*1 supervisory retains the District Court McCONNELL, Mitch Senator aof interlocutory orders authority over Plaintiffs, al., et single posW.996 Judge. Magistrate discusses defendant by relied case v. in the con- authority supervisory
retained COMMISSION, FEDERAL ELECTION to a referred had been a case that text of al., Defendants. et purpose of limited for the judge magistrate America, Rifle Association National recommendation, report obtaining a Plaintiffs, al., et authority therefore was supervisory the District Court retained explicitly v. here, inapposite is That scenario
judge. Commission, Election Federal a have consented parties where the al., Defendants. et cases purposes, for all referral child, by Echols, Emily a minor distinguish expressly cited defendant friends, Tim and through her next Moreover, some cases the two scenarios. Plaintiffs, al., Echols, Windy et supporting by defendant cited jurisdiction v. supervisory exercise Court’s Magistrate before proceedings over Commission, Election Federal contrary for the arguably stand Judge al., Defendants. et See, v. National e.g. Taylor proposition. of the United of Commerce Chamber Inc., F.Supp. Companies, Group of Plaintiffs, States, al., et 1990) (“men (N.D.Ohio sat- 411, 413-414 v. to refer- isfied, consent governing [statutes deprive a will magistrate judge] ral to a Commission, Federal Election hear an authority to judge of the district al., et Defendants. rendered determination appeal from final Broadcasters, Association Of National
by magistrate”). Plaintiff, juris- without Accordingly, this Court v. request defendant’s to entertain diction Commission, Election Federal interloc- Judge Robinson’s Magistrate al., et Defendants. trial be vacat- a new utory granting order of Labor And ed, motion to vacate Federation and defendant’s American Organi- Congress denied. of Industrial properly order Plaintiffs, al., zations, et
v. Commission, Federal Election al., et Defendants. Paul, Congressman Ron Plaintiffs, al., et v. Commission, Federal Election al., et Defendants. Committee, Republican National Plaintiffs, al., et *2 v. Commission,
Federal Election et al. Defendants. Party, California Democratic al., Plaintiffs, et
v. Commission, Federal Election al., et Defendants. Gray Adams, Victoria Jackson al., Plaintiffs, et
v. Commission, Federal Election al., et Defendants. Representative Thompson, Bennie G. al., Plaintiffs,
et See also F.Supp.2d
v. Commission, Federal Election al., et Defendants. CKK,KLH,RJL, No. 02-582 02-581 CKK,KLH,RJL, 02-633
CKK,KLH,RJL, 02-751
CKK,KLH,RJL, 02-753
CKK,KLH,RJL, 02-754 CKK,KLH,RJL, 02-781 CKK,KLH,RJL, 02-874
CKK,KLH,RJL, 02-875
CKK,KLH,RJL. Court,
United States District District of Columbia.
1,May *6 Warren, Starr,
Edward W. Kenneth W. Dixton, Ellis, M. Grant Kirkland & Wash- DC, vice, ington, Lynn Hogue, pro L. hac vice, Harry MacDougald, pro W. hac Valle Dutcher, Legal Simms Southeastern Foun- Cahill, Mulvihill, & Gordon Bates, Donald John GA, Atlanta, Hunter dation, G. DC, National for Reindel, Washington, McConnell, Bob KY, Mitch Goshen, for Broadcasters. Ass’n Barr. Fed- Gold, American Ellis, Edward Laurence Starr, & Kirkland W. Kenneth DC, for Labor, Washington, Pence, Bill eration DC, Mike for
Washington, Con- Labor and Inc., Committee, Federation American Nat. Pryor, Libertarian AFL- Organizations, Industrial Commit- gress Executive Republican Alabama Political Educ. Political Ill., Poli- DuPage Committee Party of CIO tee, Libertarian County Counsil, Committee. Jefferson Contributions Action tiocal Committee, Associ- Executive Republican P.C., Olson, Olson, J. William J. William Inc., Contractors, Builders ated Titus, pro hac McLean, VA, W. Herbert Growth, for InstituteClub Family Indiana Beach, P.C., Titus, Virginia vice, A. Troy Connors, Bar- Mclnerney, Martin Thomas America, Paul, VA, Gun Owners Ron for O’Brock. ret Austin Vic- Political of America Inc., Owners Gun Liberties Civ. Citi- Lopez, Amer. Fund, Realcampaignreform.org, J. Mark tory Ken- Foundation, City, York Vic- New Political United, United Union Citizens zens Ellis, Washing- Starr, & Cloud, Kirkland Howell. Carla Fund, neth W. Michael tory Un- Liberties ton, DC, Civil for American Burchfield, Overton Thomas Roy Bobby ion. Washing- Burling, Barnett, & Covington Starr, Warren, W. Committee, Kenneth W. Edward Nat. ton, DC, Republican for M. Shanmugam, Grant Kumar Party Kannon of Colora- Duncan, Republican Mike DC, Ellis, Washington, Dixton, & Kirkland Ohio, Republican do, Party of Republican Freedom, 60 Plus Individual for Mexico, County Center Dallas of New Party ProEnglish. Ass’n, Com- County Central (Iowa) Republican Dixton, Starr, mittee. M. Grant Kenneth W. DC, Na- Ellis, Washington, & Kirkland Fielding, Baran, Rein & Wiley Jan W. Education- to Life Committee Right tional DC, B. Ca- LLP, Deborah Washington, Fund. al Trust Olson, vice, Herman Lance hac pro plan, & Fish- Olson, Waters Mitchell, vice, Hagel, Foley & Deatherage pro hac Cleta Torres, Sacramento, CA, for Art DC, burn, Justin Lardner, Charles Washington, PLLC, Commit- Kirk, Washing- Central County Democratic Cooper & Yolo Cooper, *7 Party. Amer- tee, Republican Rifle Ass’n of ton, DC, for National California Victory Fund. ica, Political NRA Dorr, Washing- Wilson, & A. Hale David vice, Henderson, Sr., hac pro Ameri- ton, DC, Wright, Brenda Matthew James Justice, Washing- vice, Ten- Bonifaz, Bonita pro Law & hac can C. Center John Echols, Danetz, Echols, Windy vice, pro DC, J. ton, neriello, Lisa pro for Tim hac Institute, McDow, Mitch- McDow, Chuck Voting Rights vice, Donna Tim National hac Solid, Sol- Mitchell, Gray Bonnie ell, MA, Kevin Boston, Jackson for Victoria Pam White, Brown, Patrick J. White, Cynthia Bolton, Cynthia Adams, id John Carrie Ama- Cressman, Fitzgerald, Mahoney. Victoria Derek Rus- Nancy Kostmayer, Joshi, Peter rada Fielding, Baran, Wiley Rein & Jan W. Stepha- Taylor, Rose sell, Seely-Kirk, Kate DC, Chamber LLP, Washington, Wilson, Interest Public California nie L. Man- U.S., Ass’n National Commerce In- Public Massachusetts Group, Research Action ufacturers, Political Chamber U.S. Jersey Group, New Public terest Research Committee, Wholesaler-Dis- Ass’n of Nat. In- Group, Public U.S. Research Interest Party, tributors, Democratic California Ham- Fannie Lou Group, Research terest J, Barbara Steel, Morgan, Timothy Shawn Community Or- Project, Association er Republican Cen- County Alby, Cruz Santa Now. for Reform ganizers Committee, Boyd, Sr. Douglas R. tral DC, Lynn Wyatt, Washington, Before Sherri KAREN LECRAFT Freeman-Watkins, HENDERSON, Cherlyn Washing- F. Circuit Judge, and ton, DC, LEON, Thompson, Earl KOLLAR-KOTELLY and for Bennie G. F. District Judges. Hilliard. Norton, Bader, H. Lawrence Richard B. MEMORANDUM OPINION Hershkowitz, Kolker, Stephen David Act- PER CURIAM 1 Counsel,
ing Asst. Gen. Robert W. Bon- III, Clair, Baker, Holly ham Vivien J. Presently before three-judge this Dis- Sealander, Summers, Harry Colleen T. trict Court are eleven consolidated actions III, Benjamin Mueller, Greg A. Streeter challenging as Biparti- unconstitutional the Shackelford, Deeley, William Kevin Leigh Campaign san Reform Act of Pub.L. Hildebrand, Levine, 107-155, (2002) (“BCRA”) G. Brant Michelle No. 116 Stat. 81 Abellera, Goodin, seeking declaratory injunctive Mark Federal Election re- prohibit Commission, DC, lief to its enforcement. The wide Washington, for Defen- range legal challenges raised this dant Federal Election Commission. litigation interrelated, highly complex, Witten, Waxman, Roger M. Seth P. impor- raise issues of fundamental Moss, Randolph Lynn Bregman, D. Eric J. tance not only to the conduct and financing DuMont, Mogilnicki, Edward C. Michael of federal election campaigns but to the Leffel, Manuel, Beck, Arija D. L. Stacy E. rights other enjoy involved that we under Patterson, Mueller, A. Krisan Jennifer L. the Constitution. complex- Because of the Wilmer, Pickering, Cutler & Washington, ity positions, of our per opin- curiam DC, Bradley Phillips, Doyen, S. Michael R. ion, by Judge Kollar-Kotelly Judge Senator, Pearlstein, Stuart N. Deborah N. Leon, includes a description schematic Sommer, Miller, Randall G. Shont E. Mun- the three-judge panel’s conclusions re- Olson, LLP, ger, Angeles, Tolies & Los gard to each of challenged provi- BCRA’s CA, Harth, Curtis, Jr., David J. Charles G. rulings sions and a chart as to the on each Medina, Monica P. Michelle Umberger, M. provision’s constitutionality. per cu- Reindl, E. Sarah Heller Ehrman White & (1) opinion riam also includes: a brief LLP, Madison, WI, McAuliffe Frederick history of campaign regulation finance Schwarz, Jr., Rosenkranz, E. A.O. Joshua (2) 188-201); (pp. United States Neuborne, Daniel, Prof. Burt Elizabeth legislative history behind enact- BCRA’s Morse, Ispahani, Laleh Adam H. Brennan (3) 201-206); (pp. procedural ment histo- Justice, York, NY, Center for New Fred ry litigation (pp. of the in this case 206- Wetheimer, Edsall, Alexandra Democracy (4) 209); description specific provi- DC, Washington, for Defendant-Inter- sions BCRA at issue these lawsuits McCain, venors: Senators John Russell (5) 209-220); (pp. certain Findings of Fact Snowe, Jeffords, Feingold, Olympia James relating parties to the identities of the Representatives Christopher Shays, Mar- provisions (pp. BCRA’s disclosure 220- Meehan, tin James Jeffrods. *8 (6) 227); and conclusions relating of law Hirt, Letter, Theodore Douglas C. N. claims of Paul Plaintiffs and most of Gilligan, Terry James J. Henry, Rupa M. provisions (pp. BCRA’s disclosure 227- Raab, Bhattacharyya, Michael S. Dana J. 233). separate opinions judge of each Martin, Gacki, Kesselman, Andrea Marc hearing this matter follow thereafter. Turner, Solet, Serrín Irene M. Colette G. Matzzie, I. AND Ara B. Gershengorn, DESCRIPTION CHART OF Knep- John THE COURT’S RULINGS McCallum, Jr., per, Robert D. Shannen Coffin, Hunt, Joseph H. Dept, U.S. of Jus- In light provisions of the number of in tice, Div., DC, U.S., Washington, Civ. for being challenged, complexity BCRA of Ashcroft, Justice, Dept, John of U.S. Fed- presented by challenge, the issues each eral Communications variety positions voting Comm’n. and the and Judge join opinion. Henderson does not this or disburse- expenditures, make on tions judges by the three taken combinations elections, with ments, federal in connection a brief Court, forth we set District
this Judge organizations. chart, a section national § on or to and a description rulings. down basis, section various strikes section Henderson Judge entirety. its unconstitutional I Title A. reasons, in that joins Leon, different for 828(a) national of BCRA bans concurrence. separate in a Section conclusion directing, receiving, soliciting, from dis- parties separate a files Kollar-Kotelly Judge nonfederal spending and transferring, entire section finds she in which sent (ie., Henderson money). Judge soft funds constitutional. as unconstitution- down this section strikes 323(e) for certain but prohibits, Section Leon, for differ- entirety. Judge its al in officehold- exceptions, federal enumerated concurrence, joining reasons, files a ent receiv- soliciting, from candidates and ers re- Henderson, except with Judge with spending, directing, transferring, ing, from parties national ban on to the spect any with money in connection nonfederal (ie., “directing,” “transferring,” and using Judge state, election. local, or federal (i.e., soft funds nonfederal “spending”) Kollar-Kotelly, for Judge and Henderson activity” election “federal money) for up- reasons, opinions separate different 301(20)(A)(iii). in Section type defined constitutionality of this section hold Leon conduct, Judge type of toAs with Leon concurs Judge entirety. Congress’s its constitutionality of upholds of- on federal funds restriction respect nonfederal use of on the ban 801(20)(A)(iii) receiving, di- candidates for Section parties ficeholders national Kollar-Kotelly any Judge spending transferring recting, communications. Ac- 323(a) entirety. in its any upholds Section with funds connection nonfederal regarding decision Judge Leon’s cordingly, election, sepa- a files but state federal or 323(a) controls. Section any prohibi- regard with rate dissent candidate, 323(b) parties or officehold- prohibits state federal tions Section “federal for the national money nonfederal funds for using er, soliciting from from in Section as defined activities” election parties. Judge Henderson 301(20)(A) BCRA. 323(f) officehold- state prohibits Section unconstitu- down as sections these strikes using nonfederal from and candidates ers Leon, for Judge entirety. in their tional refer communications that public for funds reasons, Henderson joins Judge different federal candidate clearly identified to a concurrence, only with but separate in a attack, or oppose, promote, office forth set party activities respect to those Judge office. for this a candidate support (iv) (i), (ii), Section in Subsections entirety. in its section upholds this Leon 301(20)(A)(iii), 301(20)(A). to Section As Judge with concurs Kollar-Kotelly Judge constitutionality upholds Judge Leon Henderson, dis- Judge opinion. Leon’s and local on state prohibition Congress’s unconsti- entire finds section sents funds nonfederal spending parties tutional. at- oppose, promote, communications candi- specific support tack or II Title B. Judge Kollar opinion, separate In a date. pri- forth sets 201 of BCRA 323(b) Section constitutional Kotelly finds Section definition, “elec- of an mary, “backup” Leon’s discussion Judge and concurs *9 (ie., 301(20)(A)(iii). so-called communication” tioneering of Section addition, forth ads”). it sets “issue state, national, 323(d) prohibits Section for those requirements disclosure certain for, funds soliciting from parties local and communica- electioneering 501(c) these fund who to, organiza- § making or donations Judge exception”). tions. Henderson strikes down “Snowe-Jeffords Judge Kol- primary backup lar-Kotelly upholds both the definition as this section as consti- Leon, Judge Judge joins unconstitutional. for differ- tutional. Leon Judge Kollar- reasons, Kotelly’s opinion in judgment upholding ent concurs her with the constitu- respect primary tionality of this section Judge applies to the definition. as to the backup in Kollar-Kotelly upholds definition Section 201. Judge dissents and Henderson strikes down primary as this Section as definition constitutional as dis- unconstitutional in entirety. its separate opinion. Judge cussed in her With re- definition, Leon, Kollar-Kotelly Judge spect backup to the Leon additional- Judge ly uphold the disclosure separate opinion, upholds require- who and SSF writes its ments as well as the constitutionality with Snowe-Jeffords ex- its final clause sev- emption provision nonprofit ered. for certain Judge Kollar-Kotelly, expressed as corporations organized opinion, in her in under concurs that conclusion Sections 501(c)(4) and 527 of the solely Internal Revenue as an alternative to this Court’s in respective Code opinions. finding primary definition un- Finally, constitutional. regard (“The Section 204 Wellstone Amend- 201’s requirements, Section disclosure ment”), effect, withdraws the Snowe- Leon, Judge Kollar-Kotelly Judge for exception Jeffords of Section Judge the reasons set forth in per curiam Henderson strikes down 204 in Section its opinion, uphold their constitutionality with entirety.' Judge Leon concurs in her re- exception. Judge one Henderson strikes applies sult as it exempt organi- MCFL down requirements the disclosures in a zations only. nonprofit corporations As to separate dissent. qualify that do not exemp- for the MCFL tion, Judge Leon provides Judge concurs with Section 202 Kol- disbursements conclusion, lar-Kotelly’s by persons but for different for electioneering communica- reasons, tions, upholding same, Section 204 as it purchase contracts applies to non organizations. MCFL that are coordinated with either a federal committee, candidate or candidate or a provides Section 212 reporting certain political party committee will be treated requirements independent for expendi- contributions to that campaign candidate’s Judge Kollar-Kotelly tures. Judge political party Judge committee. Kol- Leon, for the per reasons set forth Leon, lar-Kotelly and Judge for the rea- opinion, challenge curiam conclude that per sons set forth in the opinion, curiam review, provision ripe is not find this section Judge constitutional. therefore hold that the Court does not Henderson, in separate dissent concludes jurisdiction plaintiffs’ to resolve the that this Section is unconstitutionally over- challenges at this time. Judge Henderson broad. dissents from this view and finds Section entirety. unconstitutional in its
Section 203 II prohibits of Title labor unions, corporations and national banks requires parties, Section 213 national using money general from their trea- essence, making to choose between coor- sury to fund “electioneering communica- expenditures Party dinated under the Ex- tions,” Instead, as defined Section 201. penditures Provision or unlimited inde- under Section such communications pendent expenditures on behalf of their paid separately must be from a segregated judges federal candidates. All three con- (“SSF”). fund Section 203 also includes an cur that this section is unconstitutional. exception from requirement the SSF Judge opinion Henderson’s includes a dis- (ie., nonprofit corporations certain separate Judge cussion of her reasons. *10 standing to that this lacks Leon’s clude Court Judge in Kollar-Kotelly concurs at this challenge plaintiffs’ opinion on this section. entertain separate time. ex- coordinated addresses Section than paid by persons opin- other
penditures explained Judge in Henderson’s As commit- committees and candidate ion, similarly finds the Court repeals the current tees. Section standing challenge plaintiffs do not have expendi- on coordinated regulations FEC and indexes increases Section tures, promulgate directs the FEC to and limits. contribution require “an regulations new that do disclo- 311 establishes certain Section to es- or formal collaboration agreement of elec- requirements sponsors for the sure Judge Kollar-Ko- coordination.” tablish Kollar- Judge communications. tioneering Leon, for the reasons set telly Judge Leon, the reasons Kotelly Judge per opinion, in curiam find forth uphold per opinion, in curiam set forth challenge under Section plaintiffs’ Judge provision this as constitutional. 214(c) 214(b) nonjusticiable and Section dissents, Henderson, this section and finds jurisdiction lacks Court therefore forth for the reasons set unconstitutional challenge. As to Sections to consider opinion. in her 214(a) 214(d), however, they find those for the reasons set sections constitutional mi- prohibits donations Section 318 opinion. Judge per forth in the curiam candidates, to commit- to federal nors dissents, finding the Section Henderson political party. judges All three tee of a entirety. in its unconstitutional agree that this section is unconstitutional. judge separate Each writes a concurrence Title III and V C. setting reasoning forth as to his/her section. 304, 316, 319, collectively Sections & Provisions,” the “Millionaire al- known as requires broadcast licensees Section candidates, opponents low of self-financed any re- collect and disclose records of circumstances, mon- and in certain to raise purchase broadcast time for com- quest to accept increments and unlimit- ey larger by or on behalf munications that “is made All party expenditures. ed coordinated public legally qualified candidate for conclude, judges three for the reasons set any political that relates “to mat- office” or Judge opinion, forth in Henderson’s importance,” including com- ter of national standing to entertain chal-
this Court lacks relating legally qualified munications to “a provisions. lenges to these candidate,” office,” “any election to federal public legislative and “a national issue 305 denies a candidate the “low- Section importance.” Judge Henderson finds this charge” est unit for broadcast advertise- Judge Leon and section unconstitutional. unless the ments on radio television re- Judge Kollar-Kotelly, concur promises not to refer to another candidate sult, Judge in her Kol- reasoning. but not or her advertisements. candidate his sepa- lar-Kotelly Judge concurs Leon’s in Judge For the reasons set forth opinion opinion, judges all three con- rate on this section. Henderson’s *12 Leon, however, Kollar-Kotelly Judge II. BACKGROUND campaign finance history of the federal history the of necessary It is canvass having origins the Admin- regulation, its in or- campaign regulation finance Roosevelt, of Theodore istration President for provide appropriate context der to problem long-standing recurring understanding practices structure Congress challenged government that has our campaign of federal finance Republic. it enacted See our nearly confronted when BCRA. half of life of UAW-CIO, 567, v. 352 U.S. United States century, nineteenth At the close (1957) 529, 570, 1 77 L.Ed.2d 563 S.Ct. of the nation’s wealth the concentration (“UAW”) circum- (“Appreciation of the portion popu- of the the hands of a “small necessary this statute is begot stances that stability began lation” to threaten understanding understanding, for its UAW, political system. integrity of the necessary adjudication of the (quoting 352 U.S. S.Ct. us.”). Following legal problems before Commager, The Growth Morrison and overview, will move to a this the Court (4th Republic the American at 355 enacted legislation of the discussion ed.1950)). time, accept- widely At the perceived short- Congress to resolve capital “aggregated was that un- ed view fi- pre-BCRA campaign comings of politics, influence not duly influenced history procedural nance structure and a stopping corruption.” short of Id. To that litigation case. end, experimenting many began states A. The Framework of Federal Cam- requiring with disclosure candidates laws Regulation paign Finance committees to make and their and amounts of contri- public the sources tempted to might agree
One campaigns and the butions history fed- Plaintiffs’ assertion that the campaign expenditures. amounts of their is “rela- campaign regulation eral finance 570-571, 77 529. These Id. at S.Ct. laws short,” if Br. at one tively McConnell largely futile. Id. at proved to be history of West- comparing were it to the Judge In S.Ct. 529. judgment ern civilization. 1909, Congress both the size and source endeavored to broad-
Concern with presi by including en the Tillman Act within the campaign relating funds scope, campaign “crystallized popular legislative sen Act’s state races and in- dential purge national kind contributions. id. timent for federal action While this failure, 1910, Congress conceived to be the effort ended in politics of what was ‘big money’ popular influence of cam “translated demand for further pernicious 571-72, upon political power contributions.” Id. at 77 curbs of wealth paign presiden publicity required Roosevelt’s into a law that commit- S.Ct. President *13 messages Congress operating tial in both 1905 and tees to influence the results of 1906, in strongly encouraged Congress congressional to en elections two or more report prohibiting political act a law contributions States to all contributions and dis- (1905); by corporations. Cong. identify 40 Rec. 96 bursements and to contributors (1906). response recipients 22 In and Cong. 41 Rec. of substantial sums.” Id. concerns, 25, 1910, 392, (citing §§ enacted the Till Act of ch. Congress these June 5— 823) (disclosure Act, 420, 864, 6, 822, which required man Ch. 34 Stat. 36 Stat. of $100). any all prohibited corporations making greater from transactions than The any in 1910 law reporting contribution connection with elec further directed the of $50, represent expenditures exceeding tion for federal office made inde- pendently manifestation of a of a committee ed “the first concrete for congressional purpose influencing congressional concern for elec of elec- continuing in power money.” from the of tions more than one State. Act of June tions free (inter 25,
UAW,
575,
1910,
392,
7,
§§
77
529
ch.
36
In
352 U.S.
S.Ct.
Stat. 824.
omitted).
1911,
quotation
Congress
nal
marks and citation
further amended the 1910
Act,
time,
beginning
The Tillman Act demarcates the
and for the first
included overall
campaign
expenditure ceilings
campaigns
of the “modern era” of federal
on
for the
($5,000)
($10,-
regulation
predecessor
finance
and is the
House
and for the Senate
000).
prohibition
corporate
Buckley,
(citing
191
Classic,
au-
Congress
given
was
any political
com- Under
it unlawful
making
totaling
impose
penalties
contributions
thority
to receive
criminal
mittee
$3,000,000
expendi-
or to make
than
more
conducting pri-
activities of state officials
any
than that amount
tures of more
for federal candidates
mary election
under
UAW,
577,
at
77
352 U.S.
year.
calendar
307,
auspices of
law.
state
See id.
19, 1940, ch.
(citing
July
Act of
S.Ct. 529
79th
employed
money
spending
effect of
corroding
scale
by large
being evaded
(as
Id. at
opposed
power.”
expenditures
by aggregated
unions on
elections
labor
(internal
explicitly
contributions),
quotation
582,
which were
77 S.Ct.
1947,
Prac-
Corrupt
omitted).
Accordingly,
the Federal
prohibited
citations
con-
appears,
it
Act of
Taft-Hartley
Act,
Congress,
passed
tices
id.3
Congress
to be
136,
contributions
amended
prohibition
120,
1947,
sidered
Stat.
ch.
Id.
expenditures.
applicable
pro
“to
equally
Act
Corrupt Practices
the Federal
(“
is firm-
‘The committee
‘any
77 S.Ct.
as
well
any ‘expenditure’
scribe
of the
study
convinced,
thorough
after
ly
permanent [its]
to make
[and]
contribution’
history
act,
legislative
provisions
in addi
organizations”
to labor
application
said
same,
on the
debates
of the
582-83, 77
Id. at
corporations.
tion
pending before
it was
provisions when
imple
Tafb-Hartley Act
529. The
S.Ct.
pro-
intended
House,
act
that the
was
provisions
its
by applying
Classic
mented
”)
(quoting
expenditures.’
such
hibit
F.2d at
Buckley, 519
elections.
primary
2d
Cong.,
Sess.
79th
H.R.Rep. No.
exception
40).
commenting on how
Act,
TafL-Hartley
Following the
Cor-
the Federal
eviscerate
threatened to
end of the
through the
1940’s
the late
Act, the House Committee
rupt Practices
unsuccessfully to
1950’s,
sought
Congress
that ‘“[t]he
problem stated
studying this
limits to re-
expenditure
the dollar
amend
provision
purpose
intent and
costs,
no action
but
“realistic”
flect more
or labor
any corporation
prohibiting
act
passed
the Senate
Id. In
taken.
was
contribution
making any
organization
reporting require-
strengthened
a bill
would
any election
connection
commit-
for candidates
ments
assumed that
if were
wholly defeated
limits,
tees,
contribution
adopted individual
related
any
‘making
contribution’
term
*16
limits,
expenditure
current
rationalized
directly to a
money
donating of
only to the
cam-
on Presidential
placed ceilings
and
vast
candidate,
expendi-
and excluded
however,
bill,
for
died
Id. The
paigns.
in the activities herein
money
tures of
Rep-
of
companion in
House
a
lack of
extensively. Of
engaged in
to be
shown
1962,
Ken-
In
President
Id.
resentatives.
prohibit [di-
a law be to
avail
what
would
Campaign Costs
nedy’s Commission
yet
a candidate and
contributing to
rectly]
and credits
“tax incentives
recommended
in
large
of
sums
expenditure
permit
contributions, realistic
political
for small
581, 77
Id. at
S.Ct.
behalf?”’
his
equal time
suspension of the
ceilings, and
2739,
Cong.,
79th
H.R.Rep. No.
(quoting
Id. In
media debates.”
as to
40).
provision
2d Sess.
ture,
copies of one
including quarter million
extraordinary
of the
sampling
size
3. A
Another,
organized
representing an
article.
by
federal elections
expenditures
labor on
5,000,000,
membership
has raised
of
organization]
labor
[labor
that "One
demonstrates
$700,000
organizations in un-
for its national
budget
'edu-
have an
for
was found to
annual
$1,500,000,
'education'
in
for
ion contributions
approximating
cational' work
months,
has been
great
more
deal
things regularly supplies
few
among other
by
expended
purpose and
for the same
broad-
raised
with ‘briefs for
stations
over 500 radio
” UAW,
U.S. at
organizations.'
Another,
budget
local
its
580-81,
with
annual
casters.'
H.R.Rep.
(quoting
'education,'
$300,000
S.Ct.
has
for
over
3).
No.2093,
Cong.,
80,000,000
78th
2d Sess.
pieces
litera-
distributed some
to,
1966,
Large
tax
contributions are intended
passed a one dollar
Congress
do,
for
provide public funding
gain access to the elected official
checkoff to
elections,
general
campaign
which was
after the
for
Presidential
consideration of
repealed
particular
in 1967. Id.
later
contributor’s
concerns.
only
Senator Mathias not
describes this
1971, Congress
reinstituted the
Late
but
corollary,
feeling
also the
that the
to finance Presidential
tax form checkoff
big
gain special
contributors
treat-
and,
1972,
in early
passed
elections
general
produces a
ment
reaction that the aver-
Campaign
Elections
Act of
the Federal
age
significant
American has no
role
1971,
92-255, 86
Pub.L. No.
Stat.
political process.
(“FECA”),
of all con-
requiring disclosure
Id.;
(“Congress
and disclosure
see also id. at 872 n. 32
tributions
excess
$100
polit-
expenditures by
all candidates
found and the District Court confirmed
more than
spending
ical committees
that such contributions were often made
$1000
year.
expressly
Id. The 1971 law also
per
purpose
furthering
business
corporations and unions with the
provided
private
by facilitating
interests
access to
ability
sepa-
establish and administer
government
influencing gov-
officials or
rate, segregated
purpose
funds for the
decisions,
that, conversely,
ernmental
expendi-
making political contributions and
elected
have tended to afford
officials
contributors.”)
tures.
Local Union No. 562 v.
Pipefitters
special treatment
to large
States,
385, 410,
(citations omitted).
United
407 U.S.
92 S.Ct.
Indeed,
the lower
(1972).
2247,
tion
in Buck-
developed
dichotomy first
con- diture
committees,
agents, shall
or their
Court’s
Supreme
in the
grounded
ley was
candi-
to such
be a contribution
sidered
as a
serves
contribution
“[a]
view
included
date.”)-
amendments also
The
can-
support for the
of
expression
general
re-
and disclosure
recordkeeping
variety of
views,
not commu-
does
his
but
didate and
§§ 432-434.
2 U.S.C.
quirements.
sup-
for the
basis
underlying
nicate the
was also
Commission
Election
The Federal
(observing
21,
612
at
96 S.Ct.
port.” Id.
and tasked
the
amendments
created
communication
quantity of
“[t]he
cam-
enforcing the
monitoring and
with
percepti-
increase
does not
the contributor
2 U.S.C.
generally
laws. See
paign finance
contribution, since
his
size of
bly
the
437d(a),
Finally
437c(b)(l),
437g.
§§
solely
the undiffer-
expression rests
funding
amended, provided public
law, as
contributing.”).
entiated,
symbolic act
candi-
presidential
qualified
primarily
restrictions,
other
on the
Expenditure
for nomi-
funding
public
and some
dates
ex-
to the ideas
hand,
neutral as
“while
par-
major political
conventions
nating
at
expression
limit
pressed,
ties.
and of
process
electoral
core of our
amend
FECA
day after the
The first
39,
Id. at
freedoms.”
First Amendment
effect,
chal
was
into
law
went
ments
(internal
marks
quotation
5.Ct.
In a
901.
Buckley, 519 F.2d at
lenged.
omitted).
citation
States Court
opinion, the United
lengthy
upheld
Supreme Court
Buckley, the
In
Columbia
District of
for the
Appeals
provisions
disclosure
general
as well
provisions
of the
all but one
found
Circuit
60-84,
at
96 S.Ct.
Id.
in FECA.
contained
843-44
Id. at
constitutional.
of FECA
found
likewise
Supreme
The
Court
612.4
provision
(striking down disclosure
funding scheme
public
constitutional
437a).
1976,
Supreme
§
U.S.C.
85-109,
Id.
presidential
candidates.
and reversed
part
affirmed in
Court
Supreme Court
Finally,
195 441b(a). office, sum, § 2 cal office.” 2 to a candidate for federal U.S.C. U.S.C. In 441a(a)(l)(A); Supreme person § no could contrib Court found that: political ute to the committees established The overall effect of the contribu- Act’s par aby political and maintained national merely tion ceilings require candi- which, any year in in ty, political calendar dates and committees to raise $20,000, 2 funds aggregate, greater persons exceed U.S.C. from a number of 441a(1)(B); § person compel people and no could who would contrib other- wise contribute any political any greater ute to other committee in amounts than statutory expend limits to which, such in year aggregate, calendar ex political funds on direct 441a(a)(l)(C).7 expression, rath- $5,000,2 § ceed U.S.C. In er than to reduce the total amount of addition, political no multicandidate com money potentially promote available to $5,000 mittee could in contribute excess of political expression. office, to a 2 candidate for federal U.S.C. 441a(a)(2)(A); 21-22, political Buckley,
§
no
424 U.S. at
multicandidate
ed
developments,
With these
nonfederal
Essentially,
opinions
FEC’s
funds became an increasingly important
rulemakings permitted state and
party
national means of
financing. During the
party
pay
election,
committees to
nonfederal
spent approximate-
the RNC
portion
ly
of their administrative
costs
million
nonfederal funds and the
$15
registration
million,
voter
and turnout programs
spent roughly
DNC
constituting
$4
with monies raised under relevant
parties
state
9% of the national
total spending.
(not FECA),
laws
even if
Expert Rep.
those state laws Mann
at 12.11 In
FECA,
were in direct
parties spent
contravention of
national
collectively an esti-
as permitting
such
contributions from cor- mated
money,
million
nonfederal
$21.6
porate
general
treasury
and labor union
which accounted for 5% of their
total
result,
funds. As a
national and state
spending.
By
Id.
party
national
non-
431(8)(B)(ix), 9(B)(viii).
§§
funds' in the final rules rather than
term
The second ex-
”),
money.’
though
'soft
even
BCRA uses the
emption
party’s payment
related to a state
(entitled
money,”
§
term "soft
BCRA 101
registration
"the costs of voter
and [GOTV]
money
political parties”) (emphasis
“Soft
party's
activities” conducted on behalf of the
added)
though
and even
on occasion the Su-
(8)(B)(xi),
presidential
§§
ticket. 2 U.S.C.
preme
phrase
Court has also used the
“soft
(9)(B)(ix).
exemption
This
was also condi-
see,
money,”
e.g.,
Republican
Colorado
Federal
money
tioned on the use of federal
for the
(“Colorado I"),
Campaign Committee v. FEC
Hence,
activity.
for both of these activities
604, 616,
518 U.S.
116 S.Ct.
money
pay
unlimited federal
could be used to
(1996) ("Unregulated
L.Ed.2d 795
‘soft mon-
exempted
for them because
were
from
ey’
may
contributions
used to
influence
"expendi-
the definition of "contribution” and
campaign, except
a federal
when used in the
parties
opted
ture.” For state and local
limited, party-building
specifically
activities
pay
to use nonfederal funds to
for these activi-
statute.").
designated
Despite
in the
the ref-
ties,
permitted.
was
allocation
still
erences
the case law and the statute to the
money,”
term
clarity
"soft
for the sake of
concedes,
Expert
plainly
11.As Defense
Mann
preci-
an area of law that demands absolute
sion,
money activity
"Just what amount of soft
generally
phrase-
the Court
eschews
parties pursued in the
ology
money”
money”
1980s is less certain
“hard
or “soft
in favor
of "federal
[because] '[n]onfederal'
funds” or "nonfederal
funds.”
funds were not sub-
regulated
Federal
ject
funds are those monies
un-
requirements, only
to federal disclosure
FECA,
amended,
der
and nonfederal funds
to the disclosure laws in states where soft
may
may
are those monies that
not be
money
spent.”
Report
Expert
was
Mann
law,
regulated under state
but not federal law.
began
12.It was not until
FEC
1992 that the
collecting
parties
data
official
on national
use
Congress again
10.In
amended FECA to
funds,
any attempts
pin-
of nonfederal
so
exempt two new sets of activities from the
pointing the amount of nonfederal
funds
expenditure.
definition of contribution and
spent by
parties
the national
before 1992 are
First,
state and local
disbursements for
Notably,
estimates.
Plaintiffs do not chal-
campaign
pins, bumper
materials such as
(or
lenge any
pre-1992
any
estimates
stickers,
yard signs
used in connection
post-1992
data collected
the Commis-
par-
with volunteer activities on behalf of the
Therefore,
sion).
the Court relies on these
ty’s
exempted
nominees were
FECA's
statistics.
provided
activity
contribution limits
that the
paid
money.
was
for with federal
2 U.S.C.
*21
106.5(b)(2)®,
§§
11
years.
C.F.R.
approx-
increased to
money had
federal
(ii)(1991).
and House committees
party
Senate
million, or 11% of national
imate $45
the
expenses on
to
these
were
allocate
spending. Id.
expenditures to
ratio of federal
basis
the
1990,
promulgated regula-
the FEC
In
nonfederal disbursements
total federal and
in
consistency
some
provide
tions
during
two-
committee
the
made
the
the relative
used to determine
the methods
11
cycle.
election
year
federal
C.F.R.
money
and nonfederal
portions of federal
106.5(c)®.
parties,
state and local
§
For
party
financing
generic
in
these
used
to be
and non-
the federal
the allocation between
1990,
regulations
Prior
activities.
expenses were
for these
federal accounts
rate
allocation
between
specified that the
proportion
federal
determined
was to be
federal accounts
nonfederal and
general
on a state’s
to all offices
offices
11
basis.”
C.F.R.
on a “reasonable
done
106.5(d)
§
11 C.F.R.
election ballot.
106.1(e)(1977).
promul-
regulations
§
(1991).
parties’ alloca-
Generally, the state
designed
by the Commission were
gated
substantially lower
rate
than
tion
was
subjective standard
certainty to this
give
Ex-
rate. Mann
party
national
allocation
court’s
response
to a
and were
district
man-
The new rules also
Rep.
pert
the allocation
which held
decision
party
national
committees
that the
dated
specific guidance from
required
rules
ac-
details of their nonfederal
disclose the
FEC,
v.
692
Cause
Commission. Common
(f) (1991)
104.8(e),
§§
counts.
C.F.R.
(D.D.C.1987) (“Indeed,
F.Supp.
report
parties
national
(requiring
may
the Commission
possible
it is
building
fund accounts
nonfederal
will
that no method of allocation
conclude
name,
ad-
mailing
donating individual’s
all
goal that
Congressional
effectuate
business,
dress,
occupation
type
political committees
spent by state
monies
such
receipt
any
ánd amount of
the date of
in the 1979
permitted
activities
on those
donation).
however,
parties,
were
State
money’ under the
be ‘hard
amendments
require-
exempted from these disclosure
That is an issue for the Commis-
FECA.
(1991) (re-
104.9(a)
§
11 C.F.R.
remand.”).12
ments.
on
Under
sion
resolve
in-
required to
porting committees
disclose
party
national
committees
regulations,
new
pertaining to “the committee’s
formation
(other
national
than Senate and House
account(s) only”). The Commis-
committees)
federal
to allo-
required
were
party
therefore,
provided
regulations,
sion’s
at least 65% of their
cate
administrative
an incentive to chan-
parties
national
expenses
to their
voter drive
generic
expenditures through state
nel these
election
presidential
accounts in
federal
committees,
approach generally
since
non-presidential
election
years and 60%
alia,
permitted,
inter
Cause v.
13. The Commission
The Court observes that Common
early as
be-
following expenses
demonstrates that as
to be allocated:
FEC
adminis-
rent,
any
funds
fore
official statistics
nonfederal
expenses,
utili-
trative
which included
Commission,
kept by
was con-
salaries,
were
there
ties,
supplies,
C.F.R.
office
these monies on
over the influence of
cern
106.5(a)(2)(i) (1991);
§
the direct costs of
However, the Commission
elections.
federal
event,
fundraising program
where federal
that, "Common Cause
in 1984 determined
by one
funds are collected
and nonfederal
presented evidence
instances
has
committee,
(1991);
106.5(a)(2)(h)
§
11 C.F.R.
money' has been used to influence
'soft
drives,”
"generic voter
which included
justify the strin-
elections sufficient to
federal
identification,
registration, and
voter
voter
petition.”
gent
proposed in its
Common
rules
("GOTV”)
spe-
drives
get-out-the-vote
where
Cause,
(citing the Com-
F.Supp. at 1393
11 C.F.R.
was not mentioned.
cific candidate
17, 1986,
April
Disposi-
Notice
mission’s
tion).
106.5(a)(2)(iv)(1991).
§
permitted more nonfederal dollars to be
with the new allocation
firmly
rules
place,
parties
national
using
were
non-
if
spent
party spent
than
a national
money
impact
federal elections
money
disclosing
without
the sources of
permitted by
the Commission. FEC
the funds.
Advisory Op.1979-17.
1992, spending
money
nonfederal
*22
With the 1996 election cycle, the national
million,
by
parties
the national
reached $80
parties’ total nonfederal funds spending
parties
spend-
or 16% of the national
total
million,
reached
which was 30% of the
$272
ing.
Expert Rep.
Mann
at 15 (citing to
party
national
spending.
committees’ total
FEC).
figures
official
from the
Of
Expert
Mann
Rep. at 21.
in
Starting
the
amount,
total
the
parties
national
contrib-
1996,
Fall of 1995 and continuing through
party
Democratic
only
directly
uted
million
committees used
to state and
soft
$2
money to fund advertisements that either
Expert Rep.
local candidates. Mann
at 16.
promoted President William
by
J. Clinton
addition,
In
two
parties
national
trans-
name,
name or
opponent
criticized his
by
ferred over
million to
party
state
com-
$15
avoiding
while
words that expressly advo-
mittees-two thirds of which was trans-
cated either candidate’s election or de-
presidential
ferred to
election battleground
1996,
feat.14 Id. at 18.
In May of
lines,
Along
states.
Id.
these
the national
Republican National
an-
Committee
parties expended
million in nonfederal
$14
plans
spend
nounced its
to
million on
$20
“generic” party
funds for
advertising, con- an
advocacy”
“issue
campaign.
Id. at 20.
sisting predominantly of television adver-
Although many of the advertisements
tisements that did not mention candidates
presidential candidates,
featured
none
names,
urged
simply
but
viewers to
vote
of the costs of these advertisements were
particular party
for a
or stressed themes
charged as
expenditures
coordinated
on
presidential
from the
campaigns.
Id. Al- behalf of the
campaign,
candidate’s
though
only
the Commission had
approved
subjected
would
expenditure
to
the use of
by
nonfederal funds
the national
Instead,
FECA’s contribution limits.
parties “for the
pur-
exclusive and limited
cost,
parties paid the full
with a mix of
pose
influencing
the nomination or elec-
permitted
federal and nonfederal funds as
office,”
tion of
by by
candidates for nonfederal
FEC allocation rules.15 Often the ad-
argument
14. The
by
that such advertisements
written and as narrowed
the Court. Id. at
paid
could be
for with nonfederal funds had
without using “express words of direct ad- paigns by corporations and labor unions vocacy,” corporations unions and began to were free from provisions the disclosure advocacy” campaigns, partic- mount “issue upheld in Buckley because were con- ularly election, beginning with the 1996 sidered outside of pur- FECA’s regulatory paid that were directly from their general view. This lack permitted of disclosure treasuries. For example, various groups interest to conceal the true AFL-CIO ran the following advertisement identity of the source behind the advertise- from September 26 to October 9 in the *24 Thus, ment. following both the 1996 and Republican district of House incumbent elections, corporations 2000 and unions Steve Stockman: used their general treasury funds to run important [Narrator] What’s to Amer- advertisements apparently aimed influ- ica’s [Middle-aged “My families? man] encing federal elections and avoiding pension very important because it will longstanding FECA’s provi- disclosure provide significant my amount in- sions. come I when retire.” And [Narrator] regard With to both where do the candidates stand? Con- spending of nonfederal funds and
gressman Steve Stockman voted to party, corporate, and labor union issue ad- make easier for corporations it to raid vocacy, there appear does any to be pension employee Lampson funds. Nick dispute among litigants the to the fact that opposes plan. supports He new much of this regulated behavior was not safeguards protect employee pension permitted Rather, by was the funds. When it FEC. the your pension, comes to dispute there parties difference. Call find out. between the centers around the effect of engaging these 000593; AFL-CIO (emphasis [DEV 124] tactics, whether the measures ad- needed added); also AFL-CIO 000602. dressing, Congress ultimately and how such as Advertisements the illus- above perceived prob- remedied what it to be a permitted tration Supreme were the congressional lem. It is response ruling Court’s FEC v. Massachusetts which the now Court turns. case, Life, Citizens In Inc. Supreme prohibition Court found that the Campaign Bipartisan B. The Reform corporate on and union treasury spending Act of2002 441(b) expenditures § on in 2 found U.S.C. response perceived needed to to what it narrowly were only construed to apply express problems advocacy. burgeoning with federal cam- v. Mas- FEC Inc., Life, laws, Citizens paign Congress began sachusetts 479 U.S. finance 238, 249, 616, 107 S.Ct. legislation years L.Ed.2d consider reform over six 1998), by a Reform Act Campaign san Congress.16 105th during the ago, Cong. Rec. H7330 of 252-179. campaign vote existing of our overhaul Nation’s 1998). 6, The bill was Aug. (daily ed. enact- with the culminating finance laws — 9, September on to the Senate atten- referred consume the of BCRA —would ment S10,114 (daily ed. 1998, Cong. Rec. Congresses17 separate three tion of pri- 1998), considered 9, was not but Sept. parlia- through atypical navigation require 21, die, on October adjournment, sine or to mentary procedures. result, Cam- Bipartisan aAs the House Congress, the 105th During in the of 1998 died Reform Act paign Bill House considered Representatives Congress. during the 105th Senate Integrity 2183, Campaign Bipartisan 19, 1999, during the 106th January Asa On Representative 1997, offered Act of intro- Shays Representative Congress, first considered The bill was Hutchinson. 417, Bipartisan Cam- Bill House Rec. H3774 duced 22, Cong. May 1998.18 on 1999, which attracted 1998). 3, Act of paign Reform 22, August On May (daily ed. cosponsors. See original support of 96 Representa- 1998, during consideration (1999). intro- 417, Upon floor, Cong. H.R. 106th the House bill on tive Hutchinson’s duction, referred to Com- the bill was adopted of Whole19 the Committee Administration, where on House mittee of a substitute nature amendment report. H.R. an unfavorable Christopher received by Representatives offered (1999). 106-297, 1, None- pt. at 17 Rept. Cong. Meehan.20 144 Shays and Martin campaign fi- 1998). theless, 3, proponents Fi- Aug. (daily ed. Rec. H6947 consideration secured floor 1998, nance reform 6, passed the House nally, August petition. (the discharge of a the threat Biparti- through amended Bill House committee, the Whole the Committee Reform Campaign Finance Bipartisan 16. ("Committee (1998), State of Union on the Cong. House 105th Act of H.R. *25 Oleszek, Whole”). Congres- J. of Walter the http://thomas.loc.gov. available Policy Process 151- and the Procedures sional CQ ed., 2001). id..; (5th parliamen- This Campaign Act Press Bipartisan Reform 53 See 17. 417, (1999); act 1999, House to with Bipartisan tary enables the 106th H.R. mechanism of 2002, requisite 218 mem- quorum less than the H.R. Campaign Reform Act of Finance bers; 2356, (2002). needed to consti- only 100 members are 116 Stat. 81 of the Whole. quorum in the Committee tute a Quarterly (There re- According Congressional other techni- Id. 152. numerous Mark, Leadership of porter the House the Committee the David cal between distinctions Representatives Bill only consideration House allowed floor and the House of Whole supporters legisla- of the appeared that expeditious after it consideration enable sig- requisite tion). the the Committee of nearly secured After bill had Id. at 152-53. discharge petition underlining legisla- to automati- natures on a considers the the Whole floor, tion, did not cally bring governing to the debate au- generally, the rule bill leadership. require tomatically Committee of the consent dissolves the Mark, Discharge Whole, Representatives Pe- Campaign Finance re- David House of Quar- Start, Congressional underlining Fast bill for tition to vote on the convenes Off 31, 2001). (July terly Daily passage. Monitor final making substantive 20.Beyond numerous major legislation, considering When most bill, Shays-Mee- changes underling adopts typically Representatives the House Resolution, changed the title rule, amendment han substitute in the of a House form limits, Campaign "Bipartisan bill from the generally governs, and debate 1997,” Cong. Rec. H3774 Integrity Act of expedite consid- underlining order to bill. In 22, 1998), bill, "Bipartisan May to the ed. underlining (daily sus- the rule eration 1998,” Cong. Act of Repre- Campaign Reform pends proceedings of the House 18, 1998). sentatives, (daily June large H4790-96 ed. body operates Rec. as one and the Mark, S12,800 Finance Dis- Campaign Cong. (daily 19, See David Rec. ed. Oct. 1999); S12,803. result, id. at Start, As a for the charge Congres- Petition to Fast Off many second time in years, the cam- 31, Quarterly Daily (July Monitor sional paign finance reform bill died in the Sen- 2001). Bipartisan Campaign When the ate. Reform Act of 1999 reached the floor for a Circumstances
vote, changed during the 107th passed comfortably, by it a vote of Congress; it time was the Senate that Cong. (daily 252-177. 145 Rec. ed. H8286 passed acted first and campaign finance 1999). 14, 16, 1999, Sept. September On legislation, 27,22 reform Senate Bill 417, Bill the Senate received House and on vote of 59-41. 147 Cong. (daily Rec. S3258 29, September the Senate referred it to 2001). 2, Apr. ed. The bill was then the Senate Committee on and Ad- Rules transferred to the Representa- House of ministration, Sll,638 Cong. (daily Rec. tives. 29, 1999), Sept. ed. where would remain Representatives Shays and Meehan had for the balance of Congress. the 106th already 380, introduced Bill House Bi- responded The Senate to the House’s ac- partisan Campaign 2001, Reform Act of 1593, tion Bill considering Senate also when the Senate secured passage of Sen- Bipartisan Campaign titled the Reform 380, ate Bill 27. See H.R. 106th Cong. 1999, Act of Sep- which was introduced on (1999). 28, 2001, On June in an effort to 16, 1999, by tember Senators McCain and legislation make their conform with the Feingold, shortly after House Bill 417 se- Senate-passed bill,23 Representatives 1593; cured passage. S. see also 145 Shays and Meehan legisla- introduced new Cong. 14, (daily Sept. Rec. H8286 ed. tion, Bill House Bipar- also titled the 1999). Senate, however, The failed in- Campaign tisan Reform Act of 2001. The cloture,21thereby failing voke to limit de- which, House Leadership, through the separate bate on two amendments to Sen- House, Speaker of the controls access to Bill floor,24 ate and the bill floundered. 145 the agreed House to consider House, 21. While debate given on the Senate floor does the fact that House Bill filibuster, always lead to an all-out on contro- Representa- 380 differed Senate Bill legislation, typically the Senate versial in- Shays tives and Meehan met with members of vokes cloture to end the threat of unlimited compromise the Senate to work out a bill. simply gauge support debate or for the agreement reached was reflected in *26 Oleszek, underlining bill. See Walter J. Con- House Bill 2356. See & David Mark John gressional Policy Procedures and the Process Cochran, Dueling House Up Panel to Mark CQ ed., (5th 2001). 231-34 Press Under Rule Quar- Bills, Campaign Congressional Finance Senate, Standing XXII of the Rules of the if (June' 27, 2001) ("The terly Daily Monitor duly "three-fifths of the Senators chosen and designed encourage revisions are to the Dem- (60 sworn” if the Senators Senate is at its full accept ocratic-controlled Senate to a House- membership) vote in the affirmative on a mo- bill, passed avoiding thus the need for a con- cloture, for ques- tion further debate on the trying ference pre-con- committee. ‘We’re to tion shall be limited to no than more one hour bill, supporters ference with of the rather Senator, for each and the time for consider- going opponents,’ than to conference with ation of the matter shall be limited to 30 said.”). Shays hours, by additional unless increased another Standing three-fifths vote. See Rules of the Speaker picks 24.The of the House the 9 Senate, XXII, Rule available majority-party members that serve on the http://rules.senate.gov/senaterules/rule22.htm. powerful House Committee on Rules—the gateway to the House floor. The Rules Com- 2001, Bipartisan Campaign Reform Act of govern mittee writes the rules that debate 27, (2001). Cong. S. 107th and determines which amendments will be 23. Faced with the fact that Senate 27 currently Bill was considered. The committee con- members, unlikely garner support majority to the of a majority-party sists of 13 mem- agree- come to to unable ership were However, min- in a last Bill 2356. House the con- rule for compromise a over Repre- ment legislation, the to tweak effort ute 2356, Bill House and debate proposed sideration Meehan Shays and sentatives Victory Vitriol Cochran, but Cochran, Not Not John for John amendments. several Bill, Congressional Finance Finance Campaign Campaign Vitriol Victory but for 2001), 13, the and Weekly Weekly (July Quarterly Quarterly Bill, Congressional Floor. House the 2001). of amend- pulled 13, package The was bill (July re- and Meehan Shays by offered ments Jim 2001, Representative 30, July On to changes additional for need the flected bring petition discharge a filed Turner 2356, passed if Bill House that ensure consider- the floor for Bill House without considered House, would the 3, avail- Pet. Discharge No. H.R. ation. Senate, thereby elimi- the amendment http://cler- able commit- a for conference need nating the kweb.house.gov/107/lrc/pd/Petitions/Dis3. addition, and Shays In id. tee.25 See scholar procedure congressional As htm. Rules Commit- the that requested Meehan noted: Oleszek J. Walter de- and consideration rule for a tee write adopted procedure, discharge [t]he treat that would House floor the bate has been if a bill provides amendment, single a package as this thirty standing committee a before one vote. considered could be can any days, member ... legislative refused, drafting Committee The Rules Id. panel the relieve a motion introduce and debate consideration resolution requisite If the the measure.... change, fourteen treat each would (218) peti- the sign of members number Id.; see amendments. total, separate majority permits tion, procedure (2001). Cong. 107th Res. H.R. also to the floor a bill bring House the op- Meehan, supporters and their Shays, committee by the opposed even if the rule, House claiming posed the measure, over the jurisdiction that has to defeat “technicalities” Leadership used the Rules leadership, and majority the colleagues upon their bill, and called Committee. Rec. H3984 Cong. rule. reject Proce- Oleszek, Congressional J. Walter 2001) (statement of July (daily ed. (5th ed., Process 138 Policy dures Meehan). House voted Rep. 2001). discharge peti- While however, CQ aftermath, Press failed.26 rule House majority permits Lead- tion the House proponents the bill’s legislation] as deter- position [on House House Speaker of by the bers chosen the House Rules of Speaker,” by the by the mined chosen minority-party members (2003) available Cong. I08th Representatives, J. Olsez- Walter Minority Leader. House http://www.house.gov/rules/house_ Policy at rules.htm, ek, Procedures Congressional vested Speaker is practice, CQ 2001). ed., (5th Press Process to ensure significant discretion *27 the to leader- delegates are amicable committee of a conference House Members 25. Oleszek, Con- J. Walter Speaker of House by ship's position. the formally appointed Policy Wal- the Process the Procedures and gressional Senate. presiding officer and the CQ 2001). ed., Oleszek, (5th and Congressional Procedures Press 252-54 J. ter CQ ed., (5th Press Policy Process 252-54 the in which first occasion the marked House, 26. This appoint- 2001). after initial In the on a a vote lost Hastert Speaker J. Dennis authority to add ment, the Speaker retains the Speaker of years as during his first two Although rule Id. at 254. members. remove and Foerstel, Day A Bitter Karen the House. Speaker the provide rules the House Weekly Quarterly GOP, Congressional the majority [of a than less “appoint no shall 13, 2001). (July supported the generally who conferees]
205 circumvent a stacked committee by 240-191, or the ment a vote of 148 Cong. Rec. Leadership, House it has highly 2002). not been a 13, H411 (daily ed. Feb. Like the effective for passing legislation, tool let earlier amendment package, Shays securing alone its enactment into law. As Substitute was designed to avoid a confer- Walter went on to Oleszek observe: committee, ence opponents where would discharged
New measures are have another opportunity from com- to scuttle the bill,29 mittee. From through (ap- by making changes likely garner proximately period support during which of a majority of the Senate modern version forcing of the rule in without has been them to alter the text of effect), more than House-passed five hundred dis- bill. See 148 Congr. charge filed, petitions (daily 13, 2002) (state- were but Rec. H402 only for- ed. Feb. ty-six required signatures Rep. attracted the ment of Shays) (observing that the Shays and nineteen only bills were substitute discharged amendment was drafted passed by those, and the House. after “met having Of with Senators from both only two became law: sides the aisle Fair Labor to learn what was needed Standards Act of 1938 [BCRA]”).30 Federal bill in pass order to Pay Raise Act of 1960. After considering a series of amendments newly amended, to the underlining bill Id. at 139. Despite history failure, (House 2356), Bill passed House 24, 2002, January Representative Tur- by BCRA a vote of 240-189. Cong. petition ner’s attracted signatures, 13, 2002). Rec. H465-66 (daily ed. Feb. requisite number to achieve discharge. 20, 2002, On March the Senate followed See H.R. Discharge Pet. No. Conse- 3. suit, passing by BCRA a vote of 60-40. quently, the bill was sent to the floor and 148 Cong. Rec. (daily S2160-61 Mar. ed. 203, scheduled for debate. See H.R. Res. 2002). (2001); Cong. 344, 107th H.R. Res. 107th 20, (2002);
Cong. 27, Cong. 2002, Rec. On (daily H266 March George President W. 12, 2002). ed. 13, Feb. February signed law; On Bush BCRA into the first 2002, the began major House to consider overhaul of the House Federal Election Bill During consideration, Campaign 2356. since the Act 1974 Amendments rejected House three and their following substitute amend- revision Buckley. by Broadly ments —one offered Majority speaking, attempts House Title I regu- Leader Dick Armey27 and two late by funds, offered use nonfederal House Administration Chair- while Title II prohibit Committee seeks to labor union man Ney28 agreeing corporate Robert treasury funds being —before Representative Shays’ amend- used run substitute issue advertisements that have Substitute, 415, Armey 27. The Report pass Amendment ence must both the House and by failed Cong. Moreover, vote of 179-249. 148 Rec. the Senate. the House Senate 13, 2002). (daily H376-77 ed. Feb. appoint Leadership members to the confer- ence enjoy committee dis- considerable Substitute, Ney 416, 28. The first Amendment composition. cretion over its See Walter J. failed Cong. vote of 53-377. Congressional Rec. Oleszek Procedures Pol- CQ 2002). (daily ed., H392 icy (5th ed. Feb. 2001); second The 252-54 Process Press Substitute, Ney Amendment failed see also note supra vote of 181-248. Id. at H464-65. Substitute, Shays 30.The Amendment process going creates also present conference amended the title of the bill its *28 three additional to hurdles of "Bipartisan Campaign enactment form: the Act Reform First, legislation. (BCRA) (dai- the conferees come Cong. must 2002.” of 148 Rec. H393 addition, agreement, 13, 2002). an ly and in the Confer- ed. Feb.
206 confronting the Court primary The issue pur- electioneering ostensible scope of was the at the status conference
pose.
develop a satisfacto-
discovery required
defendants, in their
The
factual record.
ry
Litigation
History
Procedural
C.
“wide-raging discov-
argued
pleading,
of this Case
in the context of
necessary “even
ery” was
look to
to]
...
order
challenge,
[in
facial
a
2002,
27,
Pres-
morning of
March
On
sub-
of the case for evidence
the record
law. Within
into
signed BCRA
ident Bush
as-
interests
governmental
stantiating
the Nation-
hours,
McConnell
Senator
legislation said
support
serted
(“NRA”)
com-
filed
Association
Rifle
al
Def.’s Re-
the First Amendment.”
violate
constitutionality of
challenging
plaints
Order of
Response to the Court’s
port in
16,
April
in BCRA. On
provisions
various
16, 2002,
(quoting Turner
at 9
April
directive,
2003,
Congress’s
pursuant
622,
FCC,
Sys. v.
