outside groups," e.g., Intervenors Proposed Findings of Fact at 31 — began large-scale use of their treasury funds to sponsor issue advertisements that to some observers "looked and sounded like campaign ads," id. (citing ANNENBERG STUDY at 3, 7-8; Thompson Comm. Rep. at 5927 & n. 4).
42. Issue advertisements are heavily concentrated in the final weeks leading up to an election and are often intensely partisan. They are concentrated most heavily in jurisdictions with competitive election contests — commonly known as "battleground states" — where a small change in voter preference can affect the outcome of the election. Interest groups often broadcast ads in competitive contests where their investment is most likely to make a difference. See Goldstein Expert Report at 21 Tbl. 5; Magleby Expert Report at 20, 31 ("Interest groups . . . take aim at particular states with competitive U.S. Senate races or congressional districts where the outcome is in doubt. . . . This tendency has been reinforced by the exceedingly close margin of party control in Congress in recent years."); LaPierre Dep. at 24-25, 118, 157-59. The following subparagraphs contain representative examples of such ads.
a. During the 60 days leading up to the 2000 general election the NRA ran a 30-minute infomerical known as "Union/Gore" which would constitute an "electioneering communication" under BCRA. The infomercial opened with NRA President Charlton Heston stating that "[t]his election could come down to battleground states like Pennsylvania, Michigan, Ohio and Missouri, states with lots of union members where the union vote could decide the outcome. But not all union members will vote as political observers might expect. So we sent NRA correspondent Ginny Simone deep into the heart of union country to talk with union members about this election, about the candidates, about the issues, and what to them really matters most. Here's Ginny's report." The infomercial then focused on union members' comments in response to the NRA reporter's questions:
* "All this union leadership, they send you stuff all
the time [telling you to] vote for Al Gore. Well, I
don't see it that way. It's — you know, I
— I want my freedom, I want to hold onto my
guns, I want to vote for Bush."
* "I have a hand gun, and I've had NRA training, and
I'm a survivor of domestic violence, and I believe in
self-protection, and I do not want my guns taken
* "A loss of my gun rights is what Al Gore
represents. There's no ifs, ands, or buts about that.
In my mind, . . . if Al Gore and his administration is
[sic] voted in, we will lose firearm rights."
* "Yes, it's nice being part of my union, it helps
protect me. But having my right to bear arms is
something that's extremely important to me. It's
something that's kind of just been engrained [sic] in
The infomerical then turned back to Heston, who urged voters "to protect your freedoms on November 7th. It's one way you can thank the many souls sacrificed in freedom's name over the past couple hundred years. . . . And that includes carefully considering which candidates promise to defend our freedoms and which candidates promise to diminish or even destroy them." McQueen Dep. at 113-23.
b. During the 60 days leading up to the 2000 general election the interest group Planned Parenthood aired an ad called "Bush Doesn't Say Much," which under BCRA is an "electioneering communication." The ad claimed that "[a]s President, Bush could appoint Supreme Court Justices who could take away our right to choose. Get the facts about George W. Bush's Texas record." Defs.' Exhs. Vol. 48, Tab 3 (CMAG Storyboard No. 29).
c. During the 60 days leading up to the 2000 general election the interest group Handgun Control Inc. ran an ad called "Handgun/Martin Sheen," an "electioneering communication" under BCRA. Actor Martin Sheen stated in the ad that "[b]etween now and election day, at least two thousand Americans will die from gunfire. Should the next president be a candidate of the gun lobby? Should he have signed a bill that allows hidden handguns in churches, hospitals, and amusement parks? . . . That's Governor Bush's record. Find out more at bushandguns.com." Defs.' Exhs. Vol. 48, Tab 3 (CMAG Storyboard No. 32).
d. RNC political operations director Terry Nelson testified that, as a general rule, issue advocacy is not as effective in August of an election year as it is in October or early November. See Nelson Dep. at 90-91 ("I would tell candidates that they needed to spend their money when people are paying attention, which tends to be towards the election.").
e. The 2000 United States Senate race between Spencer Abraham and Debbie Stabenow is illustrative of recent issue advocacy campaigns across the country.
1) During the 60 days preceding the general senatorial election between Abraham and Stabenow interest groups aired 4,323 ad spots. During the other ten months of the year the groups aired only 926 ad spots, for a year-long total of 5,249 ad spots.