512 U.S.
Broadcasting
were as-
403(a)(1),31
cases
§
those
BCRA
2445,
664-68,
207 discovery defendants pedition extensive was of these greatest cases to the necessary34 to the evidentiary extent, review possible we do not intend sug- to BCRA, grounds for and in part, to avoid gest that the courts should not the take the “disaster” remand. Status Confer- necessary time develop the factual (statement Tr., 23, 2002, April ence at 51 record ... This case will be one of the Gilligan).35 of James Notwithstanding important most that the Court has heard Congress’s expedite directive “to to the decades, in with ramifications for the greatest possible disposition extent the of our system future years appeal,” 403(a)(4), § the action and BCRA By case, come. expediting the we in it was also clear from the legislative record way no want to rush the Court into Congress did not want this Court making its decision without the benefit “compromise judi- and deliberate informed of a full adequate record. cial decisionmaking process.” See (March 147 Cong. 2001) Rec. 30, Report Def.’s S3189 Response to the Court’s (statement 16, 2002, Indeed, April Order of at Feingold); 8. Sen. Sena- see also id. Feingold, (statement tor one of principal at Dodd) Senate S3189-90 of Sen. sponsors, explained during the Senate de- (supporting expedition provision, but bate: “I stating do not want to suggest that the
Finally, and most Court importantly, although should not adequate take time to 403(a)(4) [Section provides ] ex- any review such challenge”).36 (statement ... could be on a scale similar to that of Gilligan); of James FEC v. cf. Turner," Tr., 23, Status April Comm., Conference Republican Colorado Campaign Fed. 2002, (statement (D.Co.1999); at 48 Gilligan). F.Supp.2d of James 41 1197 see also 213 1221, (10th Cir.2000) F.3d 1225 (stating that parties "compiled record”). 34. extensive recognizes This Court got that "we've adequate have an factual record.” Status 36.Judge Henderson maintains that the Buck- Tr., 23, 2002, (state- April Conference at 10 ley case greater was handled with much effi- Henderson). Judge ment of ciency three-judge than the panel here. Valeo, Op. Henderson Buckley 6 n. 1. In v. I, Supreme 35. In Colorado the Court remand- 2, 1975, January lawsuit was filed on but ed the issue of coordinated whether decision was not issued the D.C. Circuit constitutional, I, expenditures are Colorado until August seven and a half months later 623-26, 2309; 518 U.S. at S.Ct. see also 2 15, 821, Buckley, F.2d at 441a(d)(3), § U.S.C. Tenth Circuit required While this case thirteen months from subsequently passed the case on to the district filing disposition, parties also under- court, stating that discoveiy-at took six months of least four important [T]he issues are too to be re- discovery months fact-finding more solved in haste. It seems inevitable that not than that Buckley. undertaken Id. 902- only Supreme this court but the Court itself 03. That discovery four months of alone ac- will have to address these issues. We will counts for discrepancy most of the in the two both parties fleshing benefit expedited, out the yet complicated, campaign finance any Moreover, record with they and evidence the dis- given cases. the vast record devel- trict court deem relevant to the oped through issues’ reso- discovery six months case, lution. it is not surprising that this Court FEC v. Republican Colorado Campaign required Fed. Buckley few more months than the Comm., 471, (1996). 96 F.3d The district court to arrive at a argu- after decision court parties then allowed the only conduct ments-for careful consideration of the months, discovery for signif- eleven and a half record before us could reduce the risk of icantly longer discovery than total committing our sched- findings. clear in our error many Cromartie, ule for complexity. issues similar Easley v. 532 U.S. Tr., 23, 2002, April Status (2001). Conference at 63 S.Ct. L.Ed.2d *30 208 Compel Interrogato- to Motions Plaintiffs’ day, the Court next
Accordingly, the 15, 2002; Order De- Responses, August a dis- outlining ry order a unanimous issued Compel to schedule, al- Motion Plaintiffs’ briefing nying Adams and covery discovery Interrogatories Respond months to five to for over Intervenors lowed 10, cross- Documents, month for September an almost additional and and Produce witnesses; expert and of fact examination 2002. all 7, 2002, deadline which a May set 2002, 7, ordered the Court On October filed; decided and actions would other and to and confer to meet parties the place between to take briefing was briefing the format on proposed a deliver 25, In a 2002. 4 and November November Order, fact. See findings of proposed and to Con- accommodation unusual highly joint response, 7, In their 2002. October the Court expedition, for request gress’s (absent and the Adams plaintiffs the begin on December arguments oral set pages, 751 plaintiffs) requested Thompson parties 4, 2002, after the just over week pages, requested Plaintiffs the Adams See Schedul- final briefs. their submitted pages. requested and the defendants 10, 24, By May April ing Order Response the Joint Submission See in the con- 2002, involved parties were 7, 2002. The Court’s Order October action, plain- eighty-four with solidated including plaintiffs, that the ordered Court twenty-three provisions challenging tiffs plaintiffs, submit and Paul the Adams seven dismissed After the Court BCRA.37 to exceed briefs not three rounds of prejudice, from the suit without plaintiffs briefs sub- and that the defendants’ pages 55, seventy-seven plaintiffs note see infra (ie., opening, of briefs mit rounds three remained. and seventeen defendants to exceed reply) opposition, defendants). plaintiffs all (listing id. directed The Court also pages.38 par- discovery process, During the the defendants collectively, plaintiffs twenty-three motions a total of filed ties proposed find- collectively, each submit Court, motions to com- including pages. than 300 fact of no more ings of mo- requests, responses to document pel Order, 15, 2002; Order, Briefing October interrogato- compel responses tions 19, 2002. October ries, orders. protective and motions 25, 2002, a little over On November 2002, 25, July the Court hearing on At were arguments oral sched- week before many of discov- as to arguments heard parties filed their begin, the last uled to Thereafter, re- the Court ery disputes. briefs, total bringing the brief- round of disputes with memorandum solved (not 1,676 including amicus pages ing to See, Feder- Denying Order opinions. e.g., briefs). later, parties A day curiae Entry Motion Election Commission’s al proposed findings pages of 12, 2002; submitted 576 Orders, August Or- Protective evidentiary submissions in Part Granting in Part and fact. Denying der BCRA, Order, May 10, 2002, constitutionality of see May the Court consolidated On April not consolidated all cases were 10, 2002. 10, 2002; Order, 24, 2002, Order May given aggre- originally side was 38. Each 2002, Cases, Consolidating April and also Court, however, pages, in an gate of 820 McCain, Senator John permitted Senator granted the dated October Order Christopher Feingold, Representative Russell ability Thompson Plaintiffs Adams Meehan, Sena- Shays, Representative Martin briefing independent which in- file own Snowe, Senator Jef- Olympia James tor page aggregate amount for Plain- creased supporting as defendants fords to intervene tiffs. forty-one themselves included (plus boxes party committees (including national con- binders), which, thirteen additional by a gressional committees) campaign “may not *31 estimation, conservative comprised the solicit, receive, or direct person to another testimony and declarations of over 200 contribution, a donation, or transfer of expert fact and 100,- witnesses and over or any value, funds thing other or spend pages39 of material.40 the rec- With funds, any that are not subject to the ord and pleadings it, before the Court limitations, prohibitions, and reporting re- arguments commenced oral on December quirements of 101(a); § this Act.” BCRA 4, 2002. The Court heard six hours of 323(a)(1); § FECA 441i(a)(l). § 2 U.S.C. arguments day, and three hours of applies The law ... “any com- national arguments oral the following day, from a mittee, any officer or agent acting on be- twenty-four total of attorneys.41 half of committee, such a national and any entity that directly or indirectly estab- Description Specific D. Provi- lished, financed, maintained, or controlled sions in At BCRA Issue These by such a national committee.” BCRA Lawsuits 101(a); § 323(a)(2); § FECA 2 U.S.C. The Court briefly next sets forth the 441i(a)(2). § import The clear pro- of this provision of the law that are at issue the vision is that party national committees litigation. are banned from any involvement with money. nonfederal Special Title I: Reduction of In- terest Influence b. The State and Party Local Soft 323(b) a. The Money National Party Ban: Section Money Soft 828(a) Ban: Section terms,-Section 323(b) In summary pro- provision vides, The first of Title I subject involves the exceptions, certain addition FECA, State, of a district, new section to section local or po- committee of a 323, entitled Money “Soft Of Political Par- litical not may use funds nonfederal 323(a) ties.” Section states pay that national for “Federal activity.” election 39. See Response Joint Submission in to the have been submitted very, very I think are Court’s Order of October important. everybody know I feels that way. (statement Waxman). Id. at 279-80 40. The of Seth record in this case was described during one advocate argument the oral disagree Judge 41.We with state- Henderson's “elephantine.” Argument Oral Tr. at 152 ment "there was consensus [at (statement Abrams); Floyd see also id. at hearing] [Supreme] Court had to agree. 279-80. We Both sides should be receive the no early case later than Febru- commended extraordinary efforts in ary.” Op. at 6 reading Henderson n. 1. fairA gathering organizing the evidence in such of former Solicitor General Waxman's collo- period agree short of time. We with Seth Henderson, quy Judge with prompted by her Waxman, attorney for the Intervenor-Defen- questions, judgment, in our be that would dants, urged carefully who us to review the Supreme ability adjust Court has the record before us: schedule, briefing argument and oral and has very, very important I think it's for the past, done so in the exactly to hear cases such carefully court to look short, the record.... We as this one. In neither Solicitor former worked, all of us on sides both of this General stated categorical his conclusion in case have terms, worked harder than I ever be- provided and neither estimate of lieved I could be made to long work order to hearing how Supreme after a Court give you this record.... I think the ads opinion. would'need generally to issue its 18-20; reports itself and the and affidavits that Tr. at 277-280. some pay (unless designated 323(b); date § 101(a); FECA §
BCRA activity); election of Federal kind other 441i(b). § U.S.C. convention; (iii) or local a state 323(b)(1) prohibits section general, materials campaign (iv) grassroots spend- parties local state etc.) only a that name buttons, (stickers, in accordance raised money any ing local candidate. state activity.” election “Federal FECA 301(20)(B); 2 § 101(b); FECA § 323(b)(1); 2 BCRA § 101(a); FECA § BCRA 431(20)(B). § ac- U.S.C. 441i(b)(l). election Federal § U.S.C. *32 Act by as: tivity is defined 1) Amendment The Levin during the activity (i) registration voter 323(b)(2)-commonly referred Section that is the date on begins that period an out “Levin Amendmenfi’-carves as the regularly a the date days before in section rule general to the exception held and election Federal scheduled 101(a); FECA § 323(b)(1). BCRA (ii) election; date on the ends 4431(b)(2). Section § 323(b)(2); 2 U.S.C. § ac- identification, get-out-the-vote voter parties local 323(b)(2) state and permits activity con- campaign generic or tivity, money nonfederal an allocation use an election with in connection ducted funds”) vot- for (“Levin “Levin money” or ap- office Federal for a which candidate identification, and voter registration, er wheth- (regardless the ballot pears on that certain provided activities GOTV local office or for State a candidate er First, met. conditions specified (iii) ballot); public a on the appears also to a refer may not activities permitted clearly ato refers that communication Sec- candidate. federal clearly identified office Federal for candidate identified any not involve may activities ond, those for a candidate whether (regardless that except one communication broadcast or mentioned is also office or local State or state clearly identified a solely to refers sup- or identified) promotes that Third, single no donor candidate. local office, at- or that ports a candidate $10,000 a state than more donate may that candidate opposes or tacks activities. those annually for party or local com- whether (regardless office mon- (federal Levin Finally, money all a vote advocates expressly munication must alike) activities such spent on ey (iv) candidate); ser- or against for or solely raised “homegrown”-i.e., any month during provided vices may party-and local or spending state district, State, local or employee of conjunc- or raised transferred who be party of a committee committee, party any national tion percent more than spends candidate, other or or officeholder during time compensated individual’s 101(a); § BCRA party. or in connection local state on activities month 323(b)(2)(B), 323(b)(2)(C); §§ FECA election. Federal with a 441i(b)(2)(C). 441i(b)(2)(B), §§ U.S.C. 301(20)(A); 2 § 101(b); FECA § BCRA ac- 431(20)(A). election Federal § U.S.C. 823(c) Section Fundraising Costs: c. not include: tivity does state, national, 323(c) requires Section refers (i) communication public federally-regulated to use parties local or identified state clearly to a solely used that will be money any raise funds (unless communica- candidate local activities,” as defined election “federal elec- Federal qualifies as tion otherwise 101(a); FECA § BCRA (ii) in the statute. GOTV); instance, as activity, for tion 441i(c). § 323(c); 2 § U.S.C. candi- or local state to a a contribution d. Organization Tax Exempt any Federal, State, or public local office Soft 323(d) Money Ban: Section or office in a political organization, or the election of Presidential or VicePresidential 323(d) prohibits any Section electors”). committee-national, state, party or local-or agents its from “solicit[ing]” funds for or ,e. Federal and Candidate Officeholder “mak[ing] directing]” or any donations to 323(e) Money Ban: Section Soft (i) any tax-exempt either: section 501 or- 323(e) Section generally prohibits feder- ganization, 501(c), § see 26 U.S.C. al officeholders and candidates from spends any “in soli- money connection with an citing, receiving, directing, transferring, election for Federal office (including ex- (i) spending any money42 soft penditures or connec- disbursements for Federal (ii) tion -with (ii) a federal activity)”; election or any election con- section nection with a (other state or local organization, § election. 26 U.S.C. 101(a); § BCRA 323(e)(1); § than a FECA state or local or the autho- 441(e)(1). § U.S.C. campaign are, however, rized committee of a There candidate *33 office). several exceptions for state or 101(a); § local to the general prohibi- BCRA 323(e). 323(d)(1), 323(d)(2); First, §§ tion in FECA section a U.S.C. federal 441i(d)(l), 441i(d)(2). 501(c) §§ or A section officeholder candidate may solicit mon- organization ey is an for organization that is tax state and local candidates from exempt as in that sources described section of the amounts that would be al- tax good example code-a lowed by 101(a); which is a Federal § law. BCRA charity. A section 527 organization 323(e)(1)(B)®, FECA §§ is a 323(e)(l)(B)(ii); 2 political committee that is exempt 441i(e)(l)(B)(i), 441i(e)(l)(B)(ii). §§ from U.S.C. 527(a) (“A taxation. § See 26 Second, U.S.C. po- the federal officeholder or candi- organization litical subject shall be to tax- date on ban nonfederal funds does not ation under this only subtitle to the apply solicitation, extent to the receipt, spend- or provided in this A political section. orga- ing of funds an individual who is also a nization shall be considered an organiza- for candidate state or solely local office exempt tion from income taxes for the connection with such election. BCRA purpose any law which orga- 101(a); § refers to 323(e)(2); § FECA 2 U.S.C. exempt 441i(e)(2). nizations taxes.”); from income Third, § a federal officeholder 527(e)(1) (2) §§ see also 26 U.S.C. or may speak candidate attend or at a (defining “political a organization” as an fundraising event a for or local politi- state organization that “organized is oper- cal party. 101(a); § BCRA FECA primarily ated for purpose 323(e)(3); § of directly 441i(e)(3). § Fourth, U.S.C. indirectly or accepting contributions or a federal officeholder or may candidate making expenditures, both, or for ... solicit funds such on of any behalf tax- function influencing or attempting exempt section 501 organization that selection, influence nomination, spends elec- money in with connection federal tion, or appointment of any individual to (i) elections in either of two instances: he election, If the federal candidate or is officeholder then the funds must "not ex- soliciting, receiving, directing, transferring, or cess of permitted respect the amounts spending funds in connection with an election contributions candidates and com- office, for federal subject funds must "be mittees” prohibited by and "not from sources limitations, to the prohibitions, reporting making the Act from in connec- contributions requirements this Act.” 2 U.S.C. tion with an election for Federal office.” 2 441(e)(1)(A). However, § if the candidate is 441(e)(1)(B). § U.S.C. doing so in connection with a state local or spe- (aa) general, a days before for a funds unlimited may solicit or she office for the cial, election or runoff “principal whose organization section candidate; or by the sought voter registration, not voter is
purpose” long so identification, activity, or GOTV or (bb) primary a days before how the specify does the solicitation election, or a convention preference (ii) may he or she spent; will be funds party that a caucus of or per year $20,000 per person up to solicit candi- authority to nominate has voter registration, voter for specifically sought by date, for the office an or for identification, activity, or GOTV candidate; and n purpose” “principal whose organization (III)in of a communication the case activities. all of those or any conduct an a candidate refers to 323(e)(4); 101(a); §§ § FECA BCRA President Vice than office other 441i(e)(4). § 2 U.S.C. President, to the relevant targeted electorate. Ban: Money Candidate f. State Soft 304(f)(3)(A); 2 201(a); § § FECA BCRA 823(f) Section 434(f)(3)(A).44 this defini- § Under U.S.C. prohibits generally 323(f) Lastly, Section tion, electioneer- to constitute order or candidates officeholders state therefore, communication, commu- ing (that is, money not money soft spending cable, (a) must be disseminated nication regulations) to FECA’s pursuant raised (b) satellite, broadcast, must refer to “refers” communication that any public (c) candidate, Federal identified clearly candidate clearly identified *34 certain time within must be distributed “at- “supports,” “promotes,” office (d) election, be and must an periods before for that tacks,” a candidate “opposes” or Id. electorate. the relevant targeted to § 101(a); § 323(f); FECA BCRA office. must be the communication fact that The 441i(f). § 2 U.S.C. electorate,” “targeted to relevant that, House and in the case of means Campaign Noncandidate Title 2. II: races, will not the communication Senate Expenditures “electioneering communica- an constitute Electioneering Com- a. Definition 50,000 or more individuals unless tion” 201 Section munication: state district or congressional the relevant section of BCRA amends 20143 Section House or Senate for the that the candidate following defi- adding the of FECA 304 can receive represent are seeking communica- “electioneering of an 201; nition § FECA BCRA communication. 434(f)(3)(C). tion”: § 304(f)(3)(C); 2 § U.S.C. (i) communica- “electioneering The term advertisement example, if a broadcast For cable, broadcast, or sat- any tion” means candidate within refers to a federal House election, which- can ellite communication but general days individuals, 30,000 it is (I) candi- clearly only identified received to a refers office; electioneering Federal communication date for with funds from be made permissibly could (II) within- is made communication, rather provi- "dissemination contains Section also disclosure funds related the disbursement of discussed than sions which are infra. Electioneering creating communication.” implementing this defini- regulations The Communications, Fed.Reg. operative event for mak- clarify tion 23, 2002). (Oct. electioneering is the ing an communication the general treasury of a corporation 203; § or § FECA 316(b)(2); 2 U.S.C. labor union. 441b(b)(2) (“[T]he § term ‘contribution or expenditure’ In the event that a includes a court competent contribution or expenditure, jurisdiction as finds those terms are definition of election- defined [FECA], eering and also communication to includes any be constitutional- direct or indirect ly infirm, payment, distribution, provides loan, statute a backup advance, deposit, or gift definition: of money, or any services, or anything of (ii) value ... (i) to any If clause is held to be constitu- candidate, campaign committee, politi- or tionally insufficient by judicial final deci- cal party or organization, in connection sion support the regulation provided any election to any of the herein, offices then the term “electioneering referred into this section or any ap- communication” means any broadcast, plicable electioneering cable, communica- or satellite communication which iiow-”)(emphasis added). prohibition promotes or supports a candidate for on electioneering communications only office, or attacks opposes or a can- applies to the general treasury funds of didate for that office (regardless of banks, national corporations, and labor whether the communication expressly unions, any person other using funds advocates vote for against a candi- donated by these entities. date) and which also is suggestive of no plausible Like the meaning original prohibition other than an exhor- in section 441b, tation to voté for or Section against 203 of BCRA, a specific is not an abso- lute ban candidate. on corporate and labor union spending on “electioneering 201(a); § BCRA communica- § FECA 304(f)(3)(A)(ii); tion.” FECA expressly permits corpora- § 434(f)(3)(A)(ii). U.S.C. With the ex- tions and labor unions to “separate create ception of the clause, final the fallback segregated fund[s] to be utilized politi- definition essentially tracks the language cal purposes.” 2 § U.S.C. 441b(b)(2)(C). found 301(20)(A)(iii) section of FECA These segregated funds are known po- which addresses one of the four activities *35 litical (or committees under the PACs). Act which fall within the definition of term 431(4)(B) § U.S.C. (A political committee Federal Election Activity. BCRA is “any separate segregated 101(b); § fund estab- § FECA 301(20)(A)(iii); 2 lished under the provisions of § section 431(20)(A)(iii). U.S.C. 441b(b) title.”). of this These segregated b. Prohibition Corporate and Labor of accounts subject are to the source and Union General Treasury Fund Dis- amount limitations contained in FECA. bursements Electioneering Com- for See, e.g., 2 441a(a)(l)(C) § U.S.C. (provid- munications: Section 203 Rules ing that person no shall make contribu- Relating to Certain Targeted Elec- “to any tions other committee in tioneering Communications: Sec- any year calendar which, in the aggregate, tion 20k $5,000”). exceed To fund the segregated Section 203 of BCRA extends account, a corporation permitted to soli- prohibition on corporate and labor union cit contributions from “its stockholders general treasury funds being used in con- and their families and its executive ad- nection with a federal election to cover personnel ministrative and their families.” electioneering communications. BCRA 2 § 441b(b)(4)(A)(i).45 U.S.C. Likewise, in 45. For membership organizations, coopera- of solicitations the membership permitted are tives, corporations stock, capital without permits Provision Snowe-Jeffords funds, labor segregated their establishing gener- their use to organizations nonprofit contributions to solicit allowed
unions are electioneering for pay treasury funds al their and members from fund to the incorporated they are if 441b(b)(4)(A)(ii). communications § 2 U.S.C. families. 501(c)(4) Section and/or Section la- under and accounts, corporations these From Code. Revenue Internal 527(e)(1) contri- make permitted are unions bor corporations nonprofit exception for spend This candidates butions it existed as law expansion funds is an segregated amounts unlimited pro- not did FECA While inde- to BCRA. prior electioneering communications seg- separately its from exception that feder- vide an provided expenditures, pendent nonprofit for requirement activi- fund regated these pay for used funds are al FEC Court Supreme corporations, ties. Inc., Life, Citizens v. Massachusetts for Provision Snowe-Jeffords 616, L.Ed.2d S.Ct. 479 U.S. exception an provides Section BCRA as-ap- ”) provided had (1986)(“MUFL corporations nonprofit types to certain corporations nonprofit exception plied corporations, requirement forth set criteria certain satisfied use must unions, national banks labor BCRA, it is Under Court.47 Supreme not funds46—and segregated separately corporation nonprofit necessary that for elec- pay funds—to treasury general criteria the three met it has establish However, this communications. tioneering trea- general to use its in order of MCFL as known commonly exception, com- electioneering pay for sury funds spon- its after Provision” “Snowe-Jeffords under instead, do may so munications; effect, later, withdrawn sors, was being by virtue simply Snowe-Jeffords “Wellstone known Section 501(c)(4) or Sections under incorporated 69; com/pare Amendment,” see infra 527(e)(1). 316(c)(2); 2 § U.S.C. 203; FECA § BCRA under corporation Provision) nonprofit While (Snowe-Jeffords 441b(c)(2) § gener- to use permitted 316(c)(6)(a); Snowe-Jeffords § 204; § FECA BCRA with electioneering com- funds treasury (Wellstone al 441b(c)(6)(A) § 2 U.S.C. to note munications, important it is Amendment). 527(e)(1) organizations, who nizations 2 U.S.C. segregated account. fund the electioneering commu- to make permitted 441b(b)(4)(C). § by individu- money contributed nications addresses als, the names disclose must section supra, FECA As discussed *36 the funds contributed who individuals ac- those segregated bank to a 304(f)(2)(E) refers electioneering communication. pay for election- for up of contributions made count 316(c)(2); 2 U.S.C. 203; § § FECA BCRA States United from eering communications 441b(c)(2). § nationals, residents citizens, permanent all addresses the names all where corporation is is, 1) whether 47. That aggregate an contribute who contributors promoting purpose express for "formed $1,000 account more to amount of business ideas, engage in cannot sec- supra, FECA as discussed Also disclosed. or other activities”; 2) shareholders no "has electioneering com- 304(f)(2)(F) refers tion affiliated,” "no members so persons treasury. If general a paid from munications disassociating with disincentive economic paid electioneering communication an activity”; its disagree with they it if section under treasury funds general "was not established 3) corporation of more contributors 304(f)(2)(F), all then policy a and has corporation,” by a business dis- year have $1,000 calendar in a than such entities.” “contributions Hence, refusing under address. name their close at 264. MCFL Provision, 501(c)(4) orga- Snowe-Jeffords corporations these are not permitted to to a fers candidate for an office other than use funds by donated corporation, labor President or President, Vice is targeted to union, or national bank purchase them. the relevant electorate.” 204; § BCRA Under Snowe-Jeffords, a nonprofit corpo- § FECA 316(c)(6)(B); U.S.C. ration may only use funds donated by indi- § 441b(c)(6)(B). The direct consequence viduals to pay for electioneering communi- of the Wellstone Amendment is that orga- cations. If a nonprofit corporation, for nizations organized under 501(c)(4) section example, has accepted corporate contribu- 527(e)(1) and section of the Internal Reve- tions and mixed those contributions with Code, nue or those entities who have re- general treasury funds that contained indi- ceived funds from corporations, are not donations, vidual the nonprofit corporation permitted to use general treasury would not permitted to use their gener- funds for electioneering communications. al treasury funds to engage in electioneer- The Wellstone Amendment was codified ing communications. in separate section of BCRA in order to Finally, although Snowe-Jeffords ex- preserve severability: hence, if the Court empts nonprofit corporations from sep- finds the inclusion of 501(c)(4) section or- arately segregated fund requirement, they ganizations and section 527 organizations are not similarly exempted from the disclo- within ban on electioneering communi- sure requirements set forth in Section 201. cations to be unconstitutional, the Well- Nonprofit corporations, like any other enti- stone Amendment can be cleanly struck ty engaging electioneering communica- from the law and the original Snowe-Jef- tions, public must make the names and fords exception for these groups will be addresses all contributors who contrib- restored. § BCRA 401 (discussing $1,000 uted over to the account from which subject BCRA is to severability). the corporation paid for the communica- tions. To briefly summarize, section pro- Wellstone Amendment vides two definitions of “electioneering Despite drafting and including the communication,” a primary one and a Snowe-Jeffords’ provision Act, in the backup definition event court finds amendment offered Senator Paul Well- the main definition unconstitutional. Sec- stone adopted by the Senate effective- tion in conjunction with section ly eviscerates the Snowe-Jeffords’ Provi- prohibits corporations and unions from us- sion from the Act. The “Wellstone ing general treasury funds pay for an
Amendment,” codified in section 204 of electioneering communication. Corpora- BCRA states that the exemption created tions and unions need to establish political the Snowe-Jeffords Provision for sec- action committees if 501(c)(4) tion want to corporations engage and section 527(e)(1) electioneering corporations communication. is inapplicable “in the case of a targeted communication.” c. Disclosure Electioneering Com- 204; § BCRA § FECA 316(c)(6)(A); 2 munications: Section 201 *37 § 441b(c)(6)(A). U.S.C. The Wellstone Amendment describes a Section “targeted 201 commu- amends Section 304 of nication” “an as FECA, electioneering 2 § communi- U.S.C. by requiring dis- cation” that is “distributed from a televi- closures related to electioneering commu- sion or radio broadcast provider station or nications. Section 201’s disclosure re- of or cable satellite television and, quirements service mandate the reporting of in the case of a communication which re- “disbursements” for the “direct costs of
216 disbursements, the communication electioneering com- airing producing persons of all and addresses than names more aggregating munications” $1,000 the ac- over BCRA year. who contributed any calendar during $10,000 304(f)(1); year; and 2 U.S.C. calendar the during § 201(a); FECA count made must 434(f)(1). reports The § (cid:127) are made if disbursements the 24 hours of within to the Commission and ad- source, names the different statute Id. The date.” each “disclosure of all contributors dresses time the first as date” “disclosure defines $1,000 over who contributed source elec- person’s year calendar the during year. during the calendar disbursements communication tioneering ag- subsequent each $10,000, 304(f)(2); 201(a); § U.S.C. exceed FECA BCRA electioneering $10,000 in gregation 434(f)(2). § made disbursements communication 201(a); Communications § d. Coordinated BCRA year. calendar
the same 434(f)(4). Section 304(f)(4); § Contributions: § U.S.C. FECA in- Section under “Disbursements” amends Section BCRA 202 of Section dis- make contracts clude executed 441a(a)(7) by 315(a)(7) FECA, 2 U.S.C. electioneering communica- for bursements language: following adding the 304(f)(5); 201(a); § FECA BCRA tions. 434(f)(5).48 if— § 2 U.S.C. made reports, the requires makes, section contracts (i) or person any to include perjury, penalty
under any elec- make, any disbursement following information: ...; and tioneering communication making (cid:127) person the identities (ii) is coordinated disbursement such sharing or disbursement, any person com- an authorized candidate or with a control over or exercising direction Federal, candidate, a mittee of such of the the custodian person, and State, party commit- or or local mak person and accounts books any thereof, or official agent anor tee disbursement; ing the committee; candidate, party, such
(cid:127) place of busi principal person’s shall contracting such disbursement individual; ness, if not an candi- to the aas contribution be treated (cid:127) over disbursement the amount each electioneering by the supported date period statement’s during the $200 party candidate’s or that communication received person who identity of candidate expenditure by that and as disbursement; or that candidate’s (cid:127) the electioneer- elections to 315(a)(7)(C); 2 § 202; and the pertain § BCRA FECA ing communications 441a(a)(7)(C). 202 essen- § identified Section of the candidates names U.S.C. known; communications, if the defini- import of clear the tially makes “electioneering communication” tions of (cid:127) from a are made if the disbursements 214; in Sections and “coordination” solely funded segregated account electioneering communications coordinated by individuals contributions direct contributions. constitute electioneering making purpose of disburse- to make the states, a contract executed purposes of this provision "For 48. The 304(f)(5); 201(a); § FECA BCRA subsection, ment." as hav- be treated person shall 434(f)(5). § U.S.C. person if has ing a disbursement made
217 Reporting e. Requirements § 304(g)(2)(A); Certain 2 § 434(g)(2)(A). U.S.C. Independent Expenditures: Section reports These must also be supplemented
212 whenever expenditure additional contracts expenditures or aggregate an Section 212 additional amends Section 304 of $10,000 (2 toward 434) § FECA same election. by BCRA U.S.C. adding certain 212; § § disclosure FECA requirements 304(g)(2)(B); 2 independent U.S.C. expenditures.49 § 434(g)(2)(B). provision requires
persons, including committees, to f.
report Coordination independent with expenditures, or Candidates or con- tracts to expenditures, make such Political Parties: Section aggre- 211 $1,000 gating or more after the twentieth The Supreme Court has found treating day before the date of an election.50 coordinated expenditures as contributions 212; § § BCRA FECA 304(g)(1)(A); 2 constitutionally justifiable under the ratio- § 434(g)(1)(A). U.S.C. reports These nale of preventing circumvention. Buck- must be within made 24 hours of making ley, (“[CJontri- U.S. at S.Ct. expenditure or the contract to make bution ceilings ... prevent attempts to expenditure. reports Id. Such must be circumvent through [FECA] prearranged supplemented within 24 hours of making or expenditures coordinated amounting to expenditure additional expen- contracts or contributions.”). disguised Section 214 ditures aggregating $1,000 an additional makes changes to FECA’s coordinated ex- toward the same § election. 212; BCRA penditure regime. FECA 304(g)(1)(B); § U.S.C. 214(a) Section amends Section § 434(g)(1)(B). expenditure For contracts 315(a)(7)(B) FECA, of 2 U.S.C. or expenditures made more twenty than 441a(a)(7)(B), § by adding following days election, before an persons must also provision: reports file only but expenditures after the $10,000 (ii)
aggregate to expenditures or more made any person (other have 48 hours which to file their disclo- than candidate or candidate’s 212; sure. § BCRA committee) FECA authorized in cooperation, "independent Section 211 defines expendi- amount or value in $200 excess of within ture” as: (or year cycle, calendar election in the expenditure by an person— case of authorized an committee a candi- (A) expressly advocating the election or de- office), date for Federal in connection with candidate; feat clearly of a identified independent expenditure report- (B) that not made coopera- is concert or committee, ing date, together with the request tion or at suggestion or amount, purpose any indepen- such candidate, such the candidate’s authorized dent expenditure and a statement committee, agents, or their aor indicates independent whether expen- such political party agents. committee or its of, to, diture support opposition or in 211; 301; § BCRA § FECA 2 U.S.C. candidate, as well as the name office 431(17). § candidate, sought by such and a certifica- reports tion, 50. The must filed with the penalty FEC under perjury, whether such and must include "the name of candi- independent each expenditure cooper- is made in expenditure date whom an sup- ation, intended to consultation, concert, with, or or at port 212; 304; § or oppose,” § BCRA FECA of, request suggestion any candidate § 434(g)(3)(B), U.S.C. as well as the name any agent authorized committee or address each such committee person any who receives disbursement dur- 434(b)(6)(B)(iii). § U.S.C. ing reporting period aggregate in an
218 made for communications (4)payments with, at or the
consultation, or concert discussion after substantial person aby national, of, a suggestion or request candi- awith communication the about political aof State, committee or local political party. a date or to be contri- shall be considered party, Id. committee party to such made butions 214 amends Section Section Lastly, 315(a)(7)(B)©; 214(a); § FECA § BCRA 441b(b)(2), to FECA, 2 316(b)(2) U.S.C. of 441a(a)(7)(B)(ii). language This § 2 U.S.C. “contribu- meaning the of include within 2in U.S.C. to that virtually identical banks, by national expenditures or tions as an 441a(a)(7)(B)(i)51, in 1976 passed § the organizations,” or labor corporations, FECA, ex- defines to amendment expenditure” or of “contribution definitions can- with in coordination made penditures FECA, 2 U.S.C. 301 of found in Section didates.52 214(d). (9). § 431(8), BCRA § regu- the FEC’s repeals 214 also Section Title III: Miscellaneous communications coordinated “on
lations candidates, other than by persons paid for Cer- Amount a. Use Contributed of candidates, and committees authorized SOI Section Purposes: tain committees,” requires the FEC party permitted and sets forth 301 Section BCRA regulations. promulgate new For ex- of contributions. uses prohibited (c). 214(b), instructed Congress § contribu- transfer can a candidate ample, agree- not require regulations “shall new convert but cannot parties political tions to establish collaboration or formal ment BCRA use. personal contributions 214(c); 2 § U.S.C. BCRA coordination.” 313; § 439a. § 2 301; U.S.C. § FECA instructed Congress also § 441a note. Sec- Millionaire Provisions”: b. “The should address regulations
that the
316,
SOI,
& 319
tions
(1)
republication
for the
payments
BCRA,
304, 316, and 319 of
In Sections
materials;
campaign
of self-fi-
opponents
allowed
Congress
a
(2)
use of
common
for the
payments
money
larger
raise
nanced candidates
vendor;
circumstances,
and,
certain
increments
(3)
direct-
for communications
party ex-
payments
coordinated
accept
unlimited
provisions
previously
by persons
Specifically,
who
penditures.
or made
ed
“op-
if a
candidate’s
or
self-financed
employee of a candidate
state that
served as
amount”53 exceeds
personal fund
position
party;
candidate,
of,
his
au-
suggestion
request or
Republican Federal
v. Colorado
In FEC
committees,
agents,
431,
Comm.,
thorized
S.Ct.
U.S.
Campaign
a contribution to
("Colorado
to be
(2001)
considered
shall be
L.Ed.2d
441a(a)(7)(B)(i).
§
U.S.C.
candidate”. 2
ap-
such
”),
Supreme Court considered
II
441a(a)(7)(B)(i)
politi-
plicability of Section
amount” is
Despite
“opposition personal
fact that
funds
party expenditures.
53.The
cal
overbroad,
personal
ex-
funds
provision
simply the
amount
found
four Justices
II,
It also
S.Ct. 2351
candidate.
pended
self-financed
533 U.S.
Colorado
J.,
gross receipts advan-
(Thomas,
dissenting),
majority found
account
takes into
politi-
a(a)(7)(B)(i) applied to
commit-
authorized
tage
both candidate's
Section
large war
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Mitchell, Earl F. Hilli- Daniel and Solid Zachary C. White ard (collectively, the Thompson plaintiffs). (collectively, the Echols plaintiffs); in No. 02- CV-0751 are the Chamber of Commerce of The 17 defendants in these consolidated States, the United the National Association of actions are the Federal Commission; Election Manufacturers, National Association of the America; United States of the United Wholesaler-Distributors, and U.S. Chamber Department States Justice; of the Federal Political Action Committee (collectively, the Commission; Communications Ashcroft, John Chamber plaintiffs); Commerce in No. 02- of his capacity official Attorney as General of CV-0753 is the National Association of the son, America; United States of David M. Ma- Broadcasters; in No. 02-CV-0754 are the Sandstrom, Karl J. McDonald, Danny L. American Federation Labor Congress and Bradley Smith, A. Scott E. Thomas and Mi- Organizations Industrial and AFL-CIO Toner, chael E. in their capacities official as Committee on Political Education Political FEC; Commissioners of the and Senators Contributions Committee (collectively, McCain, John Russell Feingold, Olympia plaintiffs); AFL-CIO in No. 02-CV-0781 are and Snowe James Jeffords and Representa- Congressman Paul, Ron Gun Owners of tives Christopher Shays and Martin Meehan America, Inc., Gun Owners of America Politi- (collectively, Intervenors), as intervening Fund, Victory cal RealCampaignReform.org, defendants. United, Citizens Citizens United Political Vic- Fund, tory Michael Cloud and Carla Howell The Court finds unnecessary to make (collectively, plaintiffs); the Paul in No. 02- findings respect with to all 77 Plaintiffs and CV-0874 Republican are the National Com- 17 Defendants in these actions and therefore mittee, Duncan, Mike Republican Party of Findings of Fact reflect primary par- Colorado, Republican Ohio, Party of Republi- litigation. ties in this expenditures independent funds Commit- National Libertarian The 3. Id. behalf. communications body of (“LNC”) governing is
tee, Ine. level. national (“The at the Party Growth, Inc. the Libertarian The Club 7. ¶4. a non- is LNC membership orga- The Decl. Club”) Dasbach a nationwide is in the Dis- incorporated public pol- corporation advancing profit dedicated nization by section governed growth. Columbia economic promote trict of icies Id. The ¶ Code. Virginia Revenue Internal The Club Keating Decl. princi- advocates under section represents organized LNC corporation right McConnell all individuals Code. ple that Internal Revenue so they ¶29. choose “is Club manner whatever Compl. live in Am. Second interfere forcibly pro- do the election long promoting dedicated Id. the same. through to do of others candidates right pro-freedom growth, contributions bundling Union Civil Liberties American 4. The Decl. Keating campaigns.” advocacy issue in- corporation tax-exempt (“ACLU”) ais tax ¶ advocates for Growth The Club of Columbia in the District corporated reform, tax reduction, fundamental rate 501(c)(4) by section governed tax reduc- capital gains simplification, *43 tax 1. Decl. Romero Code. Revenue Internal reduction repeal, tion, tax overall estate nationwide, non-profit, is a The ACLU choice, and school spending, government approxi- with organization non-partisan Security. of Social investment personal to the 300,000 “dedicated members mately ¶ 5. Id. embodied equality liberty and of principles Id. Commit- to Life Right in the Constitution.” National The 8. corporation tax-exempt (“NRLC”) ais tee and Contrac- Builders Associated 5. of Columbia District incorporated tax-ex- (“ABC”) non-profit a tors, is Inc. 501(c)(4) of by section governed is and by section governed empt organization ¶ 4. Decl. Code. O’Steen Revenue Internal code, Revenue 501(c)(6) Internal nationwide, non-profit, ais NRLC The funded and is Maryland, incorporated approxi- with non-partisan organization Monroe membership dues. primarily fifty state and chapters 3,000 local mately ¶3. trade national is a It Test. Direct respect “promoting to dedicated affiliates 23,000 than more representing association life all human of dignity and for the worth in the con- firms related and contractors ¶¶ 5, Id. death.” natural conception members, Id. ABC’s industry. struction 3. non-un- and unionized include both Edu- Life Right philosophy “share National employers, The ion 9. (“NRL-ETF”) is awarded Fund should Trust work cational construction 501(c)(3) merit, by section regard- governed of the basis organization on performed ¶ 16. Id. code. Revenue Id. the Internal affiliation.” of labor less advertis- sponsors educational NRL-ETF Contractors Builders 6. Associated “fetal detailing materials develops ing PAC”) (“ABC Committee Action Political impact Amer- abortion’s development, gov- committee a connected is Id. of euthanasia.” threat ica, 431(4) and section § 2by U.S.C. erned ¶ 17. is a Code and Internal Revenue to Life Political Right National pursuant ABC fund of segregated separate PAC”), (“NRL orga- ¶22. Committee 441b(b). ABC Action Id. § 2to U.S.C. § fund of an internal is candi- nized contributions PAC makes the FEC registered is ABC NRLC principles support the dates who subject PAC to FECA. O’Steen Decl. ute federal candidates represent “who ¶ 24. their views and beliefs on important ques- tions like right 11. Thomas to life of E. children Mclnerney is a U.S. be- citizen, birth, registered fore voter and on in the size of government.” State of ¶ New York and a member Id. 44. contribu- tor to Republican various Party organiza- 16. The (“The Chamber of Commerce tions and national, committees at the state Chamber”) tax-exempt corporation ¶ and local levels. Aff. Mclnerney governed 501(c)(6) by section of the Inter- 12. Barret Austin O’Brock is a U.S. nal Revenue Code. Josten Direct Trial citizen and a resident State of Loui- ¶ Test. 3. The Chamber the world’s larg- ¶ siana. O’Brock Decl. 1. He is fourteen est not-for-profit federation, business rep- years age and intends to make contribu- resenting 3,000,000 over businesses and tions federal candidates in future elec- business associations. Id.
tions, including the 2004 election. Id. ¶¶ 2-3. 17. The U.S. Chamber Political Action 13. The National Rifle Association (“U.S. Committee PAC”) Chamber is a (“NRA”) is a tax-exempt corporation gov- connected political organized committee 501(c)(4) erned by section of the Internal under 527(e)(1) section of the Internal Revenue Code and incorporated in the Revenue Code registered and is with the ¶ State of New York. NRA Compl. 8. The FEC. Josten Direct Trial Test. 26. U.S. primary purpose of the NRA is pre- Chamber PAC is funded by contributions protect serve and the Second Amend- voluntarily made individual Chamber of ment’s guarantee that individuals shall executives, Commerce administrative em- *44 right the to “keep and bear arms.” ployees, members and their families. Id. ¶ LaPierre Decl. addition, 2. In the NRA ¶ 27. promotes public firearm safety, law trains enforcement agencies in the use of fire- 18. The National Association of Manu- arms, sponsors shooting competitions, and (“NAM”) facturers a tax-exempt is corpo- advances hunter safety. Id. The NRA has governed ration by 501(c)(6) section of the approximately four million members and Internal Revenue Code and the is oldest represents their views on legislative and and largest broad-based industrial trade public policy federal, issues before state association in the United States. Huard and local officials and general public. ¶ Direct Trial Test. 2. Its membership ¶ NRA Compl. 8. comprises 14,000 companies and 350 mem- 14. The National Rifle Association Po- ber associations. Id. (“NRA litical Victory PVF”) Fund is a 19. The political
connected National Association of governed Broad- by committee 431(4) (“NAB”) § U.S.C. 527(e)(1) casters and section is a non-profit corporation of the Internal Revenue Code and serves sepa- is a as a trade association of radio rate segregated fund of pursuant the NRA and television stations and broadcasting 441b(b). § ¶ to U.S.C. Compl. NRA 9. networks in the United States. Goodman ¶Decl. 3. NAB represents serves and Echols, 15. Emily Hannah and Isaac McDow, American White, broadcasting Zachary composed industry, Daniel Solid and of 7,300 Jessica approximately Mitchell are U.S. citizens member who stations. range in age from All Id. of twelve to NAB’s voting sixteen. members are Echols Pis.’ Proposed Findings of Fact broadcast licensees the meaning within of ¶ 45. They intend to seek out and contrib- the Communications Act. Id. Political of America Owners 23. Gun Labor of Federation American 20. com- political is a connected Fund Victory Organizations Industrial of Congress
and is a § 431 and 2 U.S.C. by governed mittee federation labor national (“AFL-CIO”) is a Owners of Gun fund segregated separate international and 66 national comprised of ¶ 4. Id. America. a total of collectively, have that, unions labor G. members. 13 million approximately of not- is a RealCampaignFinance.Org 24. a tax- ¶ AFL-CIO 3. The Decl. Shea gov- corporation exempt tax for-profit, Section under organization exempt 501(c)(4) the Internal of section by erned Id. Code. Revenue 501(c)(5) the Internal of ¶ It is dedi- 2. Decl. Babka Code. Revenue labor 51 state includes also The AFL-CIO elec- and campaign defending the cated to central and area nearly 580 federations, are believe members its rights tion-related trade numerous councils labor Amendment First by the guaranteed ¶¶ 6,7, 9. One Id. departments. industrial pro- through educational Constitution AFL- of the major missions four of the ¶ Id. 3. advocacy. grams effective “an provide is to CIO not-for-profit, ais United Citizens that af- 25. public issues to workers voice sec- governed corporation exempt ¶ tax Id. 4b. their lives.” fect Revenue 501(c)(4) Internal of the tion Mem- is a Paul Ron Congressman 21. ¶ is dedicated 2. It Deck Bossie Code. Repre- of House States United ber government of limited principles Congres- Fourteenth sentatives defending and to sovereignty national a member and is Texas District sional secured believe members rights its ¶ 1. He Decl. Paul Party. Republican Constitution; princi- its States United Four- represent elected first was infor- the dissemination function pal of Texas District Congressional teenth and advoca- beliefs concerning such mation a Member 1996, id., also served ¶ Id. 3. cy. Representatives House District Congressional Victory Twenty-Second Political United Citizens to succes- in 1976 and Texas, elected first committee connected Fund is Congressman id. sepa- terms until sive and is § 431 2 U.S.C. governed *45 of the state registered voter ais United. Paul of Citizens fund segregated rate of candi- campaigns the Texas, a donor ¶ 4. Id. office, a fundraiser and for federal dates Libertarian was Cloud 27. Michael contributions. campaign of recipient States Senate United for candidate Party’s ¶ re- will face He 11. Compl. Pis.’ Paul Massachusetts of the Commonwealth ¶ 1. Decl. Paul in 2004. election registered is a 2002 election America, is a Inc. Gun Owners 22. ¶ 1. Decl. Cloud voter. gov- corporation tax-exempt not-for-profit, Libertarian was Howell Carla 501(c)(4) Internal by section erned for Governor Party’s candidate ¶ It is dedi- Decl. Pratt Code. Revenue of Massachusetts Commonwealth rights defending the primarily cated voter. registered and is election guaranteed believe its members ¶¶ also was 1-2. She Decl. Howell Consti- Amendment by the Second election candidate Party’s Libertarian the dissem- tution; function principal its the Com- Senate States United to the such concerning information ination in the of Massachusetts monwealth programs educational through rights ¶¶ Id. 2-3. election. ¶ Id. 3. advocacy. 29. The Republican National Commit- 32. The Dallas County (Iowa) Republi- (“RNC”) tee is an unincorporated associa- can County Central Committee is a local tion created governed by The Rules of political party committee that the FEC has Republican Party. ¶ Josefiak Decl. 13. deemed independent of any state or na- It consists of three members from the tional party committee. Josefiak Republican Party in each of the fifty ¶ Decl. 21. It is actively involved in sup- States, the District of Columbia, Puerto porting state and local candidates for office Rico, Somoa, American Guam, and the in Iowa. Id. U.S. - Virgin Islands. ¶4; Duncan Decl. 33. The California Democratic Party ¶ also Josefiak Decl. 15. Each state (“CDP”) is an unincorporated association and territorial Republican Party elects a of approximately seven million members national committeeman and a national and is the authorized Democratic Party of ¶ committeewoman. Duncan 4; Decl. Jo- the State of ¶ California. Bowler Decl. 2. ¶ sefiak Decl. 15. In addition, the state The CDP performs many functions, and territorial Republican Party chairmen among them providing financial and mate- serve as members of the RNC. Duncan rial support to federal, state and local can- ¶ 4; Decl. ¶ Josefiak Decl. 15. didates; positions taking on public issues 30. Mike Duncan is a member of the (including state and local measures) ballot RNC from the State of Kentucky and cur- and publicizing positions; those engaging rently serves as the General Counsel of in voter registration, get-out-the-vote and RNC. Duncan Decl. 5. Prior to be- generic party-building activities; coming Counsel, General he was Treasurer maintaining an administrative staff and of the RNC and in that capacity signed all administrative structure to support these RNC reports filed with the FEC. See id. goals and activities and to comply with In both his official capacity anas officer of extensive federal and state regulation. Id. the RNC and in his personal capacity, The CDP is required by state law to gov- Duncan has participated (unless in and ern itself through the Democratic State prohibited BCRA) will continue to par- Central (DSCC). Committee ¶3. Id. ticipate national, state and local DSCC is up made 2,710 approximately ¶¶ activities. Id. 9. He will also members, about 849 whom are elected (unless prohibited by BCRA) continue to by the 58 county central committees. Id. solicit, receive, or direct non-federal funds Other members serve on the DSCC be- to other persons. ¶¶ See id. 8-9. cause of their status as federal or state 31. The Republican Party officials, of New Mex- CDP, nominees of the as mem- ico is the state party committee of bers of the Democratic National Commit- Republican Party in (DNC) New tee Mexico. See from California or as elected *46 ¶¶ Dendahl Decl. 3-4. It supports federal, representatives of 80 Assembly District state and local candidates (AD office in New Committees Committees). Id. CDP Mexico promotes and Republican positions bylaws provide for local party AD Com- on public policy issues. mittees, Id. Under New which elect delegates to the law, Mexico the Republican Party of New DSCC and are the district organiza- level Mexico permitted is spend raise and tional ¶ blocks of the CDP. Id. 4. The AD corporate, labor union and individual funds Committees are primarily involved in local in unlimited amounts in support of state voter registration, get-out-the-vote and and local candidates. See N.M. Stat. grassroots Ann. activities and they act as liai- §§ 1-19-25 to (1978); 1-19-36 Dendahl sons with the campaign organizations of ¶¶ Decl. 5-7. Democratic candidates in their area. Id. ¶ consists RSCC 5. The (RSCC). Id. tee of Chair elected the is Torres Art 34. appointive and 1,500 regular about ¶ also of 1. Torres Decl. Torres CDP.
the in- members regular The Id. elected members. been has and DNC the on serves as officeholders state and federal Execu- DNC clude on the serve DNC by the governor, ¶ the nominees of CRP’s the As Chair as well 3. Id. Committee. tive offices, constitutional county and state other the CDP seven assists CDP, Torres dis- congressional Senate, 52 fundraising efforts States United committees central districts, state po- with regularly senate talking tricts, state and meeting of fundraising Board State attending four and and assembly districts donors tential ¶ 5 also ¶ Decl. RSCC Bowler Id. The also 2; see Id. districts. Equalization events. county of the chairmen includes Cen- County Democratic The Yolo 35. of the chairmen and committees county central the 58 of is one tral Committee ¶ 6. Id. organizations. gov- volunteer and authorized committees central (1) a through as well operates Code. CRP Elections The by the California erned Committee, which ¶ Executive Bowler 11; see also 100-member Compl. Pis.’ CDP holders office state county cen- and ¶¶ of includes Members 3-4. Decl. central county state- of at each representatives elected are and tral committees ¶4. Board (2) Decl. committees; a 25-member Bowler and election. primary wide of also are a Member who Directors, CDP includes of the members All of as- delegation, state of the senators, members appointed Congress state serve Congress repre- of the and or Members officeholders sembly elected state three respective their Republi- of of members ex an association as sentatives officio coun- Id. The committees. chairmen. central county committee central county can in- primarily committees and ty bylaws central CRP’s Id. Under get-out- registration, in local voter RNC. of the part volved is rules, the CRP RNC’s act and activities grassroots and is a the-vote chairman elected CRP’s The 8. Id. organizations campaign liaisons as elects CRP The Id. the RNC. of member area. candidates of Democratic RNC—a to the representatives other two Id. com- national and committeeman national Party a member is Republican mitteewoman, whom of each California The
36. mil- and five Committee of over Executive (“CRP”) is an association CRP of Repub- the authorized Id. and of Directors. members lion Board California. State Party of lican (1) a member Morgan Timothy J. performs ¶¶3-4. CRP The Aff. Morgan CRP (2) member RNC; fi- providing among them functions, many (3) a member Committee; and Executive federal, support material nancial Directors; he also Board the CRP positions candidates; taking local state Cruz Santa (4) Chairman served local state (including issues public Committee. Central Republican County po- those measures) publicizing ballot ¶ 1. Aff. Morgan registration, voter sitions; engaging Republican County Cruz Santa party-building generic get-out-the-vote county is one Committee Central an administra- maintaining activities; and *47 gov- and authorized committees central structure administrative and staff tive Code. Elections the California by erned and activities and goals these support Morgan ¶ 19; see also Compl. Pis.’ CDP state and extensive comply candidates ¶ officials Federal 6. Aff. ¶ governed The CRP 4. Id. regulation. nominees nominated were who Commit- Central State Republican by the partisan offices, including State constitu- States Senator from the State of Vermont. offices, tional legislative the Board of Senators Snowe and Jeffords face reelec- Equalization, offices, and federal including tion Congressman Christopher nominees Senate U.S. and U.S. House Shays is Republican member of the Representatives who represent all or a House of Representatives from Fourth portion of the area within county’s Congressional District Connecticut. jurisdiction are ex members of the officio Congressman Martin Meehan is a Demo- Republican county committee, central and cratic member of the Represen- House of participate in its decision-making, either tatives from the Fifth Congressional Dis- personally or through designated alter- trict in Massachusetts. Id. agents. nates or Findings B. Regarding BCRA’s Disclo-
39. The Federal Election Commission sure Provisions (“FEC”) government is a agency head- quartered in D.C., Washington, created 43.The NRA presents evidence that pursuant FECA, 2 § 437(c), U.S.C. and some people have been reluctant give is charged with enforcing the Act as money to organization or the NRA amended BCRA. Mason, David M. Karl PVF, the PAC, NRA’s fearing that such Sandstrom, J. Danny McDonald, L. Brad- contributions would publicly reported. ley Smith, A. Thomas, Scott E. Mi- LaPierre Decl. [NRA App. at 24-25] chael E. Toner serve as the commissioners (“Throughout the years, hundreds, if not of the FEC. thousands, of NRA members have me told States, The United through they the De- do not wish to disclose their partment of (“DOJ”), Justice is charged contributions to the NRA.... If ... mem- with enforcement of the criminal provi- bers are forced to identities, disclose their sions of the Act as by BCRA, amended I firmly believe many will not make and has an in defending interest the con- contributions trigger such disclo- stitutionality of duly enacted laws of the ¶¶ sure.”); Adkins Decl. 4-6 App. [NRA Nation. United States Mot. to Intervene (“A conspicuous 50] and disproportionate at 5. John Ashcroft is Attorney General number of contributors” to the NRA PVF the United States. just “contribute below the $200 disclosure level.”).
41. The Federal Communications Members Com- who expressed have (“FCC”) mission is a government agency desire to keep their contributions headquartered in Washington, D.C., and is provided have confidential a variety of rea- charged with enforcing the FECA as (“A sons. Dep. LaPierre at 306 lot over amended BCRA years said, have I you, donate to but just I gee, don’t my want neighbors
42. The intervenors are Members of I know. don’t my want school Congress who board to were principal sponsors know. I don’t want my authors employer of BCRA. Senator John McCain know- I might is a Republican my lose job. I might United States get Senator not my school the State board thing. I might Arizona. Sena- mean, tor Russell have—I Feingold mean, is a fearl Democratic you Unit- when ed States have Senator from the as much people State hate as put of Wis- out consin. issue, Senators McCain it’s Feingold natural for people to fear face reelection repercussions.”); 2004. Senator Olympia Dep. Adkins at 15-19 Republican Snowe is a United States (testifying Sena- that notes received from indi- tor from the State of Maine. refusing Senator viduals to provide information for James Jeffords is an Independent United disclosure to the FEC did give *48 contributors’ the of disclosure public vent just stated objections, their for
reasons Mr. declined corporations Two Id. names. information the to not wish did they “previous of because (testi- solicitations 21-23 Monroe’s FEC); id. at the to disclosed at Id. elaborate. not telephone did but incidents,” received had she that fying some that from years “believe[s]” six also five Monroe previous in the 87. calls they employer because their feared not contribute who do companies individuals the to ... keep they donated to ability that out find [ABC’s] would not trust “do the not know does PVF). The at NRA Id. 89. NRA confidential.” information disclosure protest did who those amount Executive Sandherr, Chief Stephen 45. atDep LaPierre organization. to gave Contractors General Associated of Officer at Dep. at.91; Adkins Cross 309; LaPierre deposi- in a (“AGC”), testifies of America persons and five between theOf 23. dozen two and dozen between that tion con- disclosure have voiced to estimated himto concerns expressed had members be- 2000, LaPierre LaPierre to cerns publicly being their contributions about gave persons those of a lot” “not lieves He at 43-44. Dep. Sandherr disclosed. “[bjecause $1,000 in 2000 than more NRA who of members number that believes contributions of a lot get ... don’t we but, higher much is concern this share 306- Dep. at LaPierre $1,000.” than more to an effort has made the AGC because donates donor NRA average 309. not disclose they do the fact publicize year. LaPierre per $30 approximately members contributors, concerned 2003, the names Beginning 92. at Cross up. issue bring the televi- to the need [their] for “pay feel to do not policy NRA’s reasons two exclu- expressed programming members These broadcast Id. and sion if individual that concerned provided were of funds Some sively out for concern. known, LaPierre at Mr. Id. 93. made were members.” contributions their is that .... of- position take “NRA’s would building that trades states local “their running iswho to be disclosed ought on ... actions threaten would fense anonymous from funds ads life [run those make to threaten or would site job ads.” for the pays who donors].... [a]nd 45. Others at Id. them.” for miserable 14]. Vol. [JDT 294-95 at Dep. LaPierre became union if their that concerned were contribution, they of Politi- would Monroe, Director their 44.Edward aware industry Builders advance- Associated over for bargaining Affairs cal “cease Treasurer (“ABC”) on depend chapters funds,” local Contractors that ment told had been he that PAC, testifies 46. The Id. at ABC’s activities. their support had contributors of ABC expressed number who members non-unionized their after vandalism substantial suffered to San- disclosure about concerns their contrib- were disclosed names reasons their express not did dherr re- was vandalism believed utors 48. at Id. anonymous. to remain wanting con- their learning unions of labor sult told PAC ever to AGC’s contributor No He also 86. Cross Monroe tributions. to contribute planned Sandherr his refused corporations two testified disclo- prevent in order than $200 less not “policy due solicitations no contributor identity, of its sure inci- previous based [ABC] supporting being sub- reported PAC ever the AGC’s Id. elaborate.” [T]hey did .... dents giving unions for to retaliation jected PAC ABC’s contributors at 87. Some 55-56. Id. at the PAC. money to Id. than $200. less donate” “specifically Pres- Vice Josten, Executive Bruce practice believes Monroe Affairs, Cham- U.S. Government ident pre- desire the contributors’ result *49 Commerce, ber of gave deposition testimo- in each case that they came from candi- ny that some contributors to “Americans (9 dates and fewest to 18 percent) as- Working for a Real Change,” a coalition suming that they paid were for by an respond established to to AFL-CIO issue group. interest results, These course, advertisements, did not want to publicly suggest that the disclaimers that appear 18-14, identified. Josten Dep. at 27. The on these ads are almost completely inef- reason these gave entities for not wanting fective. to be identified that was they feared be- Krasno & Sorauf Expert Report at 78-79 coming “targets recipients of corporate (summarizing results from David B. Ma- campaigns or types other of what some gleby, Dictum Without Data: The Myth of would call union harassment activities.” Issue Advocacy and Party Building, avail- Id. at 28. able http://www.byu.edu/outsidemo- Romero, Mr. the ACLU’s legisla- nev/dictum/index.html). director, tive that attests “[m]any ACLU problem 50.The of determining the members and contributors request explicit true sponsors of issue advertisements is that assurances their membership will re- not only experienced by general public; main confidential and that their contribu- politicians and political strategists also tions will remain anonymous. The ACLU have difficulty determining the source of has consistently defended First these commercials. For example, former right Amendment of its members and do- Senator Dale Bumpers, relates that nors to remain anonymous if they so [o]ne of the most insidious things about choose.” Declaration of A. Romero 115. soft money “issue ads” that the ordi- Mr. Romero notes “[o]nly 212 individ- nary viewer doesn’t clue as to uals $1,000 contributed more than to the who paid for the ad. I first ¶ noticed this organization. Id. 6.” problem when I saw several 48. A poll conducted Mark Mellman issue ads before it ever dawned on me Wirthlin, and Richard two reputable politi- that those ads were not being paid for pollsters, cal percent found by the candidate-At just first I as- want to Americans know who paying sumed that paid the ads were for by the political advertisements, while 24 percent opposing candidates’ campaign funds, say knowing such information does not though I did think very was strange matter to them. Mark Mellman & Rich- the opposing candidates’ names Wirthlin, ard Research Findings a Tele- were never mentioned. ads, those phone Study Among 1S00 Adult Ameri- everything is honed in on the candidate 28, 2002) (Sept. cans at 20 [DEV 2-Tab 5]. the ad is trying time, defeat. At that 49. At least one study has found that I did not that they know were soft mon- public has a difficult time determining ey spots. responsible who is for issue advertise- Declaration of Senator Bumpers Dale ments identify candidates. [DEV 6-Tab 10]. Democratic
In response to question asking who consultant Terry S. Beckett testifies that paid ad, just for an percent over 60 survey Republican [t]he participants Leadership correctly attributed Council (“RLC”) the candidate ads pure and the also ran so-called issue “issue ads” ads to their sponsors. actual on television in the Congressional Identification of the sponsors of the campaign.... [Two candidate-oriented t]hese ads accuse issue was scattered, ads much more [Republican Candidate Ric] Keller (38 people most percent) assuming acting “like a liberal.” I found it [] *50 cam- Yellowtail’s Bill manager for unsettling, to mention
ironic, to not that testified paign, of hundreds the that reports of learn trouble had campaign on spent RLC Yellowtail of dollars thousands the 1996 running was Keller who Mr. out finding defeat trying ads these in Montana ads Florida for Reform by the provided Citizens actually were nega- in a I, Yellowtail that portrayed the fact [which industry.And sugar recall, television a local I race As light]. this same tive in consultant general a group a New tous Flori- pointed experience station long high-level with they didn’t said group That earlier until Orleans. aware was politics, da telephone us a gave but anything, behind know money was whose year of turned out that in Oklahoma number the need underlines strongly ads these cam- the J.C. Watts connected elec- of stealth kind of this for disclosure then there someone I believe paign. corporate with financed tioneering in Wash- number phone to a flipped us funds. found Citi- D.C., finally we ington, (“Beckett Beckett Terry S. Declaration that later learned We for Reform. zens Similarly, ¶ Deck”) 3].56 6-Tab [DEV actually a front was Reform Citizens Raymond consultant political media ran broadcast Triad, group a that comments Strother na- many Democrats against ads attack candi- problems biggest one of cycle. the 1996 election tionwide is faces now consultant media date’s ¶ 7- 12 [DEV of Joe Lamson Declaration third associated of disclosure lack Larry Declaration 26]; see also Tab years A few running these ads. parties Congress, (former Member LaRoceo the United ran for Docking ago, Jill find able to never was stating he Brownback Sam against Senate States run advertisements of attack source aof two weeks last In the in Kansas.... campaign because in the 1994 him against election, an unidentifiable tight very organizations were sponsoring none of dol- a million poured in and group came Ex- FEC); Magleby with the registered television, They ran race. into the lars (provid- 8] 4-Tab [DEV at 29 Report pert polls mail, push radio, direct point illustrating examples ing telling voters Kansas throughout man- campaign and their “even candidates could Christian, all and we wasn’t Jill some who ascertain unable agers no idea hadWe fax machine. awas find 2000 cam- running [in ads groups I have came from. money where were”). paign] races as other experiences had similar find that: funding is and Sorauf knowing who 51. Krasno Without well. ads, arewe outstanding these char- that run groups one of Secrecy advertisements, espe- the distortions. to correct unable often issue acteristics groups. interest financed cially those D. Strother Raymond Declaration regulators result, we—and Lamson, As campaign —are Joe 40]. 9-Tab [DEV McKay. Buddy Ric Keller eral Democrat transcript from following an audio 56. The billion supported the Clinton-Gore industry "-spon- even sugar "Florida these one of Keller, pro- who Ric on food. dollar tax advertisements: sored caught gets but a conservative to be claims embarrassment. has become Keller Ric embarrassing. got How acting but a liberal. like a conservative to be claims He wrong. Democrat Clinton. help liberal getting How caught How 3], firm law 6-Tab Keller’s Chapin, [DEV Ex. 5 Deck Beckett Linda for lib- up campaign contributions coughed hampered by a remarkable paucity of [t]he system current places an unreason- information about them. The media able burden voters to ascertain who tracking data we have referred to is attempting persuade them in an throughout our report fill in some of the election. Our focus groups and survey blanks, but many key factual questions data from 2000 show that voters, par- *51 remain unanswered or may only be an- ty and interest group electioneering ad- swered after painstaking investiga- vertisements are indistinguishable from tion .... This secrecy, by itself, creates candidate (See advertisements. Table enormous opportunities for wrongdoing, 2.) Even the candidates and their cam- for favors to be exchanged between is- paign managers are unable ascertain sue advocates and public officials.... who some of the groups running ads Among its various advantages, disclo- were.... And in the CSED national sure thought to combat corruption by survey, I found that respondents were illuminating the dark corners in which often confused as to whether party ads undue may influence be exerted far from were paid for by parties. candidates or public view. The idea is politicians that More than percent of time, the the eager for popularity and will votes respondents thought the party ads were loath to enter into situations that cast paid for by a candidate.... Voters, doubt on their probity; thus, the more asked, when have consistently indicated these situations revealed, the strong- that they would like to know who it is politician’s er the impulse to avoid them. is conducting electioneering. One of the ironies of this litigation is 2000 voters in Montana faced a competi- many of opponents BCRA’s are oth- tive U.S. Senate and a competitive U.S. erwise champions of disclosure.... The House race. A late October Montana public’s interest in revealing these trans- State University-Billings Poll found actions is countered by private inter- that, percent “78 of the survey respon- est many groups and donors to keep reported dents it was ‘very1 or them secret. Thus, the ability to route ‘somewhat important’ for them to know money to groups for candidate-oriented who ‘pays for sponsors issue ads without disclosure has attract- ” ad.’ Our focus group participants in ed an increasing amount of money to 2000 had very similar views on ques- this activity. In the growing opaque- tion importance of their knowing ness of campaign financing, opportu- who is paying for or nity sponsoring for an ad. donors and officeholders to More than (81%) four-fifths forge close said it relationships was or strike deals very or important somewhat without risk of to know the increases, detection too. identity of the sponsor. In the national Krasno & Sorauf Expert Report at 73-75 Knowledge Networks Survey in 2000, 78 [DEV 1-Tab 2 at 146]. According to percent said the same thing. Plaintiffs’ expert Milkis, Sidney a profes- sor David B. Magleby, Report University of Virginia, Concerning In- “the names of terest Group these [issue Electioneering advertising] groups Advocacy and did Party little to tell Money viewers Activity, who sponsors [DEV 29-30 Soft 8], of these 4-Tab messages were; indeed, in some cases they were misleading.” Milkis Deck 53. The Annenberg Policy Public Cen- ¶ 49. ter finds that 52. Defendants’ Expert Report, pro- [b]ecause issue ads are not federally duced by Professor David Magleby, finds regulated, sponsors are subject not disclosure requirements. As result, Wyly, long- and Sam brothers, Charles apparent not be may ad an paid for who of Governor supporters friends time or- Some it. they see when to viewers fact, an was Wyly, Bush. Charles identify themselves do ganizations cam- the Bush for fundraiser authorized advertisement, their but an course estimates, press According to ... paign. to viewers unfamiliar may be names ads million Wylys spent $25 For exam- vague. deliberately and/or Wy- .... When Bush Governor Medicare” Better “Citizens ple, uncovered later was involvement lys’ group generated grass-roots news primary, York the New during Pharmaceuti- arm citizens, but led bombshell a small qualified Associ- Manufacturers cal Research the broth- critical publicity a wave (PhRMA). ation campaign, Bush ers *52 id. 18; also see at 2001 Report
Annenberg “Republicans from itself distanced turn “[tracking spending that (commenting 3at a sum, have we In ... Air.” Clean for exact an far from advocacy issue secrecy conducted campaign major disclosure). lack of of the because science” Republi- of the key part during a has Center the conclusions the of One a marked and campaign, primary can that study is of years seven after reached its scrutiny once of level in the change of identity the masks advocacy “[i]ssue as we Much known. became sponsors it de- doing, so by and key players some reporters of the ingenuity the applaud source about information of citizens prives we story, the eventually broke who is a us tells research messages of compel- ais that there believe strongly credibility.” message assessing of part vital making interest governmental ling at 2. Id. the start. all known these facts organi- of example an prominent A54. (foot- at 75-76 Report Sorauf and Krasno that influ- advertisements running zation 2]; also omitted) 1-Tab [DEV *53 nia.... This personal direct experience numerous challenges to the constitutionali- trying to monitor outside electoral activity ty of federal campaign finance regulations revealed to potential me the difficulties of ”).59 .... While the recognizes Court the identifying the source of group interest import of Paul Plaintiffs’ legal innovative campaign activities, ads.”). including issue theory, their arguments finds unpersua- sive.
IV. CONCLUSIONS OF LAW
part
As
per
essence,
In
opinion,
curiam
Paul
Plaintiffs characterize
Court resolves the Paul
(for
Plaintiffs’
their
discrete
activities
example, candidate
claims and most of the new
press
disclosure
releases, broadcast and radio adver-
provisions of BCRA.
tisements,
literature)60
and campaign
as
57. "Paul Plaintiffs” include: United States
immunity
same
prior
from
as
restraint
Representative
Paul,
Ron
Gun Owners of
press.
institutional
America, Inc., Gun Owners of America Politi-
JUDGE LEON: Is
theory?
a
that novel
Fund,
Victory
cal
No,
RealCampaignReform.Org,
MR. TITUS:
I don’t believe it’s a novel
United,
Citizens
Citizens
theory.
United Political Vic-
I don’t think it has ever been
Fund,
tory
Cloud,
Michael
pressed.
and Carla Howell.
JUDGE LEON: Do you
any
have
Supreme
58. According
Plaintiffs,
Court
support
cases that
Paul
it or
impos-
Circuit
BCRA
cases?
es
MR.
restrictions,
TITUS: In
licensing
campaign
unconstitutional
financial
eco-
law
cases, no.
nomically
one
regulations,
argued
No
burdensome
has
claim
editorial
control,
any campaign
prior
finance case
I
that know of.
"press”
restraint on their
(Titus).
Tr. at 340-41
activities.
60.The
majority
vast
activities cited
Paul
59. As discussed at
argument:
oral
Plaintiffs fall
scope
well-outside the
of BCRA’s
Now,
MR. TITUS:
if that's true of
prohibition
the insti-
on "electioneering communica-
press,
prior
tutional
that a
restraint has to
201(a);
tions.”
§
See BCRA
FECA
standard,
high
tested
such
304(f)(3)(A);
§
all the
434(f)(3)(A)
(not
§
U.S.C.
more true
plaintiffs
for the Paul
who in this
applying
press
releases
campaign
litera-
particular case
indicating
are
Moreover,
to you,
ture).
Your
bring
Paul Plaintiffs
a facial
Honors, that
they
what
are engaged in
challenge
to the constitutionality of this stat-
activities,
press
ute,
are entitled to the
clearly
and have
not met their
burden
argu
for Paul Plaintiffs’
order
protections
constitutional
falling under the
however, they
prevail,
must dem
ments to
The freedom of
press.
afforded
press
of the
the freedom
onstrate
contend, “was never
press,
Plaintiffs
provides
superior to those under
rights
insti-
of the
special privilege
designed as
Clauses of
Speech and Association
11;
media,”
rath-
Pis/ Br. at
Paul
tutional
can
If Paul Plaintiffs
First Amendment.
freeman,” see id. at
“every
er it extends
claims
that their
warrant
not demonstrate
697,
Minnesota, 283 U.S.
(citing
Near v.
separate
unique guarantees—guaran
(1931)).
713-14,
236 unrecog- be would valid, our Constitution any case identify failed
Plaintiffs 373, 115 U.S. at 514 McIntyre, nizable.” the in guarantees “press” applied has that dissenting).66 (Scalia, J., 1511 S.Ct. (Ti- at 341 Tr. context. finance campaign To hold Br. at Pis.’ Paul tus); also precedent no cite can Plaintiffs Paul a new to invite would Plaintiffs for Paul the Su- Since their claims. of support theory of First unsupported wholly affirmatively provid- has not Court preme could litigants jurisprudence; Amendment Clause, Press the rights under superior ed of chal- a host with courts the besiege fall claims such suggested and has the upheld previously to laws lenges com- First Amendment general the under Amendment First on Supreme Court the rejects test, Court this interest pelling them- characterizing merely under grounds, claims Plaintiffs’ Paul argument of members as complaints of in their level higher selves warrant Clause Press the purpose Therefore, this because “press” the protection.67 constitutional As public. all scrutiny information same apply the disseminate will Court present- and Asso- Rehnquist claims, whether William Justice First Amendment Chief Clauses, and observed Press Speech Scalia Antonin ed Justice under ciate I, and Commission, Title Plaintiffs’ all of Paul Elections subsumes Ohio McIntyre v. II, arguments Title of their essentially L.Ed.2d all 334, 115 S.Ct. 514 U.S. ad- challenges First Amendment cry into course, every partisan if (1995), “of in this case.68 litigants other by the vanced accepted as were press’ of the of ‘freedom ..., and modern regulation antinoise "difficulty, modern (noting C.J., er, concurring) (citations regulation.” Id. permitting parade distinguishing, impossibility, perhaps omitted). constitutional of fact matter as a either [non-media] corporations from law, media Nonetheless, re- conclusion, Court this Court holds corporations”). this 67. Given Clause claims Press Plain- Plaintiffs’ the Paul to resolve fuses to remand reason is no there pre-BCRA challenges context. FECA’s in this separate tiffs’ single-judge theory ato provisions under applied Court Supreme McIntyre, the 66.In ¶ ("This is an Compl. Paul Pis.’ court. stat- Ohio to invalidate Clause Speech injunctive relief declaratory and action anonymous distribu- prohibited ute provisions [BCRA] respect to certain general, refer- campaign literature tion certain [FECA], as well amends as it at 336- McIntyre, U.S. questions. endum ... on FECA provisions related 349-51, Thomas Justice S.Ct. 1511. provi- integrally related that these grounds ap- [have "would but judgment, concurred Freedom of the the Plaintiffs deprive sions methodology [the] a different plied] ... Amendment First of the violation the Press 358-59, Ac- S.Ct. Id. case.” States.”) United the Constitution Thomas, "practices cording to Justice *56 omitted). added) (citations (emphasis provided for by Founders” held beliefs anonymously under publish right author's challenge the consti- briefly Plaintiffs Paul 68. 360, Id. at Speech Clauses. the Press in their Title III 301 of tutionality section Scalia, with whom Justice S.Ct. 115 independent of notably and pleadings per- —most not joined, was Rehnquist Justice Chief dis- 301 that section argument, Press their Id. at arguments. by Thomas's suaded Justice office hold- non-incumbent against criminates Scalia ob- 373, Justice As 115 S.Ct. use personal on by placing limitations ers expression upon served, every restriction "not However, at 25. Pis.’ Br. Paul expenditures. ipso 1868 is or in exist did not any basis to discern not Court able unconstitutional, elec- else modern facto Complaint. their Amended arguments in these Buckley v. involved as those laws such tion address not does Accordingly, the Court 612, 1, 46 L.Ed.2d Valeo, 96 S.Ct. U.S. issue. ... as would (1976) prohibited, would be B. BCRA’s Disclosure Provisions Br. at 44. Plaintiffs’ argument for striking down BCRA’s provisions disclosure does Section 201: Disclosure Provisions not reinforce precious First Amend- 1. Introduction ment values that Plaintiffs argue are tram- exception, With one the Court also finds pled BCRA, by ignores but the competing provisions relating disclosure to “elec First Amendment interests of individual tioneering communications” constitutional. citizens seeking to make informed choices The factual record demonstrates that the in the political marketplace. result, As a abuse of the present law only permits the Court finds Section 201 facially consti- corporations and labor unions to fund tutional, with the exception of one subsec- broadcast advertisements designed to in tion which the Court determines to be elections, fluence permits but them broader than necessary to achieve the le- to do so while concealing their identities gitimate governmental interest at stake. public. BCRA’s provi disclosure require sions these organizations to reveal public identities so that the is able to 2. Discussion identify the source of the funding behind The provision’s requirements disclosure broadcast advertisements influencing cer are challenged by McConnell, AFL-
tain elections.
Plaintiffs’ disdain for
CIO,
Commerce, NAB,
Chamber of
NRA,
BCRA’s
provisions
disclosure
is nothing
and Paul Plaintiffs.
challenge
Plaintiffs’
short of surprising. Plaintiffs challenge
Section 201’s
provisions
BCRA’s
disclosure
restrictions on
focuses
electioneering com
(1)
munications on the
on two
premise
aspects of
they
law:
require-
its
permitted
should be
spend
corporate ment of disclosure prior to the airing of
general
labor union
treasury
funds
electioneering communications;
(2)
its
sixty
days before the federal elections
requirement
that disbursers disclose the
advertisements,
on broadcast
which refer
names of
gave
contributors who
over
candidates,
to federal
speech
because
$1,000 to the disbursing fund. The Court
“uninhibited, robust,
needs to be
and wide- addresses each in turn.
open.” McConnell Br. at
New
(quoting
Sullivan,
York Times
v.Co.
376 U.S.
a. Prior Disclosure
(1964)).
84 S.Ct.
Working for Real Change” not only actually aired electioneering com- organizations business opposed to orga munications, but also contracts make labor), nized “Citizens for Better Medi such communications. See McConnell Br. (funded care” pharmaceutical indus 22; at 56 n. 14-17; AFL-CIO Br. at try), “Republicans (funded Air” Clean n. 13. This Chamber/NAM advance by brothers Charles and Sam Wyly). disclosure, argue, Plaintiffs “serve[s] no Findings ¶¶44, 51, 52. Given these tac governmental interest and will chill the tics, never satisfactorily Plaintiffs answer *57 speech of free by exercise groups question “uninhibited, forcing the robust, of how ... to disclose wide-open” ongoing and and speech confidential can occur when organizations hide strategies themselves from and decision-making the scrutiny of voting public. the processes, McConnell and giving adversaries the
238
opportunity
try
to thwart broadcasts
[2]
The Court
cannot
agree
Plain-
require-
messages.”
challenge
own
to the disclosure
with their
tiffs’
them
counter
ripe
at
201 is not
for review.
Br.
16.69
in Section
AFL-CIO
ments
by the
confronted
Unlike the situation
then-pending
argue that
Defendants
examining
require-
the disclosure
Court
final)
(and
interpret
regulations
now
212,
at
discussed
ment of Section
infra
mandating
as not
dis-
requirements
notice
250,
regulations promulgated
Sec-
have
until after the advertisements
closure
prior
Plaintiffs’
tion 201 do not eliminate
Opp’n
Gov’t
distributed.
publicly
been
regulations, de-
concerns. The
disclosure
argue
regulations,
The content of
provi-
spite
explanation
the FEC’s
concerns,
Defendants,
plaintiffs’
“moot
sion,70
prior
require
still
disclo-
appear injury
...
claims
plaintiffs’
[make]
electioneering
of
communications
sure
challenge to
wholly
and their
speculative^]
Specifically, the defini-
yet
not
aired.
have
provi-
disclosure
aspect of
this
BCRA’s
leaves uncertain
tion of “disclosure date”
judicial resolu-
unfit for
sions is therefore
of
airing
after the
what must
disclosed
tion.” Id.
time,
Plaintiffs,
merely
place,
Com-
ble to restrictions
on
the Chamber of
69. McConnell
(citations
expression.”)
passing suggestion
omit-
and NAM make a
or manner of
merce
Ponto,
ted);
might
“prior
233
that Section 201
constitute a
Realtors Ass’n v.
Wisconsin
1078,
(W.D.Wis.2002) (sub-
of the First Amend-
F.Supp.2d
restraint” in violation
1091
55-56
reporting
ment. McConnell Plaintiffs Br. at
re-
jecting
prior
statute’s
Wisconsin
("But
"time,
agrees
if
Court
that the electioneer-
quirements
place,
or manner of ex-
stand,
ing
provisions cannot
Opp'n
communications
pression” analysis); FEC
at 112.
provisions should
the attendant disclosure
briefing
paucity
Given the
of Plaintiffs'
fall,
provi-
likewise
because the disclosure
above,
precedent
cited
this matter and
regulation
constitute a
of-and in some
sions
analysis
"prior
of
this Court believes further
gov-
prior
onspeech that the
cases a
restraint
in this
is not warranted.
restraint”
context
may
regulate
place.”);
ernment
the first
("The timing
at 20
13
of
Br.
n.
Chamber/NAM
issuing
regulations,
FEC
the final
electioneering
communication
BCRA’s
noted that
requirement
disclosure
is
unconstitutional
restraint.”).
prior
All
who addressed this
commenters
squared
adopting
rule
argument
issue ... advocated
a final
This
cannot be
with the
Supreme
"prior
date” as the
re-
would define "disclosure
Court's definition
Racism,
public
elec-
Against
date of the
distribution of the
straint.” See Ward v. Rock
781,
5,
2746,
tioneering
They argued
491 U.S.
n.
109 S.Ct.
communication.
(1989) ("[T]he
electioneering
regulations we
that there is no
tion,
communica-
L.Ed.2d 661
reporting require-
prior
and therefore no
'have found invalid
restraints
ment,
actually
they gave public
‘had this
common:
offi-
until
communication
power
publicly
deny
cials
use
distributed....
forum in
”)
[adopted
expression.’
(citing
date
disclosure]
advance of actual
This
definition
Promotions,
Conrad,
Ltd.
reflects the Commission’s concerns
Southeastern
v.
546, 553,
1239,
legal
practical
are
issues
U.S.
95 S.Ct.
239
an electioneering communication when the
in
tor
determining whether an otherwise
premature or
facial
disburser has executed
abstract
attack ...
contracts for elec-
ripe for decision.” Martin Tractor Co. v.
tioneering
communications
aggregating
FEC,
375,
627
(D.C.Cir.1980).
F.2d
384
$10,000.71
over
regulations
suggest
Where other cases have found facial First
person
$10,000
that
if a
has executed
Amendment challenges
review,
ripe for
electioneering
contracts,
communications
“either the activities in which the com-
24 hours after the first such communica-
(or had)
plainants wished to
engaged or
aired,
tion is
the disburser must make a
enforcing
the
authority’s particular intent
disclosure encompassing all of the election-
statute,
both,
to enforce the
or
were clear
eering communications under
the con-
enough to
the
show
posture
adversarial
traeos). The Court
jurisdic-
notes that its
assumed
the parties and the contours of
tion does not extend to the FEC’s BCRA
dispute.”
their
Here,
Id. at 387.
Plain-
have
regulations,
§
tiffs
clearly engaged
BCRA 403
(providing
“electioneer-
ing communications” in
past,
and the
jurisdiction
this Court with
to hear chal-
regulations
FEC
promulgated
January
lenges to “the
pro-
constitutionality
any
3, 2003, indicate that
agency
intends to
vision of this
any
Act or
amendment made
201,
enforce BCRA Section
including its
Act”),
by this
and therefore it makes no
provision.
“contracts”
facts,
Given these
determination on
validity
proper
or
the Court finds that Plaintiffs “have al-
However,
construction.
given the uncer-
leged an actual and well-founded fear that
tainty it
regard
finds with
scope
to the
law
will be
against
them,”
enforced
regulations,
the Court cannot conclude which threatens
danger
of “self-censor-
that
challenge
ripe.72
Plaintiffs’
is not
ship; a harm that can be realized even
“[T]he extent of the chill upon first amend-
prosecution.”
without an actual
Virginia
rights
ment
induced
or over-
vague
Ass’n,
Am.
383,
v.
Booksellers
484 U.S.
broad
is the
393,
statutes
most significant
636,
(1988).73
fac-
108 S.Ct.
Analysis of Section
provi
either before
improper purposes
the
that disclosure
guidance
appear to be
A
armed with
applications
public
“in most
the election.
sions
after
curbing
of
the
least restrictive means
most
the
about a candidate’s
information
corrup
ignorance and
campaign
of
to
evils
is better able
supporters
generous
68,
at
96 S.Ct.
Buckley,
U.S.
tion.”
special favors
any post-election
detect
However,
are
provisions
disclosure
612.
in
....
may
given
be
return
that
scrutiny analysis “be
subject
exacting
to
record-
Third,
significant,
least
and not
poten
has the
compelled disclosure
cause
re-
reporting, and disclosure
keeping,
exercise
substantially infringing the
tial for
of
are an essential means
quirements
66,
rights.”
at
Amendment
Id.
of First
to
necessary
data
detect
gathering the
Supreme
The
Court has found
S.Ct.
of the contribution limitations
violations
“governmental
of
inter
categories
three
above.
described
outweigh
the
sufficiently important
ests
(citations
66-68,
Defendants
that the disclosure of
percent
that 61
of Americans want to know
individual contributors is necessary be-
who is behind these issue advertisement
many sponsors
cause
of issue advertise-
organizations.
Id.
46. Plaintiffs’ briefs
ments conceal “their identity from the
provide no evidence to
contrary
and do
public by electioneering pseudonymously,
attempt
argue
government
that the
through
organizations
front
such as ‘The
legitimate
lacks a
interest related to the
Coalition: Americans Working for Real
*62
”
requirements;
fact,
disclosure
in
many of
Change,’
[sic ]
‘Citizens for Reform.’
experts
voice the same concerns. Id.
Indeed,
Br. at
Supreme
FEC
173.75
the
¶¶49
(La
(Milkis),
Raja).
52
The Court
Court has observed that “when individuals
that
finds
the
presented
evidence
estab-
corporations
or
speak
committees,
through
lishes that
legitimate
governmental in-
they
adopt
often
seductive names that may
terest
is
served
the donors disclosure
tend to conceal the
identity
true
of the
requirement, and reaffirms the Buckley
source.”
Against
Citizens
Rent Control v.
that
corruption
observation
City
290, 298,
potential
“[t]he
Berkeley, 454 U.S.
of
434,
(1981)
[independent
of
expendi-
uncoordinated]
S.Ct.
pelled
Opp’n
ACLU
Rather,
disclosure
a party’s
as explained
contribu-
above, the
tors’
subject
names will
statutes
those
threats,
them to
eases were
held inapplicable
harassment,
to the groups
or
reprisals
question
from either
based on the
government
presented,
facts
private
officials or
invalid
parties.
on their face.
NAACP,
proof
may include,
357 U.S. at
example,
spe-
462-63,
(“[W]e
requires disclosure
exempts “well-known”
that
a law
ple,
munications,”
of which
definition
the
names of
disclosing the
groups
The disclo
constitutional.
finds is
Court
contributors,
“less well-
$1,000
while
and more
narrower
much
trigger is
sure
make
be
437a,
required
would
groups
known”
Section
of FECA
that
definite than
disclosures).
addition, the
In
Cham-
“cru
invalidating
its
include
and does not
its theo-
support for
legal
no
provides
addition,
ber
record before
In
cial terms.”
consider its
declines
ry, and the Court
con
that
clearly demonstrates
the Court
of
comprised
aon record
argument based
facing the Court
situation
trary to the
Law
Indiana
from the
single quotation
discussions”
where “issue
Appeals
that
statement
the Chamber’s
Review and
of a
to the cause
“unwedded
were indeed
American
association
it “is a well-known
candidate,”
evolving present
particular
for
in existence
has been
advertisements,
businesses that
specifically
of issue
use
at 20. The
Br.
years.”
supportive or
to cloak
Chamber/NAM
of “issues”
the use
the Chamber
rejects
therefore
identifying Court
clearly
advertisements
negative
argument.
office, “threaten the Commerce’s
for federal
a candidate
F.2d
Buckley, 519
purity of elections.”
conclusion,
what
the Court states
reasons,
de
the Court
these
873.80 For
do
requirements
201’s disclosure
Section
deci
Appeals’s
the Court
clines
find
First,
apply
they
require.
do not
binding on this
Section 437a
sion
FECA
communications,
electioneering
only to
challenges
disposition of the
Court’s
Second,
constitutional.
we find
require
disclosure
201’s
BCRA Section
anyone from
prevent
not
201 does
Section
ments.
communications;
electioneering
making
do make
persons
that when
only requires
Finally, the
Commerce
Chamber
they
disclose
advertisements
such
to its
applied
201 as
argues that Section
funding
the communication’s
the source of
communications,
is over-
electioneering
Lastly,
broadcast.
after
are
knows that the
public
broad because
the wholesale
require
not
provision does
interests
represents
Chamber
sponsoring
all donors
disclosure of
NAM Br.
American business. Chamber/
contrib-
only
rather
donors
organization,
interprets the Cham
at 20.
Court
The
$1,000
disbursing account
to the
uting
encompassing all of three
position,
ber’s
Organizations
be
must
disclosed.
sentences,
BCRA it
mean that under
ac-
“segregated bank
up
free to set
re
Chamber
be
should
sufficient
contribu-
count[s],”
funded
individuals’
spon
that it
advertisements
port
is behind
tions,
electioneering communication
for
example, “Americans Work
by,
sored
for
201(a);
§
FECA
BCRA
listing its
disbursements.
Change”
ing for Real
434(f)(2)(E).
434(f)(2)(E);
§
§
U.S.C.
unnecessary
$1,000
would
contributors
disburse-
electioneering communication
If
the interest
public to know
voting
for
ac-
segregated
from such
ments made
first
Court
the advertisement.
behind
threshold,
$10,000
reach the
counts then
provide,
Chamber does
*67
George W. Bush and
presidential candidate
249
only
segregated
the names of the
ac-
Plaintiffs also contend that “the
$1,000
count’s
will
First Amendment
contributors
have to be
limits the coordination
concept
Lastly,
express
to
any group
advocacy,”
disclosed.
can file suit
and for that
reason Section 202
should be
challenge
constitutionality
of the
found uncon
stitutional.
Br. at
application of
12. Al
Section 201’s
Chamber/NAM
disclosure
though Plaintiffs cite to FEC
provisions
Commission
to their contributors based on
id.,
er Smith for support,
this view has
“threats, harassment,
showing
such as
rejected
been
by courts in this Circuit.
or reprisals
government
from either
offi-
FEC,
See Orloski v.
156,
795 F.2d
private
cials or
parties.”
Buckley,
(D.C.Cir.1986) (finding the “express advo
at
U.S.
without and will interest Shea, governmental the AFL- no “serve[s] M. Gerald of declaration forcing by speech for Gov- free President of the to the exercise chill Assistant CIO’s help the to confi- nothing and Affairs, ongoing disclose does ... to groups ernmental argu- its for decision- legal basis and strategies the discern Court dential legal “[a]ny that adversar- states by giving Mr. Shea and processes, making ment. organiza- of an ability the broad- try thwart to restrictions opportunity the ies legis- coordinate AFL-CIO the own mes- like their tion them with or counter casts activ- and communications policy and lative at 16.84 Br. sages.” AFL-CIO happen who officeholders ities with is a suit entertain may not Court A inter- substantially could be candidates rationale The basic for review. ripe not ordinary ability to maintain our with fere prevent is “to ripeness doctrine the behind with relationships working necessary and prema- of courts, through avoidance their staffs.” Congress and of Members them- entangling from adjudication, ture Mr. Shea fact 58. The Decl. Shea over ad- disagreements in abstract selves activ- current AFL-CIO’s that the believes protect also to policies, ministrative does 202 by Section be affected may ities un- judicial interference agencies for basis legal with the Court provide not for- has been decision til administrative an Furthermore, provision. invalidating the concrete in a felt effects its malized and chal- AFL-CIO extent Abbott parties.” challenging by way covered activities scope of lenges 148-49, 136, 87 Gardner, U.S. 387 v. Labs. “coordination,” the of definition BCRA’s (1967), over- 1507, L.Ed.2d 681 18 S.Ct. arguments that such finds, infra, Court v. Sand- grounds, on other ruled Califano construc- statutory ripe given not are 980, L.Ed.2d 51 99, ers, 97 S.Ct. 430 U.S. promul- recent and the 214 of Section tion of Furthermore, power (1977). “[t]he 192 on coordination regulations of final gation constitutionali- upon the pass ... courts by the FEC.83 when only arises Congress acts of ty of Plaintiffs’ finds that therefore The Court the use require litigants interests the Court unavailing arguments protection for authority judicial this find- no basis presented has been hypotheti- A interference. against actual unconstitutional. Section 202 ing Public enough.” United threat not cal Mitchell, 330 U.S. v. America Workers 212 2. Section 754 556, 91 L.Ed. 89-90, 75, 67 S.Ct. the AFL- challenged Section 67 S.Ct. 90 n. (1947); id. at also Plain- Plaintiffs. the McConnell CIO ‘considered this Court’s (“It long been has grounds 212 on the Section object to tiffs abstract, hypotheti- to decide practice actu- only of not disclosure requires to de- ... or questions, contingent cal or make also contracts but expenditures, al 201, McConnell for Section As did 84. Section discussion Court’s Plaintiffs, Commerce Chamber contain regulations infra, noted that it is that Section suggestion to in- responses passing a make “safe harbor NAM explicit "prior restraint" policy issues.” legislative or constitute might quiries about Indepen- Rules; Court Amendment. Coordinated the First See Final violation (Jan. Fed.Reg. Expenditures, in its discussion argument dent addresses C.F.R. (to 3, 2003) codified supra note 201. See Section 109.21(f)). §
251
dispute
required
justi-
to make the case
is
question
advance
any
cide
constitutional
decision,
ciable.”);
... or to
necessity
Hershey,
for its
Nat’l Student Ass’n v.
of the
(D.C.Cir.1969)
law
a rule of constitutional
1103,
formulate
1113-14
412 F.2d
precise
required
than is
broader
(“[W]e
every plain-
that
persuaded
are not
applied, ... or to
which it is to be
facts to
alleges
tiff who
a First Amendment chill-
except
question
constitutional
any
decide
thereby
in court has
ing effect
shivers
facts to
particular
reference to
with
controversy.”).
a case or
established
....”’)
(citing
applied
to be
The Court
finds that Plaintiffs’
v. McAdo
Fed’n
Labor
Alabama State
212
challenge
ripe
is not
Section
1384,
450, 461, 65 S.Ct.
89
ry, 325 U.S.
briefing
in this
review. At the time
(1945)).
a
In situations where
L.Ed. 1725
case,
proposed regulations
the FEC had
First Amendment
challenged
statute
required
only
disclosure
inde
has found
Supreme
Court
grounds,
after
pendent
“public
advertisements have been
actual en
need not wait for
litigants
proposals
law would
These
were
ly
if the existence of the
disseminated.”
forcement
Amendment
the exercise of First
promulgated
regulations.
chill
as final
recently
prosecu
actual
“even without an
rights
Reporting;
See BCRA
Coordinated
Ass’n,
v. Am. Booksellers
Virginia
tion.”
Rules,
Independent Expenditures; Final
636,
383, 393,
Inc.,
98
484
108 S.Ct.
U.S.
2003) (to
(Jan.
404,
3,
Fed.Reg.
68
452
(1988). However, in those
L.Ed.2d 782
109.10).85
§
fact
codified at 11 C.F.R.
This
cases,
“allege[] an actual
plaintiffs must
judicial
unfit
reso
challenge
makes the
will be
fear that the law
and well-founded
lution,
provide Plaintiffs
regulations
as the
assuage
in order to
against
enforced
them”
remedy they
the exact
seek:
aspects
preenforce
of “the
troubling
disclosure of inde
require
FEC will not
Id; see also
nature of
suits.”
[such]
ment
pendent express advocacy expenditures
Paradise,
Life,
Inc. v.
Right
Wisconsin
“public[]
prior
dissemination].”
to their
Cir.1998) (Easter-
(7th
138 F.3d
with the
presents the Court
This situation
J.)
brook,
if
con
(observing
group’s
posed in
question Judge Easterbrook
Wis
is not well-
cern that a law will be enforced
“How can a
Right
consin
suit
Life:
founded, “Article III of the Constitution
all
controversy’
a ‘case or
when
present
ruling.”),
precludes a federal court
the same side?” Wis
are on
litigants
denied,
873, 119
cert.
525 U.S.
S.Ct.
Life,
existence all “did not solve coordination finding expendi- prerequisite tional steps useful problems, took political par- vagueness ture to be “coordinated” them”).90 Although alleviating toward concern analyzes each The Court ties.89 regu- of such discount the value Plaintiffs turn. flow of the “ebb and because of lations 1) Vagueness no they provide practice,” administrative theory laws restrict- support for their above, cam noted As Court shaped by regula- cannot be ing speech functioning has been system finance paign administra- of the nature of tions because despite presence years for over addition, as described practices. tive language very “vague” same below, any more detail object. U.S.C. Plaintiffs infra the enforcement arising from issues 441a(a)(7)(B)(i). provid Plaintiffs have § challenged can be via regulations these why the explanation application as to ed no Proce- the Administrative lawsuit under to the context formula this coordination (APA), through the or clarified dure Act speech chills political parties at 2 procedure codified advisory opinion expendi applied to than when any more *72 '§ 437f.91 U.S.C. political with candidates. tures coordinated Furthermore, *73 contributions.” Id. tee of the candidate as expenditure to the the value of the mines danger
candidate,
alleviates the
but also
Federal Cam
Republican
In Colorado
given
quid
as a
expenditures will be
604,
that
FEC,
v.
518 U.S.
paign Comm.
from
quo
improper
commitments
pro
(1996) (“Colo
2309,
and the even printed copies frequency materials or they point in different directions. While confidently spots). that coordi- of media Substantial discussion Buckley assured expenditures negotiation nated fell within the Act’s or is such that the candidate contributions, it also reasoned partners joint limits on spender emerge spending money politi- on one’s own expressive expenditure, venturers speech cal an act entitled to constitu- spender the candidate and need not but protection highest tional order. partners. limits equal This standard Expressive expenditures coordinated § prohibition 441b’s contribution on ex- certain hallmarks of a cash contri- bear pressive expenditures coordinated highly-valued bution but also contain the those in which the candidate has taken a political speech of the I take spender. sufficient interest to demonstrate that Buckley progeny and its the di- expenditure perceived as valuable carefully, acknowledging rective to tread meeting campaign’s needs or that considerable coordination will con- wants. expenditure vert an expressive into a Judge acknowledged Id. Green spender contribution but that the should standard still left “room for factual dis- not be deemed to forfeit First Amend- pute,” turn could “chill some protections ment speech for her own speech.” Id. But such deficiencies were merely by having engaged some con- acceptable given “expressive deemed sultations or coordination with expenditures present coordinated real dan- candidate. gers integrity pro- to the of the electoral Coalition, F.Supp.2d Christian at 91 cess.” Id. (citations omitted). addressing “coordi- II, Supreme In Colorado Court ex- applies expressive nation itas coordinat- pounded difficulty determining on the id., expenditures by corporations,” ed point expenditure at which an becomes Judge Green noted that fact that the “[t]he expenditure. Supreme coordinated requested suggested candidate has *74 Court also commented on the functional a spender engage speech in certain indi- approach Congress adopted, had speech cates is to the valuable Buckley accepted, and the Court to bal- candidate, giving expenditures such suffi- ance First rights Amendment and the cient qualities contribution-like to fall with- in preventing campaign state’s interest fi- in prohibition the Act’s on contributions.” corruption. nance However, Id. at 92. the absence of such The First Amendment line between not, Judge overtures would Green’s spending donating easy and to draw view, prevent expenditure an being independent when it falls between ex- coordinated. penditures by political individuals or ac- In the absence of a request sugges- (PACs) any tion committees without tion campaign, expressive from the an (or nod), approval candidate’s wink or expenditure becomes “coordinated” and contributions in the form of cash agents where the candidate or her can over, gifts speak to candidates. But facts less exercise control or where there has clearly independence been substantial once the negotia- discussion or spending granted, tion between the cannot be taken for campaign and the (1) over, spender spent money communication’s: and an individual or demanding that for arguments, Plaintiffs’ arrangement with to an according PAC there expenditure an to be coordinated to classi- harder is therefore a candidate The Court’s seen, agreement. a must be Congress drew already fy. As very formal, reading suggests these cases functional, line between not a least, very opposite. At the cases expenditures when contributions sug- expenditures requests state that substantive that coordinated provided arrangements, or “wink or nod” nonparty groups gestions, by individuals and limits, subsequent expenditures 2 can render contribution subject to the Act’s “coordinated,” 441a(a)(7)(B)(i). that does not Buckley, a standard § U.S.C. Therefore, equate agreement.92 acknowledged Congress’s the Court classification, rejects argument agree- and observed Court functional prerequisite ments are a constitutional expenditures treating coordinated expenditure that an is coordi- attempts finding to the “prevent[s] as contributions nated, and finds that Plaintiffs have through prearranged Act circumvent the 214(a) that Section violates amounting demonstrated expenditures or coordinated Buckley, the Constitution. contributions.” disguised this, fact, significance of enhanced the 214(b) b. Section down by striking treatment functional limits on First independent expenditure 214(b) repealed regu- the FEC Section upholding while grounds Amendment in effect at the lations on coordination time (by 214(b). individu- limitations on contributions § was enacted. BCRA BCRA groups), as defined to nonparty als and Congress has the Plaintiffs concede that expenditures. include coordinated repeal regulations. What power to however, Plaintiffs is that “Con- 442-443, argue, II, 121 S.Ct. 533 U.S. at Colorado narrow, omitted). provide (citations gress duty had a Also, in that definition for the precise, objective case, found that “coor Supreme Court to do so concept” but failed coordination spectrum ... covers a spending dinated regulatory 445, 121 “by repealing the FEC’s Id. at S.Ct. 2351. activity.” definition, substantially aggra- Congress Amend- agrees that “First This Court Cham- constitutional violation.” vated the demands a definition clarity ment FEC at 13 n. 6. Since the Br. ber/NAM provides the clearest ‘coordination’ January promulgated regulations on and con- guidance to candidates possible claim is moot. “aggravation” stituents, balancing while Govern- preventing interest compelling ment’s 214(c) c. Section process with of the electoral corruption that Plain- argue Defendants Because rights Amendment fundamental First 214(c) nonjus- challenge to tiffs’ Section speech as- engage *75 183-85; ticiable, Int. Br. at Coalition, Br. at Gov’t sociation.” Christian 139-40, this issue the Court will address However, at 91. the Court F.Supp.2d may preclude consid- first as its resolution precedent, nothing the cited finds elec- advocate the candidate's hypothetical to il- air time to offered this 92. Defendants "request type of coordination lustrate the tion. suggestion” is intended to cover: According standard Chamber to the Gov’t Br. at 185. Commerce, suggests wealthy hypothetical a individu- "is realis- candidate to this A of al, might you help, you routinely finance parties "If want to and their tic.... Candidates advocating some advertisements public support.” general requests for make election”; reply, my the individual does Opp’n at 6. Chamber/NAM $100,000 later, buys of worth but a week First Amend- in the area of tolerating, the Plaintiffs’ other of the merits eration of freedoms, penal of a the existence ment *76 of danger drawn because Plaintiffs, Court theory represents has This what despite purporting to have 214(c), challenge briefings. Cham- standing gleaned Section have not their terse from position. clearly the basis for their articulated 214(c) challenge their Section because found to be inconsis- above and
addressed
redressability. To
their claim lacks
estab-
holdings Buckley
and its
tent with
standing,
required
lish
Plaintiffs are
Therefore,
allegation
Plaintiffs’
progeny.94
opposed
it
“likely,
show that
is
to mere-
injured by regulations
that
will be
they
ly speculative,
injury
that the
will be re-
direction will be
by Congressional
by a
decision.” Bennett
dressed
favorable
overbroad,
inju-
not an
constitutionally
is
154, 167,
Spear,
v.
520 U.S.
117 S.Ct.
ry-in-faet.95
(1997).
L.Ed.2d 281
Even if this
to find that
214(c)
if this Court were
Even
Court were to strike Section
alleged
injury-in-fact, BCRA,
provisions dealing
Plaintiffs
other
with coor-
bring
expenditures
dinated
to candidates and
standing
still lack
Plaintiffs would
7-8;
regulation
Reply
range
FEC
to cover a
Opp'n at
current
fails
Chamber/NAM
ber/NAM
7-10;
("For
Opp'n at 53
rea-
McConnell
of de
coordination between
informal
facto
that,
fully
in the submission
groups
parties
sons discussed
outside
and candidates or
...
Commerce Plaintiffs
this as-
Chamber of
permitted,
purposes
if
could frustrate the
argu-
plaintiffs’ coordination
sertion
bill.”).
[that
justiciable at this
time]
ments are not
meritless.”).
AFL-CIO,
95. The
the Chamber of Commerce
vague
and NAM assert
that "BCRA’s
argue
Plaintiffs
that
the lan-
94. McConnell
overbroad
standards will inevi-
coordination
214(c)
guage
the Constitu-
of Section
violates
tably spur
wide-ranging
more ...
and bur-
require
it
“some
tion because
does not
form of
13;
investigations.”
densome
AFL-CIO Br. at
present
agreement
[to]
with the candidate
("[T]he
at 14
Chamber and
Chamber/NAM
course,
BCRA, of
for-
to find coordination.
painful,
experi-
know from
first-hand
NAM[]
requiring
any
bids the FEC from
sort of
vague
concept
ence how
overbroad
re-
agreement
or otherwise—be
—formal
permits
charges
unfounded
'coordination’
quired.”
Opp’n
26. The
McConnell
at 54 n.
investigations
seriously
burden and
Plaintiffs, interpreting
disagrees
Court
initiatives.”)
participation
legislative
chill
214(c)
Section
under the doctrine of noscitur
point
investiga-
These Plaintiffs
to the FEC’s
sociis,
that a
a sociis. "The maxim noscitur
tions into their broadcasts made in 1995 and
by
company keeps,
word is known
while
(the
Chamber of Commerce’s advertise-
rule,
inescapable
wisely ap-
not an
is often
by
response
to those aired
ments were run
many
plied
capable
a word is
mean-
where
AFL-CIO)
proposition.
support
ings
giving
in order to avoid the
of unintend-
may
by
The
a harm
be caused
Court finds
Congress.”
ed breadth to the Acts of
Jarecki
investigations
type
potential
to be the
future
Co.,
303, 307,
v. G.D. Searle &
367 U.S.
speculative injury Lujan rejects
as a basis
(1961).
S.Ct.
regulations expenditure” only to a “contribution 214(c). Section regarding complaints requires tiffs’ ex- sense that defined are not regulations However, since the any includes advocacy, but “also press ” Court, Plaintiffs’ (em- before properly .... payment or indirect direct ripe. Again, are not regard 214(d) in this added). claims § extends phasis BCRA all, perhaps many, possible that it is “electioneering com- coordination have been remedied concerns Plaintiffs’ provisions remove These munication.” regulations. promulgated recently standard advocacy as content express complaints any venue proper no substitute. give *81 been addressed have not believe Plaintiffs (emphasis in Opp’n at 8 Chamber/NAM special this is not regulations new by the not find Section The Court does original). pursuant court court, single-judge in a but 214(d) the on FECA that to have effect under the Administra- brought a lawsuit to 214(d) amends assert. Section Plaintiffs (APA). See BCRA Procedure Act tive 441b, limits contribu- FECA Section decry the Plaintiffs Although § 403. banks, expenditures by national tions or the brought suits under lengthy nature of organizations, corporations, or labor so jurisdiction to APA, the the lacks Court or ex- that the definition “contribution ignore and cannot regulations the rule on a “includes under that penditure” section ripeness III in order absence Article the expenditure, as those contribution they the forum provide Plaintiffs with to 301” are defined section terms prefer.99 (9). 431(8), FECA, § BCRA 2 U.S.C. 441b(b)(2); 214(d); § 2 U.S.C. § FECA does not reach Accordingly, Court the 441b(b)(2). “contribu- The definitions of § to challenges Sec- merits of Plaintiffs’ the in FECA Section “expenditure” 214(c), ripe adjudi- not for tion” and they as tion by BCRA.100 not been amended 301 have cation. Act, pending prevent application of the rule its the Under the Administrative Procedures 98. 553(d), Congressional provides: § Re- 705. The law U.S.C. and the 5 U.S.C. 5 review. Act, Rulemaking Agency U.S.C. justice 5 agency view so re- "When finds 801(a)(1), regulations be sub- the must FEC's quires, may postpone the effective date of Congress do not effect it, to take mitted pending judicial review. taken action Congress the days receives until 60 after required may conditions as On such report regulations or rule is on the the FEC's irreparable necessary prevent extent the Register, published in the whichever Federal court, reviewing including injury, the the 801(a)(3). regula- § 5 is later. U.S.C. may appeal be taken on court to which case Congress on De- were tions transmitted application certiorari or other from or on published in Federal cember 2002 and court, may reviewing issue all neces- writ ato Rules; Register January 2003. Final postpone appropriate process to sary Independent Expenditures, Coordinated and pre- agency action or to date of an effective 3, 2003). (Jan. can Fed.Reg. Congress 421 rights pending conclusion of status or serve days by passing regulations veto the within proceedings.” Id. the review regula- disapproving joint resolution § tions. See 5 U.S.C. "electioneering adds Section 203 100.BCRA FECA Section communication” also be aware that should Plaintiffs should 441b(b)(2)’s definition "contribution ex- regulations, they challenge FEC's penditure.” stay the FEC or a court may seek a complaints tion,101 Plaintiffs’ about the definition’s the party responsible for the payment” information, inclusion of “direct or indirect content of the an in- and/or misplaced provision preex- are also as this dication approves that the candidate subject isted BCRA and is therefore not content of the communication ... ... is invalid, review. Court’s applied least when to elec- tioneering (and, communications for that Given the fact that Plaintiffs’ under- matter, anything other than express ad- 214(d) mistaken, standing of Section vocacy). upon Court has no basis which to review provision, 22; cannot fathom the nature of McConnell Pis.’ Br. at 56 n. see also claims, (Baran).102 Tr. at and therefore argument does not find This provision presented a corollary unconstitutional. to Plaintiffs’ con- if tention that agrees Court that the III C. BCRA Title electioneering provisions communications stand, cannot pro- attendant disclosure 311: Clarity Section Standards Identi- fall, visions should likewise because the Sponsors Electionr-Related fication of provisions disclosure constitute regula- Advertising speech tion of ... government Section amends Section 318 of may regulate place. the first Id. at FECA, 441d, adding U.S.C. details and 55-56. Given that the Court finds BCRA’s requirements for the spon- identification of electioneering communication definition political advertising. sors of Included constitutional, Plaintiffs’ argument is re- *82 provision the is the extension of FECA’s jected. requirements electioneering communica- tions, as defined in BCRA Section 201. V. CONCLUSION 311(1); 318(a); § § BCRA 2 FECA U.S.C. Accordingly, the Court finds that the 441d(a). § Pursuant to Section 318 of Paul challenge Plaintiffs’ is without merit. FECA, such clearly communications must The Court finds that the disclosure re- state information about 2 sponsor, 201, quirements in Section excep- with one 441d(a); § U.S.C. Section 311 adds various tion, constitutional, are as well as Sections requirements related to the identification 202, 214(d) 214(a), and 311. The Court sponsor of the in the communication itself challenge concludes that a 212 to Sections challenged present which are not in the and the remainder of Section is not litigation. 311(2), § See BCRA FECA justiciable. 318(c)-(d); 441d(c)-(d). § § 2 U.S.C. In contrast with Judge Henderson’s briefing Plaintiffs’ on Section 311 lim- is approach, characterization of our we be- single ited to a in sentence a footnote in lieve that the resolution of these eleven the McConnell Opening Plaintiffs’ Brief: required judicious suits a careful and re- political evidence, requirement
BCRA’s
ads
pleadings,
view of all the
and
contain
identifying
information
the can-
in
arguments
a fair manner
to all the
supported by
didate
parties.
communica-
areWe
satisfied that we accom-
311,
It is not clear to the
challenging
Court where the
ones
and it’s
down
not
101.
purported requirement
Plaintiffs find this
argued
just
here to be
in Title 3 and I
want
from text of Section 311.
to make sure that
it has been chal-
lenged. ...
Jumping
rely
MR.
I'd have
JUDGE HENDERSON:
...
BARAN:
on the briefs
311,
that,
only
position
because I think this
on
Your Honor.
I’m not in a
is the last
going
today.
time we’re
to hear
omnibus
address that
[Plaintiffs],
(Baran).
you
only
and I think
all are the
TR. at 303
“de
Supreme Court —that
States
man- United
expedited
in an
goal
this
plished
uninhibit
be
should
public issues
“the
on
bate
thereby served
and
possible
ner as
York
New
robust,
wide-open.”
ed,
clari-
election law
in
public interest
strong
270,
254,
Sullivan,
U.S.
6 n.
Op. at
v.
Henderson
Times Co.
stability.”
ty and
(1964). My
710,
President The Con- committee, § 318. id. see party No. Pub.L. ofAct Reform Campaign innovations and other (codified these at 2 enacted gress (BCRA) 81 107-155,116 Stat. gaps regulatory perceived response and amends which seq.),2 et §§ 431 U.S.C. accounts, a “soft popular many Cam- By Election the Act. Federal supplements corporations, Act), Pub.L. allowed (FECA had loophole” or money of 1971 Act paign Provisions) political (1971 and unions, wealthy individuals 92-225, Stat. No. §§ et at U.S.C. to distort (codified amended themselves parties as significant most if not spirit, BCRA’s of Among seq.). process violation provisions: Cong. are S2104 features letter, Act. controversial Rec. and orga- labor corporation 2002) or any (statement of Sen. prohibiting (daily ed. Mar. for making a disbursement (contending from at 3 nization Br. see Gov’t Feingold); communication,” “electioneering a any from grown loophole has money “soft “any defined as which § BCRA limitations FECA’s exception narrow communica- cable, satellite broadcast, or of means ever-growing huge a into clearly identified a ... refers to tion troubling, them). More circumventing” [and office ... Federal candidate was that proponents, BCRA’s according to a days before ... 60 made within which] is por- vast had used and unions corporations or ... election or runoff special, general, funds—and treasury of tions prefer- or primary days before ... 30 of percentage large used parties had sought the office ... election ence for cam- pay funds—-to their non-federal 201; any requiring candidate,” § id. clear that steered advertisements paign for the a disbursement “makes person who “masquerading” only limits FECA’s elec- airing producing costs direct E.g., concern. public about issues ads aggregate in an communications tioneering Re- First Amendment Regarding any $10,000 during in excess amount Hearings Advocacy: Issue strictions on disclosures certain year” to file calendar Constitution the Subcomm. Before Commission Election the Federal with Comm., Judiciary House id.; Commission), limiting (FEC or (statement (1997) Cong. 105th disbursements amount of source at Simon), available Donald J. candidate a federal “coordinated” are http://www.house.gov/judiciary/22343.htm; party national, local political state (“The parties Br. see Intervenors re- 202, 214; severely committee, §§ id. money on broad- soft of [the] much spent national, politi- or local state any stricting addressed supposedly advertising cast agents and its committee cal designed ‘issues,’ fact was but only non- transferring receiving or soliciting, for fed- of candidates the election influence funds, which (i.e., money”) “soft Report Expert (citing Mann office.” eral source-and- subject to FECA’s are 18-26)). require- reporting limitations and amount law, into signed was as BCRA soon As regulation, subject state but ments Nation- and the McConnell Mitch Senator any individ- 101; prohibiting §id. *85 (NRA) separate filed Association al Rifle younger years old who is ual statute’s challenging court in suits whatsoever any making contribution then, nine addi- constitutionality. Since any office or for federal any candidate resources_bcra.htm. online is available copy the statute A full or_ gov/pages/bcra/maj http ://www.fec. complaints plaintiffs (1) tional have been filed and a pray for relief the form of an order and judgment declaring the chal- plaintiffs joined total of 75 additional lenged provisions of BCRA unconstitution- Senator McConnell and the NRA in chal- (2) al; an order judgment permanent- and lenging validity of the new law.3 The ly enjoining the defendants4 and their 7,May As of 2002 deadline for amend- 0754 are the American Federation of Labor pleadings, joinder ment of intervention or Congress Organizations of Industrial parties additional and consolidation of addi- (AFL-CIO) and the AFL-CIO Committee on cases, 4/24/02, Scheduling tional Order of Political Education Political Contributions plaintiffs parties were to the consolidated (COPE PCC) Committee (collectively, plaintiffs actions. Since then seven plaintiffs); —the AFL-CIO in No. 02-CV-0781 are Committee, Republican Alabama Executive Paul, Congressman Ron Gun Owners of Connors, County Martin J. the Jefferson Re- America, Inc., Gun Owners of America Politi- Committee, publican Executive the Christian Fund, Victory cal RealCampaignReform.org, America, Inc., Coalition of the Libertarian United, Citizens Citizens United Political Vic- Illinois, Inc., Party DuPage Political Fund, tory Michael Cloud and Carla Howell Council, Action Inc. and the National Associ- (collectively, plaintiffs); the Paul in No. 02- ation of Wholesaler-Distributors —have been Republican CV-0874 are the National Com- prejudice. dismissed from the suit without (RNC), Duncan, mittee Mike Republican 8/15/02, 9/13/02, generally Orders of Colorado, Party of Republican Party Dismissing Pis. Without 9/18/02 9/30/02 Ohio, Republican Party of New Mexico Prejudice. (Iowa) County and the Dallas Republican Remaining plaintiffs in the suit are 77 in 11 County Central Committee (collectively, the actions: in No. 02-CV-0582 are Senator plaintiffs); RNC in No. 02-CV-0875 are the McConnell, Barr, Representative former Bob (CDP), Party California Democratic Art Tor- Pence, Representative Attorney Mike Alabama res, County the Yolo Democratic Central Pryor, General Bill the Libertarian National Committee, Republican the California Party Committee, (LNC), Inc. the American Civil (CRP), Steel, Timothy Morgan, Shawn J. Bar- (ACLU), Liberties Union Associated Builders Alby, bara County Republican the Santa Cruz Contractors, (ABCI), Inc. Associated Douglas Boyd, Central Committee and R. Sr. Builders and Contractors Political Action (collectively, plaintiffs); the CDP in No. 02- (ABCPAC), Committee the Center for Individ- Adams, Gray CV-0877 are Victoria Jackson Freedom, Growth, Inc., ual Club for Indiana Bolton, Brown, Cynthia Carrie Derek Cress- Institute, Inc., Family Right the National man, Joshi, Fitzgerald, Victoria Anurada Nan- Committee, (NRLC), Right Life Inc. National Russell, cy Seely-Kirk, Kostmayer, Kate Peter (NRL ETF), to Life Educational Trust Fund Wilson, Taylor, Stephánie Rose L. the Califor- Right National to Life Political Action Com- nia Group, Public Interest Research the Mas- (NRL PAC), mittee Right the National Group, sachusetts Public Interest Research Committee, Association, Inc., Work 60 Plus Jersey the New Public Interest Research Foundation, Inc., Legal the Southeastern U.S. Group, the United States Public Interest Re- ProEnglish, Mclnerney, Thomas Barret d/b/a Group, Project search the Fannie Lou Hamer Austin O'Brock and Trevor M. Southerland Community Organizers and the Association of (collectively, plaintiffs); the McConnell in No. (collectively, for Reform Now the Adams 02-CV-0581 are the NRA and the National plaintiffs); Repre- and in No. (NRA 02-CV-0881 are Victory Rifle Association Political Fund PVF) Thompson Represen- sentative Bennie G. (collectively, plaintiffs); the NRA in No. Echols, (collectively, tative Earl F. Hilliard Emily 02-CV-0633 Hannah McDow, McDow, Mitchell, Thompson plaintiffs). Isaac Jessica Dan- Zachary iel Solid (collectively, C. White 4. The defendants in these consolidated ac- plaintiffs); the Echols in No. 02-CV-0751 are FEC; tions are the the United States of of Commerce Chamber of the United (United States); (Chamber Commerce), America the United States States the National (DOJ); (NAM) Department of Justice Association the Federal of Manufacturers and U.S. (collec- (FCC); Chamber Communications Political Action Committee Commission John Ashcroft, tively, plaintiffs); capacity Attorney Chamber Commerce in his official America; in No. 02-CV-0753 is the National Associa- General of the United States of El- *86 (NAB); Weintraub, Smith, tion of Broadcasters in No. 02-CV- Bradley len L. A. David M. 270 defendants enjoin the (4) permanently and other- executing or enforcing, from agents executing enforcing, from agents provisions; and challenged the applying
wise sections FECA to new applying pursuant fees or otherwise attorneys’ (3) and costs 323(d) and 323(c), 323(b), 323(a), and authority; 301(20), statute applicable any 101. section its discre- BCRA court in 323(f), the (4) relief as added other any * * See, * appropriate. just and deems tion Compl. Am. Second McConnell e.g., recita- a factual with begins opinion This view, my at 51. (McConnell Compl.) I pro- Part Parts.6 two into divided tion the except provisions challenged of the all efforts congressional history of vides (which I be- Part IV.D.4 discussed one discusses finance and campaign regulate sustained) those dis- and must lieve decision seminal Court’s Supreme the (as and IV.G IV.F in Parts cussed 612, 1, Valeo, 96 S.Ct. 424 U.S. v. Buckley judgment5) no pass I would which curiam), the (1976) (per 659 L.Ed.2d 46 the and for Accordingly, unconstitutional. analy- my of starting point jurisprudential and TV III in Parts stated reasons infra interwoven BCRA’s II describes Part sis. (1) that declare I would opinion, of in which ways the it details provisions; 212, 203, 204, 202, 201, sections BCRA regulatory existing the changes BCRA First the violate 214, 311, and 213, 504 318 constitutional catalogues the and scheme Consti- States United the Amendment in these plaintiffs the upon bases sec- new FECA (2) that tution; declare the new challenge actions consolidated 323(d) 323(c), 323(b), 323(a), 301(20), tions established, foundation that With statute. section by BCRA 323(f) added and —as in- matters in limine addresses Part III the Amendment the First 101—violate of findings importantly, most cluding, (3) Constitution; perma- States United (in those lieu of make I would that fact and their the defendants enjoin nently of review the standards and majority) executing or other- enforcing, agents analyses. Part my substantive guide 202, that 201, sections BCRA applying wise constitution- myriad 504; then addresses IV 214, 311, and 212, 213, 318 204, 203, Comm’n, U.S. 286 Corp. v. Champlin Co. McDonald, Thomas Mason, Scott E. Danny L. Ref. (1932) 559, 210, 235, 1062 L.Ed. 52 S.Ct Toner, capaci- their official E. Michael intention (severability “discloses FEC; clause Sena- ties as Commissioners pre- and creates divisible [a statute] McCain, Olympia make Feingold, Russell tors John that, parts, eliminating invalid sumption Representa- Jeffords and James Snowe with have been satisfied would legislature Meehan Shays and Martin Christopher tives Valeo, remained”); Buckley v. intervenors), intervening what (collectively, the 612, 255, 1, 46 L.Ed.2d S.Ct. U.S. defendants. C.J., part and concurring in (1976) (Burger, severability ("To challenges invoke a dissenting part) who plaintiff no I believe comprehensive, standing parts do so. See of a salvage has clause to BCRA section a for- Likewise, exalts statutory ... scheme integrated I am convinced IV.F. Part infra objectives challenge in- broad expense standing to at the plaintiff has mula no in BCRA Congress.”). set out limits contribution creased 319. See sections infra opinion that rendering an interest In the Therefore, decide I would IV.G. Part and, again, for a coherent reads as whole— even provisions constitutionality of those retained intro- expedition the sake record of the upon though examination —I (but only overlap some- ductory sections severability provision, see despite BCRA’s cu- per what) portions of scattered upon with Congress, I § doubt BCRA with Per Part I Compare opinion. riam be- I provisions numerous infra elimination II.A; compare also Op. at Part Curiam invalid, infra "satisfied” have been would lieve are Op. Part II.B. Curiam Per Part II with increases. limit contribution
271 questions al raised the new law. Part clarity for length opinion, and I provides brief conclusion. Given the below, V provide a table of contents complexity of the undertaking, the number * * * * * * addressed, plain of issues to be need
Table of Contents
III.
IV. Constitutional
V. Conclusion.
II.
I. A Brief
F. The
E. The Ban on Minors’ Contributions and Donations.
A. The Ban on
D. Restrictions on Non-Federal Funds.
B. Disclosure and
A. Procedural Posture.
A. The Ban on
G.
B. Alternative
Funds.
D. Restrictions on Non-Federal F. The
A
E. The Ban on Minors’ Contributions and Donations.
B. Disclosure and
C. Limits on “Coordinated
C.
G.
C. Limits on “Coordinated
Catalogue
Limine
Increased Contribution Limits
2. The “Millionaire Provisions”.
4. Federal Candidates: New FECA Section
Standards
5. State Candidates: New FECA Section
1. General Increases
4. Restrictions on Non-Federal Funds.
1. The
Increased Contribution Limits
5. The
2. The Ban on
3.
1. The
1. General Increases
2. The “Millionaire Provisions”.
Communications”.
Communications”.
History
b. Section
Fundraising
Tax-Exempt Organizations:
a.
c.
Limits
Conditions on the Lowest Unit Broadcast
Conditions
Requirements.
Matters.
eering Communications” and the
Sections
Ban Minors’ Contributions and Donations.
Litigants
of BCRA’s
Party
(b)
Analyses.
on
Findings
Party
Review.
Corporate
Corporate
Campaign
“Coordinated
.
Restrictions: New FECA Sections
Reporting Requirements.
Reporting Requirements.
on the
323(a)
Costs: New FECA Section
301(20)
Corporate
Restrictions
.
Provisions
of Fact.
Lowest Unit Broadcast
Fails Strict
.
.
and Labor
Expenditures”.
Expenditures”.
Finance
Labor Disbursements
Expenditures”.
and Labor Disbursements
323(b)
.
.
New FECA Section
Regulation.
Scrutiny.
Disbursements
Subject
Fail Strict
Challenges
Disclosure and
323(f).
to Strict
323(c).
323(e)
Charge.
Charge.
Scrutiny.
Thereto
301(20)
.
Scrutiny
323(d)..