2) By way of comparison, Abraham and Stabenow themselves ran (together) a total of 11,381 ad spots during the year 2000 and the political parties ran 7,905 ad spots in the same period.
3) The AFL-CIO ran one ad critical of Abraham 269 times from October 16 to October 22. On October 20 the ad aired 26 times in Detroit and 29 times each in the markets of Grand Rapids, Battle Creek and Kalamazoo. The Michigan and U.S. Chambers of Commerce ran five distinct ads against Stabenow a total of 1,635 times between September 20 and November 6.
4) During the 60 days preceding the general election not a single candidate-sponsored ad and only one party-sponsored ad (accounting for ten per cent of party ad airings during that period of time) employed words of express advocacy. The issue ads regularly criticized Abraham and Stabenow for votes they had taken in the past and did not focus heavily on forthcoming legislative initiatives. See Intervenors Proposed Findings of Fact at 37-38.
5) A Michigan Chamber of Commerce issue ad entitled "Stabenow Against Local Schools" — now an "electioneering communication" under BCRA — stated: "Local schools, local teachers, local parents electing local school boards. That is the way our schools work best. So why did Debbie Stabenow vote against a bi-partisan plan to make our schools better? To reduce federal red tape and increase student performance in five years? Why did she vote against allowing teachers to control their own classrooms? . . . Call Debbie Stabenow and tell her we want to run our own neighborhood schools." Defs.' Exhs. Vol. 48, Tab 3 (CMAG Storyboard No. 6).
43. No credible evidence in the record supports the defendants' assertion that BCRA's "electioneering communication" provisions will affect "very few genuine discussions of policy matters." E.g., FEC's Am. Proposed Findings of Fact at 153. To the contrary, credible record evidence indicates that BCRA will actually capture a vast number of "genuine" issue advertisements. See, e.g., infra Findings 43f-43h, 51d at pages 90-99, 109.
a. The Brennan Center for Justice (Brennan Center) played a "central role" in the adoption of BCRA. Holman*fn79 Dep. at 14-15, Exh. 3. The Brennan Center helped "craft the design of the McCain-Feingold bill," id. at 11, and provided "legal opinions" on what it believed would be "constitutionally defensible," id. at 13.
b. The Brennan Center promoted campaign finance regulation by, inter alia: drafting for legislators memoranda that "directly addressed concerns that were being debated in the Congress concerning the McCain-Feingold and Shays-Meehan bills," id. at 11; meeting with Members of the Congress to review research findings, see id. at 16-17; drafting and publishing a "scholars' letter" and a signed statement by former leadership figures of the ACLU, which documents deemed the bills constitutional and were "very influential in the Senate debate and in influencing media perceptions," id. at 11, 12, 19-20, Exh. 3.
c. In addition to undertaking these wide-ranging activities in support of new campaign finance regulation, the Brennan Center published two reports: CRAIG B. HOLMAN & LUKE P. McLOUGHLIN, BUYING TIME 2000: TELEVISION ADVERTISING IN THE 2000 FEDERAL ELECTIONS (Brennan Center 2001) (hereinafter Buying Time 2000), and JONATHAN S. KRASNO & DANIEL E. SELTZ, BUYING TIME 1998: TELEVISION ADVERTISING IN THE 1998 CONGRESSIONAL ELECTIONS (Brennan Center 2000) (hereinafter Buying Time 1998). See generally Defs.' Exhs. Vols. 46, 47.
d. The Buying Time reports were based on data gathered by Kenneth Goldstein with the help of his political science students at Arizona State University (for the 1998 report) and the University of Wisconsin (for the 2000 report). Goldstein's students were shown "storyboards" — prepared by the Campaign Media Analysis Group (CMAG) — of certain political advertisements broadcast during 1998 and 2000. The students were asked to "code" the ads based on their content. See Defs.' Exhs. Vol. 46 at 19; Defs.' Exhs. Vol. 47 at 7. According to the Brennan Center, the Buying Time reports were "the central piece of evidence marshaled by defenders of" BCRA's electioneering communication provisions "in support of [their] constitutional validity." Holman Dep. Exh. 3 at 2. While the government claims that "[t]he Buying Time databases show that . . . BCRA will correctly capture" almost all so-called "sham" issue advertisements "but very few genuine issue advertisements," FEC's Am. Proposed Findings of Fact at 192, the Buying Time reports are flawed. See infra Findings 43e-43h at pages 88-99.
e. The Brennan Center and the authors of the Buying Time reports sought to achieve a certain result and therefore sacrificed scientific objectivity.