“Electioneering
“Electioneering
Reporting
for “Election-
323(a)
tO
cn t—1CO co
OO CO as CO 05
CO00
COCD
COt-
cn O
CO00
tO H-i
tOOO-3
tOOOto
tOOOt—1
tO toCD
tO ^OO
tOCD05
DO CDOO
tOCDto
tO toCD
to CO to CO o
DO
DOCDCn
DOCOCO
tOCD^
CD<1
CDcn
DO
tO
tO
CD
tO
tO
CD
-<1
tO
I—1
CD
‡
Although federal campaign
$
leg-
finance
^
^
^
islation
back at
dates
to the late
least
History
I. A
Campaign
Brief
century,7
nineteenth
federal campaign con-
Regulation
Finance
Curtis,
371, 375,
7. See Ex
parte
15, 1876,
106 U.S.
constitutionality
Aug.
of Act of
(1882)
S.Ct.
(upholding
tributing and Gora, “No M. Joel 1971, restrictions. follow- nance 1970s. the until regulated ” 24 HaRV. J.L. Abridging, elec- & Pub. ... presidential Law 1968 expensive an ing (“Even (2001) though FECA, which Pol’y 841, 856-57 enacted tion, Congress campaign under put of we disclosure the abuses public all of upon not relied as the or illegal expenditures9 involved and 'Watergate’ of rubric contributions8 weed- and identifying Watergate funding, of method campaign primary questionable 1971 quos.10 pro quid part least political out at ing have become to seemed v. 301-311; also ACLU see §§ excess finance Provisions campaign for child poster 1041, nn. 18- 1054 F.Supp. 366 Jennings, resulting amend- The corruption.”). and (de- court) (three-judge (D.D.C.1973) 20 Election FECA, Federal see ments III, “estab- which Title FECA’s scribing 1974, of Amendments Act Campaign of record system elaborate lishe[d] (1974 1263 93-443, 88 Stat. No. Pub.L. campaign of disclosure public and keeping 2 (codified Amendments) as amended vacated expenditures”), and contributions several included seq.), §§ 431 et U.S.C. ACLU, 422 nom., v. sub Staats moot recita- a detailed warranting innovations 686 2646, L.Ed.2d 45 1030, 95 S.Ct. U.S. here. tion who many legislators (1975). By 1974 any prohibited Amendments 1974 exclusively on a rely content were than contributing more person11 prevent regime” “disclosure-centered contract, agree- or promise, (ii) a written or receiv- requesting employees from expenditure. to make an ment purposes); political for value ing anything of id. 431(9)(A); also see J., § U.S.C. 2 376-77, (Bradley, 381 1 S.Ct. also id. see of 431(9)(B) (exemptions from definition § statute on (voting strike down dissenting) “expenditure”). "denyfing] grounds because First Amendment associating and privilege of to a man requirements, disclosure 10. Previous other such contributions making joint entirely, found replaced can FECA choose, unjust re- is an may as he citizens 822, 1910, 25, see United 36 Stat. of June Act promote and propagate right to of his straint 575, 567, UAW, 77 S.Ct. U.S. 352 v. States affairs”). public his views (describing (1957) how 529, 563 L.Ed.2d 1 ... for popular demand "translated Act 1910 in- FECA, "contribution” the term 8. Under into wealth power of upon the curbs cludes [political] com- required law publicity advance, loan, or subscription, (i) any gift, report all contributions ... mittees made anything of value money deposit of or identify contributors disbursements of purpose influenc- person for by any sums”), recipients of substantial office; or 1925, for Federal ing any election Corrupt Act Practices Federal compen- any person of (ii) States, payment 1070, Burroughs United v. see Stat. of another personal services for 540-42, sation 78 L.Ed. S.Ct. U.S. ato rendered person which politi- (1934) requirement (upholding any charge purpose. for without or committee accepting contributions committees cal 431(8)(A); id. also § 2 U.S.C. of in- purpose making expenditures “for 431(8)(B) from definition (exemptions § vice-presidential presidential and fluencing” "contribution”). spent as report totals donated elections contributing $100 or donors well as names FECA, "expenditure” in- term 9. Under more). cludes broadly to include distribution, "person” defines 11. FECA payment, (i) purchase, any committee, individual, asso- partnership, advance, money "an loan, gift deposit, or organization, ciation, labor corporation, value, any person for anything made persons.” group of organization or any other any influencing election purpose 431(11). § 2 U.S.C. office; and Federal $1,000 per any political election12—and during any year.” calendar Id. And contributing placed committee13 from more restrictions on than overall campaign $5,000 spending by per presidential candidates: any election—to one candi- spend candidate could a maximum of date federal office. See 1974 *89 $10,000,000 in seeking nomination for of § Amendments 101. They also barred fice and a maximum of an additional any person from contributing more than $20,000,000 in the general election cam $25,000 aggregate an of recipients to all in paign; any election, senatorial primary per cycle. election See id. a candidate was limited to spending either addition, the 1974 Amendments $100,000 or eight cents times the relevant curtailed the sharply money amount of voting-age population, whichever was spent purpose could be for the of greater; election, in the general a senato any influencing election for federal office. rial spend $150,000 candidate could either instance, For they prohibited any person or 12 cents times the relevant population, $1,000 from spending more than “relative greater; whichever was in pri both the clearly to a identified during candidate” mary campaign and the general election any year. calendar They precluded Id. campaign for the Representa House of any candidate spending tives, more than a $70,000.16 the limit was See id. given personal $50,000 amount of funds— Finally, the 1974 expanded Amendments
in presidential the case of a vieepresi or the disclosure and reporting requirements candidate, $35,000 dential in the case of a of the 1971 §§ Provisions. See id. 201- $25,000 senatorial candidate and in the 209. Together provisions, with the earlier case any of other congressional candi the 1974 mandated, Amendments inter 15—“in alia, date connection with his campaigns each reg- committee17: is, 12. An statutorily speaking, “election” a expenditures or has made aggregating in “general, special, $5,000; primary, or runoff elec- excess of or tion,” (B) a "convention or caucus of a given if such individual has his her or authority which has to nominate a person can- consent to another to receive con- didate,” "primary a election held for the se- expenditures tributions or make on behalf delegates of nominating lection to a national person of such and individual if such has political party” a "primary convention of aor received such aggregating contributions $5,000 expression election held for the prefer- of a in excess of or has made such ence for the expenditures nomination of individuals for aggregating in excess of $5,000. to the office election of President.” 2 U.S.C. 431(1). § 431(2). § 2 U.S.C. Amendments, 15. Under the 1974 a candidate qualify In order higher for contribu- Representative for the office of from a committee,” State ceiling "political tion as a only Representative entitled to (that per- one was entity "person” would otherwise be a $35,000 spend mitted to up personal limit) subject register to the lower must with funds. statutory require- the FEC and meet certain 433; § See 2 ments. U.S.C. see also infra committee”). ceilings 16. The (defining "political applied note 17 senatorial to those seeking candidates nomination or election FECA, Representative the office of from a State enti- 14. Under the term "candidate” means only tled to one Representative. an individual who seeks nomination for election, election, office, to Federal FECA, "political Under a committee” is purposes for of paragraph, an individu- (A) committee, club, association, al shall deemed to any seek nomination for election, or election— n group persons other of con- receives (A) $1,000 if such individual has received contri- aggregating tributions in excess of $5,000 aggregating butions during excess of year a calendar or which makes file year any during calendar 208-209; §§ FEC, $10021 id see with ister the Commis- with effect to that statement contributions of both records keep detailed § 204. Amendments sion. Provisions see expenditures, §§ 202- 302-304, Amendments plaintiffs including group §§ A diverse — Buckley, name L. its records James 204; include States Senator United re-election, contribu- any a candidate made who anyone seeking was who address States, $10,18together the United presidency excess tion contribution, contributor, Committee amount potential date Conserva- Presidency, 302, 1974 Amendments § Constitutional Provisions York, the New occupation, State Party as well 202; include tive § Liber- Party, Mississippi Republican of business place principal employer and/or *90 Lib- Civil York the New Party and than $10019 more contributing tarian anyone of provi- FECA’s challenged 1971 Provi- see erties year, calendar any during Union— constitutional variety of a § 202. on sions 302, Amendments § 1974 sions now- and massive the spawning required grounds, also provisions disclosure The v. Buckley as known litigation legendary FEC quar- the to file with candidate each the of synopsis a follows is What Valeo. financial containing detailed reports terly in decision Court’s Supreme States name, United mail- full information, including the Buckley.22 principal place address, and occupation ing contributing recognized person Bwkley of each Court the Although business
of
calendar
during any
to candidates
monetary contributions
than $10020
more
“impor-
the
date of
play
and
the amount
political
well as
committees
and
year,
304,
cam-
political
§
financing
Provisions
in
1971
...
role
tant
contributions.
21,
Further,
the
96 S.Ct.
at
424 U.S.
Buckley,
§ 204.
paigns,”
Amendments
1974
“impli-
limitations
612,
Commission
contribution
the
required
provisions
inter-
in-
Amendment
First
public
fundamental
“available
cate
reports
make
612,
that such
23,
Provi-
96 S.Ct.
ests,”
at
1971
id
copying.”
... and
spection
impact
a severe
Fi-
“could
§ 208.
limitations
311,
Amendments
§
sions
candi-
prevented
[they]
if
dialogue
or
any
political
individual
nally, they mandated
amass-
from
committee)
committees
political
dates and
(other
political
than
group
necessary for effective
resources
ing the
of over
expenditures
independent
making
reporting
detailed disclosure
tion certain
of
excess
aggregating in
expenditures
requirements”).
$1,000
year; or
during a calendar
segregated fund estab-
(B)
separate
any
currently
is
raised and
figure
been
has
The
18.
of section
provisions
under
lished
432(c)(2).
§
2 U.S.C.
$50. See
title;
441b(b)
or
of this
par-
political
(C)
of
any
committee
local
currently
is
been raised
figure
The
has
19.
aggregat-
contributions
ty
receives
432(c)(3);
also id.
see
§
2 U.S.C.
$200. See
$5,000 during a calendar
of
ing
excess
431(13).
§
exempted from
payments
year, or makes
expendi-
or
of contribution
definition
currently
raised and
figure
been
has
20. The
$5,000
in excess
aggregating
...
ture
434(b)(3).
§
$200. See U.S.C.
contribu-
year, or makes
during a calendar
$1,000 dur-
excess
aggregating tions
currently
been raised
figure has
The
expenditures
makes
year
ing
calendar
434(c)(1).
§
2See U.S.C.
$250.
$1,000 during a
excess
aggregating in
year.
calendar
Buckley
by
laid out
legal framework
The
431(4);
Jennings, 366
also
§
2 U.S.C.
greater detail
discussed
progeny is
"[c]ategori-
and its
how
(explaining
F.Supp.
IV.
Part
mo-
sets into
committee
political
as a
zation
infra
21,
advocacy,”
612,
upheld
id.
96 S.Ct.
found,
however,
Court
that in con-
all
major
three of the Act’s
contribution
trast to the Act’s
restrictions,
contribution
limits because there was “no indication”
expenditures
limits on
“impose[d] di-
“any
would have
ad-
dramatic
rect and substantial
restraints
on the
verse affect on
funding
of campaigns,”
quantity
speech.”
Id. at
id.
specifically,
More
rejected
612;
Court
19-20,
S.Ct.
see id. at
277
415,
328,
U.S.
83 S.Ct.
9 L.Ed.2d
“highly
405
speculative,”
70,
id. at
First,
S.Ct.
plaintiffs
612. The
provides
disclosure
had
electorate
contended
provision
information
would
impose
real,
“as to where
“very
practical
campaign money
burdens ...
comes from
certain
and how it
to deter indi-
spent
viduals
making
expenditures
candidate” in order to aid
for their
independent
voters in evaluating
speech.”
those who seek
75,
Id. at
federal office....
96 S.Ct.
612. Noting
sources of a can-
that the Act’s defini-
didate’s financial
tion of
support
“expenditure”
also
spoke
alert
in terms of
voter to the interests to which
funds
“for
a candi-
used
the purpose
...
influ-
date is most likely
responsive
encing”
to be
the nomination or election of any
thus facilitate predictions
per-
office,
future
candidate for
77,
id. at
Second,
formance in
612,
office.
disclosure S.Ct.
the Court recognized that the
requirements
actual corruption
deter
provision
$100 disclosure
could indeed
and avoid the appearance
corruption
have a drastic chilling
protected
effect on
by exposing large contributions
speech
and ex-
in the form of campaign spending,
penditures to
light
of publicity....
76-77,
see id. at
Thus,
S.Ct. 612.
Third, and not
significant,
least
record-
order
provision
to steer the
clear of the
keeping, reporting, and disclosure re-
“shoals of vagueness,”
78,
id. at
96 S.Ct.
quirements are an
essential means of
“[t]o
insure that
reach
[its]
[was]
gathering the
necessary
data
to detect
broad,”
not impermissibly
id. at
violations of the
[Act’s]
limi-
contribution
S.Ct.
the Court construed the term
tations ....
“expenditure” under the
provi-
disclosure
sion in
way
the same
it construed the
66-68,
Act’s
Id. at
278
contrib-
could
441a(a)(l)(B);
person
no
§
I
contemplated.
Congress
of what
shadow
(other than
committee
any political
a ute to
leaves
residue
whether
question
committee) more
party
political
also,
national
e.g., San-
see
program.”);
workable
see
year,27
$5,000
any calendar
during
Ac-
Campaign
than
Levinson, Regulating
ford
committee
Contradiction?,
441a(a)(l)(C);
political
no
§
id.
to
Road
New
tivity: The
more
(1985)
any
to
candidate
contribute
n.
could
L.
Rev.
MiCH.
election,
id.
see
$5,000 per
legisla-
“a rational
than
doubt
(expressing
committee
441a(a)(2)(A);
political
no
“a
§
unified
passed”
would
ture
ever
aof
to the committees
of statutes
contribute
“crazy quilt”
could
package”
$15,000
than
af-
party
finance
more
campaign
political
national
regulations governing
see
id.
).24
paragraphs
year,
following
during
any
calendar
Buckley
ter
commit-
political
un-
441a(a)(2)(B);
no
scheme
regulatory
§
describe the
political
in-
any
is
other
discussion
to
Buckley; the
contribute
could
after
tee
folded
any
$5,000 during
for BCRA’s
a context
than
more
provide
to
committee
cluded
441a(a)(2)(C).
what
help
§
clearer
to
make
id.
year,
see
enactment and
calendar
accomplish.
political
to
or state
designed
Moreover, if
national
any
BCRA
expendi-
its
coordinated
committee
left
noted,
Buckley Court
As
pur-
for the
specific candidate
awith
tures
compo-
major
of the Act’s
place several
i.e.,
candidate,
if the
benefiting the
pose of
Act’s con-
of the
all
Significantly,
nents.
“in
funds
connection
spent
committee
indeed,
(and,
remained
limits
tribution
expen-
campaign, the
the candidate’s
with”
more in
added some
Congress even
like contributions—
treated
were
ditures
amendments):
con-
person could
no
mone-
subject to formula-driven
were
$1,000
than
more
any candidate
to
tribute
slightly
that were
ones
tary ceilings, albeit
441a(a)(l)(A);
§
election,25
2 U.S.C.
per
any politi-
$5,000
limit
than the
higher
the commit-
to
contribute
person could
no
any
contributions
party committee’s
cal
than
party more
tees of national
441a(a)(2)(A),
§
id.
Compare
id.
candidate.28
year,26see
$20,000 during any calendar
315(a)(1)(D);
U.S.C.
§
enacting
FECA
task
with the
24. When faced
441a(a)(l)(D).
§
Buck-
response
emergency amendments
to reevaluate
Congress
little time
ley,
had
left
could
provisions
political party
the decision
committees
combination
28.National
cannot)
Attorney
(and
any expenditure
General
standing.
then Assistant
make
still
As
it,
purpose put
"whole
election
general
Scalia
with”
Antonin
connection
"in
submerge those issues
President
any
candidate for
campaign
[amendments]
our
to do minimum
equal
cents
amount
controversial
"which exceeds
the 1976 elec-
necessary
age
voting
population
enable
multiplied
amount
Legal
441a(d)(2).
Counsel
proceed.”
§
Office
Na-
tions
2 U.S.C.
United States.”
2911, Legislative
§
accompanying
parly
Statement
committees
and state
tional
*94
1976, at 142
cannot)
History
(and
any expen-
Amendments
of FECA
still
make
not
could
1976).
18,
(Feb.
election cam-
with”
"in connection
diture
office of Sena-
any
for the
paign of
candidate
$2,000 per elec-
the limit to
a State which
Representative
BCRA
25.
raises
tor'—or
307(a)(1);
Representative
§
— n
see also
only one
See BCRA
tion.
entitled
infra
greater
... 2
cents
Part II.G.
...
exceeds
"which
voting age population of the
multiplied
$20,000.”
$25,000 during
Id.
...
...
the limit
State
26. BCRA raises
And,
307(a)(2).
441a(d)(3)(A).
finally, the
§
national
year.
§
See BCRA
any calendar
could not
committees
state
and
(and
cannot)
any expenditure “in
make
person
still
permit a
the Act
BCRA
amends
campaign of
$10,000
the election
with”
year
connection
per
to state
up to
to contribute
Representative,
102;
the office
any
§
candidate for
See BCRA
party committee.
441a(d);
§
id.
see FEC v. Colo. Re
the money contributed —and much of the
publican Fed.
Comm.,
Campaign
533 U.S. money spent
connection with” or
—“in
431, 465,
121 S.Ct.
FECA’s
post-Buckley
source-and-
lated “non-federal” funds —a.k.a. “soft
provisions
amount
thus restricted all of money”30
such funds were not
—because
Delegate or Resident
Commissioner "which
(1995) (hereinafter
Report
Year
Twenty Year
$10,000.”
exceeds ...
§ 441a(d)(3)(B).
Id.
available
Report),
http://
www:fec.gov/pages/20year.htm, provides
helpful,
For a
history
brief
rough-and-ready
corporate
ban on
definition
aof
com-
funds,
monly
and labor
Buckley,
misunderstood
given
and non-federal
federal
between
penses
office.”
Federal
for
any election
encing
Propo
(9)(A)(i)
basis.”
(defining
431(8)(A)(i),
on a “reasonable
accounts
§
U.S.C.
restric
campaign finance
“expenditure”).
tighter
When
of
and
nents
“contribution”
standard, claiming that
Committee
State
the
Republican
criticized
tions
the Kansas
permitted
it was
federal
whether
the
FEC
underestimated
the
asked
committees
registration
expendi
for voter
and
expenses
contributions
to allocate
their
share of
benefited
drives that
elec
federal
get-out-the-vote
and
thereby influenced
and
tures
on a
candidates
and federal
the state
be
both
would otherwise
with funds
tions
responded that
ticket,
FEC
given
re
source-and-amount
FECA’s
subject to
be
activities] should
of
peti
[such
costs
Cause
Common
In 1984
strictions.
and non-Fed-
Federal
between
allocated
more strin
promulgate
the FEC
tioned
manner as
same
in the
elections
eral
perceived
to close
regulations
gent
expenditures....
party
general
other
peti
its
denied
FEC
After the
loophole.
allocable
costs
portion
That
relief
tion,
sought
Cause
Common
... must come
elections
Federal
the Commission
court, which ordered
in accordance
... contributed
funds
Common
generally
rules. See
clarify its
con-
prohibitions
and
limitations
(D.D.C.
FEC,
F.Supp.
v.
Cause
441b, 441c,
441a,
§§
in 2
tained
U.S.C.
1987).
allo-
costs
441e,
441g.... The
441f and
took
regulations
The amended
—which
may be
elections
to non-Federal
cable
1991—served
January
effect on
and ex-
funds raised
paid out
funding
basis
federal/non-federal
applicable Kansas
pended pursuant
reg-
The
enactment.
BCRA’s
system until
election in
respect to an
[W]ith
law....
fixing
formulae
forth
ulations set
several
for [both
there are candidates
which
money
maximum amount
office, expen-
and Federal
non-Federal]
activity benefit-
could
committee
use
get-out-the-
registration
ditures for
candi-
federal and non-federal
both
ing
not be attributed as
need
vote drives
106.5(b)-(d) (1997),
§
dates,
11 C.F.R.
un-
candidates
to [Federal]
contributions
reporting mixed
expanded
required
specifically on
made
drives are
less the
spend-
giving
non-federal
federal and
their behalf.
at ch.
Twenty.Year
supra,
ing, see
Report,
“ap-
Because
Advisory Op.1978-10.
FEC
rules,” the Commis-
the new
“Despite
cor-
prohibit
law” did
Kansas
plicable
legislators and
some
reported
sion
placed
no
union donations
porate and
by the
troubled
groups remained
“reform”
and local
for state
ceilings on donations
funds:
non-federal
influence of
growing
candidates
Kansas
federal
campaigns,
money
example, that soft
They say, for
indirectly—
to benefit —albeit
were able
non-federal
spending
Twenty
donations.
from such
—even
YeaR
federal
expenses
share
history
(detailing
supra,
ch.
—influences
Repoet,
permits
committees
because
elections
non-federal
pre-BCRA treatment
that can later
funds
federal
to conserve
of ‘soft
explaining
origins
“[t]he
funds and
candidates.
support
federal
spent
States’
lie in the United
money’
way
about
Many are also concerned
under
“each
government,”
system of
money. They be-
rules for
raise soft
its own
committees
may establish
[S]tate
candi-
held
role federal
elections
the nonfederal
lieve
active
financing
borders”).
play
raising
within
dates and
associates
its
money,
very
sums of soft
large
dur-
grew
funds
of non-federal
use
of undue
least,
appearance
creates an
per-
regulations
FEC
ing the 1980s. New
*96
influence
the contributors on the fed- note 52. Chamber Commerce Moore,
v.
eral candidates
187,
(5th
involved.
288 F.3d
Cir.)
(holding that,
under Buckley, political
Id.
advertisement
at ch. 3. Non-federal donations to the
bemay
regulated constitutionally only if it
major
two
did,
parties
fact,
explicit
contains
words advocating election
grow exponentially during the 1990s—
or defeat of clearly identified candidate),
from $86.1 million in the 1992 election
—
denied,
cert.
U.S. -,
123 S.Ct.
cycle to $487.5 million in
cycle.
the 2000
154 L.Ed.2d
(2002);
see Buckley, 424
See
Findings of Fact (Findings) 65-
infra
U.S.
44 n.
282 an than meaning other plausible no Corporate and Labor on Ban
A. spe- a against for or “Electioneering to vote exhortation for Disbursements ” candidate. cific Communications 304(f)(3)(A)(ii); § 201(a); FECA § Act amends the BCRA BCRA 203 of Section Additionally, 434(f)(3)(A)(ii). orga- § or labor 2 U.S.C. corporation any prohibit to definition from either any exempts disbursement making from section nization electioneering commu- communication any applicable electioneering “for 203(a); § FECA BCRA nication.” a news (i) appearing communication a (b)(2). 441b(a), § (b)(2); 2 316(a), U.S.C. § distrib- editorial commentary, or story, BCRA section Under any broad- the facilities through uted “electioneering communica- term [t]he station, facilities such unless casting cable, broadcast, or sat- any means tion” par- political by any or owned controlled which— communication ellite candidate; committee, or political ty, candi- (I) clearly identified to a refers constitutes which (ii) communication a office; for Federal date ex- independent an or expenditure an (II) made within— is [FECA]; [or] penditure under spe- (aa) general, a days before a constitutes (iii) which a communication office for the cial, runoff election or conducted or forum debate candidate candidate; or by the sought by the adopted regulations pursuant to or (bb) primary a days before promotes solely Commission, or which election, a convention or preference and is made forum or a debate such party aof or caucus sponsoring person on behalf or candi- a authority nominate has .... or forum the debate by the sought date, the office for 304(f)(3)(B); 2 § 201(a); § FECA BCRA candidate; and 434(f)(3)(B). section § While U.S.C. (III) a communication case of in the Commission authorize the purports for to a candidate which refers communica- regulation certain exempt by or Vice President than other office definition, BCRA either tions to the President, targeted relevant 304(f)(3)(B)(iv); 2 § 201(a); FECA § electorate. 434(f)(3)(B)(iv), the Commission § U.S.C. 304(f)(3)(A)(i); 201(a); § § FECA BCRA exempt any circumstances not under may 434(f)(3)(A)(i). Section § 2 U.S.C. to a that refers public communication take set definition a fallback provides Federal for candidate clearly identified primary definition in the event effect a candidate of whether (regardless office invalidated: is also mentioned or local office for State “electioneering communica- term [T]he identified) sup- promotes or and that or any broad- means event] [in that tion” office, at- or for ports a candidate cable, communication cast, or satellite for a candidate opposes tacks or a candidate or promotes supports com- of whether (regardless office office, oppos- attacks [Federal] a vote advocates expressly munication (re- office [Federal] aes candidate eandidate)[.] against for or communication of whether the gardless 301(20)(A)(iii); § 101(b); § FECA BCRA against for or a vote expressly advocates 431(20)(A)(iii). Because § 2 U.S.C. candidate) suggestive also is and which issue collective engage in tures in order donations restrictions advocacy). expendi- independent make committees 101(b) language of section prohibits pro- § 203(b); BCRA § 316(c)(2); *98 FECA mulgation of a regulation that 441b(c)(2). retreats § U.S.C. But section 204—re- from primary either the or fallback defini- ferred to by parties as the “Wellstone tion of electioneering communication, it Amendment” —eliminates section leaves 203(b) no adopt Commission room to exception: permissive
more restriction than that set Exception apply. [FECA sec- does not — forth in section 201.32 316(c)(2) tion shall ] not apply in the case of a corporate targeted BCRA’s ban on and labor dis- communication that is by bursements for made organization an electioneering communica- described applies tions such paragraph.... to entities other than unions term “target- [T]he and for-profit corporations. 203(a) ed communication” Section means an election- extends to any incorporated eering (as communication entity and defined in 304(f)(3)) therefore bars both incorporated [FECA] section non-prof- that is distrib- (as it organizations uted from a by defined television or section radio broadcast 501(c) of station Code) the Internal or provider of Revenue cable or satellite incorporated political (as and, television organizations service de- the case of a by fined section 527 communication Internal Reve- refers to a candi- Code) nue date for making an office disbursements for other than President or electioneering President, Vice True, communications.33 is targeted to the 203(b) provides section relevant that electorate.34 “applicable term electioneering 204; § com- BCRA § 316(c)(6)(A), (B); FECA munication” does not include a communi- 2 (B). § 441b(c)(6)(A), U.S.C. By defini- 501(c)(4) by cation a section organization tion, an “electioneering communication” is (as or a organization defined in “distributed from a television or radio 527(e)(1) section of the Internal Revenue broadcast provider station or cable 1986) Code of ... if the communication satellite television service” and either re- paid exclusively for provided funds fers to a candidate for President or Vice directly by individuals who are United “targeted President or is to the relevant States citizens or nationals or lawfully electorate” any other candidate. The permanent admitted for residence!.] Wellstone Amendment therefore ensures then, It surprise, should come as no 203(b); § BCRA 316(c)(3)(B); § FECA "[t]he definition 'electioneering 441b(c)(3)(B). § communi- U.S.C. Section makes cation’ at 11 C.F.R. 100.29(a)” adopted by "special operating rule” irrelevant be- — pursuant cause, FEC "largely tracks provision, under a section BCRA— 434(f)(3)." 501(c)(4) definition at 2 BCRA U.S.C. organization is any treated like oth- Communications, Electioneering Fed.Reg. corporation er and will be "considered to 65,190, 65,191 (October 23, 2002). paid have any [pro- for out communication hibited even funds]” where it does not receive bank, funds from for-profit a national corpo- "special Under section 203's operating ration or rules,” union. labor 501(c)(4) [a] organization section that de- 34.Under BCRA section a communica- rives amounts from business activities or "targeted tion is to the relevant electorate” if bank, receives funds from [a national cor- 50,000 "can be received persons or more poration or labor union] shall be consid- ... in the district the rep- candidate seeks to ered paid any resent, communication in the case of a Repre- candidate for [prohibited out of orga- funds] unless such sentative ... in the [or] State the candidate paid nization for the communication out of represent, seeks to in the of a case candidate segregated account which only 201(a); individ- § BCRA Senator.” FECA uals can contribute .... 304(f)(3)(C); § 434(f)(3)(C). § 2 U.S.C. that it fails underinclusive and so ness communication electioneering no interest. governmental compelling serve a political organi- incorporated by an made 56-77; NRA Br. at See, e.g., McConnell can shelter corporation non-profit zation atBr. 14-39. 203(b) a communication section under —if assert Third, plaintiffs these communication,” it “electioneering First Amendment violates ban exception. for the qualify fails fortiori Fifth component equal protection NRA, McConnell, Chamber *99 (1) non-media prohibiting by Amendment plaintiffs and AFL-CIO Commerce, NAB section organizations, labor corporations, and labor corporate on ban challenge the and section 501(c) organizations non-profit commu electioneering for disbursements engaging organizations constitu interrelated on several nications permit- while speech broadcast in certain that the First, allege grounds. tional individuals, unincorporated organiza- ting Amendment First broadcast abridges that own corporations ban tions and speech or similar in the same in core engage engage stations rights 39-48; and Br. “limiting see, NRA at e.g., by speech, association expressive for broad- (2) disbursements prohibiting advocate expressly not that does speech communications cast, and cable satellite clearly identi aof or defeat election the for other disbursements permitting while original the under candidate, either fied printed communications, the including of definition fall-back the definition ¶ 24; at Compl. see, NAB word, e.g., communication,’” McCon ‘electioneering Br. at 77-81.35 McConnell also, e.g., 62; ¶¶48, see at Compl. nell the constitutionality of I consider of 44-56; Chamber Br. at McConnell and labor disbursements corporate ban 3- 4-5; Br. at AFL-CIO Br. at Commerce Part communications electioneering for 11-16; by 4-7, 11; at Br. ACLU ATV. infra. orga advocacy non-profit exempt failing to Reporting B. Disclosure v. FEC identified like those nizations Requirements 479 U.S. Life, Citizens Massachusetts for Act amends 201 of BCRA Section (1986) 616, 93 L.Ed.2d 238, 107 S.Ct. a makes “[e]very person who require at Compl. see, (MCFL), e.g., McConnell pro- costs of direct for the disbursement also, at 16-17. Br. e.g., 1149; ACLU see electioneering communi- airing ducing and claim Second, plaintiffs these in excess amount aggregate in an cations fall- or the primary file either year” any ban—under calendar $10,000 during of perjury without reference FEC, penalty even under definition and with the back disclosure un- of each 24 hours advocacy test —is and “within Buckley’s express 201(a); FECA § date,”36 BCRA overbroad, vague- void constitutionally airing producing or costs vein, the direct plain- Paul similar a somewhat aggregating electioneering the First communications violates the ban tiffs claim by $10,000; press guarantee of free in excess Amendment's edito- during "unconstitutional imposing upon them such calendar (B) any date other discriminatory ... eco- through rial control made disburse- person has year which placed penalties” burdens nomic producing costs of direct for the ments Am. organizations. Paul upon certain media ag- electioneering communications airing ¶ 53; at id. (Paul Compl.) Compl. $10,000 since in excess gregating 17-18, 47, 50; ¶¶ 21-24. Paul Br. calen- such date for disclosure recent most year. dar term "disclo- section BCRA Under 304(f)(4); 201(a); 2 U.S.C. § § FECA BCRA means sure date” 434(f)(4). year § during any (A) calendar first date person made disbursements has § 304(f)(1); 2 § 434(f)(1), U.S.C. a “state- See § BCRA 201(a); § FECA 304(f)(5); 2 ment” containing, inter alia: 434(f)(5).39 § U.S.C. (cid:127) The identification of person mak- BCRA section 212 contains disclosure ing the disbursement; requirements pertaining not to electioneer- (cid:127) The principal place of business of the ing communications but to “independent person making the disbursement, if expenditures.”40 Amending section 304 of person is not individual; an Act, section 212 requires any person
(cid:127) The amount of any single (including any disburse- individual) who disburses ment $200; over $1,000 more than in independent expendi- (cid:127) tures The within 20 days identification persons election, to whom BCRA 212(a); § any § disbursement FECA over 304(g)(1); made; $200 U.S.C. § 434(g)(1) (cid:127) $10,000 more than at any election —or to which an electioneering up time to and including the pertains; day communication twentieth *100 before election, an § BCRA 212(a); (cid:127) FECA The identified, candidate or to be iden- § 304(g)(2); 2 § U.S.C. 434(g)(2) file tified, in an —to electioneering communica- FEC, the under penalty of perjury, a tion; and “report” specifying: (cid:127) If an organization makes the disburse- (cid:127) The and name address of the recipient ment from funds by donated individu- of any expenditure(s); als, the names and any addresses of (cid:127) date, The amount individuals and donating $1,000 purpose of the or more. expenditure(s); and See § 201(a); BCRA § FECA 304(f)(2); 2 (cid:127) of, 434(f)(2).37 § U.S.C. The name and person A office sought by, must dis- the close the candidate supported foregoing opposed information or not only the by expenditure(s). when he makes a disbursement for elec- tioneering communications but also when See § BCRA 212(a); FECA he contracts to make the § disbursement.38 304(g)(3)(B), (b)(6)(B)(iii); 2 U.S.C. 37. BCRA directs the FCC "compile to and "shall clearly state permanent the name and maintain” the information filed with the address, FEC street number, telephone or World and to "make such information available to Wide Web address person the paid who for public the on the [FCC's] website.” BCRA the communication and state that the commu- 201(b); § note; § FECA 304 § U.S.C. nication is not by authorized any candidate or note. committee,” candidate’s 311; § BCRA FECA 318(a)(3); § 441d(a)(3). § 2 U.S.C. Thus, (i.e., in some circumstances if a con- tract disburse is performed), not BCRA 40.As by amended mandates BCRA section disclosure planned the Act about disburse- states ments for communications that never air. the "independent term expenditure” (Title Under III), another Title means BCRA sec- expenditure an by person— tion 311 a similarly amends the Act provide (A) expressly any “whenever person advocating the ... or makes a election dis- bursement for defeat of a clearly candidate; an electioneering identified communica- tion,” the and (1) communication itself if autho- by rized a (B) candidate or an political authorized is not made coop- in concert or candidate, committee of a clearly "shall eration state with or at request the or sugges- that the paid communication is by candidate, tion of [the] such the candidate's person[ ] and authorized such political authorized committee, authorized or their political committee,” 311; § BCRA agents, FECA or committee 318(a)(2); § 441d(a)(2); (2) § U.S.C. agents. if its authorized a candidate or an 211; autho- § BCRA 301(17); § FECA 2 U.S.C. rized candidate, committee aof 431(17). § broadcast the (cid:127) charged rate The on report A (b)(6)(B)(iii). 434(g)(3)(B), § time; within made expenditure independent
an the time and (cid:127) which filed with on be date must The an election days of to be expendi communication the of the 24 hours which within the FEC expendi aired; independent an on ture; report including up to to which time any (cid:127) candidate the made name of
ture must election of- an the before day refers the communication twentieth expendi seeking of the 48 hours candidate within fice made 212(a); FECA § the com- to which election, BCRA the election ture. (2). 434(g)(1), § to which issue (2); 2 U.S.C. or the refers munication 304(g)(1), § refers; a disbursement make communication contract as a Just trig communication electioneering by or made request for an (cid:127) of a case In require disclosure pertinent candidate, name gers of a behalf n 201(a); FECA § ments, BCRA see committee candidate, his authorized 434(f)(5), does so committee; § 304(f)(5); 2 U.S.C. § of that the treasurer expendi independent make contract 212(a); FECA § ture, BCRA request, any other (cid:127) case (2).41 § 434(g)(1), (2); 2 U.S.C. 304(g)(1), § pur- seeking person name name, time, address chase rules disclosure newof final cluster A *101 for person “a contact of number of phone in Title V found challenge under the chief of a list and person” such section amends 504, which BCRA. Section of or members officers of executive Act Communications the Federal of (if the person directors of board of certain disclosure 1934(FCA), mandates individual). is not person broadcast requires It records. broadcast 315(e)(2); 47 U.S.C. available “maintain, 504; § and make § FCA BCRA to licensees 315(e)(2). record” complete § inspection, public purchase “to person any any “request” NRA, Com- McConnell, Chamber “relat- for communications time” plaintiffs chal- broadcast AFL-CIO merce, and NAB im- of national matter political re- ing any reporting and disclosure lenge BCRA’s 504; § FCA BCRA portance.”42 Amendment First three quirements 315(e)(1). Each § 315(e)(1); 47 U.S.C. provi- § allege that First, they grounds. follow- include must maintained about record statements detailed mandating sions information: communi- ing electioneering disbursements 311, violate cations, §§ BCRA purchase request (cid:127) Whether polit- to free rights Amendment First rejected or accepted time is broadcast by restrict- association expression ical licensee;43 by the requirements 504's section 43.Because (i.e., a con- if Thus, circumstances in some the communication when triggered not performed), is not expenditures tract make any when expendi- but instead about is broadcast question disclosure mandates BCRA supra purchase note broad- request to are never made. "a person tures makes Cf. 315(e)(1); 504; § time,” § FCA BCRA cast matter "political section 42. Under added), BCRA 315(e)(1) (emphasis § U.S.C. re- any matter includes importance” national (i.e., de- request aif circumstances some candidate,” "any legally qualified "a garding communica- about nied) disclosure mandates leg- "a national to Federal office” election 38, 41. supra notes air. never tions that Cf. BCRA importance." public issue islative 315(e)(1)(B); 47 U.S.C. 504; § § FCA 315(e)(1)(B). § ing overbroad, in an vague and underinclu- tioneering (within communication sive fashion their airing of communications meaning of [FECA] 304(f)(3)); section that do not contain express See, advocacy. e.g., McConnell Br. at 44-77; NRA Br. at (ii) such disbursement is coordinated 48-50; Chamber of Commerce Br. at 18- with a candidate or an authorized com- 20; ACLU Br. at 11-19. mittee of candidate, such [sic], Federal Second, State, or political local these plaintiffs party claim commit- tee thereof, or reporting requirements an agent or official BCRA of any section such candidate, pertaining party, or to independent committee; expendi- tures, impermissibly burden then the their First disbursement or contract to dis- rights Amendment free burse “shall expres- be treated as a contribution to sion and association by requiring candidate supported “advance by the election- disclosures of planned eering prospective communication or that candidate’s communications, including and as an expenditure communications by that candi- that ultimately date or are never made.” AFL- candidate’s party.” BCRA § CIO Compl. 202(2); (emphasis § FECA added); see, 315(a)(7)(C); 2 U.S.C. e.g., § 441a(a)(7)(C). AFL-CIO Br. at 14-17. By treating a “coordinat- ed” disbursement for an Third, electioneering these plaintiffs assert communication as a “contribution” disclosure requirement of section per- supported candidate, section subjects taining to requests purchase broadcast it to the Act’s source-and-amount time, limita- burdens their First Amendment tions.44 Moreover, as amended BCRA, rights to engage expression and the Act equates “cooperation,” “consulta- association by, alia, inter imposing vague tion,” “concert” and “suggestion” overbroad recordkeeping require- “coordination]” disbursement —a made in ments that “lack[ any ] rational relation- any such fashion will be treated a con- ship to a legitimate governmental objec- *102 tribution. See 214(a); § BCRA FECA tive.” 99; see, McConnell Br. at e.g., id. at § 315(a)(7)(B); 2 § U.S.C. 441a(a)(7)(B). 98-100; AFL-CIO Br. at 18-20. BCRA directs the FEC to define “coordi- I consider the constitutionality of the nation” broadly; section which repeals disclosure and provisions reporting in Part the Commission’s existing regulations on IV.B infra. coordinated communications, provides that C. on Limits “Coordinated in prescribing the prerequisites for coordi- Expenditures” nation, the new regulations “shall not re- BCRA section 202 amends the Act to quire agreement or formal to collaboration provide that if establish coordination” between a candi- (i) any person makes, or (or contracts to political date party committee) and a make, any disbursement for any person elec- making a disbursement.45 BCRA a recap For of major FECA’s source-and- mandate, accordance with that the FEC limitations, amount I, supra especial- Part on January 2003 promulgated a final rule ly the text accompanying on *103 addition, political “all candidate. RNC expenditures.” independent make maintained established committees at Br. see, 60; e.g., McConnell at Compl. con- (including all party political a national 72; at 47-49. Br. 85-88; Br. CDP RNC committees) all campaign gressional constitutionality of I consider and main- established committees political expenditures” “coordinated on limits (including party political by a State tained C Part IV. com- aof State committee infra. any subordinate the candidate the disburser between lion” or committee—if the candidate disburser and Un- 453-55. Fed.Reg. at created, or committee. pro- is (1) communication ''[t]he rule, a mutual means "[agreement der the sugges- request or duced, at the or distributed all on the minds understanding meeting of committee; or (2) the or candidate of the tion” aspects material part of any or in- materially "is committee or candidate dissemination” its or communication regarding” communi- in decisions volved planned, or means collaboration "[flormal is creat- cation; (3) communication "[t]he or com- on the work organized, systematically one or more ed, after or distributed produced, omitted). (emphasis Id. munication.” communica- about discussions substantial D. Restrictions on Non-Federal Funds [A]n amount that is expended or dis- bursed for publicized
The Federal most election provision activity of BCRA, by a State, district, section or also the local statute’s lengthiest committee of a political and most complex. party (including Section in a an entity nut- that is shell, political curtails directly or party indirectly established, committees’ fi- use of nanced, non-federal maintained, funds—funds not sub- or controlled ject to State, FECA’s source-and-amount limita- district or local committee of a tions, see supra political note 30 and accompanying party and an officer or agent text —in order to reduce such acting funds’ alleg- on behalf of such committee or edly corrupting influence on entity), federal office- or by an association or similar holders. In the following paragraphs, I group of candidates State or local discuss (and, in turn for the preci- sake of office or of individuals holding State or sion, reproduce at length) the provision’s office, local shall be made from funds major components. subject to the limitations, prohibitions,
Adding (“Soft reporting requirements section 323 Money of Po- Act. Parties”) litical Act, to the section 101 first § 101(a); BCRA § FECA 323(b)(1); 2 prohibits, in FECA 323(a), section any na- § 441i(b)(l). U.S.C. “Federal election ac- political tional party committee from soli- tivity” is defined include: citing, receiving, directing or spending (i) voter registration activity during the non-federal funds for any purpose whatso- period that begins on the date that ever: 120 days before the date a regularly A national committee of a scheduled Federal election is held and (including a national congressional cam- ends on the date of election; paign committee of a party) (ii) may solicit, voter receive, identification, or get-out-the-vote direct to an- person activity, other or contribution, generic donation, campaign activity or transfer of funds conducted or any connection other thing election value, spend funds, which a any candidate for are not Federal office subject to the appears limitations, on the prohibitions, ballot (regardless of and reporting requirements whether a of this candidate for Act. State or local office appears also ballot); § 101(a); BCRA § FECA 323(a)(1); 2 § 441i(a)(l). U.S.C. ban, (iii) which has public communication that refers no exceptions, applies broadly to to a clearly identified candidate for Fed- any such national committee, any officer eral office (regardless of whether a can- agent acting on behalf of such a na- didate for State or local office is also committee, tional and any entity that is identified) mentioned or and that pro- directly or indirectly established, fi- motes or supports a candidate for that nanced, maintained, or office, controlled by *104 or attacks or opposes a candidate such a national committee. for that office (regardless of whether the § BCRA 101(a); communication § FECA 323(a)(2); expressly 2 advocates a 441i(a)(2). § U.S.C. vote for or against a candidate); or Adding 323(b) section Act, (iv) BCRA provided services during any month further prohibits any state, district or local an employee State, of a district, or political party committee from spending or local political committee of a party who disbursing non-federal funds for any spends “Fed- more than percent of that eral election activity”: individual’s compensated time during more donate[s] ... (iii) person ... no connection in on activities month that district, local State, or $10,000 ato than election. Federal awith in a calen- party political of a committee 301(20)(A); 2 § 101(b); FECA §
BCRA or dis- expenditures such for year dar of definition 431(20)(A). The § U.S.C. bursements; and any excludes activity” election “Federal disbursed or expended State, (iv) the amounts aby disbursed or expended “amount raised funds from solely political a made of are committee district, local or committee local, district State, or for party” dis- or expenditure such makes which refers that communication (i) public a .... candidate bursement identified clearly to a solely office, communi- if 323(b)(2)(B); local § or 101(a); for State FECA § BCRA activity added); election Federal a is 441i(b)(2)(B) not (emphasis cation § U.S.C. (ii); (A)(i) or subparagraph in Levin (discussing described 22-23 atBr. see RNC candidate to a (ii) conditions, including “home- contribution a Amendment’s contri- office, provided local or subsection State of requirement funds grown” a pay for designated not bution commit- party a state (iv), prohibits activity described election Federal from funds transferred receiving from tee (A); subparagraph or another committee party national district, or local State, (iii) of a costs par- a political of committee local or state convention; and political ty). campaign (iv) grassroots the costs 323(c), re- BCRA FECA section At new buttons, bumper materials, including committee'— party political every quires or name stickers, signs, yard use national, local—to or state local or for State a candidate only depict used, will be money any to raise funds office. activity.” election turn, “Federal on 301(20)(B); 2 § 101(b); FECA § 323(c); BCRA § U.S.C. 101(a); § FECA BCRA (2) 431(20)(B). At paragraph § —(cid:127) U.S.C. 441i(c). § Amend- “Levin as the commonly known 323(d), BCRA section new FECA Under 323(b) a narrow provides ment” —section committee— any prohibits against state- rule general exception to agents its national, or local—or state funds non-federal party spending or for, making] any funds “soliciting] Levin activity.” election “Federal (1) orga- any to” any donations directing] parties state local allows Amendment 501(c) section is described nization amount feder- FEC-specified use 1986, is Code Internal Revenue reg- for voter “Levin funds” ally-regulated expendi- and “makes taxation exempt from identification, “generic istration, voter in connection tures or disbursements ac- get-out-the-vote activity” campaign (including office for Federal an election long as tivity as for Federal or disbursements expenditures refer (i) activity does [such] (2) organization any activity)”; election Federal candidate clearly identified committee) (other than office; Code. of such section described or disbursed expended (ii) amounts 323(d); 101(a); § FECA § BCRA any broadcast- costs not for 441i(d). § U.S.C. communication, cable, or satellite ing, 323(e), the statute FECA section At new *105 refers which a communication than other office- or candidate any federal prohibits candidate clearly identified solely to a candidate (or federal of a any agent holder office; local or for State officeholder) or from soliciting, receiving, ¶ tion. 39; RNC at Compl. see, e.g., directing, transferring or spending non- McConnell Br. at 9-25 (challenging restric- federal “in funds connection an elec- tions their face and as applied to Liber- office, tion for Federal including funds for tarian Committee); National RNC Br. at any Federal election activity.”46 BCRA 25-37; CDP Br. at 20-27. 101(a); § § 323(e)(1)(A); FECA 2 U.S.C. 441i(e)(l)(A). Second,
§ plaintiffs these assert that sec- tion 101 violates their rights to engage in Finally, at new 323(f), FECA section free speech and expressive association by, any statute bars state candidate or office- inter alia: (or preventing holder “the any agent funding a state core candidate officeholder) political speech or from that does spending not any non- expressly federal funds for advocate the election or defeat of a clearly
a public identified communication federal candidate,” that refers to a RNC Compl. ¶ clearly identified at candidate for restricting Federal “the amount speech office (regardless of whether a candidate parties are able en- for State local office is also mentioned id., gage,” preventing political parties from identified) and that promotes or sup- “pooling the resources of party members ports a office, candidate for that or at- and contributors in support of campaigns opposes tacks or a candidate for that office,” ¶ McConnell Compl. office (regardless of whether the com- precluding them from raising funds for or munication expressly advocates a vote accepting funds from “like-minded party against candidate). for or committees and non-party organizations 101(a); § BCRA 323(f)(1), §§ FECA individuals,” See, id. e.g., McConnell 301(20)(A)(iii); 2 §§ 441i(f)(l), U.S.C. Br. 40; 37-56; RNC Br. at CDP Br. 25— 431(20)(A)(iii). at 27-46. McConnell, RNC and plain- CDP Third, plaintiffs these charge tiffs that sec- challenge BCRA’s restrictions on non- tion 101 denies equal protection (and them funds on grounds. three First, violates they their allege First that the Amendment rights) restrictions “intrud[e] upon the sovereign extent power subjects that it them speech [S]tates to regulate the financing of their restrictions placed upon own elec- similarly situ- tions” and thereby violate the See, Tenth ated entities.47 e.g., McConnell Br. at Amendment to the United States 40-43; Constitu- Br. RNC at 57-70.
46. Notwithstanding general ban on any 441i(e)(4)(B) § (permitting certain other solic- federal candidate or itations). officeholder’s connection funds, with non-federal such a candidate or "attend, may officeholder speak, or abe fea- 47. Additionally, plaintiffs the Thompson con- guest tured at a fundraising State, event tend that "[a]s Federal office holders and district, or local committee par- of a candidates” "unfairly prejudiced” ty," 101(a); § BCRA 323(e)(3); § FECA section 101—in violation of rights their to free 441i(e)(3), § U.S.C. general or "make a solici- speech, equal association and protection —to tation of funds on any behalf organization the extent provision "dispropor- has a 501(c) described in section of the Inter- tionate effect on minority communities” in nal Revenue Code of exempt their Thompson 41; districts. Compl. at taxation ... where such solicitation does not Thompson Br. at 1-12. plain- And Paul specify how funds will or should be tiffs claim that abridges section 101 their free- spent,” 101(a); § BCRA 323(e)(4)(A); § FECA press dom the “by exercising editorial con- 441i(e)(4)(A); U.S.C. § see also BCRA trol of press E.g., activities.” Paul Br. at 101(a); § 323(e)(4)(B); § FECA 2 U.S.C. (capitalization altered). *106 (and any authorized candidate that the section constitutionality of the I consider candidate) make shall not of the committee Part IV.D 101 in infra. candidate to another reference direct any Contributions Minors’ on Ban E.The 305(a)(3); § BCRA same office.” for the Donations 315(b)(2)(A); U.S.C. § FCA provi- of BCRA’s most contrast does candidate 315(b)(2)(A). If the § pro- simple quite sions, section —it candi- another reference to amake direct from18 age the of under any person
hibits content meet date, can nonetheless he (1) whatsoever contribution any making if, charge unit for the lowest requirements (2) contribu- candidate; any or any broadcast, of a in the case television politi- any “donation” non-federal tion or ap- there broadcast of such at end 318; § BCRA committee. cal no period a simultaneously, for pears (“An indi- § 441k 324; 2 § U.S.C. FECA than seconds— less shall younger or years old who is vidual (i) photographic identifiable clearly a or a to a candidate a contribution not make candidate; and image of the similar or a committee donation or contribution state- (ii) printed clearly readable a Period. party.”). a candidate ment, identifying the plaintiffs Echols McConnell The ap- has the candidate stating that “sweeping a restriction” such that contend and that broadcast proved the associ- expressive and class on entire paid committee authorized candidate’s upheld cannot be by minors activity ational broadcast!);] guarantees Amendment’s the First under broadcast, if, of a radio the case protection equal Fifth Amendment’s or the audio personal includes the broadcast Compl. at Am. E.g., Echols component.48 identi- candidate that by the statement also, ¶¶ 62, 65; e.g., 55, 57, see McConnell candi- candidate, the office fies the ¶ I Br. 91-95. 93; at McConnell Compl. at seeking, and indicates date E Part IV. challenge in address infra. the broadcast. approved has candidate the Lowest on Conditions F.The 315(b)(2)(C), § 305(a)(3); FCA § BCRA Charge Broadcast Unit (D). 315(b)(2)(C), (D); § 47 U.S.C. enactment, 315 of section BCRA’s Until contend plaintiffs The McConnell sta- licensed broadcast required the FCA First 305 violates section BCRA public a candidate provide tions speech free guarantee Amendment’s pri- days before the 45 during office— on cost of advertisements “conditioning the days before a and the mary election ¶ 96; at Compl. McConnell their content.” benefit election—the special general I discuss at 89-91. Br. see McConnell of the station” charge lowest unit “the Part IV.F 305 in section infra. connec- “in advertisement any broadcast Limits Contribution G.Increased FCA campaign. candidate’s with” the tion provisions 315(b). types two sec- contains § BCRA BCRA 315(b); § 47 U.S.C. limits contribution however, FCA to that increase amends the tion mon- raises the “hard type charge Act. first unit the lowest candidate deny indi- permitting Act ceilings ey” advertise- or radio broadcast for television greater to contribute donors writ- vidual “provides the candidate ments unless national and to candidates amounts station to the broadcast ten certification rights” of "protect[ing] prevents him plaintiffs Thompson Similarly, one of Thompson minor constituents. of his one his First and 318 violates alleges section 48; Thompson Br. 13-18. Compl. rights to the extent Fifth Amendment *107 political state party committees. The sec- year). See §§ BCRA 307(a)(2); type permits ond a candidate for either § 315(a)(1)(B), FECA (D); 2 U.S.C. house the United States Congress to § (D). 441a(a)(l)(B), The provisions leave accept spend contributions in excess of place, however, $5,000 the Act’s limit on otherwise applicable if limits his opponent an individual’s to contributions “any other expends a substantial amount in personal political committee.” See 2 U.S.C. I funds. discuss these two types provi- § 441a(a)(l)(C). Finally, BCRA section sions, plaintiffs’ and the challenges thereto, 307 indexes for inflation all $10,000 but the in turn. limit on any individual’s contributions to a
1. General Increases political state party committee and the $5,000 cap any on individual’s contributions BCRA section 307 raises Act’s limit to “any political other committee.”51 any on individual’s contribution any to giv- (or en candidate his The authorized political Adams and CDP plaintiffs chal- committee) $1,000 $2,000.49 lenge to general BCRA’s See contribution in- 307(a)(1); § BCRA § FECA 315(a)(1)(A); creases on ráther novel constitutional 441a(a)(l)(A). § U.S.C. grounds. It also The changes plaintiffs Adams charge the aggregate limit an individual the higher contribu- ceilings violate their Fifth tor may give to all $25,000 Amendment right candidates from to equal protection by during any year $37,500 calendar “precluding equal to participation over a polit- two-year period and ical process changes the on aggre- the basis of economic sta- gate limit an ¶ tus.” individual contributor may Compl. 60; Adams see Adams give to political all Br. at 9-18. committees to The CDP plaintiffs allege $57,500 over a two-year period.50 that to the extent BCRA indexes for infla- 307(b); § BCRA § FECA 315(a)(3); tion on limits contributions to national 441a(a)(3). § U.S.C. Together with BCRA party committees and federal candidates section section 307 increases but as well does not index the limits contribu- the Act’s limits on an individual’s contribu- tions to state and local party committees, tions a national political party commit- “severely their ability erodefs]” to en- (from $20,000 tee $25,000 per calendar gage political communications and thus year) and to a political state party commit- deprives them of equal protection.52 CDP (from $5,000 tee $10,000 per ¶ calendar 105; Compl. at see CDP Br. at 50. 49. The Act provides now person $37,500 that "no may be attributable to contribu- shall make any contributions ... candidate political tions to committees which are and his authorized political committees with political committees polit- of national respect any election for Federal office parties. ical which, $2,000.” aggregate, exceed 441a(a)(3). § 2 U.S.C. 441a(a)(l)(A). § U.S.C. 51. The Act's guidelines, indexing as amended 307(d), BCRA section appear at 2 U.S.C.
50. The provides Act now 441a(c). § [d]uring period begins on Janu- ary 1 of an odd-numbered year and vein, ends on In a similar plaintiffs the Paul assert December 31 of the next even-numbered by "failing to raise ... and to index year, no may individual make contributions [contribution] limits with respect aggregating more than— committees functioning independently from (A) $37,500, in the case candidates, of contributions campaign authorized com- to candidates and the mittees, authorized commit- parties,” BCRA violates candidates; tees of the First guarantee Amendment’s of a free (B) $57,500, in any the case of press. other con- 57; Compl. Paul see Paul Br. at tributions, of which not more than 27 n. 11. opponent if 441a(i)(l)(C)(ii). And § Provisions” “Millionaire threshold ten times over spends *108 the Act 304 amends section BCRA funds, only may personal in amount United States for the candidate
permit
contribu-
individual
accept
candidate
the
con-
individual
spend
accept
Senate
but
per election
$12,000 per donor
of
tions
applicable
of otherwise
in excess
tributions
any
on
restrictions
also,
the
significantly,
allow
“to
in order
limits
money”
“hard
“in
spending
party committee’s
personal
from
expenditures
response
are lifted.
candidate
with” the
coordination
BCRA
wealthy opponent.
aof
funds”
304(a)(2);
FECA
§
BCRA
See
315©; 2
§
U.S.C.
304(a)(2); FECA
§
2
U.S.C.
315(i)(l)(C)(iii);
§
altered).
ex-
441a(i)
For
(capitalization
§
441a(i)(l)(C)(iii).
§
spends
opponent
if a candidate’s
ample,
319 amends
Likewise,
section
BCRA
speci-
times
than four
less
but
over two
a can-
permit
Act to
the
supplements
“opposition
in
amount”53
fied “threshold
Rep-
of
States House
United
for the
didate
may ac-
funds,”54 the candidate
personal
individual
spend
accept and
resentatives
$6,000 per
of
contributions
cept individual
per elec-
$6,000 per donor
of
contributions
304(a)(2);
§
See BCRA
election.
per
donor
$350,000
spends over
opponent
if his
tion
2
315(i)(l)(C)(i);
U.S.C.
§
FECA
319(a);
§
BCRA
See
funds.
personal
in
(“[I]f
per-
opposition
441a(i)(l)(C)(i)
the
§
315A(a)(l)(A);
§
441a-
U.S.C.
§
FECA
the
...
times
is over
amount
sonal funds
in that
1(a)(1)(A).
significantly,
Again,
4 times
amount,
over
but not
threshold
any
restrictions
the
circumstance
same
shall
limit
...
the increased
that amount
“in
spending
party committee’s
”). If
limit ....
applicable
the
be 3 times
are lifted.
candidate
with” the
coordination
ten
from four to
spends
opponent
the
319(a);
FECA
§
See
BCRA
personal
amount
the threshold
times
§
315A(a)(l)(C);
441a-
2 U.S.C.
§
accept individual
may
funds, the candidate
1(a)(1)(C).
per
$12,000 per donor
contributions
and 319 im-
304(a)(2);
sections
Finally, BCRA
§
FECA
BCRA
election.
on Senate
requirements
reporting
pose
315(i)(l)(C)(ii);
U.S.C.
§
304(a)(6)(B))
oppos-
an
section
[FECA]
pertaining to “threshold
subparagraph
53. The
makes;
same election
ing candidate
as follows:
provides
amount’’
over
(i)
Competitive
State-By-State
Cam-
And
Fair
expenditures
(ii)
aggregate amount of
subsection,
this
Formula.—In
paign
candidate
personal funds made
from
equal to
an amount
...
is
threshold amount
respect to the election.
of—
the sum
315(i)(l)(D); 2
304(a)(2);
§
§
FECA
BCRA
$150,000;
(I)
316;
§
441a(i)(l)(D);
see BCRA
§
U.S.C.
age
voting
(II)
multiplied
$0.04
441a(i)(l)(E)
315(i)(l)(E);
§
2 U.S.C.
§
FECA
population.
per-
expenditures from
("aggregate amount of
Population.
subpara-
(ii)
Voting Age
—In
receipts
"gross
advan-
includes
sonal funds”
population”
"voting age
graph,
term
committee).
authorized
tage” of candidate’s
a candidate for
case of
in the
means
personal
turn,
"expenditure from
an
Senator,
age population
voting
office
funds”
(as certified
candidate
State of
of the
by candidate us-
(I)
expenditure made
315(e)).
section
[FECA]
under
funds; and
ing personal
315(i)(l)(B); 2
§
304(a)(2);
§
FECA
BCRA
by a candi-
(II)
made
or loan
a contribution
441a(i)(l)(B).
§
U.S.C.
or a loan secured
using personal funds
date
personal funds” amount
"opposition
autho-
54. The
the candidate’s
using
funds to
such
(if any)” of
excess
equal to the
amount
“an
committee.
rized
304(a)(6)(B)(i); 2
304(b)(2);
§
§
FECA
BCRA
expen-
(i)
aggregate amount
greatest
434(a)(6)(B)(i).
§
(as
U.S.C.
defined
personal funds
from
ditures
and House candidates who intend to ex-
III.
In Limine Matters
pend
personal
substantial
funds
support
Before reaching the merits
plain-
of their candidacy. Section 304 requires a
claims,
tiffs’
I first attend
important
Senate candidate to file with his oppo- preliminary matters.
nents) and the FEC —within
days
A. Procedural Posture
becoming a candidate —“a declaration stat-
In these
actions,
consolidated
panel
ing the total amount
expenditures
is asked to declare
most
BCRA uncon
personal funds that
make,
[he] intends to
*109
stitutional and
enjoin
the defendants
or to obligate make,
with respect to the
and their agents from enforcing, executing
election that will exceed the State-by-
or otherwise applying several
provi
of its
State competitive and fair campaign for-
sions to anyone. See, e.g., McConnell
mula.”
304(b);
§
BCRA
FECA Compl. at 51.
words,
other
plain
§ 304(a)(6)(B)(ii);
2
U.S.C.
tiffs bring a facial challenge to the statute.
434(a)(6)(B)(ii).
§
It
requires
also
the can- As the Supreme
emphasized
Court
didate
file
with his opponent(s) and the United
Salerno,
States v.
739, 107
481 U.S.
FEC notification if and when he spends
2095,
S.Ct.
95 L.Ed.2d
(1987),
697
a facial
more than twice the
and,
threshold amount
challenge is “the most difficult challenge to
thereafter, each and every
he
mount
spends
time
successfully” because, in the usual
$10,000
case,
more than
“the
personal
additional
challenger must establish that
funds.
no set
§
304(b);
BCRA
circumstances
FECA
exists under which
§
304(a)(6)(B)(iii),
(iv);
[statute]
valid,”
would be
745,
2
id. at
U.S.C.
107 S.Ct.
(iv).
§
2095.
434(a)(6)(B)(iii),
The
us,
case before
Section 319
how
impos-
ever, is not the usual
Where,
es
case.
requirements
similar
on
as
a candidate for
here, First Amendment
freedoms
House of
are at
Representatives. See BCRA
stake, a facial challenge will succeed if
319(a);
§
§
FECA 315A(b)(l); 2 U.S.C.
there exists “a realistic danger that
441a-l(b)(l).
§
statute
will
itself
significantly compromise
The RNC and
plaintiffs
Adams
chal-
recognized First Amendment protections
lenge BCRA’s “millionaire provisions” on
parties
not before the Court.” City
separate
constitutional grounds.
The Council v. Taxpayers
Vincent, 466 U.S.
plaintiffs
RNC
claim that
provisions
789, 801,
2118,
104 S.Ct.
80 L.Ed.2d 772
“discriminate among
(1984)
similarly situated fed-
(citing,
alia,
inter
Erznoznik v. City
eral candidates and thereby
Jacksonville,
violate the
205, 216,
422 U.S.
95 S.Ct.
equal protection
2268,
component
45
(1975));
of the Fifth
L.Ed.2d 125
see Broad
Amendment.”
rick v. Oklahoma,
RNC Br. at
(capitaliza-
601, 613,
73
413
615,
U.S.
altered);
2908,
tion
S.Ct.
93
(1973) (facial
37
see id.
73-75;
at
L.Ed.2d 830
RNC
“is,
invalidation
Compl.
manifestly,
at
strong
medi
plaintiffs
Adams
as-
cine” that will be invoked only
sert
if
statute’s
equal protection
denied
provisions are
well,
substantially
overbroad
the extent that the millionaire
when “judged in relation to the statute’s
provisions “preclud[e]
equal partic-
[their]
plainly legitimate sweep”); see also Saler
ipation
in the
process on the basis
no,
745,
481
U.S.
Broadrick, 413 U.S.
Committee
“stated that
has
Member”
of BCRA
that most
view
my
Because
com
than
authoritative
more
Reports are
solely
squarely
rests
unconstitutional
omit
(quotations
floor”
ments
association
free
First Amendment
Workers,
Elec.
Bhd.
ted));
Int’l
but
of
NLRB,
cf.
not reach
I would
speech grounds,
free
F.2d
v.
No.
Local Union
federalism, free
plaintiffs’
merits
J.,
(Buckley,
(D.C.Cir.1987)
except
claims
equal protection
press
politi
(because
is a
*110
“Congress
concurring)
in
discussed
provision
to the
respect
with
body,
[be
legislative
as a
cal as well
of
discussion
Thoroughgoing
IV.D.4.
Part
privileges
the
put
will
its members
cause]
an
complicate
further
subjects would
these
chambers
respective
of their
facilities
task;
importantly,
more
already difficult
uses,” “not
legislative
as
as well
disposition of
unnecessary to the
be
would
in com
[even]
found
to be
every utterance
such,
in the
and,
fly
would
as
these actions
assumed
may
...
be
reports
mittee
[federal]
of
principle
“venerable
of
face
the
evidentia
gold”), such
statutory
Repro
represent
v.
processes,” Webster
adjudicatory
in
non-existent
490, 525,
negligible
Services,
sources are
ry
U.S.
492
Health
ductive
(1989)
the
out as well
point
I
BCRA.
3040,
410
case of
106 L.Ed.2d
the
109 S.Ct.
justification”
con
part
“[t]he
in
(O’Connor, J., concurring
reminder
Court’s
constitutionally protect
“an
from
on
to abstain
judgment),
restriction
curring in
a
law
not hypothe
genuine,
of constitutional
“must
question
ticipating]
ed liberties
it,”
deciding
response to
necessity of
in
post
the
hoc
invented
in advance
sized
288, 346, 56
TVA,
518
Virginia,
297
v.
U.S.
States v.
United
litigation.”
Ashwander
(Brandeis,
(1936)
466,
2264,
688
L.Ed.
135 L.Ed.2d
515, 533,
S.Ct.
116 S.Ct.
U.S.
omitted).
J.,
(quotation
I
concurring)
note that
(1996).
I
Finally, would
the
agreement
Findings
Fact
am in substantial
B. Alternative
that, especially with
plaintiffs’ observation
facts,
empha
I
to the
proceeding
Before
challenges
II, their facial
respect
Title
teaching that
Court’s
Supreme
size
es
upon
are based
provisions
to BCRA’s
the floor debates”
“casual statements
jurisprudence
Amendment
First
tablished
“post-
to mention
Congress
—not
See, e.g.,
finance realm.
campaign
in the
like
history”
legislative
legislation
(“[T]his
need
[c]ourt
Br. at 44
McConnell
in these
discovery
ac
during
constructed
to deter
v. Valeo
Buckley
beyond
go
not
weight. See
evidentiary
little
tions—merit
stand
possibly
II cannot
mine that Title
39,
26,
Carlton, 512 U.S.
v.
States
United
Amendment.”). Accord
First
under the
(1994) (Sca
2018, 129 L.Ed.2d
114 S.Ct.
chal
constitutional
I
ingly,
believe
(“post-leg
J.,
judgment)
lia,
concurring
can be re
Part
IV
discussed
lenges
“oxymo
history” is
legislative
islation
reference
extensive
without
even
solved
Gen. Ins.
ron”);
v. Conn.
Blanchette
Nonetheless,
recognition
record.
335,
102, 132,
95 S.Ct.
419 U.S.
Corps.,
may see
Supreme Court
fact that
(1974) (“[P]ost-passage re
L.Ed.2d 320
revisit
may indeed
differently and
things
explicit, can-
however
legislators,
marks
Litigants
1. The
jurisprudence,
I
established
offer the fol-
lowing
findings
set of
an alternative to
—as
As to
litigants
in the consolidated
majority-based
my
those of the
view
of the
as a whole.55
us,561
record
actions before
would find that:
clear,
join
per
55. To be
I do not
in the
curiam
willing
more
here than in the normal case to
facts,
join
nor do I
statement
factual
undertake an “extensive review” of the record
findings
opinions.
forth in the other
set
This
and to
findings
set aside
with which it dis-
mean, however,
filing
does not
that the
of an
agrees:
findings
necessarily
alternative set of
reviews,
Where an intermediate court
naught.
Supreme
While the
made
Court
affirms, a trial
findings,
court's factual
recently
years
clear
ago
as two
it will
"lightly
Court will not
overturn”
con-
three-judge
review a
district court's factual
findings
current
of the two lower courts.
findings
only,
for "clear error”
it reversed the
E.g.,
188,
Biggers,
Neil v.
409 U.S.
n.
three-judge
findings
court’s
in that case be-
(1972).
93 S.Ct.
Directors. D.C., and is Washington, in headquartered enforcing FCA with charged of the elected Chair 26. Torres Art by BCRA. amended on the DNC also serves Torres the CDP. DNC to serve elected
and has been of are Members The intervenors 32. Committee. As Executive the DNC on sponsors principal who were Congress CDP, the CDP Torres assists of the Chair John of BCRA. Senator and authors in fundrais- central committees county and Republican States is a United McCain regular- talking by meeting and efforts ing Arizona. Sena- of from State Senator attending and donors ly potential with Unit- is a Democratic Feingold Russell tor 4; Decl. at Bowler events. See fundraising the State of Wis- from ed States Senator at 1-2. Torres Decl. Feingold and McCain consin. Senators Olympia in 2004. Senator face reelection County Cen- Yolo Democratic 27. The Sena- Republican United States is a Snowe County Cruz and Santa tral Committee of Maine. Senator tor from the State are two of Committee Republican Central Independent United Jeffords is James autho- county central committees the 58 from the State Vermont. Senator States Elec- by the California and governed rized face reelec- and Jeffords Snowe Senators county central of the Members tions Code. Christopher Congressman tion 2006. each statewide are elected at committees of the Republican Shays is member All of the members primary election. the 4th Representatives House senators, state members who are also CDP in Connecticut. Congressional District or Members of the assembly state is a Demo- Martin Meehan Congressman members ex Congress serve as officio Represen- member of House cratic committees. respective county central District Congressional the 5th tatives from county central 3. The Bowler Decl. at See in Massachusetts. involved local primarily committees Corporate and Labor 2. The Ban on activi- get-out-the-vote registration, voter “Electioneering Disbursements and act activities grassroots ties and the Disclo- and Communications” campaign organizations as liaisons with the Reporting Requirements sure and in their area. candidates of Democratic id. See corporate and As to ban BCRA’s (1) “electioneering labor disbursements a member Timothy Morgan J. (2) disclo- statute’s RNC; of the CRP communications” member gen- (3) requirements, Committee; reporting a member of the sure Executive II.B, (4) I would Parts II.A and Directors; erally supra Chair- CRP Board Republican find that: County man of Santa Cruz Morgan Aff. at 1. Committee.
Central Buckley After the decision Act, subsequent amendments agency government is a 29. The FEC corpo- use of D.C., on the prohibition the Act’s con- Washington, headquartered treasury money and its FECA, 2 rate and union U.S.C. pursuant stituted inde- requirements applied 437c, disclosure enforcing the Act charged § if it funded spending only pendent political by BCRA. as amended *116 express advocacy approximately of the election or defeat million on television ad- $65 identified candidate. See clearly of a See vertising during period. Magleby 431(17). § U.S.C. 18-19; Expert Report at Ryan77 Dep. at 13-15. 34. New candidate advertise- express advocacy.
ments use words of In 36. From 1996 majority to 2000 the of only per four cent cycle the 1998 election run by advertisements groups interest sponsored by of candidates used words ads regulated by were not the Act because express only per 11.4 advocacy. of they did not use express words of advoca- sponsored by cent of ads candidates and cy. By every group interest ad only per sponsored by 2.2 cent of ads Act, covered group 20 interest ads political parties express used words of ad- mentioning federal candidates were not See Krasno71 vocacy. Expert & Sorauf72 See Krasno & Sorauf covered. Expert 53; Report Expert Report at Goldstein73 53; Report at Expert Report Goldstein at at 31. Policy CenteR, 10; AnnenbeRG Publio Is- enacted, 35. Before BCRA was interest Advertising in the 1999-2000 Election sue groups74 running issue advertisements75 Cycle (2000) (hereinafter 12-15 Annen- often did not the sources their disclose of berg Study). See Krasno & Sorauf funding. Expert 37. From 1996 to 2000 the number of 72; Report Expert at Magleby76 Report issue advertisements —as well as the num- Among groups 18-19. that did not ber of organizations sponsoring issue ads disclose sources was Citizens for Bet- and the spent amounts advoca- issue Medicare, phar- ter which is funded cy—increased. industry. maceutical In 1999 and 2000 a. In the cycle 1996 election a total of Citizens for Better Medicare one was approximately top sponsors of issue advertisements million to million $135 $150 candidates; spent spent that also name federal was on national and local television expert 71. Defense Krasno a visit- 75. Jonathan is As are used in these alternative find- ing University's ings throughout opinion, fellow at Yale Institution for this the terms Policy Social and Studies. "issue advertisement” and "issue ad” are in- terchangeable and refer to an advertisement expert Regents' 72. Defense Frank Sorauf express does contain words of advo- University cacy. Buckley, Professor Emeritus at See U.S. at n. Minnesota. (express advocacy S.Ct. 612 words include “ for,’ 'elect,' your 'support,' 'vote 'cast ballot for,’ expert 73. Defense Kenneth Goldstein is an Congress,’ against,' 'Smith for ‘vote ‘de- feat,’ ”). Associate Professor of Political Science at the 'reject' Wisconsin-Madison, University of where he specializes study groups expert Magleby in the of interest 76. Defense David is a Distin- political advertising. Expert guished Brig- See Goldstein Professor of Political Science at Report Young University, at 1. ham where he also serves College Family, Dean Home and findings 74. As it is used in these alternative Social Sciences and as Director of the Center throughout opinion, the term “inter- Study Democracy. for the of Elections and group” any person entity— est refers to Magleby Expert Report See at 7. union, corporation, whether a trade associa- tion, (but advocacy group Timothy Ryan currently or the like not a serves as Vice (1) Advertising party) Sawyer President Miller interested in —that issue; Shandwick, (2) particular participates politi- advertising in the Weber firm (3) D.C., process; Washington, formerly cal associates with and was Execu- others Finding pages like mind. See 79 at 348- tive Director of Citizens for Better Medicare. infra Ryan Dep. at 6-7. *117 304 46; Dep. at Shea voting process.” G. distinct of about 100 broadcasts
and radio see Josten Dep. rela- at 230. sponsored issues national ads In the 1998 elec- tively organizations. few consultant political Republican a. organizations 77 cycle approximately tion usu- “[t]he Rocky Pennington testified of between at a cost ads aired 423 distinct ‘call’ an issue is to tag ad] final line [of al million. In the 2000 million and $341 $250 stop candidate to or ‘tell’ a or ‘ask’ organiza- 130 approximately cycle election something something, often doing continue 1,100 at a distinct ads aired over tions right priorities. fighting like for vague million. In the than more cost of $500 it’s hard pretty silly, because This and Democratic Republican cycle 2000 people calling imagine thousands million for almost accounted parties $162 saying, response to the ad candidate (32 cent) ad- spending on issue per this, wonderful.” Pen- keep doing this is ac- for Better Medicare vocacy; Citizens Feingold testi- Deck at 6. Senator nington (13 cent); the per million counted for $65 plea to “call stating that the similarly, fied America’s Health Protect Coalition to is at “the heart of the somebody’s office” (six per million accounted $30 Care 14. Dep. at Feingold ad.” phony issue cent); ac- of Commerce the Chamber however, acknowledged, Feingold Senator (five cent); per million counted $25.5 contact him often do that his constituents accounted for Term Limits $20 U.S. advertisements. response to television ÁNNenberg (four cent). See per million id. at See 238-39. Study 1, at 4. Reform, an in- b. In 1996 Citizens for b. comparison, a total of By way television spent million on group, terest $2 spent was approximately million $100 expressly that did not advocate issue ads reruns syndicated alone to advertise any candidate but election or defeat of “Seinfeld,” a television sitcom. congressional influencing were directed at Bradley Unpree Speech: A. Smith, sponsored the notori- year That races. Folly Campaign & Reform Finance ad, during “Bill which aired ous Yellowtail” (2001). n. 4 congressional the final weeks of Montana races, interest competitive 38. In some Yellowtail, challeng- and accused race even advocacy often rivals and group issue er, family spousal preaches abuse: “He by federal candidates outpaces advertising his swing but he took a at wife.” values themselves. See Krasno & Sorauf Expert Rep. at 6301-05. Thompson Comm. 51; Expert Report at Report at Goldstein and radio ads addition to its television 22; Expert Report at 22. Magleby Yellowtail, Reform opposing Citizens for Many group of the interest issue phone banking against “did direct mail and federal candidate and ads that also name a [him],” prohibited by would not be using words of air near an election avoid Lamson78 Decl. at 3. BCRA. an exhorta- express advocacy but end with [political that a c. The NAB “admits candidate and tion to “call” the named influ- might conceivably [advertisement “thank” him for something “tell” him the use of ence a federal election without See, e.g., particular his stance on a issue. many other any particular might words as App. Both Magleby Expert Report at G. depending upon the circumstances factors AFL- of Commerce and the Chamber Resp. race.” of NAB to of each individual way tell an agree that “the ultimate CIO at 5. Reqs. First for Admis. something through official to do FEC’s elective campaign. managed See Lamson Decl. Lamson Bill Yellowtail’s 78. Joe d. Republican likely consultant investment is most to make a the mod- Douglas Bailey “[i]n testified Expert difference. Report See Goldstein advertise- ern world of second 5; at 21 Magleby Expert Report Tbl. ments, rarely it is advisable use such (“Interest groups ... take aim at clumsy against.’ as ‘vote for’ or ‘vote words particular competitive states with U.S. *118 professionals All under- advertising ... congressional races or Senate districts advertising the most effective stand in where the outcome is doubt.... This leads the viewer to his or her own conclu- tendency by has been reinforced the ex- it throat. forcing sion without down their ceedingly margin close in control political especially This is true advertis- Congress years.”); in recent LaPierre ing, people generally very because are 24-25, 118, Dep. at following 157-59. The skeptical politi- of claims made or about subparagraphs representative contain ex- Bailey at 1-2. cians.” Deck amples of such ads. group 40. Interest issue advertise- During days up a. the 60 leading ments that air near election time more general election the NRA ran a 30- frequently refer to federal candidates than minute infomercial known as “Union/Gore” group do interest ads that air at all other “electioneering which would constitute an example, January times. For communication” under BCRA. The infom- September until Citizens Better opened ercial with NRA President Charl- 28,867 sponsored Medicare television ad stating ton Heston election “[t]his spots, of which named a federal can- none battleground could come down to states Expert Report didate. at See Goldstein Pennsylvania, Michigan, like Ohio and Mis- App. During A & Tbl. 17A. the three souri, with states lots union members election, preceding the 2000 con- weeks where the union vote could decide the trast, spon- Citizens for Better Medicare outcome. But all union members will 6,000 spots sored ad that identified a fed- might expect. vote as observers eral candidate. See id. correspondent Ginny So we sent NRA Si- Beginning corporations, in 1996 un- deep country mone into the heart of union groups ions and interest which the —to to talk with union members about e.g., groups,” defendants refer as “outside election, candidates, about the about Proposed Findings Intervenors of Fact at issues, really and what to them matters began large-scale treasury use of their 31— Ginny’s report.” The infom- most. Here’s sponsor funds to issue advertisements that union members’ ercial then focused on to some “looked and sounded observers report- in to the NRA response comments ads,” campaign (citing like id. AnneNBERG questions: er’s 3, 7-8; Thompson Rep. Comm. Study (cid:127) leadership, “All this union send 4). 5927 & n. you you [telling stuff all the time to] heavily Issue advertisements are Well, A1 I it vote for Gore. don’t see up in final leading concentrated weeks know, I—I way. you want It’s— parti- an are intensely election and often freedom, my my I want to hold onto They heavily san. are concentrated most I want to vote for Bush.” guns, jurisdictions competitive in election (cid:127) NRA gun, “I have a hand and I’ve had commonly known as “battle- contests — training, and I’m a survivor of domes- ground change a small in states” —where violence, self-pro- tic I believe preference voter can affect outcome tection, my guns I not want do groups broad- the election. Interest often away.” in competitive cast ads contests where taken (CMAG Storyboard 3Tab A1 Exhs. Vol. what rights (cid:127) my gun is “A loss of 32). ifs, ands, No. no There’s represents. Gore mind, ... if my that. or buts about director operations d. RNC [sic] is his administration
A1Gore that, general as a Nelson testified Terry rights.” firearm will in, lose we voted not as effective advocacy is rule, issue union, my part of being (cid:127) nice as it “Yes, year it’s election August my having But me. See Nelson helps protect November. early October something that’s (“I arms tell candidates
right bear would 90-91 Dep. at It’s some- me. important money extremely spend their they needed en- just been attention, kind of thing that’s paying people when me.” election.”). grained [sic] towards tends to *119 He- back then turned infomerical The race Senate States 2000 e. The United your protect “to voters ston, urged who and Debbie Abraham Spencer between way one 7th. It’s November on freedoms ad- recent issue of is illustrative Stabenow in souls sacrificed many the thank you can country. across the campaigns vocacy hun- couple past the name over freedom’s 1) the preceding days 60 During the carefully that includes And years.... dred Abra- between election senatorial general promise candidates considering which aired groups interest ham and Stabenow which candidates freedoms our defend ten the other During 4,323 spots. ad destroy or even diminish promise to only aired year groups the the of months Dep. at 113-23. McQueen them.” 5,249 total year-long of a spots, ad 926 the up to days leading the 60 b. During spots. ad group interest election general 2000 2) Abraham comparison, way of By ad called an aired Planned Parenthood a total (together) ran themselves Stabenow Much,” under Say “Bush Doesn’t year 11,381 spots during ad “electioneering communica- is an BCRA 7,905 spots ad parties ran and the Presi- “[a]s claimed The ad tion.” period. in the same Supreme Court dent, appoint could Bush 3) ad critical of ran one The AFL-CIO away right take our who could Justices to16 from October 269 times Abraham George W. about facts Get choose. aired 20 the ad October On October Exhs. Vol. Defs.’ Texas record.” Bush’s in 29 times each 29). in Detroit and 26 times (CMAG Storyboard No. Tab Rapids, Battle of Grand the markets up to the days leading the 60 During c. Michigan and The and Kalamazoo. Creek group interest election general dis- ran five of Commerce U.S. Chambers ad called Inc. ran an Handgun Control 1,635 total a Stabenow against ads tinct Sheen,” an “electioneer- “Handgun/Martin September 20 Novem- times between Actor under BCRA. communication” ing ber “[be- the ad that in Sheen stated Martin 4) preceding days During the least two day, at and election now tween candidate- single election general gunfire. die from Americans will thousand only party-spon- one ad and sponsored a candidate president next Should per cent of for ten (accounting ad sored signed he have lobby? Should gun period of during airings party ad in handguns hidden that allows a bill advocacy. time) express employed words parks? churches, hospitals, and amusement criticized Abraham regularly ads Find issue record. Bush’s Governor ... That’s in they had taken votes and Stabenow for Defs.’ bushandguns.com.” more at out Shays-Meehan McCain-Feingold forth- heavily focus past and did not bills,” 11; meeting at with Members of initiatives. See Interve- id. legislative coming findings, Fact at 37-38. to review research Findings Congress Proposed nors 16-17; drafting publishing see id. 5) of Commerce Michigan A Chamber signed “scholars’ letter” and a statement Local Against “Stabenow issue ad entitled ACLU, leadership figures former “electioneering commu- Schools”—now which documents deemed the bills consti- “Local under nication” BCRA—stated: “very tutional and were influential teachers, schools, parents local elect- local influencing media Senate debate and way boards. That is the ing local school 12, 19-20, perceptions,” Exh. 3. id. did Debbie why work best. So our schools plan bi-partisan against vote Stabenow undertaking c. these addition To reduce fed- make our schools better? wide-ranging support activities new perfor- tape and increase student eral red campaign regulation, finance the Brennan vote years? Why did she mance five published reports: two CRAIGB. Center Buying to control their allowing teachers against Mcloughlin, & Luxe P. Holman Advertising ... Call Debbie Stabe- own classrooms? Time 2000: Television in the our her we want to run own now and tell (Brennan Center Federal Elections Defs.’ Exhs. Vol. neighborhood schools.” 2001) (hereinafter 2000), Buying Time *120 6). (CMAG 48, Storyboard No. Tab 3 Seltz, Krasno &Daniel E. and Jonathan S. Advertising Buying Time 1998: Television in the record 43. No credible evidence Congressional Elections defendants’ assertion supports the (hereinafter (Brennan 2000) Buy- Center “electioneering communication” BCRA’s 1998). generally Defs.’ ing Time See “very genuine few provisions will affect 46, Exhs. Vols. 47. E.g., matters.” policy discussions of at Proposed Findings of Fact FEC’s Am. d. Buying reports The Time were contrary, credible record evi- To the 153. gathered by on data Kenneth Gold- based actually indicates that BCRA will dence help with the of his science stein issue capture “genuine” a vast number of (for University at Arizona State students See, e.g., Findings advertisements. infra report) University and the the 1998 308-12, 43f-43h, 317. pages 51d at (for report). the 2000 Gold- Wisconsin Brennan Center for Justice a. The “story- were shown stein’s students Center) (Brennan played a “central role” Me- prepared by Campaign boards” — Dep. Holman79 adoption in the of BCRA. (CMAG) Group certain Analysis dia —of 14-15, Brennan Center at Exh. 3. The during broadcast political advertisements of the McCain- helped design “craft The students were asked 1998 and 2000. bill,” 11, provided “le- Feingold id. at on their content. to “code” the ads based it believed would be gal opinions” on what 19; Vol. 46 at Defs.’ Exhs. Defs.’ Exhs. defensible,” id. at 13. “constitutionally the Brennan According 47 at 7. Vol. Center, Buying reports Time were cam- b. The promoted Brennan Center marshaled piece “the central of evidence alia: regulation by, finance inter paign electioneering of’ BCRA’s by defenders memoranda that drafting legislators support “in provisions communication be- “directly concerns that were addressed Holman validity.” concerning constitutional Congress [their] in the ing debated 8; page Finding 43c at Dep. also policy analyst at see Craig Holman was senior 79. infra principal and the co- at the Brennan Center Buying 2000. See Holman author of Time purchas- than rather advocating “reform” government at 2. While Exh. 3 Dep. 63-64, id. analyzing data. See at ing Time databases Buying that “[t]he claims correctly cap- will Exh. 5. ... BCRA show issue ad- “sham” all so-called almost ture” 3) au- to Pew was grant proposal issue very genuine few “but
vertisements Krasno, who—before thored Jonathan advertisements,” Proposed Am. FEC’s performed had Pew or approached he had Buying Time at of Fact Findings to believe already “come any studies —had Findings flawed. See reports are infra magic using were political parties pages 308-12. 43e~43h at thinly- sponsor as cover words test au- and the Center The Brennan e. issue campaign masquerading ads veiled reports sought Time Buying thors of the Dep. at Exh. advocacy.” Krasno and therefore a certain result to achieve Exh. 13 at objectivity. scientific sacrificed 4) the Brennan Cen- Each element of 1) Buying Time Funds underwrite at was aimed proposal to Pew grant ter’s the basis of the solicited on were obstacles to reform” “overcoming the study would that the explicit promise four “influencing at least one being if midstream the results abandoned pivot- play [would] audiences critical the cause for helpful not were obtained or fail- determining the success al role regula- finance stringent campaign more journalists, Legislators, any ure of reform: 2 at Dep. Exh. tion. See Goldstein Dep. Holman and courts.” academics (“Whether depend ... proceed will we (“[T]he 2-3; purpose of id. Exh. provide the data judgment of whether simply the data is acquiring our to the reform sufficiently powerful boost sake, its own but knowledge for advance
movement.”). Buying Money to fund cam- and multi-faceted fuel a continuous promise on the 2000 was solicited Time *121 forward.”). Ac- propel reform paign to “design[ed] and study would be that proposal, the Brennan Cen- cording to the “reform” and the to achieve execute[d]” in study 1998 planned implement to ter designed and executed. study was so the first of which “phases,” during two (Vol. 1) (“Q: Dep. at 37-38 So I Goldstein “acquire” the data Center would your goal design to it that was take easily to “adapt might it so that it be used” help way in a that would study execute to the strategy responding “develop ball forward: campaign move the reform advocacy.” posed issue Gold- threat Yes.”). right?” that “A: Exh. at 3. Dep. stein 2 2) Brennan submitted a The Center Buying f. 1998 miscalculates Time Pew Charitable proposal to the grant ad- “genuine” of so-called issue percentage (Pew) Buying gain funding for to Trusts regu- have been vertisements that would and, later, Buying Time 2000. 1998 Time like in a statute BCRA. lated 55-56, 51, Exh. 4. Dep. Krasno at The 1) in key included question that Center understood Pew’s Brennan 6,80 co- Question which asked study was sham issue “regulating line” was “bottom opinion, your purpose ders: “In 52-53, advocacy.” Id. at Exh. 3. Most of or provide ad to information about this subsequently agreed to funding Pew issue, or is it to action on a bill or urge put publicity provide was toward Question coding protocol question to the in original added the in the 80. 6 was not included con- attempt help coders "avoid student coding protocol pre-tested before the that was (Vol.2) subsequent questions. Krasno study began. Dep. at fusion” See Goldstein 116-17, 11; Dep. Dep. at 115. Krasno Exh. Krasno par- days within of the 1998 [60 of all issue ads opposition for a support or generate So, reality, according general election]. Defs.’ Exhs. Yol. candidate?”81 ticular database, genuine see original); the 1998 about 40% (emphasis 47 at 193 electioneering If coders conclud- deemed Dep. at 184-85. issue ads would be Seitz82 about provided information 60-day regulatory period.”); that an ad id. ed within a issue, the ad (e-mail on a bill or urged action McLoughlin83 stating or Exh. 29 ad. “genuine” as a issue to be coded was per finding cent was “either the seven gener- ad that the If the coders concluded vague as to mislead the read- false or so particu- opposition support ated er”); (subsequent id. Exh. 31 e-mail from candidate, coded as a the ad was to be lar reporting percentage correct McLoughlin ad. issue “sham” (subse- cent); per 11.38 id. Exh. 36 to be 2) reporting from Holman cor- quent memo Buying Time 1998 The authors of cent). per percentage rect to be 13.8 just per “genu- cent of seven claimed during aired ine” issue advertisements 4) Holman, Craig Buying a co-author of like by a statute regulated would be Buying Time “decided that since au- figure, at this arriving In BCRA. already published and distrib- [was] Time “genuine” only two ads thors counted as uted,” “rekindle the he would not issue” Dep. at 77- See Seitz the source database. he had concluded that though even 109-110, 4; 101-02, Exh. 1 at Exh. no mistake in the “[t]here was reassess- 149-50; Dep. at Dep. at Holman Krasno per figure ment” that the seven cent was 51-52, Exh. 6. Id. Exh. 30. false. 3) Rosenkranz, Di- Executive Joshua 5) Brennan now Although the Center Center, of the Brennan testified rector by the 7 sticking percent claims that it “is April 2000 and Congress before apparently id. at Holman still figure,” per figure. He the seven cent highlighted per that 13.8 cent is the correct believes empirical data solid “[w]ith asserted respect airings,” id. at percentage “with type, Congress can be confident 155-56; (stating also id. at 154 major finance reform campaign Buying authors of Time 1998 should inhibit proposals currently before it do not study refer- [the was] been clear “whether Exh. advocacy.” Dep. Holman true issue ads”). unique ring airings (Rosenkranz testimony). Janu- 6) the defendants’ According to two of *122 however, 2001, Rosenkranz discovered ary by Bren- if the formula used experts, be “flat out per figure cent the seven Buying Time 2000 had been nan Center (e-mail Id. Exh. 28 from Rosen- false.” underlying Buying the data applied to (e-mail kranz); Exh. 27 from Hol- see id. 1998, study Time 1998 “[wjhile Buying Time only 7% of stating man percentage reported have that the would would be placing genuine issue ads groups that would be “genuine” 1998 issue ads groups bought those about 40% captured, 4-5; Dep. ing Seitz at "particular candidate” were Time 1998. See 81. The words page supra Finding 43c at type the authors also printed in boldface because thinking to be of candi- [students] "wanted answering question. first-year Krasno McLoughlin, dates” when law stu- 83.Luke now a dent, Dep. the Democ- at 122-23. was a associate in research racy Program Center from at the Brennan during that time co-au- 2000 to 2002 and 82. Daniel Seitz was a research associate McLoughlin Buying Democracy Time 2000. See project in the thored later a coordinator 3-6; Finding supra 43c at Dep. at see also Program Center in the late at the Brennan 1990s; Buy- page during that time he co-authored per by 14.7 cent. regulated BCRA was tisements would have been regulated Expert Report at 60 Krasno & Sorauf BCRA. n. 148. 1) Buying The authors Time 7) originally coded students Goldstein’s only “genuine” concluded that three issue eight of the ads the at least “genuine” ads in the 2000 database —numbers counted as “sham” Brennan later Center “unfairly 1389 and 2862—would have been Buying Analysis ads in Time 1998. issue caught by the 2000 election [BCRA]” coding of the handwritten student sheets— 89-90, Dep. Holman at season. Exh. 18. produced pursuant subpoena to a issued to 2) But at six least distinct ads were that the students Goldstein—demonstrates originally “genuine” by coded as the stu- eight “provide[d] that the ads determined Buying dent coders for Time 2000. See urge[d] information about action on (Vol. 2) 126-27; Dep. Goldstein at Gold- (Vol. 2) Dep. at bill issue.” Goldstein Expert Report stein at 26 n. 21. These 19-21, 22- 65-69 & Exhs. 78-79 & Exhs. included numbers 2862 and 24-25, 79-80 & Exhs. 80-82 & Exhs. Dep. three others as well. See Goldstein 26-27, 28-29, 88 & Exhs. 84-85 & Exhs. (Vol. 2) 131-33; Expert at Goldstein Re- 30-82, 33-35, 85-87 & Exhs. 87-88 & is, port App. at J. That three of the six ads Exhs. 36-37. changed being “genu- were coded as 8) According plaintiffs’ to one of the ine” issue ads to Buying “sham” ads Gibson,84 experts, Buying James Time Time 2000 database. See Goldstein Re- 1998 would have shown—if the students’ 16; 15; Report Dep. buttal Holman Exh. original codings disregard- had not been 44, 47-48, McLoughlin Dep. at Exh. 13. per ed—that 64 cent all group-spon- original coding students’ decisions for sored issue aired during ads the last 60 report preserved the 2000 have not been days “genuine” of the 1998 election were way determining Goldstein has no would been covered BCRA. precisely original- how each of the ads was Expert Report See Gibson at 42-43. (Vol. 2) ly coded. Dep. See Goldstein 9) Although experts the defendants’ 129; Report Goldstein Rebuttal at 16. reports filed in response three rebuttal 3) In shortly March Buy- before expert report, Gibson’s none challenged his 2001— ing press Time 2000 went to Bren- per finding. expert cent his rebuttal —the nan Center called report, Goldstein on his cell analysis Gibson reconsidered his phone at the Palm using methodology airport used in Krasno’s West Beach expert report. See Gibson Rebuttal Re- his seeking judgment an unknown num- port Crediting at 23. judg- the students’ ber of aired within days ads of the 2000 again, ments once Gibson concluded that election, all of which coded by were (and more) no likely per less than 50.5 cent “genuine.” students as After the text of “genuine” issue ads days aired within 60 each ad him phone, was read to over the *123 general of the 1998 election would Goldstein overruled the judg- students’ regulated by been BCRA. See id. ments and reclassified each ad as an “elec- (Vol. tioneering” ad. g. 1998, Dep. See Goldstein Buying Like Time Buying 2) 57-59, (“Q: 147-150 Time 2000 What was the is based on a flawed methodolo- gy urgency?” and is therefore unreliable “A: I think the going as evidence book was many “genuine” press.... of how Feingold being 2000 issue adver- was debated expert Sidney 84. University. Expert Report, Plaintiffs’ Gibson is the W. ton See Gibson Washing- Souers Professor of Government at Exh. 2.
311 Expert Report at 45 also Gibson week, wanted to be and Brennan next the (neither study Brennan report.... 1998 nor 2000 has been [T]he write a able to the report out trying get objective peer subject scrutiny was re- Center debate.”). around door methodology underlying each viewers judged accept- not been to be study “has h. Both reports Time Buying of the community”). able the social scientific un- that further additional flaws contain value. evidentiary dermine their 4) studies, In of the student coders each 1) testified, level” expert Gibson were all of a “certain educational plaintiffs’ As upon which and 2000 databases age the 1998 “certain level” and were all “[Riv- are studies are based Buying Time in area.” Hol- ing geographical a certain by Pro- “subject continuous alteration The Brennan Dep. man at 228-29. Center Goldstein, in consultation with fessor repre- “not conceded that the coders were Expert staff.” Gibson Brennan Center and, population” the general sentative of (“No have been Report at 46 documents therefore, reliability i.e., the intercoder — indicate how Professor produced that multiple respondents to technique using or should exer- has [exercised] Goldstein try any out code the same ad “to to weed discretionary powers to cise his enormous present in one of may kind of bias that data.”). There change or recode another,” id. at 189— the coders versus of databases versions approximately particu- could at most establish “this reports. Buying Time connected to group roughly same] of students of [the lar at 210. These databases Dep. See Gibson educational back- age roughly same changed so that repeatedly have been part the same ground living roughly produced ... database has been “[n]o pro- to the same country with contacts specific numbers found generate will things about the same fessors tend to see reports].” Gibson Ex- Buying Time [the 228, 232, Exh. 1 at 19. way,” id. at Report at pert 5) finding Buying from the Time One 2) particular, is a Buying Time described in the two data that was not Ex- study. Gibson “fundamentally flawed” asking a question stemmed from reports study con- Report at 4. Because the pert coders to determine whether student little, explanation analysis if any, tains particular advertise- “primary focus” of relies, upon which it even mem- of the data characteristics”; (1) “personal ment was have had diffi- bers of the Brennan Center (4) (3) (2) “both”; matters”; “policy See, e.g., it. Holman culty understanding Report at 31- Expert “neither.” Gibson (“To truth, I couldn’t Dep. at 32 tell ques- to this answers students’ 1998.”); Buying Time much of understand their an- (co-author significantly differed from tion Report Krasno Rebuttal (in study) Question the 1998 data set swers Buying acknowledging Time 1998 (in study), which “maddeningly Question the 2000 upon study is based (e-mail complex”); Dep. “purpose” Goldstein Exh. them to evaluate asked missing data stating Holman per “[t]he cent of the particular ad. 1998 98.1 uncomfortably large in the category is ads broadcast group-sponsored interest database”). general election and days within 60 were coded mentioning a candidate 3) Seitz, a co-author of the 1998 Daniel “primary matters as their having policy any training if study, has had little per 98.7 at 32-33. In 2000 focus.” See id. analysis. See quantitative methods of *124 ads broadcast (Seitz group-sponsored cent of a B.A. in Dep. at 8 received Seitz and studies); general election days within 60 Asian history 1996 in and East the 2000 days of aired within as which coded were candidate a mentioning election, announced “primary as their matters having policy ex- defense two New outraged One when at 59-60. was id. America See focus.” be diffi- Dela- it into a would checked acknowledged teenagers Jersey pert —and very “a acknowledge exposed and and delivered hotel ware cult —that dump- the advertisements in baby a newborn percentage of their large [sic] primary as their issues believe policy had couldn’t ... Americans ster. Most at 12. Report Rebuttal Lupia85 life could human focus.” that this defenseless concluded that expert Gibson if But incredibly, out. coldly Plaintiffs’ snuffed so superior was question in “primary day focus” present had doctor been a Time 1998 Buying infant, 6 of all Question and delivered Delaware option included study because birth and then from full one inch but not force did perfectly and therefore “both” have been it would killed him choice be- an artificial into manslaugh- coders or student of murder legal. Instead speech. issue speech and partial- candidate ter, tween called a have been it would 34; see also Report Expert at Gibson in the third Killing See late birth abortion. at 96 S.Ct. Buckley, U.S. away from trimester, just inches killing discussion of (“[T]he between puts distinction a abortion full birth. Partial-birth or de- advocacy ... election and issues ev- of babies on thousands death violent may dissolve often of candidates Senators, feat Feingold Russ Your ery year. application.”). practical to continue Kohl voted and Herb procedure. Contact Sena- grizzly [sic] 6) “many ads acknowledged that Seitz today and insist Feingold and Kohl tors urge or information about provide both oppose par- they change vote sup- generate a or issue on bill action number abortion. Their tial birth Seitz for a candidate.” opposition port is 202-224-3121. Washington co-author, Krasno, ac- his Dep. at 188. (CMAG Story- test
knowledged that established Tab 3 Defs.’ Vol. Exhs. 80). Buckley does not McLoughlin testified that Supreme Court No. board ad’s “[t]he “candidate-oriented” distinguish “genuine” between because the ad was “pure” partial issue “genuine” on the issue primarily issue ads focus Report 42. Expert Dep. at at McLoughlin Krasno & Sorauf birth abortion.” ads. co-author, have de- if he con- disagreed would with his When asked Holman 58. differently “electioneering had he any signed his studies the ad was an cluding that candidates Gold- speech Dep. about both at 67-69. known ad.” Holman issue protected, constitutionally in 2000 that the issues was certain was so stein —who would have. stu- that he reversed a “genuine” conceded he ad was not Goldstein 2) (Vol. 186-89. Dep. that it was—concluded Goldstein dent determination that the litigation of this during the course 7) the data- reports’ authors and ad. issue Gold- “genuine” ad was indeed agree seem about creator cannot base’s Dep. stein ad and “genuine” issue what constitutes non-partisan engages 44. The ACLU An ad. ad “sham” issue what constitutes designed influence Life Alli- activities Pro sponsored by the National involving rights civil 60,” legislation “Feingold Kohl Abortion entitled ance Report, App. A. Lupia gan. See Rebuttal Lupia is a Professor expert Arthur Defense University of Michi- at the of Political Science *125 civil liberties issues of importance. national e. The ACLU is primarily a member- See Romero at Decl. ship-driven organization. Membership dues are not tax deductible. The basic a. The ACLU has never posi- taken a membership $35, fee is although many partisan tion in a election its members contribute more than that. A 82-year history, although it frequently membership reduced rate is available for positions takes public signifi- issues of students and other low-income individuals. organization cance to the and its members. Membership $9,393,948 dues accounted for See id. at 2. $13,625,051 of the contributed to the orga- b. advocacy As an organization, nization by individuals in Only actively ACLU lobbies for its positions and individuals $1,000. contributed more than frequently talks federal officials and Although the ACLU does not maintain candidates about civil Al- liberties issues. records on corporate status of non- though the ACLU does not endorse or donors, individual $85,000 less than oppose the election particular candi- ACLU’s total revenues were contributed dates, statements, public its member com- by business entities and other organiza- munications and other similar activities tions in 2001. None of the contributions frequently to, and necessarily refer praise, from businesses exceeded Contribu- $500. criticize, forth, set describe or rate the tions from non-individual donors represent conduct or of clearly actions pub- identified less per than one cent of the ACLU’s total lic officials who often are also candidates annual funding. See id. at 3. for federal office. See id. f. Many of the public ACLU’s state- c. The regularly ACLU publicizes ments involving legislation executive or its membership mailings through —and branch policies including print — pamphlets and publications' other civ- —the broadcast necessarily re- communications — il records, liberties voting positions and fer to clearly candidates, identified federal officials, actions of elected all of whom are Members of Congress or executive point some candidates for federal office. branch high officials because profile legis- It sends out 6.7 over million pieces of mail (like lation “McCain-Feingold” “Shays- year each to its potential members and Meehan”) is often publicly identified with members. See id. sponsors. Likewise, its public the ACLU’s d. The ACLU has operated never supporting statements opposing political action committee and has no inter- policies President’s invariably refer to the est in establishing one. The creation of a President name. Murphy See Decl. political action committee would be incon- 4. sistent with the ACLU’s mission and iden- 45. The NRLC regularly pays tity aas non-partisan organization. Es- broadcast what BCRA defines as “election- tablishing political action committee eering communications.” See O’Steen would also have consequences adverse Decl. at 1-2. organization’s members. Under a. The primary purpose of the NRLC’s FECA action committees are re- electioneering is to communications affect quired to disclose the identities of their legislation. See id. at 3. Many contributors. ACLU members and explicit contributors seek assurances that b. The qualifies NRLC as MCFL- their membership will remain confidential type organization Supreme under and that their contributions will remain Court’s decision in v. FEC Massachusetts anonymous. id. at 2-3. Citizens See O’Steen Decl. at 2. for Life. *126 attention fo- used the national received donations NRLC has
c. The NRLC past in the committees the two candidates to continue political party cusing on political par- campaign associated fi- persons against battle long-term its in raising the NRLC BCRA, have assisted just ties like as Sena- legislation nance at 3. id. funds. See to used the national attention tor McCain promote McCain-Feingold legislation. strongly supports par- a d. The NRLC at See id. 19. helped It initiate ban. abortion tial-birth Ban Act and Abortion the Partial-Birth Cause, group an interest 46. Common ads, press re- print numerous published actions, party to these consolidated not a support materials in leases"and educational history supporting campaign a long has in an effort to override the Act and legislation like BCRA. finance veto. Some of the ads President Clinton’s creation in 1970 Common a. Since its federal officials mentioned and materials promoted supported a strict Cause has President Clinton af- mentioned and some regulatory regime campaign over finance. a candidate April 1996while he was ter it has Dep. Keller86 at 17-18. While See id. presidential for the election. See in electioneering run communications not 7-10, A-l to A-12. at Exhs. restrictions, support campaign finance it long history a e. The NRLC has variety men- engaged has of activities campaign legislation finance like opposing tioning federal candidates the weeks 10-21, B-l fi- id. at Exhs. to BCRA. See up example, leading to elections. For as ll. Hampshire presidential pri- the 2000 New 1) In 1995 the sent to November NRLC mary approached, “staged Common Cause oppos- a letter all United States Senators an event with both Senator McCain and finance ing campaign newer and stricter Bradley former Senator around the issue legislation grounds on it would “al- [rjeform [cjampaign general- [flinance entirely most eliminate involvement ly,” an event at which the candidates were political process ordinary citizens who support fi- pledge campaign wealthy” independently are not and would legislation nance Id. at 105. like BCRA.
regulate advocacy groups issue such that time, opinion published At that editorial action commit- organized as Cause’s website extolled Common Sena- public tees would be unable to inform the presidential Bradley tors McCain positions voting about candidates’ rec- uniquely candidates who understood the ords. id. at 11. campaign need for finance reform. See id. 2) The NRLC has broadcast advertise- Exh. 20. The of the editorial “was purpose opposition finance campaign ments visibility to raise the of the issue” of cam- legislation Many like BCRA. such ads finance, paign not to influence mentioned federal candidates and were election. A Id. Common Cause days primary broadcast within 30 of a “possible” acknowledged official was days general within of a election. See the editorial influenced the 2000 election 15-19, B-19, B-14 B-21 id. Exhs. but he clear “that in- [its] made was not B-25, B-27, B-30, B-31, B-33, B- B-36 to tent.” Id. at 106-07. 3) b. During the 2000 election season January when Governor Common Cause financed number of seeking Bush and Senator McCain were nomination, Republican presidential Hall Meetings” “Town or “Town Hall Fo- Legislative Dep. 86. Matt Keller serves as Common Cause’s Director. See Keller at 7-9. Hampshire press rums” in New and other States release could interpreted promote campaign legislation. finance promote candidates, particular he stated At least one of the events coincided with press that the purpose release’s was not to *127 primary campaigns. active Several other any influence promote election or to any events mentioned Members the Con- candidate but “encourage ... Members gress gen- who would candidates Congress to vote for the Shays-Meehan, and, others, eral election at still Members McCain-Feingold Bill.” Id. at 122-23. present. themselves were A Common spent NRL ETF has and intends to Cause official stated that while the events spend print funds on broadcast and com- might have affected the outcome of the munications that do not refer to a candi- election, purpose their was not to (1) appear date but do days within 60 of a any promote influence election or to (2) general election and discuss issues that 116-17, oppose any candidate. id. at See are contested and on which the candidates 23; 132-36, 30; Exh. id. at Exh. id. at position. taken a See O’Steen Decl. at 136-39, 31; 139-42, Exh. id. at Exh. 32. 4. NRL qualifies ETF MCFL-type as an days primary c. Within 30 of a election organization under Supreme Court’s presi- while Vice President Gore was a decision FEC v. Massachusetts Citizens candidate, dential Common distrib- Cause See O’Steen Decl. at 4. for Life. press uted a nationwide release subtitled 48. NRL regularly PAC enters con- “Gore Sets Forth Innovative Plan for Re- independent expenditure tracts for com- 113-15, form.” Id. at press Exh. 23. The days, munications weeks and months proposal release described Gore’s as “inno- advance of the expendi- time the actual vative and promising” and commented that tures are made. See id. at 5. again putting “Gore is forth strong reform proposals in contrast to George Governor 49. Club for goal Growth’s help is to its W. Bush.” Id. Exh. 23. Common Cause identify members races to which con- stated purpose press re- many tributions —combined with those of lease was not to influence the election but other members —should be sent so that highlight “yet another candidate for they can influence public policy in accord [fjinance President was making [c]ampaign with the Club’s values of economic free- a primary [r]eform issue in his campaign.” dom. Keating See Aff. at 3. Id. at 115. A Common Cause official did a. Club for Growth is involved press not believe the promoted release political process major in two ways; supported acknowledged Gore but he bundles contributions to candidates and it the statement “could affect a federal elec- engages in advocacy. broadcast issue See tion.” Id. id. at 4-5. d. On October 2000 (shortly before b. Club Growth’s television ra- election) general the 2000 Common Cause dio ads do not express contain words of a press issued nationwide release announc- advocacy but identify positions candidates’ ing Report “Reform graded Card” that cuts, reform, on tax tax free-market issues Members of Congress support on their and other economic issues of concern to tighter campaign finance restrictions the Club. See id. The legislators listed Club’s ads are signed who had Integrity frequently “Public broadcast Pledge,” promised during days the 30 support campaign primary finance before a legislation. days election and the 60 119-21, id. Exhs. 25-27. a general While before election and are intended Common Cause official acknowledged that to educate voters about federal and state materially add to the platforms. See id. Section 504 will also records
candidates’ amount of records NAB members must at 5-6. maintain. See id. at 6. represents serves and 50. The NAB broadcasting industry likely e.NAB to have the American members 7,300 approximately stations difficulty discerning particular has member whether a All throughout country. “political of the NAB’s communication relates to a mat- voting members are broadcast licensees importance” and are there- ter of national meaning of the FCA. See Good- within likely difficulty discerning fore to have man Decl. at 2. and under what circumstances whether *128 recordkeeping required. and disclosure are broadcast, members on a. The NAB’s at 7. See id. radio, an number television and extensive posi- political advertisements take frequent 51. The references to NRA’s The public importance. tions on issues pro- office in the candidates for federal individuals, by groups, funded la- ads are gramming throughout it broadcasts unions, incorporated oth- entities and bor im- cycle including periods election — a candidate for They ers. often refer to mediately preceding primaries general in that federal office and broadcast elections—are essential to its mis- days candidate’s district within 60 of a educating public sion about Second general days election or within 30 of a Amendment and related firearm issues. Thus, primary. many of the ads fall with- They en- See LaPierre Decl. at 1-3. also “electioneering in BCRA’s definition of respond directly able the NRA to ef- communication.” See id. at fectively frequent by politicians criticism Report and 12, 15-17; b. The NAB’s Annual and the media. See id. Member Resource Guide and its “Political also, McQueen87 9-14; e.g., Decl. at publication provide Broadcast Catechism” (examples NRA at 223-44 App. of ads guidance member stations with as to their NRA). criticizing obligations the rules of under magazine a. The NRA 30-minute news 2-3, id. at 2-3. broadcasting. See Exhs. entitled “California” aired more than 800 Although precise
c. amount of from August times California money paid to the NAB’s member stations through November 2000 and 595 of the sponsors electioneering commu- airings were in top one of the nation’s known, specifically nications is not NAB television markets. See LaPierre Decl. at collectively members receive millions of 5; App. Although pro- NRA at 216. every cycle dollars election to air such ads. Gore, pictured gram Vice President fo- See id. at 3. primarily history gun cused on the con- fiscation California. See LaPierre Decl. requires per- d. BCRA section 504 (only at 5-6 reference to federal at NAB candidate sonnel member stations to make what when “a cover of issue of the will often be a difficult and sensitive occurred magazine NRA’s particular depicting decision about whether a ‘First Freedom’ com- Gore, “political presidential munication relates to a matter of Vice President then a candidate, importance,” national a flashed on decision for which the screen for sever- seconds”). personnel station sales are not trained. al McQueen McQueen Angus provided Chief Executive Of- Decl. at 1. Ackerman has McQueen, Inc., ficer of Ackerman commu- communications advice and services to the advertising headquartered approximately nications and firm NRA and NRA PVF for McQueen City, years. in Oklahoma Oklahoma. See at 2. See id.
b. In 2000—on at least 438 occasions in e. On March 2000 President Clinton days prior general to the election— appeared for a 15-minute interview on NRA aired maga- a 30-minute news Show,” NBC’s “Today during which he Happen zine entitled “It Can’t Here.” See repeatedly criticized the NRA name App. NRA program 1005-49. The con- and stated that “most Americans have [no] depiction tained the same brief of Vice idea what stranglehold the NRA has had President Gore as the “California” news (interview Congress.” [the] Id. at 907 magazine did. LaPierre Decl. at 6. See transcript). respond order to to what it In response c. to the coverage comments, media’s believed were unfair the NRA March, of the Million Mom the NRA aired developed a series of 30- and 60-second magazine 30-minute news that examined paid television ads in which NRA Presi- the forces and influences behind the dent responded Heston to President Clin- March. See id. at 17. magazine The news (“Mr. ton by Clinton, name. See id. at 914 aired dozens of days prior times the 60 you say ... the NRA ‘against anything general to the 2000 election. NRA requires anybody to do anything as a App. at 245-48. program refer- made member society helps to make it *129 ences to Senators Hatch and Feinstein safer.’ you Are talking about the NRA senatorial candidate Clinton and several of whose gun prevention accident program the references would have by been covered has been distributed to 12 million school if BCRA had statute then been in kids? you Are talking about millions 245-51; (Sena- effect. id. at See id. at 931 all?”). of NRA pay members who for it tor Hatch hypocritical” stating “[i]t’s for The NRA intended this series of ads to bodyguard Rosie carry O’Donnell’s a highlight the controversy with the Presi- (woman gun); id. at 933 stating candidate gain dent and to a forum in the national Clinton was at the March “for [her] own news media. The NRA’s strategy suc- political gain”). large ceeded in measure because of the d. The 60,623 airings of all issue ads ability purchase NRA’s broadcast time (whether “sham”) “genuine” or considered respond and to to the President name. 31,069 in Buying Time ran for min- 11-12; See McQueen LaPierre Decl. at utes. App. See NRA at 1005-49. “Cali- Decl. at 9-14. fornia” and Happen “It Can’t Here” aired f. NRA’s strength The financial is de- top 25,140 television markets for min- rived pooling from the resources of mil- utes the 60 days prior to the 2000 lions of preserve Americans who seek to general election. See id. at 1005-49. what believe is their constitutional program featuring “Union/Gore” right keep and bear arms. See La- Heston, Charlton supra Finding 42a at Pierre Decl. at 23. Almost all of the page 17,220 ran for in top minutes NRA’s net revenues are derived from indi- television days prior in the 60 markets contributions, vidual averaged $30 the 2000 general election. App. See NRA per person in 2000. See id. at 23-24. (NRA data). at 108 infomercial If Buying Corporate contributions account for less Time 2000 had considered these airings— than per cent of the one NRA’s funds. and had coded “genuine” them least —at id. See at 24. duration) per (by cent issue g. advertising The NRA’s action BCRA would commit- regu- tee, PVF, days prior lated the 60 NRA is unable to raise funds general fairly election would “genu- support have been reflect individuals’ for ine.” the NRA’s message. mission and Test, public interest. See Josten Direct 1) million of raised $17.5 NRA PVF While Test, 1; Direct at 7. at Monroe the NRA cycle, election the 2000
during in contributions million received over $300 business associations a. Sometimes period. during the same individuals from directly communications sponsor broadcast Exam, 198; PI. Cross App. at See NRA names. their own disparity at 41. The Adkins88 Witness example, of Commerce President Chamber mem- inability of NRA stems a series of radio Tom Donohue delivered are individuals of whom bers —most “Speaking of Business.” See entitled talks mem- the NRA’s pay means—to Test, modest two Direct at On occasions Josten beyond then contribute bership fees and in its sponsored NAM in the 1990s late LaPierre See PVF. to NRA that amount supporting the Presi- name issue ads own Decl. at 15. proposals. See Huard Direct dent’s tax Test, at 1.