1) Funds to underwrite Buying Time 1998 were solicited on the basis of the explicit promise that the study would be abandoned midstream if the results being obtained were not helpful to the cause for more stringent campaign finance regulation. See Goldstein Dep. Exh. 2 at 6 ("Whether we proceed . . . will depend on the judgment of whether the data provide a sufficiently powerful boost to the reform movement."). Money to fund Buying Time 2000 was solicited on the promise that the study would be "design[ed] and execute[d]" to achieve "reform" and the study was so designed and executed. Goldstein Dep. (Vol. 1) at 37-38 ("Q: So I take it that it was your goal to design and execute the study in a way that would help move the campaign reform ball forward: is that right?" "A: Yes.").
2) The Brennan Center submitted a grant proposal to the Pew Charitable Trusts (Pew) to gain funding for Buying Time 1998 and, later, Buying Time 2000. See Krasno Dep. at 51, 55-56, Exh. 4. The Brennan Center understood that Pew's "bottom line" was "regulating sham issue advocacy." Id. at 52-53, Exh. 3. Most of the funding Pew subsequently agreed to provide was to be put toward publicity and advocating "reform" rather than purchasing and analyzing data. See id. at 63-64, Exh. 5.
3) The grant proposal to Pew was authored by Jonathan Krasno, who — before he had approached Pew or had performed any studies — had already "come to believe that political parties were using the magic words test as cover to sponsor thinly-veiled campaign ads masquerading as issue advocacy." Krasno Dep. at 66, Exh. 6, Exh. 13 at 2.
4) Each element of the Brennan Center's grant proposal to Pew was aimed at "overcoming the obstacles to reform" and at "influencing at least one of the four critical audiences that [would] play a pivotal role in determining the success or failure of any reform: Legislators, journalists, academics and courts." Holman Dep. Exh. 4 at 2-3; see id. ("[T]he purpose of our acquiring the data is not simply to advance knowledge for its own sake, but to fuel a continuous and multi-faceted campaign to propel reform forward."). According to the proposal, the Brennan Center planned to implement the 1998 study in two "phases," during the first of which the Center would "acquire" the data and "adapt it so that it might be easily used" to "develop a strategy for responding to the threat posed by issue advocacy." Goldstein Dep. Exh. 2 at 3.
f. Buying Time 1998 miscalculates the percentage of so-called "genuine" issue advertisements that would have been regulated in 1998 by a statute like BCRA.
1) The key question included in the 1998 study was Question 6,*fn80 which asked coders: "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?"*fn81 Defs.' Exhs. Vol. 47 at 193 (emphasis in original); see Seltz*fn82 Dep. at 184-85. If coders concluded that an ad provided information about or urged action on a bill or issue, the ad was to be coded as a "genuine" issue ad. If the coders concluded that the ad generated support for or opposition to a particular candidate, the ad was to be coded as a "sham" issue ad.
2) The authors of Buying Time 1998 claimed that just seven per cent of "genuine" issue advertisements aired during 1998 would be regulated by a statute like BCRA. In arriving at this figure, the authors counted as "genuine" only two ads in the source database. See Seltz Dep. at 77-80, 101-02, Exh. 1 at 109-110, Exh. 4; Krasno Dep. at 149-50; Holman Dep. at 51-52, Exh. 6.