2) cannot fi- committees action Political than a small fraction nance more b. On other occasions business associa- corpo- electioneering communications like-minded coalitions of tions contribute to to fund unions have been able rations and prepare air organizations Test, funds. See id. at 14- treasury from their See Josten Direct communications. 4-13; 15; Keating Test, Decl. at Decl. at Boos89 1-2; at 1-2. Direct Huard 11; Decl. at 13-20. Pratt90 1) of Com- In March 2000 the Chamber
3) NRA believe many members Because run Ameri- supported merce issue ads and harass- of retaliation Immigration. they face a risk Legal can Business Test, views, they of their would ment as a result at 2. Direct Josten *130 doing NRA causes if so not donate to 2) Working Americans “The Coalition: their identities. required them to disclose example is one of a Change” for Real 24-25; Decl. at Adkins Decl. See LaPierre In joined by many coalition businesses. (letter 2; NRA from mem- App. at at announced that it early 1996 the AFL-CIO upon being Treasurer ber NRA PVF large allegedly a spend would $35 sum— requires that FEC information informed attacking issue advertisements million—on contribute persons about all who $200 The Republican legislative agenda. years “I old and retired [but] over: am 73 immediately community decided business part- expose my I do not want current necessary. April response that a was retaliation, you employer to so could time leading 1996 five business associations— please penny my me a so contri- send that of Commerce and including the Chamber $199.99?”). will be bution See Huard NAM—formed Coalition. Test, Direct at 1-2. The Coalition recruit- need to be 52. Business associations public as mem- organizations their views to the ed about 30 able communicate bers, many contributors who many reg- addition public. Accordingly, businesses television, radio, publicly. not to be identified The ularly sponsor cable and asked spent about ultimately raised and public communications about matters Coalition other tax-exempt group organized under interest Mary 88. Rose Adkins is the Treasurer Virginia. maintaining See Boos at 1. responsible the laws Decl. NRA PVF and is accounting on con- records information at 1. thereto. See Adkins Decl. tributions Pratt is the Executive Director 90.Lawrence America, non-profit tax- of Gun Owners of exempt group organized under 89. Boos is Vice and Gener- interest Michael President United, non-profit Virginia. Pratt Decl. at 1. laws of See al Counsel of Citizens agent association or its during time a ads business issue million on broadcast $5 29; Dep. Huard Dep. at a certain a contract disburse See Josten executes 1996. at electioneering an com- amount of funds for imposes a severe burden on Commerce, munication NAM
c. Chamber efforts, advertising as ability to assure find that their businesses’ ABCI contemplated advertise- all contrib- requirement contributors does BCRA’s advocacy” “express not be ments will $1,000 publicly than be iden- utors of more —and therefore, identities, Test, the contributors’ 4; Direct at Mon- tified. Josten to be disclosed—is required will not Test, at 6. roe Direct Contribu- obtaining contributions. vital 1) often expenditure amounts Because partic- respect to anonymity with seek tors advertising pro- only become clear as range of reasons. for a wide ular issue ads to deter- it can be difficult ject progresses, may provoke or ads fear that Some (or particular contract mine whether opposing difficulties exacerbate addendum) requires dis- subcontract Oth- organizations. groups such labor $10,000. can may than It of more or federal officials bursements fear that state ers Test, 4; at Direct See Huard which of an retaliate. to determine also be difficult Test, 4; Direct at Monroe Direct Josten requiring is a new contract ad’s revisions Test, at 5. $10,000. See of more disbursements than Test, 1) 4; Bruce Direct Josten of Commerce’s Huard Direct The Chamber Test, Test, support members who 4; testified that Josten Direct at Monroe identified out want to be ads do “not 2) public notice requirement BCRA’s targets they may become concerns that executed to disburse is when a contract or other corporate campaigns recipients of and individuals informs other associations call union would of what some types Ideological oppo- being planned. what is Dep. at 28. activities.” Josten harassment measures to may preemptive take nents 2) Sandherr, Executive Stephen Chief impos- planned communication render the Contrac- General of the Associated Officer Direct See Josten or ineffective. sible America, “were his members said tors of Test, at 5. contributions were concerned if *131 building ... local publicly disclosed ads of- issue associations’ e.Business and would would offense trades take can- to federal ten, necessity, refer and of job or would actions on the site threaten didates. for them.” make life miserable threaten to 1) and candidates officeholders Federal Dep. at 45. Sandherr support whose prominent individuals 3) Monroe testified ABCI’s Edward or particular policy to a opposition of or acts who suffered lost members that ABCI persuasive and important may have bill were their contributions after of vandalism proposed Calling effects. informational Direct Monroe disclosed. See publicly or a proposal” “Gingrich a tax legislation Test, po- testified that Monroe also at 5. more to often reveals “Kennedy labor bill” join decline to sometimes members tential complex de- than does the electorate trust our abili- they “do not because ABCI Huard See scription policy bill. information confidential.” keep ty [their] Test, Exam, under- (“[M]any people at 88- at 2-3 Monroe Direct of PI. Witness Cross inclinations of political general stand the better or candidates prominent officials moving communications d. In a rapidly intricacies understand the than that a environment, requirement BCRA’s n policy.”). legislative 24 each within hours public report be filed 320
2) legislative affecting action often branch decisions workers and flurry A 5-23, congressional of a near the end their families. See id. at Exhs. 2-18. occurs Exam, session, Expert of Def. see Cross focus lobbying The AFL-CIO’s activities often, therefore, 176, within at and Mann foreign range on a broad of domestic and If election. business days general of a importance union policy matters of coalitions cannot air near- associations members, workers, non-union retirees mentioning federal candidates ads election their families. See id. officeholders, they greater will have b. The AFL-CIO relies on an exten- about, educating public difficulty sive, year-round advertising pro- broadcast on, legislative to take action motivating it public support gram gain legisla- for its to the business com- proposals of interest policy agendas. tive and Test, 3; Direct at munity. See Monroe 1) 2001 the AFL- Between 1995 and Dep. at 60. Monroe sponsored in its own name over 70 CIO f. associations have cho- Some business “flights”91 of television or radio advertise- political action committees. sen to establish ments, 1995, including flights seven in example, the of Commerce For Chamber 1998, 1999, in 10 in 12 in in six established, respectively, ABCI D. Mitch- four 2001. See Chamber and ABC PAC. See U.S. PAC During period ell Decl. Exh. 1. the same Test, 5; Josten Direct at Monroe Direct co-sponsored flights seven AFL-CIO Test, associations, at 9. Other business in- organizations of radio ads with other under NAM, cluding sponsoring have considered part- name of coalition or a coalition action committee but have con- ner. id. regulatory cluded that and financial 2) doing outweigh primary burdens of so focus of the AFL-CIO’s Test, utility. Direct advertising See Huard broadcast in 1999 and 2000 was Bill Rights,” “Patient’s which had primary 53. Two of the AFL-CIO’s approval failed to gain previous provide politi- missions are to an effective 28, 30, Congress. See id. at Exhs. 117- public cal voice to workers on issues that 123,137-138; G. Shea Decl. at 21-22. The fight agenda affect their lives and to for an flights AFL-CIO also aired several of ads government at all levels of for working February through June 2000 families. See G. Shea Decl. at 3. BCRA’s opposition proposal to President Clinton’s corporate ban on and labor disbursements permanent, normalized trade relations electioneering communications and the with China.93 See D. Mitchell Decl. at 29- reporting require- statute’s disclosure and Exam, 127-136; Exhs. Cross of PL significantly ments interfere with the 98; D. Witness Mitchell G. Shea Decl. AFL-CIO’s missions. *132 at 20-21. a. The an AFL-CIO maintains active 3)
lobbying program timing The influencing aimed at AFL-CIO’s broad- legislation federal and state and executive cast advertisements is often dictated "flight” virtually A91. is a series of identical 93.When President Bush reintroduced similar during period ads broadcast the same of time legislation again in 2001 the AFL-CIO ran multiple in media markets. opposing pro- broadcast advertisements posal. See D. Mitchell Decl. at Exhs. 154— Special 92. Denise Mitchell is Assistant for 58; G. Decl. Shea at 21. Public Affairs to the President of the AFL-CIO public and oversees all relations activities of AFL-CIO, including use of broadcast and print media. See D. Mitchell Decl. at 1-2. Exam, in upcoming Congress votes Cross of Pl. Witness G. Shea at 31- legislative pro- other events related to the (pro- cess. See D. Mitchell Decl. at 16-35 (B) The targeted AFL-CIO’s ads have
viding specific examples); G. Shea Decl. at Republicans more than Democrats because (providing specific examples); 9-23 Republicans generally legislation favor op- 27-29, Dep. also D. Mitchell at 31-32. posed by organized labor. D. See Mitchell During the weeks and following months Exam, 7-8; Decl. at Cross of Pl. Congress adjourns election or when the its Witness session, 100, 127-28; annual the AFL-CIO does not D. Mitchell at G. Shea Decl. generally public’s air ads at- because at 13. usually
tention turns holi- upcoming to (C) The AFL-CIO’s targeted ads have days. Dep. See G. at Shea 55-57. When Democrats when Democrats have taken Congress was session December positions opposed by organized labor or crisis, during budget how- when Democrats have been undecided on ever, the AFL-CIO a series of broadcast issues such policy. as trade See G. ads to influence its resolution. Shea See D. Exam, 12; Mitchell Decl. at 16-17. Decl. at Cross of Pl. Witness G. 31-32; Shea at 26-28, D. Dep. Mitchell at 4) While the AFL-CIO often broadcasts Exam, 2; Exh. Cross of Pl. Witness D. advertisements to influence short-term 100-01,180-81. Mitchell at action, legislative it also broadcasts them to create long-term support posi- for its 6)With respect run advertisements 30-32; tions. D. Dep. See Mitchell at G. in the weeks and immediately pre- months Dep. Shea at 52-53. election, ceding general the AFL-CIO 5) “targets” of the AFL-CIO’s jurisdictions sometimes selects in which broadcast advertisements are selected on the candidates named the advertise- the basis of substantive and tactical fac- expected ments are to be involved close tors, including legislative in- issue races. experience Based on and on advice volved; a legislator’s assign- committee receives, the AFL-CIO believes that ments, prior voting record on similar policymakers and public are far more legislation leadership with respect role likely pay attention the organization’s particular legislation; the extent political message when an election is com- target help which the might generate petitive than when an officeholder has no “free media” for the AFL-CIO’s significant opposition. See D. Mitchell message; and the concentration of union 8; 17-20, 74, Dep. Decl. at D. Mitchell jurisdiction members in the targeted. Exam, 205-06; Cross of Pl. 7-8; Witness See D. Mitchell Decl. at D. Mitchell D- 20-21, 205-06, 128, 199; Dep. 209-12; Mitchell at see also Rosenthal94 Cross Exam, of Pl. D. Witness Mitchell at 198- Dep. at 95-97 “if (asserting you trying help public debate, shape you if are helping to move elected officials to (A)The targeted AFL-CIO’s ads have support a certain issue agenda, ads [issue] Republican both Democratic and office- work best if they place are run in a holders where D. candidates. See Mitchell *133 Exam, 7-8, 1-22; at competitive political Decl. Exhs. there is a Cross environ- ment”). Pl. 179-80; Witness D. Mitchell at
94. Steven Rosenthal day-to-day operations. serves as Political Di- for its See Rosenthal AFL-CIO, organiza- rector of the oversees the Decl. at 1. Department responsible tion's Political and is
7) future.’ ... advertise- ‘don’t write off our children’s AFL-CIO’s broadcast The priorities wrong.” him his are all Id. the AFL-CIO as their Tell identify ments “paid like The ad included a toll-free number to be using phrases sponsor by contacting congress- of the AFL- in the named men and women used working 2-22; Decl. Exhs. see man. D. Mitchell CIO.” 103-04; Dep. Dep. at G. Shea D. Mitchell 2) “Deny,” flight another of television 58-59; Dep. at 18. There at Rosenthal ads, September ran and radio between exceptions to this only have been few 23,1998, September shortly before the the AFL- practice, all of which involved to vote on an Senate was scheduled HMO of advertisements under sponsorship CIO’s reform bill the AFL-CIO considered “ex- created with other the name of coalitions tremely inadequate.” Id. at Exh. 1. circumstances, In those organizations. “Deny” approximately referred to 17 Sena- only to list the AFL- appropriate
was not and its allies tors AFL-CIO believed Dep. sponsor. as the See D. Mitchell CIO persuaded stronger could be to vote for a 101-06; Dep. at at G. Shea 59-60. version of the bilk Thirteen of the Sena- 8) reasons, in For cost the AFL-CIO runs tors were not candidates the 1998 elec- advertise- tion but four were. id. at 27. virtually identical broadcast See jurisdictions, chang- ments several often 3) “Barker,” an AFL-CIO radio adver- ing only targeted the name of the office- tisement, congressional ran in eight dis- holder or candidate. See D. Mitchell Decl. beginning September tricts 5-6, Exh. at legisla- after a vote on Track” trade “Fast Pre-BCRA,
c. flights hastily September of AFL-CIO tion was scheduled for days within urged issue ads were broadcast 25. The ad listeners to call their general congressman federal election in which the to “tell him to vote no on officeholders named in the ads him paying were candi- Fast Track. Tell we’re still If dates. BCRA had been effect at the And attention. Fast Track is still a bad aired, time the ads would be idea.” Id. at AFL-CIO subject penalties to civil and criminal d. broadcast adver- AFL-CIO’s any spending any funds on of the ads in significantly tisements would be less effec- flights, including following
the 18 ads. they tive if legislative did not mention
1)“No 16-35; Way” Two television and ra- events. id. at See G. Shea Deck at —a 9-23; focusing incipient 27-29, dio advertisement on an D. Dep. also Mitchell at Furthermore, fight Congress in the over the education many 31-32. of the AFL- budget September between 5 and CIO’s broadcast advertisements would be —ran September 17, 1996 in significantly media markets less effective if had to be serving approximately congressional aired immediately outside of the weeks 21-22, 1; districts. id. at Exh. preceding primary See Cross and general Exam of PI. Witness D. Mitchell at 27. during period a substan- elections-— The ad informed viewers and listeners that tial legislative amount of business occurs citizens, congressman the named their area had officeholders and candidates Speaker Gingrich voted with House Newt likely pay are more attention college program to cut the loan message. October AFL-CIO’s D. 8; “Congress 17-20, 1995 and that will Dep. vote Mitchell Deck at Mitchell Exam, 74, 205-06; again budget.” on the D. Mitchell Deck at Cross of PI. Witness D. 128, 199; by urging 22. It ended viewers and Dep. listen- Mitchell at Rosenthal 95-97; ers to “Tell named congressman] Report [the Gibson Rebuttal at 26-28 *134 (refuting expert program, defense Goldstein’s asser- D. Mitchell Decl. at while tion that “a group reasonable interest COPE only raised PCC million and $1.4 would not air its issue ads an elec- during during million years, $1.1 those see Rosen- period”). toral thal Decl. at
e. 3) The AFL-CIO’s broadcast adver- Any amount of funds COPE PCC tisements would be significantly less effec- spends on issue advertising necessarily re- tive in influencing legislation policy if duces the amount of funds available for they did identify federal officeholders cash and in-kind contributions made di- by and candidates name. Issue advertise- candidates, rectly to as well as the money ments that identify policymakers by name available to support independent expendi- describe detail their can records tures on behalf of candidates. See id. at greater impact policymakers those 7-9. than do ads that issue refer to issues more 4) Union members and other workers Likewise, generically. an ad that urges generally are unable to make large contri- viewers or listeners to specific contact a butions of political federal funds to action policymaker regarding issue is committees or similar support entities to likely more to engage them on the issue broadcast advertising. Also, See id. at 9. than is an ad that does not ask them to many corporate contrast to officials and take any action. See D. Mitchell Decl. at individuals, other wealthy union members 8; Dep. 33-34; D. Mitchell G. Shea and other generally workers are unable 33-34; Dep. at Feingold see also Dep. at afford the high cost of personally sponsor- 238-39 (acknowledging that constituents ing broadcast issue advertisements. often call in response to adver- television tisements). g. Since 1996 the AFL-CIO’s political adversaries have made numerous efforts to f. If prohibited the AFL-CIO is pressure broadcast stations refusing into using general its treasury sponsor funds to run the AFL-CIO’s ads. of the Some broadcast issue advertisements of the kind given stations have pressure. to the See it has run in past, it will be unable 12-13, D. Mitchell 24; Decl. at Exh. D. finance such ads to the same degree using Mitchell Dep. at 174-76. If contributions to AFL-CIO federally-regis- its required reports tered to file committee, action AFL- the FEC CIO Committee on regarding proposed Political its Education Po- broadcast adver- (COPE litical Contributions Committee tisements —or if broadcast stations are re- PCC). 7-9; Rosenthal Decl. at quired Rosen- to obtain such information Dep. thal at 57-65. make it public available in advance actually running the in- 1) ads—efforts to Contributions to may COPE PCC terfere with the advertising AFL-CIO’s made union only members and their program likely intensify. will See D. by certain employees families—-or Mitchell Decl. 13-15. AFL-CIO itself—and the amount of mon- ey that can be raised from these sources is h. Advance disclosure of the AFL- generally limited and unlikely to increase CIO’s advertisements will interfere with to the necessary replace extent the trea- and have a chilling effect on the organiza- sury spent now funds on issue advocacy. tion’s broadcasting program by forcing See Rosenthal Decl. at 7-8. to reveal plans and strategies its before
2) During 1998 and 2000 finalized and giving AFL-CIO opponents spent million, million and $8.4 the opportunity prepare re- $17.9 counter-mes- spectively, on its advertising broadcast sages. See id. *135 reasons, certainly impact re- reach and and will almost BCRA’s similar
i. For years. committee like COPE coming that a in influence in the quirement grow within 24 to 48 to the FEC disclose McQueen PCC Deck at 6-7. See independent to make contracts hours its (A) Americans, million More than 168 deter COPE PCC will expenditures public, use per general cent of the or 60 See Rosenthal expenditures. making such App. at See NRA 348^49. the internet. at 9-10. Decl. internet than More Americans use the that reflects BCRA’s 54. The record id., newspaper, and inter- daily read a see and labor disbursements corporate ban growing rapidly, is see id. at 352. usage net electioneering communications will likely to continue because This trend corruption of apparent prevent actual or grown at close to a rate usage internet has federal candidates. years. in per per year cent recent of 100 corporate and the extent a. To id. See electioneering labor disbursements (B) a of news and informa- As source appear to cor- corrupt or communications tion, displacing the internet rivals and is little or noth- rupt federal candidates —and the broadcast media. See id. at 443-99 do, ing suggests in the record (Pew “In- study entitled Research Center Finding page 54b at 325—BCRA infra Sapping ternet Broadcast News Audi- many communications unregulated leaves ence”). rapid growth in internet us- of actual or pose great a risk the dramatic age is one of the reasons for corruption. apparent program news view- decline broadcast 1) Newspaper ads often dwarf broad- id. The internet has also be- ing. See ads, ads, in especially cast radio terms popular increasingly come an source of instance, expense. full-page For a periods. during news election See $65,000 can cost ad the New York Times 408, 427. id. at a 60-second radio broadcast that whereas text in a small precisely recites the same (C) provide an al- Numerous websites only market such as Peoria would cost $75. daily ternative news that chal- source 8; McQueen App. Decl. at NRA See previously lenges the market dominance 256-57. enjoyed by the traditional media. id. 2) vital, expensive mail Direct 500-01, example, For 505-08. component advertising of mass effective Report internet Drudge news service —-an campaigns designed to influence federal by a individual unaffiliated single started Expert Report at Magleby elections. See any company up media —receives (in 25, 53; LaRocco95 Deck at per day. five million visits See id. at 507. election “the Christian Coalition circulated 4) the 30- Issue ads broadcast outside 370,000 guides’ ‘voter the 1st District of primary election day preceding window nega- intended to Idaho were create preceding gener- 60-day and the window impressions among tive voters and influ- al can influence the election. See election election”); ence the outcome of the Pen- Report Rebuttal at 5. Milkis nington Deck at 2-3. 5) 3) industry longer The media is no broadcast over the internet are Ads “unique” way that it was 10 or 15 comparable to those broadcast over televi- public years ago. in terms of their sion radio Congressional Larry served from the 1st District of Idaho.
95. From 1990 to LaRocco Representatives at 1. as a member of the House of See LaRocco Deck *136 (A) past Over the pear decade the role to corrupt federal candidates. Nor traditional media in informing and educat- does the evidence show that BCRA would ing public has profoundly been altered alleviate apparent actual or corruption “in by emergence of the internet. See a direct and material way” to the extent supra Finding pages 54a.3 at 243-44. that either exists. Turner Sys., Broad.
(B) Since the
many
FCC,
mid-1980s
Inc. v.
622,
media
512
664,
U.S.
114 S.Ct.
2445,
entities have been subsumed
larger
(1994).
within
to cover stories that might compromise the parent of the interests (cid:127) or of the affiliated “Parties whose candidates benefit entities. See id. at 687-93. covered by advertisements
6) BCRA grateful media for the industry outside able better help.” Proposed influence elections than are FEC’s Am. corporations in Findings any industry other because it Fact at (capitalization altered); can use its news reporting and editorial functions to see id. at 218-19 (citing Resp. of AFL- public opinion influence about politicians CIO and COPE PCC FEC’s First candidates. See at 714- id. Reqs. for Admis. at 10 (acknowledging [p]olitical least one [p]arty “[a]t b. expressed has appreciation grati- None evidence the defendants materially offered tude for supports [the prop- financing AFL-CIO’s] osition that corporate and labor disburse- least one” electioneering communi- ments issue advocacy cation)). corrupt ap- portion
96. A of this cited Kollar-Kotelly. material remains sealed pursuant separate to a by Judge order coordination” tion to establish between on “Coordinated Limits committee) (or
Expenditures” candidate entity making a disbursement. and an limits “coordinated As BCRA’s note; 214(c); § § FECA BCRA supra Part generally expenditures,” § In accordance 441a note. U.S.C. II.C, find that: I would mandate, January the FEC on treated an the Act has 55. Since *137 rule a final on “coordinated promulgated with a is “coordinated” expenditure supra See note communications.” 2See U.S.C. as a contribution. candidate provides as follows: The rule 441a(a)(7)(B)(i). § § a “coordinated 109.21 What pro- 2000 the FEC December communication”? that defined regulations mulgated new (a) is coor- A communication narrowly in the context of “coordination” Definition. candidate, a autho- an dinated public communications.” “general committee, political party a rized Political Communica- Public General committee, agent any of of the or with Candidates tions Coordinated Committees; Expendi- Independent when the communication: Party foregoing 2000). (Dec. 6, tures, Fed.Reg. 76138 65 (1) than paid by person a other Is regula- December FEC’s 2000 Under the candidate, commit- authorized tions, a disbursement for communication committee, tee, or political party if the with a candidate was “coordinated” any foregoing; of of the agent created, produced or communication was (2) at least one of the con- Satisfies (1) sugges- or request “[a]t distributed (c) in paragraph tent standards committee; party the candidate or tion of’ section; this (2) party or committee after the candidate (3) of the con- at least one Satisfies decision-making or had “exercised control (d) paragraph in standards duct authority” over the content or distribution section. this (3) communication; or “sub- of the after negotiation” or result- stantial discussion agreement” in or be- ing a “collaboration (c) standards. Each of Content creator, producer, or tween the distributor para- in types of content described the candi- payer of the communication and (c)(1) (c)(4) satisfies graphs through content party or committee about the date section. the content standard this of the communication. or distribution (1) that is an elec- A communication 100.23(c)(2). § C.F.R. .... tioneering communication repealed 57. BCRA section (2) public A communication that dis- regu- FEC’s December coordination seminates, distributes, repub- or because, according to one of lations lishes, part, in cam- whole or they were too nar- sponsors, BCRA’s “far by a paign prepared materials in defining row to effective coordination candidate, autho- the candidate’s campaigns and elec-
in the real world of committee, agent or an rized seriously under- threaten[ed] tions and any foregoing, of the unless money contained mine the soft restrictions dissemination, distribution, re- Cong. (daily Reo. S2145 [BCRA].” excepted publication is under 2002) (statement ed. of Sen. Mar. 109.23(b).... CFR McCain). provision directed the FEC The (3) that ex- public A communication that “shall promulgate regulations new pressly advocates election require agreement or formal collabora- committee, candi- clearly of a identified or an defeat for Federal office. date agent any foregoing, materially involved decisions re- (4) public A communication that is garding: ... about which communication following each of the statements (i) The content of the communica- (iii) (c)(4)®, (ii), and paragraphs tion; section are true. (ii) The intended audience (i) The communication refers to a communication; clearly political party or to identified (iii) The means or mode of the com- office; for Federal candidate munication; (ii) public The communication is (iv) specific media outlet used pub- or otherwise publicly distributed communication; for the licly days disseminated 120 or fewer *138 (v) timing The or the frequency of general, special, a or runoff before communication; election, or days before a or 120 or fewer election, preference a primary or or (vi) prominence The size or of a political par- convention or caucus of a communication, printed or duration of ty authority to nominate a has a communication means of broad- candidate; and cast, cable, or satellite. (iii) public communication is di- The (3)Substantial The com- discussion. jurisdiction in rected to voters the of ' created, produced, munication is clearly identified candidate or to the after one or or distributed more jurisdiction voters a which one or about the substantial discussions political party more candidates of per- communication- between the appear on the ballot. communication, paying son for the (d) Any Conduct standards. one of the employees agents or the or of the following types of conduct satisfies person paying for the communica- the conduct standard of this section tion, and the candidate who is agreement or not there is whether clearly identified the communi- collaboration, or formal as defined cation, or his or her authorized (e) paragraph of this section: committee, opponent or his or her (1) Request suggestion. or opponent’s or the authorized com- (i) created, The communication is mittee, party or a commit- re- produced, or distributed tee, agent any or an of of the quest suggestion or of a candidate or foregoing. A discussion is sub- committee, political par- an authorized meaning within the of this stantial committee, any ty agent or if information paragraph about or foregoing; political party or com- candidate’s (ii) created, The communication is campaign plans, projects, mittee’s sug- at the produced, or distributed activities, conveyed needs is or person paying a for the gestion of person paying for the communi- a candidate, au- communication and the cation, ma- and that information is committee, political party thorized creation, production, terial to the committee, agent any or distribution of the communica- or foregoing, suggestion. assents to the tion. (2) A Material involvement. candi- committee, date, an authorized liber- may civil affect executive action
(e) collaboration. or Agreement formal collaboration See id. formal ties. or Agreement paying for person between before routinely testifies b. The ACLU the candidate communication briefings conducts staff Congress, in the communica- clearly identified with provides Members Congress and commit- tion, authorized or her his id. papers. See position ACLU op- tee, opponent, or or her his conferences, press holds c. The ACLU committee, a authorized ponent’s releases, public com- offers press issues committee, or an ap- media regular makes mentary and is not foregoing, any agent public appearances and other pearances to be required communication liberties civil asserting organization’s communication. coordinated and exec- legislative on different positions under- a mutual Agreement means See id. utive initiatives. the minds on meeting standing coalitions d. The ACLU works to build as- of the material any part all or its with It of the communication issues. associates pects around common collabora- mem- dissemination. in a combined Formal 20 coalitions at least systemat- planned, or tion organizations. means bership of over 250 on the com- organized, work ically frequent- legislative activities ACLU’s munication. part- other coalition ly coordinated *139 (f) inqui- responses ners. See id. harbor for Safe is- legislative policy or ries about congression- maintains e. The ACLU political A candidate’s or sues. liberties important civil al scorecard on in- to an party response committee’s publishes different periodically issues politi- or that candidate’s quiry about at 3. on issues. See id. guides such positions cal committee’s organizations and other f. The ACLU issues, but not policy or legislative Congress work Members often with campaign including a discussion is con- proposed legislation to ensure that activities, needs, or plans, projects, principles. liberties See with civil sistent satisfy any of the conduct does not id. (d) paragraph standards of “coor- definition 59. Under BCRA’s
section. dination,” the FEC’s implemented by as Fed.Reg. at 453-55. legisla- many of the ACLU’s regulations, in- legislative efforts 58.The ACLU’s prohibi- subject to the tive activities are directly activities associated many clude though even of FECA tions and limitations not contribu- lobbying but do involve activi- engage in those ACLU does candidates, parties, politi- tions influencing federal purpose of ties for the participation at fundrais- cal or committees id. at 3-4. elections. See by candidates or sponsored functions ing Murphy97 political organizations. See feder- regularly lobbies 60. The NRLC Decl. at 2. candi- al consults with federal legislators, certain is- positions on dates about their meets, speaks regularly
a.The ACLU sues, electioneering funds for disburses of the Con- corresponds with Members or printed publishes communications officials re- branch gress executive communications, including what are known legislation or pending garding proposed Murphy Decl. at 1. ACLU. Director See Murphy Legislative is the 97. Laura guides.” investigation pertained “voter Some of these activities MUR 4624 advocacy 1996 activities of an issue undertaken without communication group called “The Coalition: Americans are undertaken with candidates and some Working Change.” for Real All of the See candidates. after communication with Coalition’s members were instructed to Decl. at 2. O’Steen any avoid contact that perceived could be given 61. A business association’s content, as coordination of the location or broadcast advertisements often address is- frequency of Alleg certain broadcast ads. sues the association has discussed with ing that the Coalition’s issue ads were Congress, representatives Members of the candidates, coordinated with federal cam political parties cooperating and various committees, paigns however, See Josten Di- organizations types. of all pursued investigation FEC Test, rect at 2. Business associations want and, years in the Chamber of Commerce’s maintain contacts with Members of the judgment, and NAM’s it deterred the Co Congress participating while issue advo- alition’s supporting members from a simi cacy at time. Huard Direct the same 1998.99 See Huard lar advertising effort Test, at 3. Test, Test, 3-4; Direct Josten Direct operating a. An under a association 2; Dep. Josten at 12-13. vague or overbroad definition of coordina- 1) On June 1998—18 months after spon- tion faces serious risks each time the Coalition’s ads were broadcast—-the public directly sors communications either FEC instituted 4624 to investigate MUR through groups organiza- of like-minded Coalition, charges by the DNC any tions or individuals because discussion (Exec- R. its members and Bruce Josten legislator may with a later serve as the utive Vice President of the Chamber of for an that an allegation basis association Commerce) had coordinated their efforts particular has coordinated a communica- Republican Congression- with the National legislator. tion’s content with the Like- (NRCC), al Committee its treasurer *140 wise, meeting legislator with a whose seven candidate committees. Parallel policy views are consistent with the associ- charges against were leveled candidates and ation’s views with its advertisements and committees with whom the Coalition of coordination. See may charge lead to a advertising had its allegedly coordinated Test, 3; Josten Direct at Monroe Direct efforts. Test, 3-4; 12, 21, Dep. at DeFrancis98 at 2) The crux of the coordination FEC’s 35, 43, 57. charge was that Coalition members —who b. The threat posed by vague regularly Congressman met with John overbroad definition of “coordination” is promote pro-busi- Boehner to discuss and by experience illustrated Cham legislative aspects ness of the “Contract Commerce, ber of NAM and other busi opportunity With America”—had the investigated Congressman ness associations were coordinate issue ads with (MUR) Boehner, fourth-ranking 4624. FEC Matter Under Review who was then the Deputy 437g(a)(12), public § 98. Suzanne DeFrancis is a Di- the FEC's file contains a former 23, 2001) Report (Apr. rector of Communications at the RNC and General Counsel’s President, currently (General Report), serves as Senior Vice Di- Counsel a Statement for Novelli, rector of Public Affairs at Porter Scott E. Thomas Record Commissioner 7, advertising Dep. firm. See DeFrancis at 5-7. Danny (Sept. and Chairman L. McDonald 2001), and a Statement for Record (Nov. Bradley Although relating A. Smith most records to MUR Commissioner 2001) (Smith Statement). 2 U.S.C. 4624 are confidential under any advertising with member, of its broadcast Republi- ment House Republican committee, candidate, party or an ex candidate Chair can Conference officio 9; NRCC. See Josten Mitchell Decl. at member official. See D. board Test, 235, 238; at 2. 229-32, Direct G. Dep. D. Mitchell 71-72, Dep. at 80-81. Shea 3) extensive discov- years of After four Counsel concluded ery, the FEC’s General Depart- Political a. The AFL-CIO’s evidence “circumstantial there was regu- persons who ment—and other loosely were of the Coalition the activities candidates and lar contact with Party Republican coordinated no role broad- played party officials— Representative John leaders, specifically period during decisions casting General candidates.” and other Boehner during role virtually no 1995 to 1998 The Counsel at 2. General Report Counsel to 2000. See Rosen- period from 1999 however, “loosely coordinat- conceded, 10-11; at 9- D. Mitchell Decl. thal Decl. at light a viable standard ed” was not defining regulations FEC recently-enacted years over the b. the few occasions On id., coordination, and therefore recom- has agent candidate or a candidate’s that a See case be dismissed. mended that the and has encour- approached the AFL-CIO id. at 8. particular run in a State or aged it to ads 4) disruptive, burden- 4624 was MUR district, has the AFL-CIO congressional a result of the expensive. As some 9; Decl. at D. D. Mitchell declined. See willing- members’ investigation, Coalition 20; 232-35, Exh. G. Dep. Mitchell support the participate in or Coali- ness to Dep. at 91-92. Shea The Coalition financed evaporated. tion is now defunct. only policy, ads in 1998 and the AFL-CIO few c. As a matter of Record, Commis- In his requests Statement to honor has likewise declined observed: sioner Smith identifying from candidates not to air ads fact that the Commission Despite the opponents them or because case, I in this has found no violations right it has both the AFL-CIO believes suspect original that the com- strongly and what ability to decide whether Com- plainant, the Democratic National advance advertising kind of broadcast will mittee, complaint considers its to have D. policy agenda. legislative its complaint undoubt- been a success. 23; Exh. D. Mitchell Mitchell Decl. at political oppo- edly DNC’s] forced [the Dep. at 169. *141 thousands, if spend hundreds of nents Lobbyists 63. from the AFL-CIO’s fees, legal of dollars in and not millions regularly meet Legislative Department staff, hours of candi- to devote countless Congress and em- with Members of date, responding time to and executive executive branch on a host ployees of the matters. discovery handling legal executive offi- of issues. The AFL-CIO’s their activities Despite finding our also meet with Mem- cers and other staff were not coordinated and so did policy matters. bers Act, suspect that strongly I violate through seeks such a. The AFL-CIO investiga- imposed by costs huge policy positions contacts to influence participation discourage tion will similar and officials. legislators in the future. groups these and other 2. Statement at Smith relies on such b. The AFL-CIO also information about the gather contacts not discuss its 62. The AFL-CIO does po- particular legislation and place- the content or status of regarding decisions 331 sitions of other Members. Such informa- 4. Restrictions on Non-Federal Funds tion has often significant been a factor As to BCRA’s restrictions on non-feder- deciding whether or not to run broadcast funds, al see generally supra II.D, Part I issue particular advertisements on issues would find that: determining the timing, placement 65. The began FEC tracking non-fed- and content of the ads. See G. Shea Decl. eral donations in the 1992 cycle. election 23-24; at G. 82-85, at Dep. 89-90; Shea During cycle the Democratic and Re- D. Mitchell at Dep. 253-57. publican parties together raised mil- $86.1 lion in non-federal funds. During the 1994 64.If the AFL-CIO is prohibited from cycle election the two major parties raised sponsoring broadcast ads because of its $101.6 million funds; non-federal during lobbying contacts with Members of the cycle 1996 they raised million in $263.5 Congress, it will be forced either to curtail funds; non-federal during the cycle its lobbying activities or to refrain from they raised $222.5 million in non-federal airing public communications during elec- funds; during the cycle they raised tions. $487.5 million in funds; non-federal during the cycle they raised a. The $495.8 likely AFL-CIO is to refrain million in non-federal funds. See Fed. even from permissible lobbying contacts if CoMM’n, ELECTION it is unable to NEWS RELEASE: PARTY determine utmost confi- Fundraising $1.1 in Reaohes Billion dence that it can legally engage in them. (Dec. 18, Cycle 2002), available EleCtion See D. Mitchell Decl. at 9. at http://www.fec.gov/press/20021218 par- b. Even when the AFL-CIO is confi- ty/20021218party.html. dent that a lobbying contact is permitted, 66. During the 1996 cycle election may nonetheless refrain therefrom if the gave donors who the most in non-feder- contact can be by political construed oppo- al funds to the political national party com- nents as improper or illegal. The AFL- mittees each contributed $530,000 between CIO has been the target of complaints of $3,287,175. During the 2000 election
improper coordination by its ad- cycle the top 50 non-federal donors to the versaries in past. Throughout 1996, national committees each gave between for example, the AFL-CIO’s op- $955,695 $5,949,000. During the 2000 ponents filed a series complaints with cycle 800 donors—435 corporations, unions the FEC charging that the AFL-CIO had and other organizations and 365 individu- coordinated its broadcast gave advertisements als—each $120,000 minimum of and other activities with the the national Democratic committees and accounted for Party and with almost million, certain cent, $300 Democratic per candi- of all dates for federal non-federal money office. See raised Rosenthal commit- 11; Decl. at tees. D. See Mann100 8-9, Expert Mitchell Report Decl. 22- Tbls. After a four-year investigation, the Com-
mission concluded that no violation of 67. Senator routinely par- McConnell FECA had occurred. See Rosenthal Decl. ticipates in political and fundraising events 11; at see also FEC, AFL-CIO v. 177 for state and local candidates and party F.Supp.2d (D.D.C.2001). 52-53 committees.
100. Defense expert Thomas Mann the W. Governance Brookings Studies at the Institu Averell Harriman Chair and Senior Fellow in tion. See Expert Report Mann 1. at legislative and discussed questions 5, 2002 swered July Sena- on example, a. For of the majority overwhelming in an election issues. participated
tor McConnell do who Kentucky with people meetings call were with conference strategy at August Party Republican on Leeper; to the funds Robert donate state senator fundraiser party level. Senator national, a state or state local 15 he headlined candidates; August on of dona- senate usually state unaware benefit McConnell for a fundraiser he participated 20 he with whom individuals history of tion September candidate; and on state senate at 8. See id. meets. Republican rally for the he attended Melnerney shares Thomas Plaintiff in Butler judge-executive for candidate philosophy Party’s general Republican atAff. McConnell Kentucky. See County, polit- his pursued He has policy issues. his by pooling policy goals public and ical Senate, election to his b. Since Americans like-minded resources been member has McConnell Senator national, organizations Republican Republican Senatorial Com- the National Republi- promote levels and local state Republi- (NRSC), advocates mittee feder- and candidates principles can Republican supports principles and can Melnerney levels. See al, local state and federal, local and at the state candidates 1-2. atAff. chaired the McConnell levels. Senator Mcl- enactment Prior to BCRA’s a. cycles election and 2000 NRSC in in excess amounts nemey donated chairman, non-federal he raised and, as national $57,500 cycle to the per used voter funds were These funds. Party Republican committees get-out-the- and identification registration, $10,000 year to state per in excess and building activities, advocacy, issue vote Party organizations. Republican local and state and support for national projects support were intended to donations His his tenure During local candidates. candidates; registra- voter and local also state Chairman, McConnell Senator NRSC parties; and local for state activities donations tion non-federal NRSC directed activity; candidates, in- voter identification local state and near-election dozens of cam- generic gubernatorial activity; Republican cluding Virginia get-out-the-vote (in 1997); parties, Califor- and local Jim Gilmore for state paign activity candidate candidate Republican gubernatorial nia broadcast communications including (in 1998); Republi- and the Lungren a fed- Party Dan when Republican promote Warwick, mayor of cards, ballot; candidate can slate on the candidate is eral (in 2000). at 3. id. See Rhode Island ballots for state sample cards and palm pro- absentee ballot parties; local McConnell prohibits Senator c. BCRA parties; phone for state local grams par- local raising money for state from parties; for state local programs corporate or union bank from or candidates ties discussing policy is- $10,000 indi- donors, public communications or in excess BCRA, men- sues, including Senator communications Absent vidual donors. money for state raise in a manner would McConnell candidates tion federal appli- compliance with support, parties “promote, and local construed could be at 4-5. candidates; id. laws. See cable state such oppose” attack spend employees who salaries staff in the United years During his 18 d. any given time paid per cent of met Senate, has McConnell Senator States id. activities. any of these month on has whom Americans with he thousands at 2-3. hands, an- *143 photographs, posed shaken
1) In the 2002 election cycle Mclnerney tional State Elections Committee of the $57,500 donated than more Republican Republican National Committee (RNSEC), Party organizations national, at the state among others—funds that may spent be and local that levels—funds were spent on any of the activities listed supra in Finding many or all of the activities described 68a at page 332. See Mclnerney 4; Aff. at above. See at id. see also N.Y. §§ 14-100 to 14- Elec. Law 2) (West In the 2000 cycle 2003). election Mclnerney $57,500 donated more than Republican 4)BCRA prohibits Mclnerney from do- Party organizations national, at the state nating amounts $57,500 excess of per and local spent levels—funds were on cycle Republican Party organizations at many or all of the activities described national, state and local levels and in See above. at 6. id. $10,000 excess of per year to state and b.The laws the State of New York local Republican party organizations— permit Mclnerney to donate funds in ex- funds that Mclnerney would like to be cess of what permits BCRA him to donate. used on the political activities listed supra
1) in Finding 68a New at permits page York law 332. See Mclnerney to Mclner- ney $76,500 at per donate Aff. year to state and local organizations party —funds c. Mclnerney’s support for Republican may spent be on any of the activities listed Party organizations national, at the state supra in Finding 68a at page includ- and local levels reflects his shared philoso-
ing state and local candidate support, voter phy and values the Republican Party, identification activity, cards, slate palm any corrupt motive. cards, sample ballots phone pro- bank 1) Nothing in the record suggests that grams for state and local parties. See Mclnerney has ever attempted to make a Mclnerney 3; Aff. see also N.Y. Eleo. non-federal donation to change the vote or (West §§ 2003). 14-100 to 14-124 Law official action any official; has 2) New York law permits Mclnerney to ever been solicited by any federal office- make unlimited non-federal donations to holder agent of a national the housekeeping accounts of state and based on promise or offer of any official local political party organizations —funds action; or has ever that, donated funds that may spent on administrative ex- his knowledge, affected the vote or official penses rent, such utilities, printing action any public official, including a costs, supplies and legal and accounting federal official. See id. at 7. services; benefits, salaries and including 2) Nothing in the suggests record the salaries of individuals spend who Mclnerney’s support for the Republican per paid cent of their time in any given Party national, at the state and local levels month on grassroots activities; activities is dependent upon gaining access to feder- not for express purpose of al officeholders. See id. at 8. promoting the candidacy of specific candi- dates, including advocacy issue referring d. BCRA permits Mclnerney to make to federal candidates and near-election vot- unlimited non-federal donations interest er registration activity. Mclnerney groups that engage many or all of the 4; Aff. at see also N.Y. Eleo. Law §§ 14- activities listed supra in Finding 68a at (West 2003). 100 to 14-124 page while prohibiting him from mak- 3) New permits York law ing Mclnerney to similar donations Republican Party make unlimited non-federal organizations donations to national, state and RNC, NRSC, the Republican Na- local levels. BCRA, Absent Mclnerney *144 coordinated First, parties a. the donations such make continue
would of var- messages and activities compli- political in organizations Party Republican within national, local entities state and States. the relevant ious of the laws with ance Expert Milkis101 system. See 8. at the federal Mclnerney Aff. See Report 13-14; Expert Keller102 at Report Mclnerney BCRA, would e. Under at 6-7. imprisonment fines and criminal subject to funding for years to five up of —at encourage “dem- Second, parties b. funds— non-federal using level and same nominating and by nationalism” ocratic funded he has activities same engaging and candidates electing at 10. See id. past. in the of policy issues public about discussions spon- has Pryor Attorney General 69. Expert Re- Milkis importance. national refer to communications public sored has example, RNC For 14-19. port at support, promote, and candidates federal de- policy public recently participated candidates, including oppose such attack budget amend- a regarding balanced bates ad- expressly do not communications policy. education ment, and reform welfare any can- such against for a vote vocate 27-29; RNC Exhs. Decl. at Josefiak See 1-3, A- Exhs. Decl. Pryor at See didate. 1711, 2428, 2440. in the hopes and has received Pryor F. 1) nominate and recruit parties contributions to receive future preferences candidates, public aggregate for a candidate 4. As at id. See RNSEC. ac- democratic of spent a means and provide office, has raised Pryor state Report Expert con- countability. activities See Green103 registration funds voter 33; Report election at Mann 7; Expert federal days Magleby of a within at ducted identification, scientists get-out-the- Political at 28. Report Expert for voter con- increasing activities campaign voter with parties and generic vote also credit elections grassroots with in connection turnout, encouraging volunteer ducted ap- has also candidate fostering broader participation, to con- He intends chal- on the ballot. peared competition supporting electoral such funds for spending raising diluting tinue incumbents lengers against activities, association on his own and See interests. organized of the influence and local Exam, for state candidates other 83- at Expert Green of Def. Cross Exam, at id. 4-6. See office. Expert Defense Mann 84; of Cross 5-6; Milkis Report at 53; Expert Keller at played parties have Political 70. 12-13; Raja104 Ex- La at Report Expert roles critical least four play at continue to at 7-8. Report pert process. country’s political in our Green is Profes- expert Donald Defense 103. Sidney expert Milkis Plaintiffs' 101. University, at Yale Uni- Science at the of Political of Politics sor Professor Hart James Senior Schol- the Insti- Virginia; versity he also Director also serves as where he Political of the American See Policy and Co-Director Studies. ar Development Social and tution Center Program at Miller Report Expert at Green Report at 1. Expert Milkis See Affairs. Public Raja is an Raymond La expert Plaintiffs' was a expert Morton Keller 102. Plaintiffs’ Science at Political Professor Assistant un- History from 1956 American Professor Massachusetts, La University Amherst. University 2001; of North taught he til Hill, University of Report Chapel Expert at 1. Raja Carolina University. See Brandéis Pennsylvania and Expert Report at 1. Keller *145 2) Party competition general in and local 6; levels. See Josefíak Decl. at healthy democracy; major Raja see also La Expert was Report at 20-22. expansion force behind the of the elector- a. In pursuit objectives, of its the RNC through ate the enfranchisement blacks engages in frequent communications with South, in voting age reduction of the members, officeholders, its candidates, eighteen poll and the elimination of taxes state and local party committees and the registra- and other on voting constraints general public. These communications oc Expert Report tion. Keller at See 15. cur during both campaign seasons and at all other times. Banning105 at Decl. Third, parties c. act as critical 11-13; 26, Josefíak Decl. at 32. in agents developing in the consensus Expert Report United See Milkis States. b. The RNC in engages in- activities expert, at 19. In the words of one defense tended to influence federal elections and parties “the main building coalition supports those activities with federal good ... institution[s] measure.” funds. See Josefíak Decl. at 26. The Exam, 84; Expert Cross of Def. Green at spends RNC federal funds on recruiting Exam, Expert see Cross of Def. Mann at candidates; training and contributing to (“[n]o 58, 56 group other could come close federal committees; candidate campaign political parties” in moderating extreme coordinated expenditures on behalf of fed- views); Expert Report Krasno & Sorauf at candidates; eral communications calling (“Parties necessary with their ‘big tent’ for the election or defeat of federal candi- compete for the allegiances multiple dates; the federal share of research and ”). groups .... development; issue and the federal share registration, of voter voter identification Fourth, d. parties cultiváte a sense get-out-the-vote and campaigns. See Ban- community and responsibility collective 11; ning 7, 10, Decl. at Josefíak Decl. at in political American culture. See Milkis 26; Raja 5-6; La Expert Report at Magle- 19-21; Expert Report Raja Expert La by Expert Report at 48. Report at 3-4. integral Parties have been forming 1) in a consensus on such divisive following Supreme policy. issues as social welfare See Milkis ruling Court’s Republican Colorado I Expert Report at 4. political parties have a constitutionally protected right indepen- to make unlimited As a national party com- expenditures, dent the NRSC made inde- mittee, historically partici- the RNC has pendent expenditures on behalf of several pated participates today electoral candidates for the United States Senate federal, activities at the state simultaneously while the RNC made coor- local levels. See Josefíak Decl. at expenditures dinated behalf the same 11-17; Expert Report see also Milkis candidates. 28-29. The RNC seeks to advance its (A) principles by
core advocating Republican approximately The NRSC disbursed positions, electing Republican candidates in independent expenditures million $10.5 encouraging governance accord 17 States where the RNC disbursed federal, Republican views at the state more than million in coordinated ex- $4.3 records, Jay Banning audit, is Director overseeing of Administration the RNC’s annual and Chief Financial Officer of the RNC and (before BCRA) paying serving all bills and responsibilities managing his include assistant treasurer for the RNC’s various non- budget, overseeing RNC’s its finance ac- Banning federal accounts. See Decl. at 1-2. counting personnel, maintaining books and candidates, donates local Colorado, state and trains Arkansas, Alabama,
penditures: Maine, and candidate Louisiana, candidates Kansas, and local to state Iowa, Georgia, Nebraska, committees, Montana, New communica- funds Minnesota, campaign Carolina, Jersey, North or defeat the election Hampshire, calling New tions *146 Wyo- and Island, Dakota in engages South and Rhode local candidates state and 3. at Decl. Rebuttal Josefiak ming. See activities. get-out-the-vote efforts, NRSC (B) of its part As approxi- (A) donated RNC In 2000 the coordination no to assure took measures funds to in non-federal million mately $5.6 the removal candidates, including with activi- for such candidates local and state any building office NRSC’s from the 17. Decl. at Josefiak ties. See expendi- independent working on staff (B) re- substantial devotes The RNC id. See tures. activities local and to state sources 2) BCRA, if RNC decides Under when years even election during federal re- with disbursement a coordinated make in a competitive are not races the federal confirm candidate, first it must to a spect (as in 2002 in California State particular committee—whether no other 18; 2000). Pes- at See id. in and Indiana or is made national, or local—has state Decl. at chong expenditure independent make an about Like- 2) candidate. there is the same in which respect to for with Even elections inde- an ballot, to make wise, decides the RNC if candidate no federal to a can- respect with expenditure candidates, pendent do- and local state RNC trains no other didate, confirm must first cam- candidate and local to state nates national, or lo- state political committee— committees, communications funds paign a coor- make made or is about cal—has of state defeat election or for the calling respect to disbursement dinated get- in engages candidates and and local Coun- Chief The RNC’s candidate. same Decl. Banning activities. See out-the-vote legal giving for sel, responsible who 5,11-17. 8-14; Decl. at Josefiak at disburse- RNC coordinated to all approval Louisiana, (A) Kentucky, Five States — even or ments, be difficult it will believes Virginia— Jersey Mississippi, New par- national for a BCRA under impossible local office state and hold elections make entity to every police ty to are nor- there when years odd-numbered to make is about has made sure none ballot. on the candidates mally no federal independent disbursement. coordinated Likewise, 11-12. Decl. See Josefiak id. at See Houston, In- including numerous cities— activities undertakes also c. The RNC Minneapolis Angeles, dianapolis, Los with state in connection exclusively mayoral elections City New York —hold are sub- activities These local elections. id. at 12. years. See odd-numbered to the importance in their both stantial com- resource (B) election, in their “off-year” mission and RNC’s For the mitment. on the federal candidates with no election than more ballot, spent $15.6 the RNC fed- 1) is a there in which elections For on state funds in non-federal ballot, million the RNC on the eral candidate Rico, Virgin Nevada, ho, Oregon, Puerto currently the RNC's Peschong is 106. John Washington assist them Islands and the Western Regional Political Director federal, state and local objective elect Re- capacity with Region and works Peschong Decl. Alaska, Republican candidates. Amer- Party organizations in publican Hawaii, California, Guam, at 1-2. Samoa, Ida- ican activity through local election donations to California, RNSEC accounts for Massa- candidates, chusetts, state local transfers Michigan, Missouri, York, New parties spending. state and direct See North Carolina and Rhode Island. See id. Banning Decl. 8-9. the last two off- at 4-5. combined,
year spent elections the RNC d. Prior to BCRA’s effective date the million in over non-federal funds to $21 engaged RNC also in “mixed” activities— support activity, state and local election is, activities undertaken in connection including substantial commitments of with both federal and state or local elec- staff time and other resources. See id. at tions. 7-15; 9; Duncan Decl. at Josefiak Decl. at 1) The supported RNC registra- voter Exam, 5, 11-17; Expert Cross Defense *147 tion, get-out-the-vote, generic party-build- 71; Mann at Raja Expert see also La ing grassroots and activities that benefited Report at 15. Republican federal, all state candidates — 3) The supports RNC its non-federal and local—on the any ballot in given elec- pursuant activities with funds raised to the tion. 4; See Benson107 Decl. at Duncan pertinent laws of the States and localities. Decl. at 7-8. (A) Until BCRA’s effective date the 2) Pursuant to the Act and regula- FEC RNC maintained twelve non-federal ac- in prior tions force to BCRA’s effective counts, known as RNSEC accounts. See date, the RNC and other political parties Banning Decl. at 5. paid for mixed activities using an “alloca- (B) Because of the among variations tion” of federal and non-federal funds. Jo- laws, state campaign finance the RNC set sefiak Decl. at 6. up govern different rules to each RNSEC (A) During presidential years election according type account to the and amount required pay RNC was pay and did deposited of donations that could be there- for its mixed per activities at least 65 type in and the of disbursements cent in federal funds. See 11 C.F.R. could be made therefrom. See id. at 3. (2001). § 106.5 (C) Some RNSEC accounts were re- (B) During non-presidential funds, election corporate
served for which were years the RNC was required pay used to make and expenditures donations or in pay permitting States use of did for its mixed such funds in activities with at least connection with state per and local elections. 60 cent in federal funds. id. See See id. 3) RNC, Recognizing that the like other
(D) Other RNSEC accounts were re- committees, political party national funds, for served individual which were heavily involved activities at both the used to expenditures make donations or levels, federal and state the FEC histori permitting States not corporate use of cally allowed the its pay RNC adminis funds connection with state and local salaries, trative including em overhead— elections. See id. at 4. benefits, ployee equipment supplies and (E) party operations headquarters for at RNC Still other RNSEC accounts held in Washington, D.C.:—with a mix of federal spent pursuant funds raised and to the unique legal requirements and non-federal particular Banning funds. See Decl. States; 8; up state-specific the RNC set at Josefiak Decl. at 6.
107. Bruce Benson is the Chairman of support candidate efforts. See Benson Decl. Republican Party Colorado and oversees the at 1. organization’s party building programs and redistricting. See congressional and than
4) of federal a mix RNC used at 22. Decl. range Josefiak pay wide for funds non-federal directly connected 7) of activities and mix of federal used a The RNC local federal, candi- state training election semi- to conduct funds non-federal 9-14; Decl. Josef- Banning candidates, party offi- dates. Republican nars numerous (describing staff, at 27-29 many of iak Decl. campaign cials, activists [paid] the RNC in which local cam- “instances in state are involved whom for the exclu- advertising issue included Topics broadcast elections. paigns legislative influencing purpose fundraising sive organizing, grassroots debate”). 2000 elec- During the regula- policy finance campaign compliance with million spent cycle $43.6 the RNC cycle election tion the 2000 During tions. fed- million in RNC-spon- and $27.6 funds 10,000 people non-federal attended least through directly sessions, including training eral funds —either sored advertising. See issue on grassroots seminars parties state “nuts-and-bolts” —on Thus, spent the RNC activities. Decl. at Banning get-out-the-vote organizing and mil- spent RNC (approximately cycle $43.6 During about one-third the same $671,000 (ap- resources lion) funds and total non-federal $391,000 of its in non-federal *148 million) sup- on issue advoca- and training on such proximately federal funds $130 in 10-11; (noting RNC see id. at 8 at cycle. Banning See Decl. incy port. See money, (parties Report at 11 Expert much non-federal Raja La also spent almost and training them overhead million, administrative “help on candidates $35.6 staff,” Decl. support B. Shea campaign see also cycle); costs ... “in an important era 3; Exh. 2429. particularly at RNC applica- skillful requires campaigning 5) and of federal a mix The RNC used technologies”). campaign advanced tion significant engage to funds non-federal 8) and mix of federal its used a The RNC communications non-broadcast grassroots promote funds to through example, For non-federal supporters. coop- interstate Tide,” support provid- RNC and initiatives magazine “Rising among Republican the Re- state issues on in-depth explanation eration ed a more example, the For possible in a and officials. state local than agenda issues publican $100,000 money for of seed provided See advertisement. television RNC 30-second attor- Republican state 31; of a Exh. 977. RNC the formation Decl. at Josefiak on internet, that focuses association neys general Also, uses the e-mail RNC 25; at Decl. Josefiak message. See issues. See spread its state mail to and direct election 21; During Magleby Exh. Report RNC 978. Raja Expert at La $199,000 in non-fed- spent cycle RNC Report at Expert $33,500 funds on in federal and funds eral 6) a mix of federal used The RNC See affairs. governmental and local state redistricting support funds non-federal at 9-10. Banning Decl. efforts, redistricting litigation. including 9) mix of federal RNC used a budgeted RNC example,,the in- support efforts funds to redistricting. non-federal million on approximately $4.1 member- minority involvement crease redistricting bud- per cent of Seventy During Party. Republican ship with non-federal funded to be get was spent cycle the RNC 14; 2000 election at Josefiak Banning Decl. money. See funds $1,211,000 in non-federal spends more The RNC Decl. 21-22. at minority funds $2,163,000 in federal redistricting legislative on state overall See, 292; years. e.g., RNC Exh. support groups. of allied See RNC outreach and 1762; 1766; at 12. Feingold id. Exh. RNC Exh. Dep. Exh. 12. provides considerable di- e. The RNC and indirect financial assistance
rect (C)RNC in- substantially officers were parties. The RNC assists state and local in helping parties volved state and local through in and parties state and local money and candidates raise in accordance fundraising training, training, candidate with state and federal law. transfers, advertising, policy discus- fund (i) After becoming Chairman of the sions, forums, building, polling, coalition in February RNC Marc Racicot consulting support, voter mo- research and trips made 82 to 67 cities 36 States in sharing. B. bilization and list See Shea108 Virtually trips all of these involved 18-21; 14-16; Decl. at Decl. at Josefiak fundraising assistance to state and local Banning Decl. 8-14. parties and candidates. See Josefiak Decl. 1) cycle the 2000 election During at 21. approximately transfers of RNC made (ii) Ann Wagner million in non-federal RNC Co-Chairwoman $129 $93.2 million— in federal funds— Deputy funds and million Chairman Jack Oliver made $35.8 parties. and local See Fed. EleC- to state trips, respectively, majority 31 and 33 PaRty Comm’n, National of which involved fundraising assistance to TRansfers tion January 1, 1999 parties and local state and candidates. Committees: State/Looal 31, 2000, available id.; also, e.g., December Exh. 301. RNC http://www.fec.gov/press/051501partyfund/ (iii) Duncan, Mike current General tablesAiat2state.html. Counsel and former Treasurer of the 2) effective date the Prior to BCRA’s RNC, *149 in actively fundraising was involved provided significant fundraising RNC also Republican Party of Ken- activities for the and local candidates assistance to state tucky Kentucky and for state candidates. parties through variety and of means. sponsored past years few Duncan (A) helped The RNC state and local reception support the reelection of a parties through exchanges; joint donor list Kentucky state senator and he also hosted events; fundraising promotion of state fundraising numerous din- and attended events; con- party fundraising facilitating support Kentucky Republi- ners in of the donors; provid- tributions from interested Party. can Duncan Decl. at 3-5. See ing matching encourage incentives to state f. cooperates and works RNC parties develop their in-house fundrais- political parties and closely with state local “Fi- ing capabilities through the RNC’s Republican platform entire support per- program; devoting nance PLUS” and federal, ticket at the state and local and party fundraising to state needs. sonnel levels. 3; Dendahl Decl. at Duncan Decl. at 12-13, 19-21; 8-9; Josefiak Decl. at B. 1) that “rela- agree Political scientists 14-17; Raja Shea Decl. at see also La local, state, and national tionships among 7,11-12, Expert Report at 53. in the organizations strengthened (B) they attribute the past three decades” and fundraising RNC officers sent let- parties cohesion to “the role of the national ters on behalf of state and local candidates expertise and parties, including during providing and election off- resources Beverly fundraising activities. See B. Shea Decl. at 1- 108. Ann Shea is the Finance Director for the RNC and oversees all of the RNC’s 7; 3; Peschong Decl. at Decl. at Raja Ex- Josefiak party.” La
lower levels (citations omitted); see 2-3. 7at pert Report (“The at relation- Report Expert
Mann (B) and Victory Plans are formulated parties and their the national ship between between implemented after collaboration than it been closer has never parties state parties; each Plan the RNC and the state today.”). is each unique tailored to the needs of 2) national, state among Cooperation designed grassroots to stimulate State and healthy for generally parties local turnout with activism and to increase voter democracy: American candidates at all goal benefiting ac- electoral of the ticket. See Josefiak Decl. enhance at parties Cohesive levels campaigns linking countability by national The involvement of RNC 7-11. federal, state and local platforms developing, personnel field regional way, they provide In this candidates. plans is es- funding implementing what the signals clear about voters with their success. See Benson Decl. sential for joint collectively.' The party stands for 3; Peschong at Decl. at 4. political parties across fed- campaigns (C) transferred In 2000 the RNC $42 eral, gen- also and local candidates state Victory parties to use million state of scale that electoral economies erate (about programs, per Plan cent $25 of voters. The greater numbers mobilize million) money of which was non-federal catalysts parties national have been spent on and none of which was broadcast they pos- party integration because See Josefiak Decl. at 9. advertising. issue to coordinate such sess the resources (D) Victory Plans are de- Although activity. signed Republican to benefit candidates Raja Report La Rebuttal federal, levels, they state and local 3) Perhaps examples the best of nation- emphasis on state greatest often place al, political party cohesion state and local and local races because most instances Plans” Republican Party “Victory are the are far more state and local candi- there Party “Coordinated Democratic than federal candidates on the ballot. dates Republican All Campaigns.” levels of the (ratio See Bennett109 Decl. at 15 of state Party actively participate in the structure local to federal candidates *150 and candidates imple- design, funding, fundraising and County, in Cuyahoga on ballot in Ohio Plans, see Josefiak Victory
mentation of 1); at 3. 2002 was 18 to Benson Decl. 7-11, just Decl. at as all levels of the (E) Victory long-term The Plans are in Party participate Democratic the de- programs spanning the entire election cal- sign, funding, fundraising implementa- and to the 60 or year endar and are not limited see Bowler Campaigns, tion of Coordinated election. See an Pes- days prior to Decl. at 23-24. chong Decl. at 2-3. (A)The Victory RNC’s Plans are voter (F) Victory generally The Plans include programs designed support contact banks, rallies, mail, telephone bro- federal, direct Republican ticket at entire chures, cards, yard signs, bumper slate state and local levels. The RNC works stickers, hangers door and door-to-door every design, state fund and implement the Plans. See Benson Decl. at volunteer activities. See id. support Repub- building programs and candidate ef-
109. Robert Bennett is the Chair of the Executive lican State Central and Committee forts. See Bennett Decl. at 1. organization's party of Ohio and oversees the $15,000 who either in g. to the RNC’s fundrais- donors contribute regard With $20,000 I would find that: federal funds donate non- ing generally, activities id.; per year, Majori- federal funds 1) raised In RNC ty Fund is directed at PACs that donate $99,178,295.61 in funds and non-federal $15,000 in either federal or non-federal $152,127,759.12in funds. See RNC federal 6-7; per year, funds see id. at Team 100 is Exh. 2259. $100,000 designed for donors who donate 2) fundraising engages The RNC upon in non-federal joining funds and then mail, through marketing -i.e., direct direct — $25,000 donate in each of the three subse- telemarketing and internet solicitations— 7; quent years, see Regents id. at and the “major programs. In through donor” program designed give for donors who $105,860,700through 2000 the raised RNC $250,000 aggregate amount non- $146,929,900 marketing through direct per two-year cycle, federal funds election major programs. donor See B. Shea Decl. addition, In every years see id. four $56,117,600 In 2001 the RNC raised at 3. special RNC establishes a “Presidential $25,909,700 through marketing direct Trust,” designed for contributions of major programs. id. through donor See $20,000in federal funds. See id. (A) average, per cent of the total On 3) The raises the RNC bulk its non- year each is ob- amount the RNC raises money from individuals—not cor- id.; marketing. through tained direct See porations corporate the average do- —and marketing Knopp110Decl. at 3. direct significantly nation of non-federal funds is messages “perform the best are those average lower than the individual donation. emphasize Republican Party’s example, In average corpo- political philosophy of core lower taxes rate donation of non-federal funds was important government less and the RNC’s $2,226, average while the individual dona- role federal and state elections. $10,410. tion of non-federal funds was See short, fundraising the RNC’s success de- id. at 5. pends appeal persons desiring its 4) It “exceedingly rare” for the RNC governing philosophy.” associate with its rely person- on federal officeholders for Knopp Deck at 19. telephonic major al or solicitations do- (B) “Major donors” are defined as indi- By nors. See B. Shea Deck at 8. RNC $1,000 give per year. viduals who or more Chairman, policy practice, the RNC See B. Shea Deck at 3. Like its smaller Co-Chairwoman, Chairman, Deputy fund- donors, major the RNC’s donors are most raising major staff and donor members responsive appeals based on the RNC’s groups federal officeholders—under- —not ideology. id. at 10-11. The has RNC take initial contact and solicitation of ma- major programs: six donor the President’s jor donors of both federal and non-federal designed to raise federal contribu- *151 Club is funds. See id. $1,000 $2,000 person per per tions of or subject 72. The CDP and the CRP are 6; per at couple year, see id. the Chair- regulation to extensive federal and state Advisory designed man’s Board is to raise respect campaign with to their activities. $5,000 per year, federal contributions of id.; program, a. and the each main- Eagles see the RNC’s The CDP CRP major registered tain a federal committee with program, designed oldest donor Knopp marketing fundraising Deputy 110. Janice is the Director of direct efforts. See RNC, Marketing and Finance Director for Knopp at Deck capacities in which she oversees the RNC's given election in a ballot election general maintains committee The federal the FEC. public for funds allocated They cycle. to which account, contributions a federal opposing or supporting communications source-and-amount FECA’s with comply using a candidates and non-federal federal requirements. reporting and limitations they allo- And formula. “time-and-space” at 5-6; Morgan Decl. at Decl. See Bowler on expenses fundraising funds cated at id. 8-9. basis. See raised” “funds regis- are CRP and CDP The b. voters California November d.In ac- committees party political tered as cam- govern 34 to Proposition adopted Each law. California with cordance in the State. donations paign into account non-federal maintains 1) expenditures Proposition under Cali- permissible Under donations behalf of on committees parties’ political party deposited. are law fornia Donations are unlimited. are sub- candidates campaign activities state non-federal can- to state committees by political party Fair by the California regulation ject unlimited, although likewise are and each didates Commission Practices Political candi- to state other donors donations reports of files disclosure regularly upon the depending are limited dates the Cali- with expenditures receipts and lo- and to state Donations office. elective See Bowler of State. Secretary fornia purpose of parties political cal at 2. 6-7; Decl. Morgan Decl. candidates to state making donations date effective BCRA’s c. Prior per year. donor $25,000 per limited “mixed” the CRP’s and the CDP’s costs par- political local state and Donations each between were “allocated” activities ad- funding purposes e.g., for other ties — ac- non-federal and account federal party’s costs, reg- voter and overhead ministrative count. activities get-out-the-vote istration 1) re- were CRP The CDP advo- or issue measures supporting ballot for administrative funds allocate quired to to state Donations cacy unlimited. —are employee sala- rent or expenses such source- are not parties political local activities; identification ries; voter generic is, and labor limited; corporations activities; get-out-the- registration voter in accordance funds may donate unions candidate- were activities that vote id. See limits. applicable generally with and com- expenses; fundraising specific; also, 7; e.g., 6-7; Decl. at Erwin111 of both (West munications behalf 85301, 85303 §§ Code Gov’t Cal. Decl. Bowler candidates. 2003). non-federal at 8. 2) California Proposition In adopting
2) allocated the CRP choice to specific policy The CDP and made voters regu- parties the FEC’s accordance role of funds in increase funds for adminis- deter- They The voters allocated lations. elections. California im- play identifica- parties voter expenses, generic “[political trative mined pro- activities, registration activities role the American portant voter tion from the on a candidates help based insulate activities cess and get-out-the-vote con- large corrupting influence potential that calculat- formula composition” “ballot App. at 1193 See CDP non- tributions.” offices ratio of federal ed the Law”). Proposed 34: Text (“Proposition appear on expected to federal offices *152 Decl. at 1. Erwin operations. See Operating Offi- Ryan the Chief Erwin is 111. day-to-day its oversees CRP and cer of the political party and local com- tee in an effort to 73. State extend term limits for members of the state generally, legislature. mittees and the CDP and the See id. specifically, majority focus the CRP b. The register CDP and the CRP vot- supporting their resources on state and primarily ers to influence state and local candidates, participating in state and local races. and influencing local elections state and 1) 300,000 registered The CDP over policies. local new Democratic voters throughout Califor- and the a.The CDP CRP more nia during 2002 when only there was one actively competitive in and local congressional involved state races race. See Bowl- er Decl. at in than federal races. 2) expenditures The CDP’s
1) on voter In simultaneously holding States registration consisting of a mix of federal elections, their elections with federal in- — and non-federal approximate- funds —were California, cluding state and local races on $145,000 ly in the 1996 cycle; election any particular substantially ballot outnum- $300,000in cycle; $100,000 the 1998 in the races, ber of which there will ordi- $185,000 cycle; election during a maximum in narily any of three elec- period January 2001 to June cycle. tion See Bowler Decl. at 8. 30, 2002. See id. 2) leg- California holds elections for 120 3) expenditures The CDP’s for voter officers, eight islative of- statewide-elected (a registration higher were in 1998 year ficers 'and four members of the state board elections) eight statewide than in 2000 equalization. It holds still more elec- (a presidential year). election See id. judicial tions for local offices and for of- 4) paid The has registra- CRP voter fices ballot measures at both the state tion—with a mix of federal and non-federal 5; and local levels. See id. at Erwin Decl. through Operation its Bounty pro- funds — at 5. gram, in which Republican county central 3) During the 2002 election cycle—-in committees, Republican organi- volunteer only competitive which there was one con- Republican zations and candidates for fed- in gressional race California—the CDP eral and participate. Through state office actively eight was involved statewide drives, Operation Bounty the CRP has non-federal races and one dozen state leg- 350,000 typically registered Republi- over islative races. See Bowler Decl. can in each cycle voters election since the 4) 13; The actively participates cycle. CDP in mu- See Erwin Decl. at nicipal years App. (charting elections. In also CDP CRP’s recent CDP registration activity by cycle voter election spent has several million dollars non- cycle). since 1984 supporting in ma- federal funds candidates jor Angeles cities such as Los and San c. The and the conduct di- CDP CRP Proposed Francisco. Pis.’ See CDP Find- campaigns primarily rect mail to influence ings of Fact at 6. state local races.