3) Joshua Rosenkranz, Executive Director of the Brennan Center, testified before the Congress in April 2000 and highlighted the seven per cent figure. He asserted that "[w]ith solid empirical data of this type, Congress can be confident that the major campaign finance reform proposals currently before it do not inhibit true issue advocacy." Holman Dep. Exh. 25 at 5 (Rosenkranz testimony). In January 2001, however, Rosenkranz discovered the seven per cent figure to be "flat out false." Id. Exh. 28 (e-mail from Rosenkranz); see id. Exh. 27 (e-mail from Holman stating that "[w]hile only 7% of groups placing genuine issue ads would be captured, those groups bought about 40% of all issue ads within [60 days of the 1998 general election]. So, in reality, according to the 1998 database, about 40% of genuine issue ads would be deemed electioneering within a 60-day regulatory period."); id. Exh. 29 (e-mail from McLoughlin*fn83 stating the seven per cent finding was "either false or so vague as to mislead the reader"); id. Exh. 31 (subsequent e-mail from McLoughlin reporting correct percentage to be 11.38 per cent); id. Exh. 36 (subsequent memo from Holman reporting correct percentage to be 13.8 per cent).
4) Craig Holman, a co-author of Buying Time 2000, "decided that since Buying Time [was] already published and distributed," he would not "rekindle the issue" even though he had concluded that "[t]here was no mistake in the reassessment" that the seven per cent figure was false. Id. Exh. 30.
5) Although the Brennan Center now claims that it "is sticking by the 7 percent figure," id. at 142, Holman apparently still believes that 13.8 per cent is the correct percentage "with respect to airings," id. at 155-56; see also id. at 154 (stating that authors of Buying Time 1998 should have been clear "whether [the study was] referring to airings or unique ads").
6) According to two of the defendants' experts, if the formula used by the Brennan Center in Buying Time 2000 had been applied to the data underlying Buying Time 1998, the Buying Time 1998 study would have reported that the percentage of "genuine" 1998 issue ads that would be regulated by BCRA was 14.7 per cent. See Krasno & Sorauf Expert Report at 60 n. 143.
7) Goldstein's students originally coded as "genuine" at least eight of the ads the Brennan Center later counted as "sham" issue ads in Buying Time 1998. Analysis of the handwritten student coding sheets — produced pursuant to a subpoena issued to Goldstein — demonstrates that the students determined that the eight ads "provide[d] information about or urge[d] action on a bill or issue." Goldstein Dep. (Vol. 2) at 65-69 & Exhs. 19-21, 78-79 & Exhs. 22-23, 79-80 & Exhs. 24-25, 80-82 & Exhs. 26-27, 83 & Exhs. 28-29, 84-85 & Exhs. 30-32, 85-87 & Exhs. 33-35, 87-88 & Exhs. 36-37.
8) According to one of the plaintiffs' experts, James Gibson,*fn84 Buying Time 1998 would have shown — if the students' original codings had not been disregarded — that 64 per cent of all group-sponsored issue ads aired during the last 60 days of the 1998 election were "genuine" and would have been covered by BCRA. See Gibson Expert Report at 42-43.
9) Although the defendants' experts filed three rebuttal reports in response to Gibson's expert report, none challenged his 64 per cent finding. In his rebuttal expert report, Gibson reconsidered his analysis using the methodology used in Krasno's expert report. See Gibson Rebuttal Report at 23. Crediting the students' judgments once again, Gibson concluded that no less (and likely more) than 50.5 per cent of "genuine" issue ads aired within 60 days of the 1998 general election would have been regulated by BCRA. See id.
g. Like Buying Time 1998, Buying Time 2000 is based on a flawed methodology and is therefore unreliable as evidence of how many "genuine" 2000 issue advertisements would have been regulated by BCRA.
1) The authors of Buying Time 2000 concluded that only three "genuine" issue ads in the 2000 database — numbers 627, 1389 and 2862 — would have been "unfairly caught by [BCRA]" in the 2000 election season. Holman Dep. at 89-90, Exh. 18.
2) But at least six distinct ads were originally coded as "genuine" by the student coders for Buying Time 2000. See Goldstein Dep. (Vol. 2) at 126-27; Goldstein Expert Report at 26 n. 21. These included numbers 627, 1389 and 2862 and three others as well. See Goldstein Dep. (Vol. 2) at 131-33; Goldstein Expert Report at App. J. That is, three of the six ads were changed from being coded as "genuine" issue ads to "sham" ads in the Buying Time 2000 database. See Goldstein Rebuttal Report at 16; Holman Dep. Exh. 15; McLoughlin Dep. at 44, 47-48, Exh. 13. The students' original coding decisions for the 2000 report have not been preserved and Goldstein has no way of determining precisely how each of the ads was originally coded. See Goldstein Dep. (Vol. 2) at 129; Goldstein Rebuttal Report at 16.
3) In March 2001 — shortly before Buying Time 2000 went to press — the Brennan Center called Goldstein on his cell phone at the West Palm Beach airport seeking his judgment on an unknown number of ads aired within 60 days of the 2000 election, all of which were coded by the students as "genuine." After the text of each ad was read to him over the phone, Goldstein overruled the students' judgments and reclassified each ad as an "electioneering" ad. See Goldstein Dep. (Vol. 2) at 57-59, 147-150 ("Q: What was the urgency?" "A: I think the book was going to press. . . . Feingold was being debated the next week, and Brennan wanted to be able to write a report. . . . [T]he Brennan Center was trying to get a report out the door around that debate.").
h. Both of the Buying Time reports contain additional flaws that further undermine their evidentiary value.
1) As plaintiffs' expert Gibson testified, the 1998 and 2000 databases upon which the Buying Time studies are based are "subject to continuous alteration by Professor Goldstein, in consultation with the Brennan Center staff." Gibson Expert Report at 46 ("No documents have been produced that indicate how Professor Goldstein has [exercised] or should exercise his enormous discretionary powers to change or recode the data."). There are approximately 12 versions of databases connected to the Buying Time reports. See Gibson Dep. at 210. These databases have been repeatedly changed so that "[n]o database has been . . . produced that will generate the specific numbers found in [the Buying Time reports]." Gibson Expert Report at 5, 44.
2) Buying Time 1998, in particular, is a "fundamentally flawed" study. Gibson Expert Report at 4. Because the study contains little, if any, explanation or analysis of the data upon which it relies, even members of the Brennan Center have had difficulty understanding it. See, e.g., Holman Dep. at 32 ("To tell the truth, I couldn't understand much of Buying Time 1998."); Krasno Rebuttal Report at 8 (co-author of Buying Time 1998 acknowledging data set upon which study is based is "maddeningly complex"); Goldstein Dep. Exh. 17 (e-mail from Holman stating "[t]he missing data category is uncomfortably large in the 1998 database").
3) Daniel Seltz, a co-author of the 1998 study, has had little if any training in the methods of quantitative analysis. See Seltz Dep. at 8 (Seltz received a B.A. in 1996 in history and East Asian studies); see also Gibson Expert Report at 6, 45 (neither 1998 nor 2000 study has been subject to scrutiny of objective peer reviewers and methodology underlying each study "has not been judged to be acceptable by the social scientific community").
4) In each of the studies, student coders were all of a "certain educational level" and "certain age level" and were all "[l]iving in a certain geographical area." Holman Dep. at 228-29. The Brennan Center conceded that the coders were "not representative of the general population" and, therefore, intercoder reliability — i.e., the technique of using multiple respondents to code the same ad "to try to weed out any kind of bias that may be present in one of the coders versus another," id. at 189 — could at most establish that "this particular group of students roughly of [the same] age roughly of the same educational background living in roughly the same part of the country with contacts to the same professors tend to see things about the same way," id. at 228, 232, Exh. 1 at 19.
5) One finding from the Buying Time data that was not described in the two reports stemmed from a question asking student coders to determine whether the "primary focus" of a particular advertisement was (1) "personal characteristics"; (2) "policy matters"; (3) "both"; or (4) "neither." Gibson Expert Report at 31-32. The students' answers to this question differed significantly from their answers to Question 6 (in the 1998 study) and Question 11 (in the 2000 study), which asked them to evaluate the "purpose" of a particular ad. In 1998 98.1 per cent of the interest group-sponsored ads broadcast within 60 days of the general election and mentioning a candidate were coded as having policy matters as their "primary focus." See id. at 32-33. In 2000 98.7 per cent of the group-sponsored ads broadcast within 60 days of the general election and mentioning a candidate were coded as having policy matters as their "primary focus." See id. at 59-60. One defense expert acknowledged — and it would be difficult not to acknowledge — that "a very large percentage of the advertisements . . . had policy issues as their primary focus." Lupia*fn85 Rebuttal Report at 12. Plaintiffs' expert Gibson concluded that the "primary focus" question was superior to Question 6 of the Buying Time 1998 study because it included the option "both" and therefore did not force the student coders into an artificial choice between candidate speech and issue speech. See Gibson Expert Report at 34; see also Buckley, 424 U.S. at 42 ("[T]he distinction between discussion of issues and . . . advocacy of election or defeat of candidates may often dissolve in practical application.").