5) actively supports op- 1) The CDP typically spends approxi- The CDP poses state and local ballot measures. mately million to million non- $7 $8 primary, example, the March program sup- federal funds on its mail a port CDP contributed over million to of state and local candidates.112 See $3 501(c)(4) statewide ballot commit- Bowler Decl. at 14-15. measure communicating staggering. average 112. The cost of with voters mail in California is *153 1) routinely mail and the CRP The CDP typical- 2) mailing materials CDP’s The hangers candidates; door in- hand deliver cards and slate federal mention do not ly candidates, given urging a voters date of the listing mention endorsed stead, they and places polling informing vot- election, day and the locations on election to vote id. open. See polls the and the election the hours date of of the ers 16; Erwin Decl. id. at place. See polling sent 3) and produced CDP 2000 the In at 15-16. sup- pieces mail different out over bal- local candidates and and of state
port 2) hangers are and door Slate cards at id. 15. lot measures. See area. particular local usually tailored 4) the CRP cycles numerically most election dominate and races local State reg- application ballot an absentee instances mails and in some races federal over In the Republican voters. istered at See is listed all. candidate no federal be- sent cycles the CRP 1996 and 16; at 15-16. Decl. Erwin Decl. Bowler ballot million absentee and 2.5 2.25 tween date, 3) effective Prior to BCRA’s In the Republican voters. mailers to men- hangers slate cards door extent mil- 5.2 approximately sent the CRP cycle candi- non-federal and tioned both federal See Erwin mailers. absentee ballot lion of a consisted dates, therefor expenditures at 15. Decl. funds. See and non-federal mix of federal get-out-the-vote conducts The CDP d. at 16. Decl. id. Bowler to influence primarily banks telephone cooperate and the CRP The CDP local races. and state support counterparts to national their with 1) per cent 40 to Approximately levels platforms at all and candidates their banking is conduct- phone paid the CDP’s ticket. of the specific state with ed in connection the DNC CDP works with a. reference not make race and local does a Coordinated implementing and planning Bowler Decl. See candidate. any federal to allo- purpose which is Campaign, at 15-16. plans for and coordinate cate resources 2) date, to BCRA’s effective Prior up and candidates benefit Democratic banking men- phone the CDP’s extent officials, Party ticket. the entire down candi- both federal non-federal tioned of the ticket at all levels candidates aof dates, consisted expenditures therefor in the Coordinated participate agents See funds. of federal non-federal mix make collectively decisions Campaign and id. at 15. solicitation, receipt, direct- regarding 3) date, Prior to BCRA’s effective funds, both spending CDP’s ing banking did phone extent the CDP’s id. 23- See and non-federal. federal candidate, expendi- any endorse non- entirely of consisted therefor tures id. federal funds. See works RNC The CRP b. Plan, Victory implementing planning and get- the CRP conduct e. The CDP and re- which is to allocate purpose of canvassing cam- door-to-door out-the-vote bene- plans and coordinate sources lo- state and to influence paigns primarily down up Republican candidates fit of cal races. 000; assembly state average number for a approximately piece is CDP mail of a cost 90,000. piece One mail statewide (Postage is at least district alone $0.35. $0.25 $260,000. Bowler approximately average number costs per piece.) The $0.10 150,- at 19-20. Decl. a state district is pieces for senate mail *154 cycle). Victory ticket. The Plan is Because the number of the entire contribu- in general cycle $5,000 election implemented at insignificant, tions level is staff, with the involvement of RNC CRP $5,000 doubling BCRA’s the limit from leadership. legislative staff and state See $10,000 will not likely cause a substantial Erwin Decl. at 3^4. increase in federal funds contributed to the CDP. See id. at 28-29. regard
75. to the CDP’s and the With I fundraising generally, activities CRP’s 3) Prior to BCRA’s effective date the that: would find relatively CDP raised a constant amount of always a. The CDP has raised more $12,991,251 money. non-federal It raised money money. non-federal than federal in in non-federal funds the 1996 election 1) relatively raises a constant CDP $15,957,831 cycle; in non-federal in money money. amount of federal It raised $15,617,002 cycle; the 1998 in non-federal $4,316,528 in in federal funds the 1996 $13,928,496 in money cycle; the 2000 $4,076,870 money in cycle; election federal money in non-federal during period $4,837,967 cycle; the 1998 federal 1, 30, January from 2001 to June 2002. $3,455,887 money cycle; in the 2000 in The funds were directly by raised money during period federal from Jan- CDP; figures any do not include trans- 30, uary 2001 to June 2002. The funds fers from other party committees or from CDP; directly by fig- were raised candidates. See id. at Exh. A. any ures do not include transfers from 4) other committees or from candi- Approximately per cent per to 86 dates. See Bowler Decl. at Exh. A. cent of the total amount non-federal funds the CDP has received has been from 2) efforts, Even with increased it will be $10,000 exceeding donations “Levin difficult for the CDP to raise more federal 11-12, Amendment” limit. id. at Exh. See money than it under BCRA has A; at Torres Deck 3. past. at See id. (A) years Over the the CDP has tried b. always The CRP has raised more
many raising methods of more federal money money non-federal than federal money, Through with little success. its employed it has fundraising several tech- telemarketing program, which has been niques money, more raise federal with raising the most successful method of fed- Erwin at little success. See Deck 17-18. funds, eral the CDP has raised between 1) The CRP raises federal funds $800,000 and million an average $2 through direct mail. To maintain a cur- contribution of The telemarketing $27. run; expensive program ap- fundraising it costs rent and effective direct mail proximately every list, dollar continually spend $0.40 $0.50 donor the CRP must raised. See id. prospecting funds for new donors. Such prospecting expensive and often loses (B) Since 1995 the number of contribu- money. See id. at 18. Federal returns on $5,000 tions made to the at the CDP lev- mailings average, on range, direct from pre-BCRA el—the federal maximum —was per contributor. CRP direct $20 $40 small, very usually than accounting for less high mail in 1986 of over returns reached per five cent of the total in federal CDP’s million and have declined to under $2 $1 contributions. The total amount the CDP id.; App. million since 1997. See CDP from has received maximum federal contri- (in $170,000 (charting major funding ranged butions CRP’s the 2000 1985). $355,000 (in cycle) by year election the 1996 sources since has and ballot measures candidates telemarketing to 2)The also uses CRP Er- elections. on federal little effect returns Federal funds. raise *155 25-26. at win Deck on aver- range, telemarketing CRP’s the Like per contributor. to $40 age, $20 1) party local CDP, and the CRP The telemarketing prospecting, mail direct mailings mass send regularly committees unpro- and often expensive is prospecting voters within to individual addressed 19; App. at CDP Erwin Decl. See ductive. information provide to hours an election of at 1189. election of the location date and about the or national candidates against non-federal prohibition to endorse and BCRA’s c. any referring funds will to non-federal without measures party transfers ballot BCRA, engage in ability to Under CRP’s candidate. federal impair identification, reg- get-out-the- voter voter considered grassroots, will be mailings activities, as well therefore, “Federal get-out-vote and activity and, istration vote — advocacy. is issue a candidate activity” federal election —if at Deck Bowler ballot. See listed on 1) trans- party ban national BCRA’s at 15. 14-15; Erwin Deck available bud- the CRP’s will reduce fers presi- in per cent by approximately get 2) party CDP, and local the CRP The in per cent cycles election dential hangers door deliver regularly committees Er- cycles. See election non-presidential pro- day to on election voters to individual Decl. at 29. win location about the vide information candi- to non-federal 2) in endorse in effect election been Had BCRA referring without cycles, measures election ballot and 2000 dates or BCRA, Under would party any transfers federal candidate. to on national its ban get- be considered spending hangers will overall door the CRP’s have reduced therefore, during activity and, million million out-the-vote $18 from $30 — a activity” federal and from cycles $17.5 election election “Federal presidential —if non-presiden- ballot. See during on the million is listed candidate million $14 16; 15-16. Deck at See id. at Erwin cycles. Deck tial election Bowler (who, 3) party as Chair BCRA, CDP, and local Torres the CRP d. Under The CDP, DNC Executive phone on the calls place serves regularly committees (who Committee) serves as of an 72 hours Morgan within individual voters to the Committeeman about CRP’s National information provide election RNC) solicit, or direct receive and to may the election location date and federal 21-22; at Deck See Bowler only. or ballot funds candidates non-federal endorse 5; Deck at 7-8. Morgan any Torres Deck federal referring to without measures BCRA, calls phone Under candidate. elec- of “Federal definition BCRA’s activi- get-out-the-vote considered will be large amount a activity” restricts tion activ- therefore, election “Federal ty and, activity undertaken party and local state — listed on the is federal candidate ity” instances, solely— many in primarily —if —-and 15-16; Erwin Bowler Deck See ballot. local candidates. state and support 14-15. Deck at at 14. Deck Bowler 4) regularly the CRP The CDP is not “get-out-the-vote” The a. term to individual mail addressed mass send by new interpreted As BCRA. defined bal- absentee them with provide voters to sig- term includes regulations, FEC non-federal to endorse lot information and local of state amount nificant re- without measures candidates ballot and local at state directed activity that is ferring any federal candidate. Under 77. BCRA prohibits the CDP and the BCRA, the mailings will be considered get- (federal CRP from donating any funds activity and, therefore, non-federal) out-the-vote (1) any organization that — “Federal election activity” 501(c) described section of the Internal —if n candidate listed on the ballot. See Revenue Code is exempt from 14-15; Bowler Decl. at Erwin Decl. at 15. taxation and “makes expenditures or dis- bursements connection "withan election b. CDP, the CRP and local party for Federal office (including expenditures committees conduct vast majority of *156 or disbursements for Federal election ac- registration voter activities within (2) tivity)”; or any (other organization days elections which a federal political committee) than a is de- candidate is listed on the ballot. Under scribed in section 527 of the Code. BCRA BCRA, registration activities must be § 101(a); 323(d); § FECA 2 U.S.C. funded with 100 per cent federally-regulat- 4411(d). § ed even if money the activities do not expressly promote oppose or any federal a. Most committees that are organized (or non-federal) candidate. See Bowler support or oppose ballot measures 12-14; Decl. at Erwin Decl. at 13-14. California are tax-exempt orga- entities Voter registration activities will have to 501(c) nized under section of the Code. compete with candidate-support activities Virtually all of the ballot measure commit- federally-limited contributions and it is tees in California engage in activity that likely registration CDP’s can activities be characterized get-out-the-vote will be significantly reduced or activity eliminated under BCRA. See Bowler Decl. at as a result. See Bowler Decl. at 14. 24. c. The CDP and the CRP regularly b. Section organizations po- include
send mailings mass par- contrast one litical clubs. The CDP has contributed to ty’s position on an issue with that of the political Democratic clubs engaged solely other. BCRA, Under the mailings will grassroots, state-focused voter registra- probably most be considered generic party tion get-out-the-vote and activities. See activity and will be funded with id. Likewise, at 24r-25. most of organi- 100 per cent federally-regulated money. zations participating Opera- CRP’s See id. at 14-17. The routinely CDP tion Bounty program, supra Finding postcard sends a to newly-registered Dem- 73b.4 at page are section organi- ocratic voters explaining the principles zations, see Erwin Decl. at 13.
the Democratic Party and urging them to 78. BCRA, Under the CDP and the support the Party. BCRA, Under al- CRP will have to reduce their communica- though postcard does not refer to a tions with only voters. Not will some ad- candidate, it will most probably be ministrative reduced, costs have to be ac- generic considered party activity and will counting costs will increase because of have to be funded per with 100 cent feder- BCRA’s additional monthly reporting re- ally-regulated money. See id. at 16-17. quirements. Moreover, fundraising costs
d. The CDP and the CRP regularly will increase only because federal money public broadcast pro- communications that can be used to raise federal or Levin mote or oppose political party but Thus, do not simply funds. to maintain current refer to federal or non-federal candidates. fundraising efforts, parties’ program BCRA, Under the communications will and candidate-support activities will most most probably have to be funded with 100 probably have to be reduced. Because per cent federal funds. id. See at 17. support candidate get-out-the-vote ac- anonymous); remain of donors rights parties' remain likely to are
tivities (Sierra general- Club 4at Decl. par- Sease116 generic registration, voter priorities, indi- identity of report required ly not will activities grassroots ty-building entity); government any donors vidual elimi- even perhaps reduced likely be (politi- 22at Expert Report Keller see also 18-19; Torres at Decl. Bowler See nated. far “are groups interest activities cal at Decl. parties”). those than transparent less persons include groups Interest in wide engage groups c.Interest un- corporations, entities —whether paralleling activities political array of groups associations, advocacy ions, trade parties. political activities parties) (but not like —that (2) issue; reg- particular in a in voter (1) 1) engage interested groups Interest (3) process; identification, get-out-the- in the istration, participate voter mind. of like of officehold- lobbying others associate activities vote 4; Decl. Benson Decl. Bennett ers. normally do groups Interest a. 3-4; Cross Decl. 4-5; Dendahl *157 at but coalitions political broad-based build Exam, 158-59. at Green Expert of Def. issue-specific alli- and discrete use instead In con- their hand. increased at 2) issues groups address to Interest ances to and seek generally mail, bank telephone trast, parties political direct grassroots, neces- and coalitions efforts the broad-based mobilization construct door-to-door and sta- ballots victories absentee electoral distribute sary increasingly to achieve transportation See La time. periods of longer supporters provide bility over 6-7; at Peschong Decl. at 12-13. Report See Expert polls. Raja Exam, 21- at Expert Green Def. of Cross to less subject are groups b. Interest For parties. political are than regulation 22. 2000 of the 3) interest weeks closing parties, political During the unlike
example, Voter National public to make NAACP rarely required campaign groups put donors, 200,000 people, dis- over receipts, registered Fund disclosure 40,000 field, peo- contacted Beinecke113 in the See activities. staff bursements get-out- promoted city, Defense target (National Resources each ple at Decl. print newspaper hotline, three disclosure ran file required to the-vote not is Council direct separate issues, seven public made to the or disclose ads FEC forms with telephone banks operated or indi- mailings, foundations by donated amounts organizations. (certain to affiliated grants 2-3 at provided Decl. viduals); Callahan114 Exam, at Expert Green Def. Cross League Conserva- See donated amounts Exam, Def. Wit- 3; 15-20, Cross Exh. reported be not have to do tion Voters re- NAACP 70-72. The (National at McCain 5-6 ness Decl. at FEC); Gallagher115 million out turned one its efforts Rights ports Action Reproductive Abortion turnout increased voters to track additional (NARAL) required is League numbers) targeted among (over 1996 persons from donations it receives whether York, per cent New by per groups respects States United outside Executive Gallagher Mary Jane 115. Di- Executive is the Beinecke Frances 113. Gallagher See of NARAL. President Defense Vice Resources of the National rector at 1. at 1. Decl. Decl. See Beinecke Council. of the President is the Callahan Debra 114. Legislative Director Sease Deborah 116. Callahan Voters. League of Conservation Decl. See Sease Club. Sierra at 1. Deck cent in Florida and per cent in ehelman)); Mis- see Lux118 Dep. at 50-52 Exam, souri. (“There See Cross of Def. Expert will be organizations who will be Green Exh. 3. effort, The NAACP’s which able to raise more money because folks cost approximately million, was $10 funded who give used to to the party will give now in large part by single million $7 dona- to outside groups. And hopefully I will be tion anonymous an individual. See id. involved in many of projects.”). those Exam, 3; Exh. Cross of Def. Wit- 2) Several defense witnesses acknowl- ness McCain at 73-74. edge that the non-federal previ- donations 4) In 2000 spent NARAL million $7.5 to ously made parties will now be mobilize 2.1 pro-choice million voters made to interest groups. See Cross making Exam, phone 3.4 million calls and mailing Expert Def. 164-65; Mann at pieces 4.6 million Exam, of election mail. See Cross of Def. Expert 24; Green at Gallagher Decl. at Exam, Cross of Def. Witness Bok119at 55 (“Congress ... d. cannot keep powerful Because PECA and place BCRA in- terests from few wanting restrictions on to have sources or influence amounts on government of money [and] so groups long interest may re- desire ceive,117 remains[,] numerous added groups interest limits on have an- dona- nounced their tions will simply intention to solicit cause groups interest donations seek prior ways donors who other imple- exerting BCRA’s leverage that mentation are not prohibited made non-federal and may donations to even im- political parties. mune from any restriction under the Con- *158 stitution. It is always possible that 1) Michelman, Kate the President of ways new will be even more dangerous NARAL, has stated that non-federal do- old.”). than the nors seeking to people “elect who embody
their values will be looking to 80. [donate There is no to] record evidence that NARAL, groups like which do po- serious non-federal political donations party to litical work and are operatives.” seasoned committees result in quid actual pro quo (“If Gallagher Decl. at [non-federal 16 corruption do- of federal candidates and office- give nors] can’t parties ... they are holders.120 See generally FEC’s Am. Pro- going to find other means.” (quoting Mi- posed Findings of 20-134;121 Fact at see 117. The Act by as amended BCRA does re- government's (as 120. The theory of op- actual strict tax-exempt certain groups interest posed to apparent) corruption rests on two receiving transfers from party com- (1) propositions: different "soft money is of- 101(a); 323(d); § mittees. See BCRA § FECA given ten build or relationships maintain 441i(d); § 2 supra U.S.C. Finding see also with federal candidates and that officeholders 347; page at generally see Part IV.D.3. infra influence,” become the basis for future FEC's Proposed Am. Findings Fact (capitali- of at 20 118. Michael Scott Lux is the President altered); (2) zation "political party com- LLC, Progressive co-founder of Strategies, mittees use money soft to influence federal consulting firm that for-profit assists and non- elections,” altered). at (capitalization id. profit groups, individuals and labor unions to proposition, Neither assuming accuracy, its engage advocacy. 5, issue Dep. See Lux at establishes that polit- non-federal donations to 16. ical quid committees pro quo result corruption of federal candidates and office- 119. currently Derek Bok is University holders. Kennedy at the Professor School of Govern- ment at University; Harvard he ais former Dean of Harvard Law School and Presi- of Portions this cited material remain dent of University. Harvard See pursuant Bok Decl. at sealed separate to a Judge order Kollar-Kotelly. correlation.” negative found have even of Findings Proposed Intervenors also Exam, Def. of 54-55; Cross see at reflects Id. record “[t]he (alleging 6-7 Fact at scientists (“political at actu- Expert reflect Sorauf that instances specific
various ... such observe instances means citing no lack but corruption” al Bok Witness of Def. Exam Cross things”); quo). quid pro errone- (existing studies 18-21, at 85-36 suggests record Nothing in a. goes money “that because ously assume cast has ever Congress any Member the mon- way, particular vote a who people legislation any his changed vote vote”). caused have ey must non-federal a donation exchange Resp. of See party. to his funds testified (B) Mann expert Defense Reqs. Second First and to RNC’s FEC evidence little statistical “[t]here evidence); (conceding lack 2-3 at Admis. members contributions campaign identify (unable to 171-74 Dep. McCain call deci- roll directly affect Congress quid engaged officeholder any federal constituency, mass ideology, Party, sions. Dep. at 15-16 corruption); Snowe quo pro correlate president opinion public (same); 106-07 Dep. (same); Jeffords in Con- behavior voting more much Shays (same); 181-83 Dep. at Meehan Mann ... contributions.” do than gress Cong. (same); also see at 171 Dep. Expert 32; Milkis Report at Expert 2002) March (daily ed. Rec. S2099 prevent parties (political at 34-35 Report Dodd) (“I never (statement of Sen. providing corruption pro quo quid [sic] whom Member particular of a known be- makers layer decision “protective of a contri- because a ballot cast thought I donors”). candidates tween ed. (daily Cong. S3048 bution.”); 147 Reo. supports 2) evidence statistical No valid DeWine) (statement 2001) of Sen. Mar. donations non-federal conclusion in their failed “have (BCRA’s proponents such actions legislative Cong. other influence corruption); proving burden” offering amendments 2001) voting, committee Mar. (daily ed. Rec. S2936 Exam, of Def. Cross (“I Wellstone) filibustering. want (statement of Sen. *159 68-72, (noting at individ- any Expert Green know I don’t that again say such to marshal attempts of either study that any Senator one wrongdoing ual other lobbying and take fails evidence party.”). Exam, of PI. account); Cross into activities sug- evidence statistical b. No valid (only 136-38, 142-43 at Primo122 Expert corrupt donations non-federal gests unsup- mathematically findings are study’s officeholders. or candidates federal ported). supports 1) evidence statistical No valid officeholders candidates c.Federal donations non-federal the conclusion mon- donates of who unaware typically are votes. call roll influence See, Feingold e.g., parties. ey to testified (A) expert Green Defense are (“Q: generally How at 115-16 Dep. studies valid statistically no are there all, the of, if at aware made ... Senators do- between showing a correlation money do- of soft identities amounts non-federal) legisla- (federal or nations IA: committees? Exam, national to the nors See Cross voting behavior. tive done or how that’s exactly how know Indeed, don’t at 58-61. Expert Green Def. 223-24 Dep. at done.”); Snowe much it’s studies “[s]ome acknowledged that Green Rochester, York. New versity of Rochester an Assis- Primo is expert David Plaintiffs' Report at Expert See Primo the Uni- Science Political tant Professor (unaware of non-federal RNC); (“I donors to 118-15 would be shocked if [the RNC] Jeffords Dep. at 94-97 (generally unaware ever did such a thing.... point [T]he of non-federal donors to RNC DNC); to win the marginal seat, to control the (aware Meehan Dep. at 179 non- some majority for the party, not to weaken a donors national party commit- potentially vulnerable candidate.... It only tees because “from time I time would be self-defeating. That isn’t how it read who in the newspaper”); see works.”). also, e.g., Rudman Dep. at (unaware); 81. The defendants’ contention that Wirth Dep. at 66-67 (unaware); Hickmott “party committees provide soft money do- Dep. at 66-68 (noting that as Deputy Chief nors special access to federal office of Staff to former Senator Wirth he was holders,” e.g., FEC’s Am. Proposed Find- unaware who donated non-federal funds to ings Fact at 24 (capitalization altered); committees). national party see id. 24-37;124 Intervenors Proposed d. There is no record evidence Findings of Fact at 7-9,125is supported political parties lobby federal officehold- only by unconvincing anecdotal evidence. ers and nothing in the record suggests More importantly, there is no record evi- that the RNC or any other party commit- dence that “access” to federal candidates tee has ever attempted through the use and officeholders corrupts. itself of non-federal persuade funds a federal officeholder to formulate or change his a. The RNC does not offer non-federal position on legislation. See Resp. of FEC donors unique access to federal candidates to RNC’s First and Second Reqs. for Ad- and officeholders. 6; mis. at Vosdingh123 Dep. (FEC at 89 1) The RNC does not arrange meetings unaware of any national party committee with government officials for any of its using non-federal funds to induce federal donors—federal non-federal—and officeholder to support oppose specific whenever a donor attempts to condition a legislation); also, e.g., Meehan Dep. donation on securing such a meeting, the (“I at 171-72 am not aware of any occa- rejects RNC the donation. See B. Shea sions on which the Democratic Party, at Dec! at 19-20. the federal or level, state has sought to 2) Based lobby upon a Members of Congress.”); review the RNC’s compare Shays files, donor Dep. at 172-84 RNC’s (stating Finance Republican Director Party that, never testified attempted during typical to change two-year his vote; asserting election cycle, someone had the RNC threatened receives no more *160 to withhold funding from than 15 Republican requests Con- of them from con- —most gressmen who voted in favor BCRA; of tributors of funds —for meetings federal acknowledging he did not know with who Members of the Congress. For its made threat; and refusing part, provide to passes RNC the request on to names of threatened officeholders), with the Member’s scheduling staff fur- without Exam, Cross of Def. Expert Mann at ther input or follow-up. See id. at 20. 123. Rhonda Vosdingh is employee an portion A of this cited material remains FEC and deposed was pursuant to Rule pursuant sealed separate to a order Judge 30(b)(6) of the Federal Rules of Civil Proce- Kollar-Kotelly. dure. Vosdingh See Dep. at 6. portion A of this cited material remains pursuant sealed to separate by Judge order Kollar-Kotelly. to FEC Resp. of See contributors. federal and officeholders 3) candidates Federal Admis. for Reqs. Second and First do- RNC’s for events RNC-sponsored at
appear evidence); also see of lack (conceding as for donors at 4 as well funds federal of nors (“I imagine cannot 22; see Dep. at at id. Feingold funds. non-federal of with meet and I would First ... RNC’s to where FEC of situation Resp. also (both mon- fed- soft they gave 4-5 at somebody because for Admis. Reqs. Second (stating she political attend 210-11 Dep. at donors non-federal Snowe ey.”); and eral any major nation- to access all six preferential and given fundraisers never has party fundraisers non-federal, that and committees’ party political donor, or al federal donors). of types to office open my to both to are access has “[everybody available”); Jef- I time sup- have that evidence extent statistical No valid b. sta- person’s (stating dona- at 96-97 Dep. non-federal that fords conclusion ports committee can- national federal to as donor access tus special secure tions as to who for decisions Experts [his] “affect not and officeholders. does didates to”); other access give[s] the defense—and with for meet[s] and plaintiffs [he] provides he (stating testified not Dep. who at experts Meehan valid no do- exists there to non-federal that -agree access preferential no case— Exam, Shays and “access” donations linking Def. Witness study nors); Cross Exam, Def. Cross that, like most effort.” “legislative (acknowledging 20-21 at (existing stud- 55, 69-72 at Green Expert [has] much “pretty he congressmen, ex- lobbying effect to control fail people ies who to meet policy door open “statistically are and penditures leg- important about [him] talk want no effort (studies make sound”); at 95 id. defen- issues”). evidence islative & Krasno specifically”); access to “track con- their support offered dants have (“[T]he absence 5at Report Expert Sorauf secure donations non-federal that tention prevents ... on access data systematic to estab- fails unconvincing and “access” rela- searching for scientists corruption. lish policy-mak- access tionships between testimony 1) rely on The defendants Report Expert behavior.”); Primo ers’ that the proposition lobbyists of several evidence “scant only (noting 8-9 funds non-federal donate corporations money se- that literature science Pro- See, Am. FEC’s e.g., “access.” gain lit- existing stating access” cures (cit- 27, 12A-25 of Fact Findings posed flawed); also statistically erature Decl.; Hick- alia, Andrews126 ing, inter 98-CV-1207 FEC, No. Civ. v. RNC Deck). Deck; Rozen128 mott (testifying at 300 (Herrnson Dep. (D.D.C.) deposi- 2) testified studies existing witnesses These FEC on behalf wishy their of weak on cross-examination “kind are tions “access” part large them clients hire washy”)). corporate Hill Capitol contacts on because evidence record is no There c. to federal access they have because likely more officeholders *161 clients or not whether officeholders than with donors with non-federal meet Washington at partner is a Rozen 128.Robert with the lobbyist a is Wright Andrews See lobbying firm. Young, a Ernst & Council & Andrews. Butera firm Deck Rozen Vice President is Senior Hickmott 127. Robert “governmental Group, a Smith-Free Washington, D.C. firm located affairs” at 1-2. Deck Hickmott 1) candidates, have money donated office- Two of the intervenors testified that parties. holders or See Hickmott Dep. at they few, could remember if any, Exam, 46-47, 50-51; Cross of Def. Wit- attendees major donor events had 19-20; ness Andrews B. compare Shea attended. (“It Deck at 20 is why major obvious do- (A) Senator McCain has attended and nors to the RNC do not regularly use their spoken at a Republican number of Party donations aas means to obtain ‘access.’ “Team 100” events but does not recall the All or virtually all who personal individuals present who were at the events organizational business with the federal nor questions they asked. See McCain government retain or employ professional (like Dep. at many 236-38 Members of the lobbyists.”). Congress, Senator McCain “give[s]
3) Lobbying is far more effective in speeches se- a week” and “[o]f course” does curing “access” to federal donors). officeholders not remember than donating campaign funds. (B) Similarly, Congressman Shays has
(A) As former Bumpers, Senator a de- attended numerous events at which non- witness, fense testified previously, lobby- federal donors were present. When ing expenditures more likely to secure shown list of names of persons with non-incidental contact with a federal office- whom he sat at a event, then-recent how- holder are campaign than ever, donations. See he could not recall a single one. See Exam, FEC, RNC v. No. Civ. 98-CV-1207 Cross Def. of Witness Shays at 20. (D.D.C.) (Bumpers 38-40). Dep. at 2) Contact between federal candidates (B) Many entities and individuals who or officeholders the electorate is inher- donate non-federal funds to political par- ent in the process. democratic See v. RNC spend ties also money lobbying FEC, Civ. (D.D.C.) No. 98-CV-1207 (Herrnson officeholders. The amount of money spent Dep. at 302 (acknowledging by such organizations on lobbying is often “access interest groups ato con- larger than the amount they donate to gressman important is an facet of democ- Exam, political parties. Resp. racy”)); Intervenors Cross Expert PI. Primo to RNC’s First and Second Reqs. (“[I]f for Ad- at 150 it were the case that money mis. at 23-24 (admitting that top five cor- influenced got who seen a legislator^] porate donors of non-federal funds ... during you can’t make a claim that that 1995 and $9,009,155 1996 donated to na- necessarily bad for democracy, precisely tional party committees and same five cor- because it could be that the ones that give porations spent $27,107,688 on lobbying money are the ones most informed about during alone); (ad- see id. at 24-25 hand.”); issues at see generally U.S. mitting Const, top corporate five donors of amend I (“Congress shall make no non-federal during funds 1998 law ... abridging the peti- freedom ... $7,774,020 donated national com- tion the Government for a griev- redress of mittees and same corporations ances.”). five spent
$42,000,000 on lobbying during peri- same 82. There is no credible record evi- od). dence that “solicitation and use of soft
d. Even if the defendants could money estab- by political parties ... has created lish that the donation of non-federal funds an appearance of corruption,” e.g., FEC’s secures access to federal candidates Proposed and Am. Findings of Fact at 87 (capi- officeholders, they have not established altered); talization 87-134; see id. at In- *162 that such access corrupts. tervenors Proposed Findings of Fact at 9- contribu- campaign with In connection Q: of asser- support (anecdotal evidence Larger A: ‘big’ mean? tions, does what “appear donations non-federal that
tion Q: Can than medium, small. larger decision than governmental ... skew shape and Well, it’s sort A: any amount? anme significantly, give nor, you more making”),129 says about Court remedy Supreme whatever the will what like BCRA of that evidence they when know [it] people exists. corruption of pornography, perception a you actually give can’t if I it. Even surveys purporting opinion a. Public (ac- 38-41, 60-62 amount.”); at id. precise of feder- corruption of appearance show survey). of imprecision knowledging arising officeholders candidates al particular donations non-federal not does public 2) the that appears It See, Mell- e.g., best. at equivocal are federal between distinction the understand 6at Report Expert Wirthlin131 & man of not aware and is funds non-federal (77%) be- Americans in four (“Over three See regulations. finance campaign par- to political big contributions that lieve (citing evi- at 3-4 Report Expert Ayres133 (55%) or impact deal a great have ties campaign opinion about “public that dence by made (23%) decisions impact some poorly shallow is regulations finance add- (emphasis government.” federal informed”). ed)).132 study See 3) and Wirthlin worded. 1)The poorly Mellman surveys The 18-23; not rely Cross did at Report the defendants Expert upon which Primo (stating Exam, understanding 112-14 Primo Expert public’s PI. measure and propo- if the defense ask by not did system, made “the claim finance campaign that reform finance be- campaign difference nents understood respondents fi- [campaign public views funds American and non-federal tween is ... priority high ... a as change issue nance] would if BCRA ask not did evi- opinion public by the supported not finance campaign view of respondents’ compari- force “does not dence,” Exam, Expert of Def. Cross See system. Exam, of issues”); Cross other with son at 31-35. Mellman (“Q: What Mellman Expert Def. evidence no record is There b. than small. Larger A: ‘big’ mean? does appearance whatever remedy will BCRA you Q: Can than medium. larger Even exists. corruption No. A: definition? precise ame more give parties money to much give as remains material cited portion of this A 129. "it is agreed that per cent Judge want” separate order to a pursuant sealed individuals, cor- groups, issue important for Kollar-Kotelly. the free- to have unions and labor porations large making views express their dom is Mellman expert Mark Defense 130. & Wirthlin Mellman political contributions.” Mellman of the Officer Executive Chief report’s authors 13. Report at Expert See consulting firm. polling and Group, a findings, howev- these largely dismissed at 2. Report Expert & Wirthlin Mellman likely are more er, "Americans because ... includes any statement agree with Chair- Wirthlin expert Richard Defense 131. ” a state- than 'freedom’ Worldwide, words 'free' of Wirthlin Board man Id. use them. does ment & Mellman See firm. opinion research public 2. Report at Expert Wirthlin Q. Ayres Whitfield expert 133.Plaintiffs’ Associates, McHenry & Ayres, President ex- and Wirthlin's According to Mellman firm. Inc., opinion research public agreed respondents cent of per report, pert Ayres Decl. be free groups should "individuals and/or *163 1) To the extent the defendants’ great deal of impact ... on decisions evidence of an appearance of corruption is made government.” federal See based on legislative access afforded Exam, non- Cross of Def. Expert Green at 267. donors, similar granted access is (B) Plaintiffs’ expert Ayres replicated and through groups interest and lobbyists. the survey conducted defense experts (A) Representatives of List, EMILY’s Mellman and Wirthlin but substituted NARAL, the League of Conservation Vot- BCRA limits for the word “big.” He ers, the New Democratic Network and the found that “every conclusion that Sierra Club have all stated that federal report Wirthlin-Mellman reached about appear officeholders at their group-spon- ‘large’ or ‘big’ contributions and contribu- sored events. See Callahan 2; Decl. at tors applies with equal force to the new Gallagher 6-7, Decl. at D; Exh. Rosen- ... hard money limits in BCRA.” Ayres berg Aff. at B; Tab Sease 5; Decl. at Rebuttal Report at 4-5. Solmonese135 Aff. at Tab F. 3) Among the “corruptions” (B) the defen- BCRA does not prohibit interest dants’ witnesses identify negative cam- groups from providing access to federal paign ads, see, e.g., Williams136 3; Decl. officeholders; at indeed, it appears BCRA intense fundraising efforts, see, e.g., may result Mee- an enhancement of such han Dep. 128; at high access. campaign costs gen- Exam, see, e.g., Cross erally, of Def. Wit- (C) BCRA does not prohibit interest ness Strother137 at 38-39; and the FEC groups from lobbying federal officeholders. itself, see, e.g., McCain Dep. at 15-16, 89. 2) To the extent public believes that 4) expert Defense Shapiro138 conceded non-federal donations corrupt, federal con- that he knows of public no opinion tributions evi- are subject to the public same dence showing that BCRA will cynicism. reduce the See Ayres Rebuttal Report at appearance Exam, 1-5; corruption, see Cross Milkis Report Rebuttal at 10-11 (any of Def. Expert Shapiro cynicism at 114-17, that exists and that will continue under any public cynicism BCRA). about the role of mon- ey in politics is longstanding, existed be- (A) BCRA, Under individual donors can fore the 1990s and has been stable over $57,500 contribute up to in federal funds to time, id. 39-41. party committees during each two-year 5) election cycle. expert Defense Defense expert Mann testified that Green testified that a typical “a major American restructuring of campaign finance would $57,500 believe is an (in amount that law”—which BCRA plainly is—“would not the words of Wirthlin) Mellman and “ha[s] dramatically reduce corruption and purify 134. Simon Rosenberg is the President of the Raymond 137. Strother is a professional me- New Democrat Network and is familiar with its day-to-day operations. See Rosenberg Aff. dia consultant at the firm Strother Duffy Strother. See Dep. Strother at 12-14.
at 1. Expert Defense Shapiro Robert is a Pro- Joe Solmonese is the Chief of Staff of fessor Department of Political EMILY’s Science List and is familiar with day-to- its at Columbia day University operations. currently serves See Solmonese Aff. 1. as Chairman of Department. Shapiro 136. From 1979 to Pat Williams served Expert Report at 1. as a member of the United States House of Representatives from the State of Montana. See Williams Decl. at 1. *164 356 opin- of this IV Exam, in Part forth set analyses of Cross government.” and
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jobs
time
(“[Tjhe
that the
(2002)
notion
—to
L.Ed.2d
abortion,
like
issues
on
their views
justifies
electioneering
context
special
government.
the size
divorce
out
speak
right to
of the
abridgment
an
at
Deck
4-6; D. Solid
at
Deck
E. Echols
Amendment
First
our
sets
disputed issues
4-5; I. McDow
at
Deck
4-5;
McDow
H.
[Djebate on
head.
on its
jurisprudence
5-6; Z.
at
4-5;
Deck
Mitchell
at
J.
Deck
at
of candidates
qualifications
at 4-5.
Deck
White
process
our electoral
core of
Review
freedoms,
C. Standards
Amendment
First
omitted)
(emphasis
(quotation
edges.”
began
Court
Supreme
Buckley, the
In
Louisiana,
v.
Garrison
original));
iter-
of FECA
analysis
its constitutional
L.Ed.2d
74-75,
S.Ct.
U.S.
Buckley,
Principles,”
“General
some
ating
af-
concerning public
(1964) (“[Sjpeech
neces-
14-23, 96 S.Ct.
424 U.S.
it is
self-expression;
than
is more
fairs
for the
point
starting
sarily serve
essence of self-government.”)-
proceed
constitutionally significant difference be-
ing below to apply
“array
formulas,
tween campaign contributions
expen-
tests,
tiers,
prongs, and
phrased
often
ditures,” that “[b]oth forms of speech are
highly
legal
abstract
jargon
central to the First
—‘overinclu-
Amendment” and that
*165
siveness
underinclusiveness,’
‘narrow curbs on either “must be strictly scruti-
tailoring,’
scrutiny,’
‘intermediate
and so nized”). The Court held in Buckley that a
on,” it
important
will be
to bear these
ceiling on campaign expenditures “im-
principles”
“first
in mind. Akhil Reed pose[s]
direct
substantial restraints on
Amar,
Court,
The Supreme
Term
1999
the quantity of political speech,” Buckley,
—Foreword:The Document and the Doc 424
39,
U.S. at
612,
96 S.Ct.
and that its
trine, 114
26,
Harv. L.
(2000);
46
see
Rev.
constitutionality
therefore
“turns
on
United States v. Lopez,
549, 552,
514 U.S.
whether
governmental
the
interests ad-
1624,
115
(1995) (in
S.Ct.
provisions varies according to the type of
the underlying
support.
basis
campaign financing restricted.
It has
The quantity of
communication
long been
that,
understood
consistent with
contributor does not increase percepti-
Buckley, courts are to apply
slightly
a
bly with the size
contribution,
of his
lower level of
scrutiny
evaluating a re-
since
expression
rests solely on the
striction on contributions to candidates
undifferentiated, symbolic act
than in
of contrib-
analyzing a restriction on expendi-
most,
uting. At
See,
tures.
size of the
e.g.,
contribu-
II,
Colorado Republican
provides
tion
440,
very
(“ever
rough
533 U.S. at
index of the
Buckley,
Nonethe-
limit.
contribution-to-candidate
FEC,
U.S.
v.
Ass’n
Med.
Cal.
expenditures
boundary between
less, the
(1981)
L.Ed.2d
196, 101 S.Ct.
types
two
place
does
and donations
(“The
opinion)
(Cal-Med)
(plurality
compart-
“watertight
into
funding
contributor]
[a
proxy’
‘speech
Islands,
Philippine
v.
Springer
ments.”
contributions
through its
achieve
seeks to
480, 72
189, 209,
48 S.Ct.
277 U.S.
advocacy
sort
is not
...
J., dissenting)
(Holmes,
(1928)
L.Ed.
entitled
Buckley found
Court
*166
context,
separation-of-powers
(declaring, in
protection.”).
Amendment
First
full
Consti-
of the
ordinances
great
“[t]he
that
Buckley
recognized
Thus, the Court
divide fields
and
establish
do not
tution
prob
Amendment
First
primary
“the
that
white”).
expenditures
all
Not
and
black
limitations”
... contribution
by
lem raised
donations;
alike,
all
nor are
precisely
ex
direct
upon
encroachment
not their
is
between
accordingly,
distinction
as
of one
restriction
“their
but
pression
holding
example,
For
one.
a fluid
two is
politi
freedom
contributor’s
pect
constitutionally
may
Congress
at 24-
Buckley, 424 U.S.
association.”
cal
coordinat-
is
expenditure
party
a
limit
Pointing
“[m]ak-
out
25,
612.
96 S.Ct.
141
treating
by
candidate
with a
ed
a
to affiliate
... serves
ing a contribution
Republi-
contribution, see Colorado
a
it as
ideas, id.
his
a candidate”
with
person
2351, the
465, 121 S.Ct.
II,
U.S. at
533
can
that a
held
612, the Court
22, 96 S.Ct.
at
observed:
Court
be
can
limitation
contribution-to-candidate
line between
Amendment
First
affirmatively
state
if the
only
sustained
to draw
easy
donating is
spending
in
sufficiently important
“demonstrates
ex-
independent
falls
it
between
when
drawn
closely
means
“employs
terest”
ac-
political
or
by individuals
penditures
of associ
abridgment
unnecessary
avoid
(PACs)
any
without
committees
612;
tion
25, 96
at
S.Ct.
Id.
freedoms.”
ational
nod),
(or
or
wink
approval
387-88,
candidate’s
Missouri,
at
528 U.S.
Shrink
cash
in the form
contributions
897.
S.Ct.
120
hold
Court
context,
does the
I
aware
am
campaign finance
139.In
rigorous than
any
scrutiny
less
exacting
an
is
scrutiny" on
"exacting
placed
has
Court
"strict
scrutiny.
familiar
the more
with
strict
plane
even
See,
McIntyre
Elec
v. Ohio
e.g.,
scrutiny.”
347,
334,
Comm'n,
S.Ct.
115
U.S.
(i.e.,
514
exacting
tions
apply
are also
Courts
("When
(1995)
a law
1511,
426
L.Ed.2d
131
reporting
strict)
scrutiny to disclosure
apply 'ex
speech, we
political
core
burdens
expenditures.
by
triggered
requirements
uphold the restriction
scrutiny,'
acting
and we
612;
64,
see also
S.Ct.
Buckley,
96
424 U.S. at
an
to serve
narrowly tailored
only
it
if
B.
Part IV.
infra
interest.”);
v. Mich.
Austin
overriding state
Commerce,
110
494 U.S.
Chamber of
BCRA,
Act,
an
by
as amended
Under
(in
(1990)
652
L.Ed.2d
S.Ct.
deter
with a candidate
is coordinated
expenditure
inde
constitutionality
on
of restriction
mining
is treated
committee—and
with a
or
ascertain
Court "must
expenditures,
pendent
coop-
"in
made
is thereto —if
a contribution
to serve
narrowly tailored
it is
... whether
with,
concert,
consultation,
or
eration,
MCFL,
interest”);
U.S.
compelling state
candidate
suggestion of”
request or
(burdens
251-52,
inde
on
S.Ct.
214;
§
FECA
BCRA
committee.
are reviewed
expenditures, which
pendent
(ii);
U.S.C.
315(a)(7)(B)(i),
§
by a
"justified
exacting scrutiny, must
(ii).
441a(a)(7)(B)(i),
§
interest”).
case of
In no
compelling state
gifts to candidates.... But facts speak
limiting the amount of money that can be
less clearly once the independence of the
given to committees spending funds on
spending cannot be taken for granted,
such advocacy:
and money spent
individual or
Buckley identified a single narrow ex-
according
PAC
to an arrangement with
ception to the rule that limits
political
candidate
therefore harder to classi-
activity [are] contrary to the First
fy....
[We have] observed that “[t]he
Amendment. The exception
relates
independent expression
political
of a
the perception of undue influence of
party’s views is ‘core’ First Amendment
large contributors to a candidate ....
activity no less than is
independent
Contributions
individuals to support
expression
individuals,
candidates, or
concerted action by a committee advo-
other
committees.”
... But
cating a position
aon ballot measure is
[we
also
have]
observed that “many
beyond question a very significant form
[coordinated expenditures] are ... virtu-
expression_[A]n
individu-
ally indistinguishable from simple contri-
al may
expenditures
make
without limit
butions.”
under [the ordinance] on a ballot mea-
442-45, 121
Id. at
S.Ct. 2351 (quoting Colo
sure but may not
beyond
contribute
*167
the
rado Republican I, 518
616, 624,
U.S. at
limit
$250
when joining with
others
360 individu- union, or association, ration, advoca- issue collective
engage is therefore question proper al.... re- BCRA’s analysis my Because cy. First “have” corporations whether not mon- non-federal use on strictions so, and, whether if rights Amendment measure large shaped ey is of natu- those coextensive they are de- because conclusion—and particular must Instead, question persons. ral review standard about cision expression abridges law] outcome-determinative, [a whether proves apply often meant was Amendment First 400, 120 Missouri, U.S. Shrink (observ- protect. concurring) J., (Breyer, S.Ct. 1407; Aus- against see also 776-77, presumption 98 S.Ct. strong Id. at “a ing (“mere ac- thought 657, 110 S.Ct. tin, often constitutionality [is] 494 U.S. ”) re- scrutiny’ “does corporation being ‘strict words —I fact” company IV.D.l.a, ambit in Part speech detail its greater move explain Amendment”). restrictions view First my infra, strict) review. (i.e., “exacting” command subject Second, the Amendment’s no law” make shall “Congress Analyses Constitutional IV. intentions, benign its that, however means mind, I precepts foregoing theWith how to decide no license has Congress constitutional plaintiffs’ now turn delib- electorate’s that the to ensure best challenges. or bal- rational candidates about eration Labor Corporate and Ban A. The Hartlage, 456 U.S. Brown v. anced. See “Electioneering Disbursements L.Ed.2d S.Ct. ” Communications the function (“It simply not (1982) *168 are which issues perti- select in provides, government First Amendment The in the ... debating discussing make shall “Congress worth the part, that nent (quoting campaign.” political of freedom of the course abridging ... law no 96, 92, 92 408 U.S. Mosley, v. Dep’t right Police or the press; the or of speech, (1972))); see 2286, 212 L.Ed.2d assemble, peti- 33 and to S.Ct. peaceably people (same, quot- 2538 White, at 122 S.Ct. griev- of a redress also Government tion the 1523); 60, S.Ct. 102 Brown, at text 456 U.S. I. Const, ing The amend. U.S. ances.” 679, 1391 110 S.Ct. Austin, U.S. 494 observations a few prompts itself (“[G]overnment can- dissenting) (Scalia, J., analysis of an relevant particularly assure, through censor- dis- labor be trusted and not corporate on ban BCRA’s debate.”); political ‘fairness’ of communica- the electioneering ship, bursements BeVier, First Amendment re- The not R. does Lillian First, the Amendment tions. Into the Inquiry An speech Speech: Political of and political protection its strict Principle, 30 Limits and Supreme As the Substance only. persons of natural (hereinafter (1978) 299, 317 Bank L. Rev. First National in recognized StaN. Court (“[I]t the is 1407, BeVier, Speech) 55 765, Political 98 S.Ct. fact U.S. 435 v. Bellotti process that political in the (1978), speech of political participation 707 L.Ed.2d qualities its protects, not amendment the indispensable speech of type the (emphasis objectivity.” sanity of democracy, and ain decisionmaking Instead, Amendment First the original)). comes speech true because less no re- large populace at to the delegates indi- than rather corporation from “uninhibited, conducting an of sponsibility worth inherent The vidual. gov- about wide-open” debate robust, and in- capacity for of its speech in terms political candidates. affairs upon ernment depend not public does forming the 14, 57, S.Ct. 96 424 U.S. Buckley, corpo- source, whether identity of its 361 (“In 612 the free society ordained by cies, our to avert the evil by process Constitution it is not government, education, but the remedy to be applied is the people individually as citizens speech, and more not — silence.”). enforced This candidates and collectively as associations time-honored “marketplace” conception of committees —who must retain the First Amendment, see Abrams v. control over the quantity and range States, of United 616, 250 U.S. 630, 40 S.Ct. debate public 17, issues in a cam- 63 (1919) L.Ed. 1173 (Holmes, J., dis- paign.”); see also Riley v. Nat’l senting), Fed’n “derives its justifi- instrumental Blind, Inc., 781, 487 790-91, U.S. cation in part 108 from straightforward mis- 2667, S.Ct. 101 (1988) (“The L.Ed.2d 669 trust of the motives of elected officials First (and Amendment mandates that pre- suspicion we that they are relentless- sume that speakers, ly not the government, incumbent-protective) part know best both skepticism what they want to say about competence of even it.”); how to say Cohen v. California, politicians 403 best-motivated to design 24, 15, U.S. 1780, 91 S.Ct. and to craft legal L.Ed.2d 284 rules” tailored so that (1971) (First they do places not dampen Amendment “the deci- the debate. Lillian R. sion BeVier, as to what views shall be Issue voiced large- Issue Advocacy: An
ly
Economic,
into the hands
us,
of each
Political,
hope
and Constitutional
Analysis,
use of
such
L.
freedom
will
Va.
Rev.
(1999)
ultimately
(hereinafter
produce a
BeVier,
more capable
Issue
citizenry”);
Advocacy).
Whit-
ney v. California,
274 U.S.
377, 47
Drawing support
from these observa-
S.Ct.
71 L.Ed.
(1927)
(Brandéis,
tions —and from the “express advocacy”
J.,
(“If
concurring)
there be time to expose
test
announced
Buckley
plaintiffs
—the
through discussion the falsehood and falla-
contend,
alia,
inter
that BCRA’s ban142 on
142. The defendants emphasize throughout
While restricting MCFL's campaign spend-
their briefs that section 203 "is
ing
ban on
to use
a separate
segregated fund "is
speech.” E.g.,
129;
also,
Gov't Br. at
e.g.,
not an absolute restriction on speech, it is a
Opp.
55;
Gov’t
atBr.
Opp.
Intervenors
Br. at
Moreover,
substantial one.
speak
even to
(provision
"is not a
although
through
fund,
is an
a segregated
ban—
MCFL must
important restriction”); Gov’t Reply
very
make
significant
Br. at
MCFL,
efforts.”
*169
53-62;
252,
Intervenors Reply
U.S.
Br. at 63-70.
at
107
Their
S.Ct. 616....
segregated
A
contention is constitutionally
fund is a "political
irrelevant under
committee” under the
the Supreme
MCFL,
Court's
Act.
431(4)(B).
§
2
decision in
U.S.C.
as the
As a conse-
quence,
Fourth Circuit recently
organizations
observed
striking
in
use
that
segregated
down
fund
FECA’s
must
restriction on
adhere
corporate
significant
to
contri-
reporting
requirements,
butions as applied
staffing
to a non-profit
obligations,
advocacy
and oth-
corporation:
er administrative burdens. These burdens
beyond
stretch far
the
straightforward
more
[The FEC] submits that the Act ... allows
requirements
disclosure
unincorporated
on
corporations
all
to make campaign contri-
MCFL,
associations. See
rejected by Supreme the Court in MCFL. ing that prohibitions the of [2 U.S.C] 362 658-60, 110 S.Ct. at Austin, 494 U.S. also disbursements and labor
corporate Court the Nonetheless, Buckley in 1391. the violates communications electioneering that contention government’s the rejected restricts, it because Amendment First justi corruption preventing interest fashion, underinclusive and overbroad both person’s any on $1,000 limit the Act’s fied advocate expressly not does that speech identi clearly to a relative “expenditures identified clearly of a defeat election the 39- at 424 U.S. Buckley, candidate.” fied agree. I candidate. that concern Expressing 612. 51, 96 S.Ct. pen criminal imposed cap expenditure the I, Part mentioned, supra see As I First permeated “in an area alties govern- that Buckley held the Court 41, 96 interests,” S.Ct. id. at Amendment actuality “limit[ing] interest ment’s Amend “First that 612, emphasizing and arising corruption” appearance and space breathing need ment freedoms to candi- campaign donations large 612 48, 96 S.Ct. 41 n. survive,” Id. at justify compelling sufficiently at Button, dates was 371 U.S. v. NAACP (quoting Buckley, on contributions. limits that the Act’s found 328), the Court 433, 83 S.Ct. Court 26, speci S.Ct. 96 sufficient 424 U.S. lacked to” “relative phrase then 41, times since several 96 S.Ct. acknowledged Id. at has sustained. to be ficity 2 narrow (and, phrase in certain (“The so indefinite given funds use 61 clearly advo- expressly fails circumstances, a candidate spent) to’ ‘relative permissible boundary of federal between or defeat election mark cating ”). Like .... speech prevent impermissible restricted can candidates Appeals’ Court wise, and office- found candidates of federal corruption construction-—under Missouri, narrowing U.S. 528 Shrink holders.143 spent on money applied $1,000 limit cases); see (citing 897 389, 120 S.Ct. "ex addressed and Beaumont MCFL 114.2(b) note §§ 441b(a) C.F.R. 11 § "for made "contributions” penditures” exercise burden 114.10 elections, influencing” federal purpose association. speech and advocacy, which (4th for issue 269, 261, disbursements FEC, 271 278 F.3d v. Beaumont even progeny merit Buckley and its C.J.), - U.S. granted, under Cir.) (Wilkinson, cert. protection (2002); Amendment First 556, greater 441 -, L.Ed.2d S.Ct. argument even defendants’ rejecting Grant, make U.S. Meyer v. ("That (1988) easier. L.Ed.2d S.Ct employ other means free [speakers] remain however, the Court noting, It bears does not take their ideas to disseminate cor- apparent preventing actual held has First bounds outside speech ... and officehold- candidates ruption of [a restric That protection.... Amendment re- justification only possible is the ers avenues burdensome’ open 'more leaves tion] *170 NCPAC,470 campaign finances. stricting communication, its burden relieve does not of ("We in 496-97, held S.Ct. 1459 105 at U.S. (citing expression.” Amendment on First Against in Buckley Citizens and reaffirmed 616, 238, 93 S.Ct. MCFL, 107 U.S. 479 corruption preventing Control Rent at Finding 44d 539)); supra also see L.Ed.2d legiti- only corruption are of appearance speech ACLU’s (explaining how page 313 inter- government compelling and mate were forced if ACLU be burdened would I, 518 Republican ests[.]”); Colorado see also committee), 51g at action political establish opinion) 623, (plurality 2309 S.Ct. at 116 U.S. action political (stating NRA's pages 317-18 of a 'corruption' of ("where there no risk raising funds incapable of committee may limit candidate, not the Government for support members’ NRA reflect fairly Bellotti, U.S. (citing contributions” even page at message), 53f NRA's 1407)); 148 and note 790, 98 S.Ct. politi cf. infra and its AFL-CIO (same, respect to definition (noting Court’s text accompanying committee). put it no canI cal contributions unclear). "corruption” is somewhat Circuit, although I the Fourth than better “advocating,” otherwise, expressly or “the reach of [the statute] is not impermissibly candidate,” broad”). election or defeat of [a] Buck-
ley,
the distinction between discussion of is- message’s effect on a given listener be-
sues and candidates and
advocacy
cause such a standard would
fully
al-
election or defeat of candidates
of-
may
vagueness
leviate
prob-
overbreadth
ten
practical
dissolve
application.
lems or their “chilling”
effect on
Candidates, especially incumbents, speech:
intimately
public
tied
issues involving
[W]hether words intended
designed
legislative proposals
governmental
to fall short of invitation [to vote for a
actions.
only
Not
do candidates cam-
candidate] would miss that mark is a
paign on the basis of
positions
question both of intent
effect.
issues,
public
various
but campaigns
speaker,
No
circumstances,
such
safe-
themselves generate
public
issues of
in-
ly could assume that anything he might
terest.
say upon
general
subject
politics]
[of
Buckley,
42,
424 U.S. at
would not be
S.Ct. 612.
understood
some as an
Emphasizing
short;
the need for a bright
invitation.
In
line to
the supposedly
proper
ensure
“breathing space”
politi-
clear-cut
discussion,
distinction between
laudation,
cal issue advocacy
funding
general advocacy,
of which
and solicita-
—the
cannot be regulated
puts
tion
though
even
may
speaker
in these circum-
affect the
and,
outcome of
wholly
elections
stances
there-
at the mercy of the var-
fore, potentially could be
ied
used to obtain
understanding of his hearers and
quid pro quos
candidates,
from
consequently
id. at
whatever
may
inference
45-46,
[I]n order to expen- cussion. these conditions it diture blankets against limit] invalidation on with uncertainty may whatever be said. vagueness grounds, [it] must be con- compels It the speaker to hedge strued to apply only expenditures trim. communications that express terms
advocate the election or defeat
Id. at
strict the application
provision]
of [the
to S.Ct. 612.
communications
containing
express
The defendants contend
“Buckley
words of advocacy
defeat,
election
prohibit
does not
Congress
enacting
for,”
such
“elect,”
as “vote
“support,”
narrowly tailored anti-corruption measures
your
for,”
“cast
ballot
“Smith for Con-
simply
because
are not limited to
*171
gress,”
“defeat,”
against,”
“vote
“reject.”
communications containing express advo-
52,
Id. at 44 n.
96
(emphasis
S.Ct. 612
cacy.” Gov’t Br.
(capitalization
at 148
al-
added);
108,
see
id.