6) Seltz acknowledged that "many ads both provide information about or urge action on a bill or issue and generate support or opposition for a candidate." Seltz Dep. at 188. Krasno, his co-author, acknowledged that the test established by the Supreme Court in Buckley does not distinguish between "candidate-oriented" issue ads and "genuine" or "pure" issue ads. Krasno & Sorauf Expert Report at 58. When asked if he would have designed his studies any differently had he known that speech about both candidates and issues was constitutionally protected, Goldstein conceded that he would have. See Goldstein Dep. (Vol. 2) at 186-89.
7) The reports' authors and the database's creator cannot seem to agree about what constitutes a "genuine" issue ad and what constitutes a "sham" issue ad. An ad sponsored by the National Pro Life Alliance entitled "Feingold Kohl Abortion 60," which aired within 60 days of the 2000 election, announced that
America was outraged when two New Jersey teenagers
checked into a Delaware hotel and delivered and
exposed [sic] of their newborn baby in a dumpster.
Most Americans couldn't believe that this defenseless
human life could be so coldly snuffed out. But
incredibly, if a doctor had been present that day in
Delaware and delivered the infant, all but one inch
from full birth and then killed him it would have been
perfectly legal. Instead of murder or manslaughter, it
would have been called a partial-birth abortion.
Killing late in the third trimester, killing just
inches away from full birth. Partial-birth abortion
puts a violent death on thousands of babies every
year. Your Senators, Russ Feingold and Herb Kohl voted
to continue this grizzly [sic] procedure. Contact
Senators Feingold and Kohl today and insist they
change their vote and oppose partial birth abortion.
Their number in Washington is 202-224-3121.
Defs.' Exhs. Vol. 48, Tab 3 (CMAG Storyboard No. 80). McLoughlin testified that the ad was "genuine" because "[t]he ad's focus is primarily on the issue of partial birth abortion." McLoughlin Dep. at 42. Holman disagreed with his co-author, concluding that the ad was an "electioneering issue ad." Holman Dep. at 67-69. Goldstein — who was so certain in 2000 that the ad was not "genuine" he reversed a student determination that it was — concluded during the course of this litigation that the ad was indeed a "genuine" issue ad. Goldstein Dep. at 135.
44. The ACLU engages in non-partisan political activities designed to influence federal legislation involving civil rights and civil liberties issues of national importance. See Romero Decl. at 1.
a. The ACLU has never taken a position in a partisan political election in its 82-year history, although it frequently takes positions on public issues of significance to the organization and its members. See id. at 2.
b. As an advocacy organization, the ACLU actively lobbies for its positions and frequently talks with federal officials and candidates about civil liberties issues. Although the ACLU does not endorse or oppose the election of particular candidates, its public statements, member communications and other similar activities frequently and necessarily refer to, praise, criticize, set forth, describe or rate the conduct or actions of clearly identified public officials who often are also candidates for federal office. See id.
c. The ACLU regularly publicizes in its membership mailings — and through pamphlets and other publications — the civil liberties voting records, positions and actions of elected officials, all of whom are at some point candidates for federal office. It sends out over 6.7 million pieces of mail each year to its members and potential members. See id.
d. The ACLU has never operated a political action committee and has no interest in establishing one. The creation of a political action committee would be inconsistent with the ACLU's mission and identity as a non-partisan organization. Establishing a political action committee would also have adverse consequences for the organization's members. Under FECA political action committees are required to disclose the identities of their contributors. Many ACLU members and contributors seek explicit assurances that their membership will remain confidential and that their contributions will remain anonymous. See id. at 2-3.
e. The ACLU is primarily a membership-driven organization. Membership dues are not tax deductible. The basic membership fee is $35, although many members contribute more than that. A reduced membership rate is available for students and other low-income individuals. Membership dues accounted for $9,393,948 of the $13,625,051 contributed to the organization by individuals in 2001. Only 212 individuals contributed more than $1,000. Although the ACLU does not maintain records on the corporate status of non-individual donors, less than $85,000 of the ACLU's total revenues were contributed by business entities and other organizations in 2001. None of the contributions from businesses exceeded $500. Contributions from non-individual donors represent less than one per cent of the ACLU's total annual funding. See id. at 3.
f. Many of the ACLU's public statements involving legislation or executive branch policies — including print and broadcast communications — necessarily refer to clearly identified federal candidates, Members of the Congress or executive branch officials because high profile legislation (like "McCain-Feingold" or "Shays-Meehan") is often publicly identified with its sponsors. Likewise, the ACLU's public statements supporting or opposing the President's policies invariably refer to the President by name. See Murphy Decl. at 4.
45. The NRLC regularly pays to broadcast what BCRA defines as "electioneering communications." See O'Steen Decl. at 1-2.
a. The primary purpose of the NRLC's electioneering communications is to affect legislation. See id. at 3.
b. The NRLC qualifies as an MCFL-type organization under the Supreme Court's decision in FEC v. Massachusetts Citizens for Life. See O'Steen Decl. at 2.
c. The NRLC has received donations from political party committees in the past and persons associated with political parties have assisted the NRLC in raising funds. See id. at 3.
d. The NRLC strongly supports a partial-birth abortion ban. It helped initiate the Partial-Birth Abortion Ban Act and published numerous print ads, press releases and educational materials in support of the Act and in an effort to override President Clinton's veto. Some of the ads and materials mentioned federal officials and some mentioned President Clinton after April 10, 1996 while he was a candidate for the 1996 presidential election. See id. at 7-10, Exhs. A-1 to A-12.
e. The NRLC has a long history of opposing campaign finance legislation like BCRA. See id. at 10-21, Exhs. B-1 to B-44.
1) In November 1995 the NRLC sent to all United States Senators a letter opposing newer and stricter campaign finance legislation on grounds that it would "almost entirely eliminate involvement in the political process for ordinary citizens who are not independently wealthy" and would regulate issue advocacy such that groups not organized as political action committees would be unable to inform the public about candidates' positions and voting records. See id. at 11.
2) The NRLC has broadcast advertisements in opposition to campaign finance legislation like BCRA. Many such ads mentioned federal candidates and were broadcast within 30 days of a primary or within 60 days of a general election. See id. at 15-19, Exhs. B-14 to B-19, B-21 to B-25, B-27, B-30, B-31, B-33, B-36 to B-39.
3) In January 2000, when Governor Bush and Senator McCain were seeking the Republican presidential nomination, the NRLC used the national attention focusing on the two candidates to continue its long-term battle against campaign finance legislation like BCRA, just as Senator McCain used the national attention to promote the McCain-Feingold legislation. See id. at 19.
46. Common Cause, an interest group not a party to these consolidated actions, has a long history of supporting campaign finance legislation like BCRA.
a. Since its creation in 1970 Common Cause has promoted and supported a strict regulatory regime over campaign finance. See Keller*fn86 Dep. at 17-18. While it has not run electioneering communications in support of campaign finance restrictions, it has engaged in a variety of activities mentioning federal candidates in the weeks leading up to elections. For example, as the 2000 New Hampshire presidential primary approached, Common Cause "staged an event with both Senator McCain and former Senator Bradley around the issue of [c]ampaign [f]inance [r]eform generally," an event at which the candidates were to pledge their support for campaign finance legislation like BCRA. Id. at 105. At that time, an opinion editorial published on Common Cause's website extolled Senators McCain and Bradley as presidential candidates who uniquely understood the need for campaign finance reform. See id. Exh. 20. The purpose of the editorial "was to raise the visibility of the issue" of campaign finance, not to influence a federal election. Id. at 106. A Common Cause official acknowledged it was "possible" that the editorial influenced the 2000 election but he made clear "that was not [its] intent." Id. at 106-07.
b. During the 2000 election season Common Cause financed a number of "Town Hall Meetings" or "Town Hall Forums" in New Hampshire and other States to promote campaign finance legislation. At least one of the events coincided with active primary campaigns. Several other events mentioned Members of the Congress who would be candidates in the general election and, at still others, Members themselves were present. A Common Cause official stated that while the events might have affected the outcome of the 2000 election, their purpose was not to influence any ...