80 n.
tered);
364 un- corporate and on limitations FECA’s Court’s Supreme the simply not is test dis- as its well spending campaign ion irreducible but FECA of interpretation a trend beginning requirements, campaign no closure that minimum constitutional through See, accelerated e.g., continued diminish. that can restriction finance at 37. Br. Gov’t Mississip cycle.” (holding 2000 election 190 the Moore, F.3d at 288 accu- is assertion extend constitutionally defendants’ the if Even could statute pi con- am not I “advo- record this advertisements on rate —and only to point. or the election the beside terms it is—it express that cat[ing] vinced origi that aware (emphasis well Buckley was candidate” of a defeat Court State permit Gov’t Responsible test would advocacy nal)); Citizens express the 1187, 1174, Davidson, F.3d “It 236 elections: v. influence PAC to loophole-seekers Cir.2000) “distinc (stating (10th ingenuity the 1193-95 naively underestimate would on restrictions permissible groups between tion persons of resourcefulness re impermissible advocacy’ ‘express that to believe buy influence desiring via advocacy’ remains ‘issue on strictions devising difficulty much have they would regulat statute holding Colorado ble” restriction the skirted that expenditures unconstitutional messages” “political ing defeat election advocacy express on advocacy); issue it extended because the candidate’s benefited nevertheless but (4th 155, 162 Bartlett, F.3d 231 Perry v. 45, 96 U.S. Buckley, 424 campaign.” curiam) (North Carolina Cir.2000) (per (“[T]he 48atBr. 612; McConnell S.Ct. unconstitutionally overbroad was statute con- that recognized Buckley Court expression “political regulated it because electorally- all capture would struction advocacy”), issue face [was] its ... which None- advocacy.”). related motivated 905, 121 S.Ct. denied, U.S. 532 rt. ce express the that held theless, the Court (2001); Right Vt. 1229, 149 L.Ed.2d con- FECA was advocacy construction Sorrell, 221 F.3d Comm., v. Inc. Life pro- that to ensure necessary stitutionally Cir.2000) of Vermont (provisions (2d requisite the advocacy had issue tected unless unconstitutional “necessarily statute atBr. See McConnell space.” “breathing advertising and mass only to they apply gov- is clear: message (“Buckley’s expressly advocate that activities media First side—the on the err must ernment clearly identified of a or defeat election ' po- protected leaving side—of Amendment omitted)). (quotation candidate” Ash- see also unregulated.”); speech litical contrary absence conspicuous In the Coalition, U.S. Speech v. Free croft to hold loath I would precedent, L.Ed.2d 234, 122 S.Ct. ex- reject free to was Congress sup- may not (“The (2002) Government II, enacting Title advocacy test press sup- as the means speech lawful press defendants —and with agreed Iif even speech Protected speech. unlawful press all become “ha[s] the test not—that I do merely be- unprotected not become does at 100 Br. Intervenors meaningless.” but The Consti- latter. resembles cause Rep. at 4564 Thompson Comm. (citing reverse.”). cannot I requires tution influ- and unions corporations (ability of see, defendants, e.g., Inter- with agree do not ads elections ence federal 99-109, the electoral Br. at venors “biggest advocacy express use words justifies aban- Buckley since experience law)). election in federal loophole[ ]” ... test, especial- advocacy express doning Buckley, that, since assert The defendants I am (1) court no ly when: full-fledged “a seen elections Supreme Court aware, ad- ‘issue to use groups outside effort held explicitly courts, ever has state evading both as a means vocacy’
365 statutory the test is a one only tied to to express advocacy only, the Court in FECA;144 (2) appeals courts of several Buckley nonetheless provi- found that the contrary,145 have held to the supra; see sion failed “exacting scrutiny” applica- (3) Court, test, in adopting the expenditure ble to restrictions because its foresaw costs and dismissed them as the independent advocacy restricted justify insufficient to overbroad restric- provision does not presently appear speech tions on issue-driven at the core of pose to dangers of apparent real or cor- the First Amendment. ruption comparable to those identified point I out express advocacy well with large campaign contributions.... is itself entitled to full pro- constitutional contributions, Unlike independent such in tection sufficiently absence com- expenditures may provide well little as- pelling governmental interest in limiting it. sistance to the campaign candidate’s 48, Buckley, 424 U.S. 96 612 S.Ct. may prove indeed counterproductive. (“Advocacy of the election or defeat of The absence of prearrangement candidates for federal office is no less enti- coordination expenditure of an with the protection tled to under the First Amend- candidate or his agent not only ment than the discussion of under- policy mines the generally or value of advocacy expenditure passage or defeat of legislation.”). candidate, narrowing After but also alleviates the $1,000 expenditure limit’s applicability danger that expenditures will given Ponto, 144. But Wis. Realtors Ass’n v. corporate 233 ness in communications within 45 cf. 1078, F.Supp.2d (W.D.Wis.2002) 1084-87 days facially of election overbroad because it (district court was "not convinced that Buck- merely prohibit did "not communications that ley ... principle establish[ed] an unalterable expressly advocate[d] election or defeat of of constitutional law” but observed nonethe- clearly identified "prohib candidate” but Buckley less that "[e]ven if did not establish any it[ed] mention of the name of a candidate the definitive determining test for types what regardless ... of the context in which that subject communications are name (emphasis origi [was] mentioned” regulation, recognized 'groups [it] en- nal)); Affiliates, Planned Parenthood Inc. v. gaged purely in beyond issue discussion’ were Miller, 740, (E.D.Mich. F.Supp.2d 21 746 regulators" (quoting Buckley, reach of 424 1998) (same); Virginians Life, W. Inc. v. 79, 612) (emphasis U.S. nal)); 96 origi- S.Ct. Smith, 954, F.Supp. (S.D.W.Va.1996) 919 959 Republican Nat’l Fed’n v. Assemblies ("By creating presumption express [of] ad States, 1300, United F.Supp.2d 218 1325 vocacy, Virginia the West Legislature at (S.D.Ala.2002) ("Buckley articulated an ex- tempts change express the definition of press advocacy electoral benchmark order advocacy laid down the United States Su deciding permissible to avoid reach preme legislature Court.... Obviously, a state requirements.” disclosure (emphasis origi- nal)). Supreme cannot interpreta alter the Court's Constitution.”); also, tion e.g., A number of district courts and state Republican Party Wash. State v. Wash. State courts have followed the lead of the courts Comm’n, 245, Pub. Disclosure Wash.2d 4 141 See, appeals. e.g., Life, Kansans Inc. v. 808, (2000) ("[U]nder P.3d 824 Buckley issue Gaede, 928, F.Supp.2d (D.Kan.1999) advocacy subject regulation, is not and our (holding Kansas statute unconstitutional be question conclusion that the advertisement in cause requirements it attached disclosure advocacy necessarily issue means that [the ads that an issue disparaging "discuss[ ] while question] statute in is unconstitutional insofar one candidate commending opponent his ad.”); expenditure as it restricts [an] for the ... expressly advocating without the election Peca, 31, (Tex.), Osterberg v. 12 S.W.3d 50-54 candidate”); or defeat Right of [either] denied, cert. 530 U.S. 120 S.Ct. Miller, Life, Inc. v. F.Supp.2d (2000). L.Ed.2d (W.D.Mich.1998) (holding Michigan statute
prohibiting use of candidate's name like *173 366 admonished Court invalidation; the as its commit- improper for quo pro a quid as State, 378 Secretary v. Aptheker of candidate. the from ments 992 1659, L.Ed.2d 12 500, S.Ct. 84 U.S. restric- all 612. Not 46-47, 96 S.Ct. at
Id.
that
remembered
(1964), must
it
ex-
for
expenditures
independent
on
tions
to
strain
often
will
courts]
although [the
ex-
Court’s
the
failed
advocacy have
press
it
save
to
so as
legislation
construe
the
however;
in Austin
scrutiny,
acting
attack, [they] must
constitutional
against
pro-
that
statute
Michigan
a
upheld
Court
of
point
to the
carry
not
will
not
its
spending
from
corporation
any
hibited
...
a statute
of
purpose
the
perverting
opposi-
of or in
support
funds
treasury
the
put
To
it....
rewriting
judicially
or
the
because
candidate
state
any
to
tion
not
will
courts]
way, [the
another
matter
interest
compelling
a
articulated
had
State
of wheth-
question
abstract
the
consider
ban:
the
support
a valid
have enacted
might
Congress
er
of
danger
[the]
of whether
Regardless
”
whether
ask
must
instead
but
statute
...
corruption
pro quo
quid
“financial
will
enact
did
Congress
that
statute
the
a restriction
justify
sufficient
may be
render-
a construction
bear
permissibly
Michigan’s
expenditures,
independent
on
defects.
constitutional
from
free
ing it
type
at a different
aims
regulation
omit-
the
(quotation
1659
515,
arena:
84 S.Ct.
at
the
Id.
corruption
216, 95
Erznoznik,
im-
at
422 U.S.
distorting effects
ted);
see
corrosive
“easily sus-
that
(statute must be
of wealth
2268
aggregations
mense
S.Ct.
construction); see
corpo-
narrowing
of the
help
the
ceptible”
accumulated
Re-
no
Schauer,
Ashwander
have little
that
form
Frederick
rate
also
(“[I]t
is
71,
support
Sup.
public’s
visited,
the
correlation
Rev.
Ct.
inter-
ideas.
strained
a
corporation’s
clear
no means
by
the
a
avoids
statute
a
659-60,
pretation
110 S.Ct.
Austin,
at
494 U.S.
judi-
a
any less
question
constitutional
emphasizing
Nonetheless, it bears
invalidation
judicial
than
intrusion
limited
cial
was
Austin
holding in
Court’s
less
a
grounds
constitutional
advoca- on
express
expenditures
corporate
stat-
same
interpretation
strained
cy.
plain-
if a restriction
ute.”). Accordingly,
es-
thus
progeny
Buckley and its
reviewing
advocacy,
limits issue
ly
measur-
framework
rough
tablished
un-
provision
down
strike
will
court
con-
restriction’s
finance
campaign
ing
“the
because
constitutionally overbroad
vagueness
its
stitutionality.
If
others
may cause
very existence
statute’s
express
both
to limit
appears
restriction
[that
refrain
court to
not before
the review-
advocacy,
and issue
advocacy
protected
constitutionally
of]
form
construe
(if possible)
must
court
ing
612, 93
Broadrick,
at
413 U.S.
speech.”
only
restrict
narrowly to
provision
of over-
(discussing reach
S.Ct.
Buckley,
latter.
and not the
former
231 F.3d
doctrine);
Perry,
see
breadth
612;
also
40-44, 96 S.Ct.
424 U.S.
its
provision
If the
160-62.
Ass’n, 484
—either
Booksellers
Am.
v.
Virginia
only
by fair construction —relates
text
L.Ed.2d
108 S.Ct.
U.S.
then
must
court
advocacy, the
express
stat-
uphold
will
(federal
(1988)
court
financing
campaign
sort
ask what
susceptible [of]
“readily
if it
ute
re-
provision
If
restricts.
provision
make
would
narrowing construction
it lim-
ifor
spending,
independent
stricts
(internal
quotations
constitutional”
engaged
to committees
donations
its
course,
every speech
omitted)). Of
exact-
apply
is to
court
spending,
such
prevent
refashioned
can be
restriction
*174
strict)
(i.e.,
scrutiny,
supra
§
see
Part
ing
437g(d)(l)(A),
U.S.C.
any
corpo-
careful
III.C;
provision
if the
restricts contribu-
ration or labor
will
union
want
know
candidates,
tions to
the court asks wheth- what
to”
expends
“refers
means before it
“closely
drawn to
er
restriction
money
broadcast'any political communi-
interest,”
sufficiently important
match a
cation within two months of an election.
Missouri,
387-88,
528
at
120
Shrink
U.S.
But BCRA does not define “refers to” or
omitted).
(quotation
No matter
S.Ct. 897
otherwise describe the communications
applied,
of
which standard
review is
that are covered.
passes
restriction
constitutional muster
face, then,
itsOn
the term “electioneer-
if it
only
government’s
serves the
interest
ing
any
communication” can include
near-
or
cor-
preventing
apparent
the actual
election
merely
communication that
men-
ruption of federal candidates and office-
(wheth-
tions
clearly
identified candidate
NCPAC,
496-97,
holders.
470
at
U.S.
not).
Indeed,
er
or
name
under one
203
of unlim-
problem
solution to
definition.
sonable
primary
purpose as
Cf.
Betts,
advertising that
492
undisclosed
Sys. v.
ited and
Ret.
Employees
Pub.
advocacy”
“express
2854,
182,
qualify
L.Ed.2d
as
158,
109
106
fails to
S.Ct.
U.S.
law,
though
(similar
be
election
even
(1989)
should
under federal
provisions
134
materia).
to influence
clearly
designed
The text
it
pari
read in
these
election....
definition,
rest of
of an
Since
well as the
outcome
as
alternate
magic
using the
just
201,
legisla
stop
short
that the
ads
BCRA
reveals
section
spon-
express advocacy],
the Con
words [of
is to reduce what
purpose
tive
public
full
disclo-
subject to
influ
corrupting
sors are
be the
gress believes
disclaimer,
sure,
carry no
ads
need
but
affect
ads that
elections
ence of issue
Legislation
act
Interpretation
Supreme
rule”
Statutory
“whole
146. The
Court’s
“[statutory
reviewing
reminds
courts
(2000).
A
...
is a holistic endeavor.
construction
ambiguous
iso
may
provision
seem
County Narcot
Tarrant
147. See Leatherman v.
the remainder
is often clarified
lation
Unit, 507 U.S.
Intelligence & Coordination
ics
v.
statutory
Ass’n
scheme.”
United Sav.
1160,
163, 168,
122 L.Ed.2d
113 S.Ct.
Assocs., 484 U.S.
Forest
Inwood
Timbers of
(1993)
est exclusio alten-
("Expressio unius
626,
371,
365,
L.Ed.2d
108 S.Ct.
us.”).
(1988);
Eskridge,
N.
William
al.,
see
et
Jr.
may
paid
for with unlimited
[persons] not before the court to refrain
dollars from any source....
[The
bill]
[that form of] constitutionally pro
problem[.]
addresses the
speech.”
tected
Broadrick,
perception in- 65,196 (“[E]xemption[s] at Fed.Reg. large donors assumption that cynical appearing communications willing- clude[ ] jeopardize could call the tune newspaper or media, including a print in democratic part to take voters ness of brochures, bumper handbills, magazine, to ac- if I were Yet even governance.”). billboards, stickers, posters, signs, yard and labor corporate cept as fact materials, including written and other electioneering communi- disbursements the Inter- over mailings; communications corrupt feder- appear to corrupt or cations mail; and tele- net, including electronic not, supra I do candidates —and al communications.”). television With phone would 325—it page Finding 54b foreclosed, cor- “electioneering” and radio provides the BCRA necessarily follow “exploit” wishing to and unions porations Turner, U.S. solution. issue ad- for “sham” “loopholes” de- (“When BCRA’s Government S.Ct. will federal elections vertising to “distort” as a means speech regulation fends a means, incentive, and the every anticipated prevent harms past redress media. electronic print and through simply ‘posit do so than harms, more do must Kar- & Pamela S. Issacharoff be See sought to Samuel the disease existence of *177 Campaign Fi- lan, Hydraulics ... ... It must demonstrate cured.’ of 1705, 1705 Tex. L. Reform, 77 nance alleviate these inwill Rev. fact regulation (1999) to constrain (“[EJvery effort reform way.” material direct harms in a corresponding added)). produces a omitted) actors political (citations (emphasis power to by those with series of reactions con- the definitions of either Under it.”). Moreover, the extent hold onto 201, “electioneering com- in tained section corrupt federal can- advertising may issue “broadcast, ca- only include munication[s]” when dis- didates, corrupting it is no less communication[s].” ble, satellite or exempted print and through seminated 304(f)(3)(A); 2 201(a); § FECA § BCRA points the NRA As channels. electronic 434(f)(3)(A). Thus, any print, § U.S.C. out, internet advertisement— mail or direct dwarf often [njewspaper advertisements refers to a one that “targeted” even in advertisements terms candidate, is made with- radio clearly identified impact potency, and overall expense, is election and days general in 60 before ed.1989))), (2d English 974 quo quid pro Dictionary corruption venting is limited Oxford 497, NCPAC, speak 1459 more at S.Ct. arrangements, while 470 U.S. 105 others "improper influence.” broadly terms of ("The corruption in the financial hallmark 389, Missouri, U.S. Compare 528 at favors.”). Shrink political quo: quid pro dollars ("In 'improper in- speaking of S.Ct. 897 120 Jus- Institute Amici Cato Institute addi- ‘opportunities for abuse' in fluence’ and that, cogently given the First argue tice quo arrangements,’ rec- ‘quid pro we tion to stake, panel interests Amendment Buckley a not confined ognized concern [in ] precisely and nar- to define be careful should officials, extending to bribery public but preventing government's interest in rowly the too com- politicians from threat the broader Cato of Amici Curiae "corruption.” Br. contributors.”), large wishes of pliant with the 2, I believe et al. at 16-21. Because Institute J., 422, (Thomas, 897 120 S.Ct. with id. prevent actual not serve to does BCRA (Court Buckley "repeatedly in dissenting) the broadest even apparent "corruption” quid ‘corruption’ the narrow used word word, however, I believe also sense of sense, de- meaning '[p]erversion quo pro precise today on a decide panel need not discharge pub- integrity in struction of ” (quoting 3 definition. bribery or favour’ lic duties
371
upon
public,
particularly
§
the voting
201(a); FECA § 304(f)(3)(B)©;
2
public;
promise
therefore
§ 434(f)(3)(B)©
U.S.C.
(exempting from
“spread by other means” the same elec-
“a
coverage
communication
appearing
tioneering speech, to the same mass au-
story,
news
commentary, or editorial dis-
dience, that was supposedly of utmost
tributed through the facilities of any
concern Congress.... Thus,
a corpo-
station”).
broadcasting
“This means that
ration such as the Campaign for Amer-
the Disney Corporation may through its
ica may run a
full-page
ad in the
(or
subsidiary ABC
General Electric
York
New
Times at a
$65,000,
cost
NBC)
through
broadcast
the very same
whereas a radio
reciting
broadcast
‘electioneering communications’ that Con-
same text
in a small market such as gress has forbidden the NRA from fund-
Peoria would
grand
cost a
total of $75.
ing.” NRA Br. at 39.
The notion that only the latter expendi-
The statute’s underinclusion,
view,
in my
implicates
ture
a concern
about
is fatal to BCRA’s ban on corporate and
corruption
preposterous.
labor disbursements
for electioneering
(citation
NRA Br. at 35
and footnotes
communications. Although campaign fi-
omitted) (emphasis
original);
see also
legislation
nance
“may take
step
one
at a
ACLU,
Reno v.
844,
853,
U.S.
time, addressing itself to the phase of the
2329,
S.Ct.
(1997)
(inter
L.Ed.2d 874
problem which seems most acute to the
net “constitutes a
platform
vast
legislative mind,” Buckley, 424
105,
U.S. at
which to address and hear from a world
its
then,
hard-
plainly,
he could
opponent;
core First
of
his
regulation
ham-handed
groups. More
activity.
to those
ly
obligated
feel
Amendment
support
many organizations
importantly,
the ban
I convinced
were
Even
electioneering ads because
with
candidates
pre-
in
interest
government’s
served the
can-
believe,
correctly, that the
they
often
corruption
apparent
venting the actual
agenda
legislative
share their
officeholders,
didate will
federal candidates
of
reelected whether
elected or
once he is
enough.
narrowly
not do so
would
campaign
his
days
they
“infus[ed]”
have
aired within
fact that an ad is
short,
him to
mentions a
want
money.
election and
general
many
suggest
view,
instances
may in
he
because,
candidate
best
simply
win
designed to affect
ad is
Republi-
Colorado
represents them. See
candi-
particular
view of
electorate’s
(Thomas, J.,
I,
concur-
at 640
518 U.S.
can
justi-
fact alone does not
Yet that
date.149
dissenting
part)
ring
judgment
for the ad.
disbursements
fy prohibiting
...
support
money
(groups “spend
790, 98
435 at
S.Ct.
See Bellotti
social,
they share
... because
candidates
(“[T]he
persuade
advocacy may
fact that
economic,
political beliefs and seek
sup-
hardly
a reason
the electorate
pol-
governmental
affect
beliefs
those
it[.]”).
that fact alone
press
Nor does
electioneering provisions
icy”). BCRA’s
danger
ad raises a
establish
acknowledged
simple
ignore
fact—
appearing
corrupt,
corrupting, or
advertising disburse-
the defense—that
them-
Money
ads
target candidate.
legislative
a candidate’s
ments often follow
corruption
system;
not a
of the
selves are
way
the other
around.
preferences, not
instead,
political pro-
“a
subversion
Exam,
Def. Witness Bok
See Cross
“[ejlected
occurs when
officials
cess”
context,
that in contribution
(testifying
to their obli-
contrary
to act
influenced
influence the
roll call “votes
legislators’
finan-
prospect
gations of office
influencing
gifts
rather than the
gifts
mon-
or infusions of
gain
cial
to themselves
votes”).
NCPAC, 470
ey
campaigns.”
into their
corporate
Additionally,
ban on
BCRA’s
partic-
That a
cial benefits conferred corporate tions 203 and 204 are facially invalid structure,” all corporations present because they are overbroad under Buckley potential to distort the process electoral pass cannot strict scrutiny any
event.151 Corporations and unions no less
150. The Court considered three factors in de-
"was not
established
corpora-
business
ciding that MCFL
union,
could
constitutionally
"not
tion or a labor
and it
policy
[was] its
*180
by
accept
be bound
to
[2
§
not
U.S.C.] 44 lb's
contributions
restriction
from
on
such enti-
ties,” id.
independent
MCFL,
spending,”
374 individual on burdens insignificant spend mon are entitled individuals than weighed care- be they must and rights, by broadcast engaging of sake ey for the Con- the interests fully against ... robust, wide-open “uninhibited, and in by [its] promote sought to has gress on debate and issues public [discussion candidates,” Buckley, legislation. qualifications Bellotti, 612; see 14, (citations S.Ct. omit 96 612 64, 68, 424 U.S. at S.Ct. at 96 Id. 1407, especial 776-77, therefore, 98 S.Ct. well-established, ted). U.S. at 435 It is immediately preced mandating the weeks during in ly interests government’s 219, Mills, at U.S. election, 384 see ing exacting scruti survive “must disclosure prohibiting (Alabama statute (citing 1434 73, 612 86 S.Ct. S.Ct. n. at 64 96 ny.” Id. election publishing 463, editor from newspaper 78 Alabama, at U.S. 357 v. NAACP on outcome particular urging day editorial Legislative Fla. 1163; v. Gibson S.Ct. it because unconstitutional measure 539, 546, ballot 83 S.Ct. Comm., 372 U.S. it time when press at a Button, “silence[d] v. (1963); NAACP L.Ed.2d effective”); Rob see also most 328; [would] v. Bates 438, 83 S.Ct. U.S. and Some Bork, Principles Neutral H. ert 516, 524, 80 S.Ct. Rock, 361 U.S. Little Problems, L.J. 47 Ind. Amendment First in (1960)). The Court 4 L.Ed.2d pro need to (1972) (emphasizing 1, 27-28 inter governmental three Buckley found governed,” are how we about “speech tect support sufficiently compelling ests evaluation, crit range “a wide including provi reporting and disclosure FECA’s propaganda” and electioneering icism, sions: L. added)); Kirk generally (emphasis electorate provides the First, disclosure Be It Cannot Advocacy: Jowers, Issue If political to where information Valuable, It is It Least Regulated When and how money comes campaign Most It is Regulated When Be Cannot aid in candidate order is spent (2000). Valuable, U.L. 50 Cath. Rev. who seek evaluating those the voters Reporting and Disclosure B. place It allows voters federal office. Requirements spectrum in the candidate each possible than often precisely more Buckley took Supreme Court party labels and the basis solely on requir- provisions emphasize pains of a The sources campaign speeches. reporting election- ing disclosure and alert also support financial sub- candidate’s no less the are disbursements related to which the interests voter to than concern Amendment ject of First responsive likely to be most them- candidate disbursements on the restrictions of future predictions thus facilitate Buckley, 424 U.S. selves. Second, disclo- in office. performance Indeed, recognized the Court S.Ct. corrup- actual deter requirements sure circumstances some corrup- appearance avoid tion and itself, disclosure, can seri- compelled contributions exposing large tion of association privacy ously infringe publicity. light of to the expenditures First by the guaranteed belief those discourage who may exposure This true undoubtedly It is Amendment.... purposes improper money for use would of contributions public disclosure after the election.... before either de- will parties candidates record- Third, significant, least other- might who individuals ter some re- and disclosure reporting, instances, keeping, dis- In some wise contribute. *181 of means essential are an quirements expose contributors even may closure necessary to detect the data gathering are not These or retaliation. harassment violations of the [Act’s] express contribution limi- advocacy, imposes an unconsti- tations. prior tutional restraint.
Buckley,
66-68,
often David- original)); (emphasis voting records candidate” their positions, and (same); 1187, 1193-94 son, at Discussions F.3d 236 conduct. official other and (same); 162 Bartlett, at 231 F.3d positive more issues, well as v. Perry of those Comm., at 386 on 221 F.3d opinion public influence Right Vt. efforts to Life inexorably to 362 U.S. California, naturally and (same); Talley v. them, tend cf. (1960) elec- voting on at 559 536, 4 L.Ed.2d 65, influence 60, S.Ct. some 80 exert “pur- milieu, do bar- where ordinance its face” on (finding tions. “void influence” “to ]” “design[ that did any and handbill pose” of ring distribution we [W]hile ... line? of writer draw address name not contain interpreta- an for struggle our Thomas, continued U.S. distributor); 323 bypass might 437a which of section tion principle (“As a matter 315 65 S.Ct. difficul- overbreadth vagueness its order registration requirement of one]. [find unable ties, been we have general- seem speech would public make a omit- (quotations F.2d at exercise Buckley, 519 incompatible ly that recognition ted). appeals assembly.”). court’s free speech and of free rights into- requirement it, disclosure imprecise “the put has professor a noted law As advocacy is protected issue lerably chilled that line” is Buckley bottom every upheld court that the given notable for expenditures independent [w]hile ex- (including its of FECA provision other advocates expressly that speech limitations). observations Its penditure clearly identified aof or election defeat Su- foreshadowed 437a about section “ex- for i.e., expenditures candidate — holding that subsequent Court’s preme limited not be advocacy” may press — disclosure requiring provision FECA subjected may be amount, spending such expen- or contributions making individuals [But][e]x- requirements. to disclosure than annually “other over $100 ditures ex- that not speech does penditures for committee to a contribution defeat of the election advocate pressly con- only by salvaged could be candidate” for issue i.e., expenditures a candidate — $1,000 spending it, Act’s like the struing limited neither advocacy may— com- funds used limit, only “to reach re- to disclosure subjected nor amount expressly advocate munications quirements. clearly identified a or defeat election at 1769 Advocacy, supra, BeVier, Issue n. 424 U.S. at Buckley, candidate.” added). Thus, disclo- BCRA’s (emphases 96 S.Ct. subject to a doctri- requirements sure courts discussed, I have As I applied to the one similar nal framework a consensus have reached appeals and labor corporate ban the statute’s is consti- advocacy test express Buckley’s communi- electioneering disbursements in the context whether required, tutionally is, if That IV.A. Part supra See cations. ceilings or disclosure. disbursement requirement vagueness disclosure by its held, and They have Part IV.A. supra See advocacy express both to stifle appears issue permitting any statute I agree, reviewing court advocacy, the and issue the condition only on advocacy provision (if construe possible) must disclosure to cumbersome submit speaker former only to narrowly apply invali- must be requirements reporting Buckley, U.S. latter. See not the ground overbreadth. on the dated requirement If the 96 S.Ct. (state disclosure Moore, F.3d at a construe- of such susceptible only readily constitutionally extend provision could
377
individual;
thereby
disbursed;
causes
and an
tion—and
individuals
the amount
refrain from
engaging
entities to
consti-
recipients;
names of
and the election to
tutionally protected
advocacy,
issue
see
pertains.
which the communication
BCRA
Broadrick,
612,
Buckley, cases are consistent with the Su- These it invalidated the statute be- nonetheless declaration preme longstanding Court’s 24- “patently of the unreasonable” cause reporting registration re- that advance requirement: hour notice incompatible with quirements “quite notice se- require such immediate
To
requirements
of the First Amend-
rights,
verely
First Amendment
burdens
Thomas,
540,
ment.”
AFL-CIO requirements any disbursement made 105, 114-15, 52d, 123- 53g-53i pages — electioneering commu- any person any I Accordingly, believe that section is coor- nication where “such disbursement cannot stand. [*] [*] [*] dinated with a candidate or an authorized candidate, a Federal committee of such the disclosure I would hold [sic], State, political party local or com- included sec reporting requirements thereof, agent or an or official of mittee facially invalid and 504 are tions *187 candidate, committee.” any party, such or Buckley under they are overbroad because 202(2); 315(a)(7)(C); 2 § § FECA BCRA “exacting scrutiny” and cannot withstand 441a(a)(7)(C); ac- supra § I find as well see text any in case. would U.S.C. it invalid because facially 212 is (detailing section 25-29 several companying notes impermissible prior limits). an restraint imposes of FECA’s source-and-amount to serve the narrowly is not tailored alia: prohibits, therefore inter Section 202 preventing in cor interests government’s (1) organization any corporation or labor informing the electorate.155 ruption and a “coordi- any amount for disbursing from Limits on “Coordinated C. communication, see electioneering nated”
Expenditures”
text; and
accompanying
supra note 29 and
(2)
more
disbursing
any individual
I have thus far concluded that
Con-
$2,000
for “coordinated”
per
than
election
advocacy by
regulate
not
issue
gress may
(“We
'to
press statutory construction
interpret
cannot
issuing “regulations
[that]
moot
require
provisions
disingenuous
not to
evasion’ even to
point
disclosure]
[BCRA’s
which a
after ‘the date on
disclosure until
(quoting
question.”
avoid a constitutional
publicly
is
distributed.’"
communication
373,
Rose,
U.S.
v.
289
Moore Ice Cream Co.
Report-
(quoting
Opp. Br. at 111
BCRA
Gov't
620,
(1933) (Car-
379,
II,
465, 121
533 U.S. at
S.Ct. 2351. The
(2) (FEC
§ 437g(a)(1),
authorized to inves
however,
recognized,
has
that “coor
Court
tigate potential election law violations
expenditures
...
dinated
share some
by private-party
to its attention
brought
in
constitutionally
relevant features of
61b,
complaints); supra
Findings
64b
dependent expenditures.” Colorado Re
329-31;
pages
see also
of Com
Chamber
I,
publican
518 U.S.
383 214(c); § FECA here, See BCRA where, ex bursement. “coordinated important note; § 2 note. § 315 U.S.C. 441a advocacy are re for issue penditures” mandate, the with section accordance 214’s Supreme Court long as stricted —“as recently promulgated final rule on advocacy a issue FEC expenditures for holds supra communications.” protection, “coordinated Amendment broad First 326; supra also page 57 at Finding mere act cannot use the [government] accompanying The rule corporation note 45 and text. a between of communication for an elec- provides a disbursement protected expen a to turn and a candidate communication is “coordinated” unpro tioneering advocacy into an issue diture for political party a or commit- the candidate.” candidate with tected contribution FEC, agreement or not there is F.Supp. tee—“whether v. Clifton the dis- (D.Me.1996), grounds formal collaboration” between on other or modified Cir.1997), (1st remanded, committee— F.3d 1309 the candidate or burser and 1108, 118 (1) created, denied, S.Ct. 522 U.S. communication is “[t]he rt. when ce (1998). But is request or produced, 140 L.Ed.2d or distributed at the committee; BCRA does. candidate or precisely suggestion” what (2) or “is materi- the candidate committee amended BCRA the Act as Under regarding” ally decisions involved 214, any electioneering disburse- section (3) communication; or communica- “[t]he consultation, cooperation, “in ment made created, or distributed produced, tion with, sug- concert, request or or at or discussions one or more substantial after agents his a candidate or gestion of’ the dis- the communication” between about the candidate with thereby “coordinated” candidate or committee. and the burser a contribution thereto. and treated as Fed.Reg. at 453-55. Under See 68 315(a)(7)(B)®; 214(a); § § FECA BCRA a mutual “[a]greement regulation, means 441a(a)(7)(B)(i) (emphasis add- § 2 U.S.C. the minds on understanding meeting or ed). Likewise, any dis- electioneering aspects of any part or of the material all fashion made in like with bursement its or dissemination” the communication po- national, committee of or local state “[fjormal planned, means collaboration thereby “coordinated” party is litical work on the organized, systematically as a contribu- treated the committee and (emphases Id. at 455 communication.” 214(a); § FECA thereto. See BCRA tion omitted). purports regulation Finally, the 315(a)(7)(B)®); § U.S.C. “responses harbor” provide “[s]afe 441a(a)(7)(B)(ii). 214 re- BCRA section § policy is- legislative about inquiries reg- existing coordination the FEC’s peals sues”: regu- any new provides ulation political party com- or a A candidate’s agreement or require lations “shall not *189 inquiry to an about response mittee’s to establish coordina- formal collaboration (or political party com- or par- that candidate’s between candidate tion” policy committee) legislative or positions a dis- mittee’s entity making an ty effective, negotiation” result- or expen- discussion "substantial BCRAbecame 156. Before agreement” be- ing was "coordinat- "collaboration or for a communication in a diture 100.23(c)(2) creator, § if the 11 C.F.R. ed” under or producer, distributor tween the created, produced or dis- communication was the candi- payer of the communication (1) suggestion request of” or "[a]t tributed or distri- regarding the content party or date (2) party; after the candidate the candidate or Supra Finding communication. bution of control or decision- had "exercised or (quoting 11 C.F.R. page 326 at 56 distri- making authority” over the content or 100.23(c)(2)); Br. at 183. § Gov’t see communication; (3) or after bution of the 384 Republican the sort described Colorado
issues,
including a discussion of
not
but
II,
activities,
Buckley.
Republican
II
Colorado
projects,
campaign plans,
2351;
at
121 S.Ct.
533 U.S.
needs,
satisfy any of the con-
does not
Clif
ton,
F.Supp.
(despite
at
499
its
... of this section.
standards
duct
explana
with candidate to “seek
contact
Id.
statements,”
particular
tion of
votes
recently
in this circuit
court
The district
publica
Right
Maine
to Life Committee’s
whether, and to
question
confronted
guides repre
records and
voting
tion of
extent,
may regulate
government
what
advocacy”
opposed
“direct issue
as
sented
communica-
expenditures [on
“coordinated
third-party billpaying
to “the mere
advocacy.”
express
limited to
not
tions]
or a vol
media advertisements
candidate’s
Coalition,
F.Supp.2d
at 86
Christian
expenses
Buckley
unteer’s incidental
altered)
omitted).
(quotation
(capitalization
talking
was
about when it treated coordi
on the matter are worth
The court’s views
spending as a contribution under
nated
length:
at
quoting
statutory language” (emphasis
different
is bound
both the result
This Court
added)). Suppose,
example,
that a cor
reasoning
Buckley, even
and the
of
poration purchases broadcast time for an
point in different directions.
when
that does
electioneering communication
Buckley confidently assured that
While
(or
expressly
advocate the election
de
expenditures fell
coordinated
within
feat)
but, instead,
of candidate Smith
fa
contributions,
Act’s limits on
it also rea-
vorably compares
voting
Smith’s
record on
spending money
soned that
on one’s own
opponent.
tax cuts to that of his
Governed
political speech is an act entitled to con- by
reasoning
“both the result and the
protection
highest
stitutional
or-
Coalition,
Buckley,”
Christian
Expressive
expendi-
der.
coordinated
91, I
F.Supp.2d at
think it clear that the ad
tures bear certain hallmarks of a cash
basis
underlying
would “communicate
highly-
but also contain the
contribution
[corporation’s] support”
for the
of Smith.
political speech
spend-
valued
Buckley, 424
U.S.
S.Ct.
Just
Buckley
er....
I take from
and its
significantly,
provide
the ad would
progeny
carefully,
the directive to tread
a degree
“knowledge
electorate with
acknowledging that considerable coordi-
comparative
merits and demerits of
expressive expen-
nation will convert an
trust,” 4
public
the candidates for
Debates
diture into a contribution
that the
but
Adoption
ON
FedeRal Constitu
spender should not be deemed to forfeit
(Jonathan
1888) (herein
tion Elliot ed.
protections
First Amendment
for her
(eighteenth
after Elliot’s
centu
Debates)
speech merely by having engaged
own
ry speech
of James Madison
General
...
some consultations
with federal Assembly
Virginia),
and would assist
candidate.
in “mak[ing]
voters
informed choices”
added).
(emphases
Id. at 91
Pointing to
candidates, Buckley,
about the
U.S.
-and,
the Christian Coalition
14-15,
corporation
385
sultation,
with a candidate
or concert”
speech by the cor-
direct
constitute
would
with the candi-
agents is “coordinated”
“functionally true ex- his
and a
itself
poration
as a contribution thereto.
the most de- date and treated
for
qualifying
]
penditure[
214(a);
scrutiny.”157
§
FECA
BCRA
First Amendment
manding
315(a)(7)(B)®;
II,
2
§
533 U.S. at
U.S.C.
Republican
Colorado
added).
F.Supp.
441a(a)(7)(B)(i)
2351;
927
Clifton,
(emphasis
§
see
Un-
121 S.Ct.
(where
definitions,
“both the disbursements
to “consult”
499
der two common
by
political speech
direct
speech
esp.
to “discuss” or “refer to
[sic]
means
candidate,”
by
[corporation],
for information.” WebsteR’s
Third New
Unabridged
the Court’s First
are “at the heart of
DictionaRY,
490
International
notwithstanding
Animals,
Amendment’s concerns”
(1993);
v.
Fund
Inc.
cf.
for
(em-
(in
nature
(D.C.Cir.1997)
“coordinated”
allegedly
Thomas,
127 F.3d
the mini-
original)).
Nor would
phasis
context,
Endangered Species Act
“consul-
enough to
be “extensive
mal “consultation”
discussions,
all
corre-
tation ...
includes
through
corruption
for
potential
make the
(quoting
etc.”
50 C.F.R.
spondence,
palpable.” Chris-
pro quo
legislative quid
402.13(a))).
pro-
safe-harbor
§
The FEC’s
Coalition,
at 89. Yet
F.Supp.2d
tian
plain
lan-
appears
vision
to contravene
corpora-
regard for
without sufficient
214, which need
of sections 202 and
guage
or the electorate’s
speech interest
tion’s
slightest
in the
order to
not be stretched
information,
restricts
BCRA
interest
communication
electioneering
reach
a disbursement.
such
corporation,
a
union or individual
“inqui-
merely
(through
with
very
“discuss[es]”
Evidently, the FEC envisioned
from)
“responses”
a candidate
ries” of and
concerned that BCRA’s
and was
scenario
Thus,
corporation wishing
like
overbroad—
Smith.
of coordination was
definition
legisla-
with Smith “about
mentioned,
“consult[ ]”
final
its
I
the Commission
cannot be sure that
policy
at-
tive or
issues”
rule on “coordinated communications”
provide any
provision will
harbor” for
the safe-harbor
tempted
provide
“[s]afe
statute,
given
against
shelter at all
inquiries
legislative
about
“responses to
text.
from the statute’s
at 455.
rule’s variance
Fed.Reg.
While
policy issues.”
overbroad,
of a dilem-
corporation is on the horns
and 214 are indeed
sections 202
(1)
]”
ma.
It can choose to
attempt
to narrow
infra,
the FEC’s
“consult!
harbor rule is
hope the safe
them from invalidation. Smith
them cannot save
Pro-
Administrative
eventually upheld any electioneer-
The statute declares
(2)
(APA) review;158
forgo the
cedure Act
cooperation,
“in
con-
expenditure made
ing
views,”
a communication
and his
but
Republi-
didate
in Colorado
157. The four dissenters
support.”
underlying basis for the
of "the
similarly in the
II concluded
can
"symbolic expression,” ...
just
... It is not
party context:
party’s
most
a clear manifestation
but
Take,
example,
in which the
a situation
fundamental
views.
advertising
develops
cam-
party
a television
II,
Republican
533 U.S. at
Colorado
edu-
paign touting a candidate's record on
J.,
(Thomas,
dissenting, joined
S.Ct.
"consult[s],”
cation,
simply
and the
JJ.).
C.J.,
Kennedy,
Rehnquist,
Scalia and
441a(a)(7)(B)(i),
§
with the candi-
U.S.C.
out,
which time slot the advertisement
points
date on
Chamber of Commerce
158. As the
can
process
maximum effectiveness.
"ordinary
[is]
should run for
APA review
]
be-
thus
years
would]
difference
[and
see no constitutional
take
[We]
defeatf
issues
purely
inde-
that constitutional
expenditure and
BCRA's mandate
tween this
spe-
in a
Buckley,
be resolved
language
presented
the statute
pendent one.
In the
expedited proceeding.” Chamber
...
advertising campaign
not a mere
cial
n. 7.
Commerce Br. at 13-14
expression
support
the can-
“general
*191
arrangements
and “wink or nod”
inaccuracy;
ing[s]”
the ad’s
and risk
consultation
(3)
Republi-
may
regulated,
itself in an
see Colorado
the communication
forgo
or
2351;
II,
442, 121
self-censorship.
can
533 U.S. at
S.Ct.
act of
I,
at
Republican
518 U.S.
Colorado
before the FEC’s
briefs—filed
their
(plurality opinion), these are
387 corporation cations made a like the merely by having en- speech her own there has been ... “dis- ... with ACLU where consultations in some gaged Coalition, cussion” about the communication with a candidate.” Christian added); [Thus], see (emphasis may candidate. the ACLU not F.Supp.2d at 91 will coordination a civil liberties vote or (only “considerable be able to discuss id. expenditure into a expressive position Representative convert with a or Sena- added)). I am (emphasis contribution” subsequently pro- tor if the ACLU will conclude, therefore, constrained praises duce a box score that or criti- First 202 and 214 will violate the sections cizes that official’sstand. no matter what the Commis-
Amendment And, ACLU Br. at 20. as the Chamber does, promul- it regulation for no sion argues, facing the dilemma the Commerce (as rule may depart the safe-harbor gates plaintiffs i.e., choosing between “consul- — does) provisions’ plain text. See tation” with and communication about U.S.A, NRDC, Chevron, Inc. v. 467 U.S. right candidate —“has bite now because 2778, 837, 842-43, 104 81 L.Ed.2d S.Ct. legislators political party contacts with (1984) (“If Congress is the intent of today may that fu- officials lead claims matter; clear, that is the end of hence, and, speech ture is ‘coordinated’ give ... ... must effect to agency an unlawful contribution.” Chamber of unambiguously expressed intent of Br. at 7. under the Accordingly, Commerce and 214 Congress.”). Were sections 202 part pre-enforcement first review “readily susceptible” saving of a construc- test enunciated Abbott Laboratories v. 397, tion, Booksellers, 484 U.S. at Am. Gardner, 136, 1507, 387 U.S. 87 S.Ct. 636, simply could read the 108 S.Ct. we (1967), plaintiffs’ L.Ed.2d 681 chal- word “consultation” out of statute “appro- to sections 202 and 214 are lenges meaning it a narrower than “discuss” give priate judicial resolution at this time” to ... for information.” But or “refer any because the outcome of further FEC clearly intended the broader Congress rule-making not affect this court’s will di- interpretation why else would have — analysis.160 Id. at 87 S.Ct. merits repeal its current rected the FEC prong of Abbott 1507. Under the second promulgate regulations that do rules and Laboratories, moreover, “hardship to or formal collabo- require agreement parties withholding [judicial] consid- 214(c); § ration? See BCRA FECA eration,” id., would be extreme because note; note; § § 441a see U.S.C. ordinary regulations APA review of the Cong. (daily also 148 Reo. S2145 ed. years. even take several months or could McCain) 2002) (statement Mar. of Sen. (“[T]he regulation far [former] [was] FEC therefore, hold, in defining
too narrow to be effective
I
that BCRA’s
would
in the real world of cam-
coordination
“coordinat[ion]”
definition of
overbroad.
”).
....
As the
demon-
paigns
subject
ACLU
Sections 202 and 214
Act’s
strates,
spender-candi-
this inclusion of
source-and-amount
limitations disburse-
undoubtedly
“consultation[s]”
date
will
electioneering
ments for
communications
perverse
impermissible
effects:
with a can-
merely
made
“consultation”
view,
my
political party.
didate or
effectively impose[s]
214 ...
Section
indepen-
prohibition
provisions impermissibly
all
restrict
year round
communi-
judicial
Additionally,
plaintiffs suggest,
BCRA's
consideration
as the
mandate
expedite[d]
piecemeal
delayed
"shall be ...
to the
supra note
review
of such claims
403(a)(4).
§
greatest possible extent." BCRA
claims would defeat
of their constitutional
*193
that the
the fact
light of
in
daily perverse
fa-
therefore
and are
dent disbursements
them
restricts
severely
elsewhere
statute
cially invalid.
raise certain
together
working
from
believe,
invalid,
is
I
Likewise
how such
to decide
funds and
of
kinds
compels politi
a
which
BCRA section
See,
BCRA
e.g.,
used.
be
funds should
par
committee,
time the
at the
party
cal
(b)(2)(B)(iv); 2
323(a),
101(a);
§
FECA
§
nominated,
a
to make
ty’s candidate
(b)(2)(B)(iv);
441i(a),
generally
see
U.S.C.
either
disbursing
between
binding choice
that,
light
in
of
I believe
IV.D.
Part
infra
disburse
“coordinated”
independent
I,
can-
provision
Republican
Colorado
See
the candidate.
of
support
ments in
not stand.
315(d)(4)(A); 2
§
213; FECA
§
BCRA
441a(d)(4)(A);
supra
see also
§
U.S.C.
Funds
on Non-Federal
D. Restrictions
defi
overbroad
BCRA’s
Under
Part II.C.
I, “Reduction
Title
to BCRA
I turn now
“coordination],”
213 is
section
nition of
and,
Influence,”
par-
Interest
Special
of
it re
because
unconstitutional
necessarily
regulates
ticular,
section
exercising
parties
political
stricts
BCRA
parties.”
political
money of
“[s]oft
make
unlimit
“right
First Amendment
I examine
analysis,
five-part
§
In
Colorado
101.
expenditures.”
independent
ed
(1)
restrictions
I,
provision’s
116 S.Ct.
U.S. at
turn
Republican
national,
party
com
national,
political
or local
state
and local
any
2309. If
state
expen
323(a),
party
301(20),
makes
political
committees,
§§
mittee
aof
FECA
candidate,
323(c);
with
“consultation”
(2)
§
diture
(b);
fundraising, see FECA
“coordinat
expenditure
brands
BCRA
solicita-
(3)
committee’s
any political party
and,
independent
of
instead
ed”
for,
“any
of
or transfer
“any funds”
tion of
com
every
cycle,
other
of
election
rest
organiza-
to,
tax-exempt
funds”
certain
and
state
party national,
mittee of
(4)
323(d);
—
can-
any
§
tions, FECA
indepen
making
prohibited
local—is
of non-fed-
or transfer
solicitation
didate’s
respect
“with
dent disbursements
(5)
323(e);
§
and
funds, see FECA
eral
213;
§
FECA
BCRA
candidate.”
non-fed-
spending
any state candidate’s
441a(d)(4)(B)
§
315(d)(4)(B); 2
§
U.S.C.
“public communica-
on certain
eral funds
(“For
politi
all
paragraph,
purposes of this
323(f).161
hold
would
tionfs],”
§
I
FECA
and maintained
established
cal committees
301(20) and sec-
new FECA section
(including all
party
political
by a national
(d)
(b)
323(a),
the First
and
violate
tions
committees) and
congressional campaign
expressive as-
guarantee
Amendment’s
established
all
committees
(f)
323(c)
are insev-
sociation;
sections
(in
by a State
maintained
301(20); and section
from section
erable
aof
committee
cluding any subordinate
323(e)
constitutionally sound.162
committee)
to be
shall be considered
State
Party
New FECA
1. The
Restrictions:
committee.”).
sec
That
single political
(b)
323(a)
301(20)
Sections
work
party committees to
compels
tion
subsections, I
ex-
first
following
though
in this fashion—as
together
con-
my reasons
length
espe- plain at some
the hand
all—is
were
hand
one
merits
Accordingly, I would
reach
my
Although recognize references
I
federalism,
press or
section
free
plaintiffs'
to BCRA
opposed
sections
various
FECA
distracting,
use FECA refer-
may
respect
I
except
protection claims
equal
section
of BCRA
this Part because
ences in
323(e).
Part IV.D.4.
section
infra
its division
regulatory complexity and
101’s
components
FECA
separate
into six
—new
(f).
(d), (e)
323(a), (b), (c),
sections
9, 33;
Br.
par-
restrictions on a
McConnell
at 25-26 & n.
RNC
eluding that BCRA’s
51-53;
27-31;
funds Br.
Br.
use of non-federal
CDP
McCon-
ty committee’s
17-19;
scrutiny
Opp.
under Citi- nell
subject
Opp.
to strict
Br. at
RNC
Br. at
35-39;
Against Rent Control and other Su-
Opp.
agree.
zens
CDP
Br. at 14-15.
I
jurispru-
Amendment
preme Court First
right
expressive
When it comes to the
constitutionality
dence.
I then discuss the
association, one must start with the base-
323(a)
section
for-
of new FECA
—which
line announced in NAACP v. Alabama:
*194
to use
party
bids the national
committees
may
“state action which
have the effect of
any way
whatsoever—
non-federal funds
curtailing the freedom to associate is sub-
scrutiny.
and conclude that
it fails strict
ject to the closest scrutiny.” NAACP v.
Finally,
constitutionality
I discuss the
of Alabama,
460-61,
357
at
U.S.
78 S.Ct.
323(b)
301(20) and
FECA sections
—which
Seeking
justify
a departure from
severely
ability
diminish the
of state and
standard,
argue
the defendants
that
spend
non-feder-
party
local
committees
323(a)
(b)
straightforward
sections
and
are
ac-
al funds on so-called “Federal election
contribution limits akin to the ones the
tivity”
they
conclude that
likewise
—and
and,
Supreme
in Buckley
Court sustained
fail strict review.
such,
only
as
need
drawn” to
“closely
Party
a. The
Restrictions are
“sufficiently important
further a
interest.”
Subject
Scrutiny
to Strict
omitted);
Br.
(quotations
Intervenors
at 51
McConnell,
14-16,
612;
plain-
and CDP
see id. at
96
RNC
S.Ct.
Intervenors
301(20)
17-23;
Opp.
Opp.
tiffs claim that FECA sections
Br. at
Gov’t
Br. at 3-4.
323(a)
(b)
subject
specifically,
to strict
they
and
and
are
More
claim that Buck-
alia,
contend,
$25,000
scrutiny;
they
ley’s
uphold
inter
decision
FECA’s
provisions severely
right
ceiling
aggregate
burden their
on
contributions to com-
expressive
by prohibiting
“premised
mittees and
association
candidates was
on
political parties
pooling
understanding
virtually
the Court’s
from
non-fed-
spending
political
and
them on all donations of value to a national
eral donations
speech
expressly
party
not
advocate
were
does
‘contributions’ within the mean-
of,
ing
(emphasis
the election or defeat
and is not coordi-
of FECA.” Gov’tBr. at 64
with, any
original);
Opp.
nated
federal candidate.163
see Intervenors
Br. at 18.
See
basis,
among
Relying
Party v.
and to
each
Democratic
tionwide
associate
California
Jones,
567,
2402,
principal
U.S.
S.Ct.
and with their
officeholders
530
120
147
other
35;
candidates”);
(2000),
Opp.
CDP Br. at
RNC
L.Ed.2d 502
Eu v. San Francisco
and
Committee,
22-24;
County
Opp.
Democratic Central
489
Br. at
McConnell
Br. at 15-17.
214,
1013,
Kokinda,
relying
v.
U.S.
109 S.Ct.
392 protection. not full scrutiny but heightened group (“To whether (2000) determine 387-88, Missouri, at U.S. ex Shrink First Amendment’s by the protected (“under Buckley’s standard must de right, we 120 S.Ct. associations! pressive limit in ‘ex contribution-to-candidate engages scrutiny,” group whether termine association.’”); “[gjovernment Club if demon- N.Y. State review survives pressive 1, 13, York, ‘closely 487 U.S. regulation [is] New City strate[s] [the] Ass’n v. (1988) (to 2225, important 101 L.Ed.2d ‘sufficiently drawn’ to match 108 S.Ct. expressive association 424 U.S. at right Buckley, recognize (quoting interest’” however, every set say, 612)). 25, “is not 96 S.Ct. some individuals exercise which ting in contrast, by individu “[c]ontributions associates, their choosing discrimination permit ... committees ... to als inclusion and exclusion process selective amplifies This pooling of resources. Constitution”). Put protected voices.” Lilli individual the contributors’ terms, see campaign finance specifically A Per BeVier, and Politics: Money an R. (“[L]anguage
Beaumont,
at 267
F.3d
the First Amendment
spective on
does not sud
decisions
non-funding
L.
Reform, 73 Cal.
Finance
Campaign
contribu
inoperative when
denly become
BeVier,
(1985) (hereinafter
1045,
Rev.
expenditures are at
independent
tions
Politics).
restrict
unlike
And
Money and
alia,
v. Pon
Kusper
(citing, inter
issue.”
“undifferentiated,
act of
symbolic
ing the
303,
56-57,
51,
tikes,
94 S.Ct.
414 U.S.
candidate, Buckley, 424
ato
contributing”
218,
Mills,
(1973);
at
384 U.S.
L.Ed.2d 260
restricting dona
at
96 S.Ct.
U.S.
Co., 376
1434;
York Times
New
86 S.Ct.
“automatically
tions to
710;
v. Ala
270, 84 S.Ct.
NAACP
at
U.S.
expres
protected
amount of
affects” the
1163)),
bama,
78 S.Ct.
357 U.S.
engage
then
party may
in which the
sion
explains
observation
straightforward
adherents, Citizens
its
on behalf
Buckley,
scrutiny
differing levels
299, 102
Control,
454 U.S.
Rent
Against
dealt with contribution-to-candidate
*197
princi
I return to first
Here
S.Ct. 434.
Control,
limits,
Against Rent
and Citizens
and
public issues
de
of
ples. “Discussion
a donation-to-committee
which involved
candidates are
of
qualifications
bate on the
do
between
limit. While the association
of
system
of the
operation
to the
integral
of ex
type
produces
candidate
nor and
Constitu
established
our
government
of the world
it lets the
pression i.e.,
rest
—
14,
424
at
96 S.Ct.
Buckley,
U.S.
tion.”
the candi
is behind
donor
know
Therefore,
political
make
parties
supports what he
presumably
and
date
in
engage
expenditures
independent
—to
value of
for—the First Amendment
stands
candidates, to
referring to
advocacy
issue
signifi
particularly
is not
the association
or to fund voter
measures
support ballot
often,
because,
purpose of
most
cant
activi
get-out-the-vote
and
registration
the candi
is the election of
the association
essential
our
provide a service
ties—
of
“the advancement
beliefs
date and not
accepting
democracy by
do
representative
Alabama,
v.
357 U.S.
ideas.” NAACP
amplifying and
the sake of
nations for
460,
1163;
D. Pols
see Daniel
at
78 S.Ct.
speech of other
political
channeling
Nature
Special
Buckley v. Valeo:
by,
citizens. See
and individual
organizations
Sup.
1,
23
Speech, 1976
Political
Rev.
Ct.
of
Control,
at
454 U.S.
Rent
Against
Citizens
(under
to candidate
Buckley, contribution
294,
(“[B]y collective effort
S.Ct.
solidarity with the
expression of
“is an
known,
views
can make their
more”).
individuals
logically
It
little
candidate and
would be
when,
their voices
individually,
holds,
restric
follows,
Buckley
57,
lost.”);
414 U.S.
Kusper,
faint or
receive
to candidates
tions
contributions
(“The
CIO,
106, 144,
with
right
1349,
S.Ct. 303
to associate
335 U.S.
68 S.Ct.
political party
integral
(1948)
of one’s choice is an
J.,
L.Ed. 1849
(Rutledge,
concur-
freedom.”);
part of this basic constitutional
(“There
ring in judgment)
...
an effect
I,
Republican
see also Colorado
518 U.S.
in restricting expenditures
publiciz-
for the
opinion)
with 323(b) prohibits 402, that section the extent Missouri, to 528 U.S. at Shrink see also committees (no party state, and local J., district concurring) (Breyer, 120 S.Ct. “Fed- funds on non-federal spending “where from warranted legislature to deference such as activity” election constitu- ... such eral risk[s] deference to a incumbents refers as, say, permitting communication public evils a tional elec- from effective for Federal themselves candidate insulate identified clearly to Harry A Jr„ Kalven, candidate challenge”); of whether (regardless toral office (“[Political (1988) Worthy also mentioned or local office for State Tradition can use government sup- identified) ends when or promotes freedom and that or its to silence office, and its courts at- powers or its for that ports a candidate Democracy critics.”); Ely, a candidate opposes Hart tacks or John (“Courts police must (1980) the commu- (regardless whether office Distrust activity [protected] on inhibitions advocates vote expressly nication elected officials trust we candidate), cannot because against a or wanting way ins have so: to do 301(20)(A)(iii); § 101(b); § FECA BCRA out.”). stay the outs sure make 431(20)(A)(iii) add- (emphasis § 2 U.S.C. sum, Rent Control Against Citizens speech In ed), collective operates it to restrict scrutiny than strict no less requires the national manner as in much same donations 101(a); on non-federal § limits FECA ban. BCRA party nor Buckley 441i(b)(l). neither By committees ar- § 323(b)(1); § 2 U.S.C. contrary. Citi 323(b) holds subject Cal-Med is not section guing that Control, 454 U.S. Rent Against “simply requires zens because scrutiny strict v. 296-98, 102 434; Lincoln Club S.Ct. ‘Federal elec- money used fund (9th Irvine, 936-39 292 F.3d City by section activity’ [as defined tion Cir.2002) ordi scrutiny to strict (applying 301(20) compliance with be raised ] of dona limit on amount imposing nance restric- federal contribution longstanding may receive person committee tions tions,” Opp. Br. at defendants Gov’t cam during election single source issue Amendment the First merely beg I, Republican also Colorado see paign); what and to extent us—whether before (Kenne 627-28, 116 S.Ct. U.S. at not made limit donations may Congress and dissent J., judgment concurring dy, any influencing election purpose of “for (“[W]e Gov allow the part) cannot ing 431(8)(A)(i), office,” § 2 U.S.C. for Federal our to control labels suggested ernment’s advocating the election expended on no analysis.... We had Amendment First coor- and not a federal candidate defeat possible Buckley consider view, occasion my the candidate. dinated objections to limitations 323(a) (b) Amendment 301(20) First sections —which John C. generally ... parties.”); such donations —survive plainly restrict Campaign Eastman, Scrutinizing Strictly only review if First Amendment *199 (and the Courts fashion, Restrictions Finance serve, narrowly in a tailored Them), 13 50 Cath. U.L. Judge pre- Rev. interest compelling government’s political (2000). national banning By of corruption apparent or venting actual spend receiving or party committees and officeholders. candidates whatsoever, sec funds any ing non-federal 323(a) Scrutiny Fails Strict b. Section 323(a) as a restriction operates tion applicable Having decided funds donate non-federal who would those fol- review, I conclude standard participating the sake parties for to the (1) lowing sections that national provide money soft donors with special ban does not serve the government’s inter- access to officeholders.” FEC’s Am. Pro est in preventing actual or apparent posed Findings cor- of Fact at 24 (capitalization n (2) ruption; altered); even if the ban did see supra allevi- 80c, Findings 81 at ate corruption, pages 350-53; would sweep also, too see broadly e.g., Resp. of FEC to be sustained any event. RNC’s First and Second Reqs. for Ad
mis. at 4 (conceding lack of evidence that “officeholders are more likely to meet with (1) donors of non-federal money than with refer defendants us to a mountain Exam, donors of federal money”); Cross of discovery mostly anecdotal in nature— — of Def. Witness at (same). Fowler Al gathered to support the Congress’s judg- though the point defendants to certain no ment that “soft money has been used torious incidents they believe underscore and, evade the law in actuality appear- the corrupting effect of funds, non-federal ance, corrupts process.” In- see, e.g., Intervenors Br. at 11 & n. 33 tervenors Br. at 20 (capitalization altered); (noting Enron “gave $400,000 over to each see, e.g., 6-12, id. 20-50; Gov’t Br. at political party” but not asserting funds 22-36, 68-86. I outset, note at the howev- any affected federal official’sdecision-mak er, that they have identified not a single ing); id. at 29 (noting Roger Tamraz discrete instance of quid pro quo corrup- “made enormous soft money contributions” tion attributable to the donation of non- to DNC and granted was six meetings federal funds to the national party commit- with President Clinton to obtain backing supra tees. See Finding 80a at pages 349- for pipeline project but “never received the 50; also, see e.g., Resp. of FEC RNC’s backing he sought”), they have not identi First and Second Reqs. for Admis. at 2-3 fied any empirical link between large non- (conceding lack of evidence any Unit- federal donations legislative voting be ed States Senator or Representative havior. supra Finding 80b at page “changed his or her vote on any legislation Exam, 350; also, e.g., see Cross of Def. exchange a donation of Expert non-federal Green (“Q: at 58 ... What statisti money to that [person’s] political party”); cal you work are aware that you think is Dep. McCain at 170-71 (same); Feingold statistically valid since 1990 that correlates Dep. (same); Dep. Snowe at 206-07 contributions ... to roll call votes? A: (same); None.”). Jeffords Dep. at (same); Given the Supreme Court’s also, e.g., 148 Cong. working (daily S2098 definition of ed. Reo. corruption i.e., “a— 20, 2002) (statement Mar. Dodd) subversion Sen. process” that (“I have occurs never when particular known of “[e]lected officials are Mem- influ ber whom enced to act contrary [sic] I thought cast a their obligations ballot because office prospect of a contribution.”); gain,” financial McCon- cf. NCPAC, 497, 105 nell Aff. at 8 U.S. at (“During my years S.Ct. 1459—1 in the would United need to Senate, States see far I more powerful have never evi wit- dence accept nessed any defendants’ colleague claim changed who his vote non-federal took donations any corrupt appear official action as a result of corrupt federal either a candidates. federal contribution or a nonfeder- al donation to a political party at the na- Likewise, the defendants have not estab- tional, level.”). state or local Nor have lished a convincing correlation between they supported with credible evidence “explosion” of non-federal funds on the one *200 their contention that “party committees hand and an public intensified i.e., sense —
396 I. Ac- Republican in Colorado decision other. on corruption appearance —of individ- permits that “FECA knowledging 353; see page 82 at Finding supra
See
a
...
money
to
more
contribute
uals to
Campaign
and
also,
Constitution
e.g., The
that
also
and
a candidate”
party than
on S.522
Hearings
Reform,:
Before
money’ contribu-
‘soft
“unregulated
allows
Admin.,
Cong.
Comm,
106th
and
on Rules
activities, such
for certain
party
to a
tions
turnout,
in voter
decline
(2000) (sharpest
office, see
state
for
electing candidates
as
cent,
per
50.11
cent
per
60.84
from
and
registration
for voter
431(8)(A)(i),or
§
1988, when
1968
between
occurred
drives,
see
vote’
out
‘get
mostly absent
funds were
non-federal
in Colorado
plurality
431(8)(B)(xii),”the
§
persua-
they
Nor have
fundraising).
party
that
nonetheless
I observed
Republican
that, to
indicating
evidence
sively rebutted
by
posed
corruption
opportunity
for
perceive
public does
voting
the extent
contribu-
opportunities
greater
these
for
fueled
has been
perception
corruption, that
Unregulat-
best,
is,
attenuated.
at
tions
also
but
donations
non-federal
only
not
be
may not
money1contributions
ed ‘soft
81
Finding
efforts,
supra
see
lobbying
campaign,
a
to influence
used
contributions, see
353, federal
page
c. 3 at
limited, party-
in the
used
except when
355,
page
at
Finding 82b.2
supra
designated
specifically
building activities
demonologies”
“populist
media’s
mass
431(8)(B).
§
statute. See
in the
Sorauf, Poli-
Frank J.
general,
in
politics
I,
at
U.S.
518
Republican
Colorado
Amend-
First
and the
tics, Experience,
(empha-
opinion)
(plurality
S.Ct. 2309
Campaign
American
The Case
ment:
116 S.Ct.
added);
id. at
see
sis
1348, 1356
Rev.
L.
Finance, 94 Colum.
judgment
J., concurring in
(Thomas,
11-
at
Report
Rebuttal
(1994).
Primo
(“[T]here
little
risk
part)
dissenting
Report.
Ayres Rebuttal
25;
generally
party
could use
donor
individual
that
as-
broader
the defendants’
Turning
candidates.”).
Al-
bribing
as a conduit
“soft
national
of massive
sertions
in Colorado
the Court
majority of
though
see,
Br.
e.g., Gov’t
laundering,
money”
the defendants’
I dismissed
Republican
conduit
(“[S]oft
has become
money
in-
neither
theory,
parties-as-conduits
individuals, labor
wealthy
through which
discusses
government
nor
tervenors
many
corporations
government
length.
any
unions
the case
pro-
oppo-
of our
its
control
once in
but
ways seized
the decision
mentions
(daily
Opp.
S2449
CoNG.
Title I. See Gov’t
(quoting
Reo.
cess.”
discussion
sition
2001) (statement of Sen.
ironic
(citing decision
Mar.
4 n.
ed.
Br. at
(arguing
interests
Br. at 35
Collins)));
government
“the
that
Intervenors
proposition
par-
compelling”).
plainly
national,
and local
BCRA are
state
supporting
primarily
banks,
the case
prin-
treat
whose
“offshore
The intervenors
ties serve
Justices
money
footnotes,
to note
back
to shuttle
once
activity [is]
cipal
money” instead
mass
the term “soft
expensive
pay for
used
...
and forth
Opp.
funds,” see Intervenors
na-
by the
“non-federal
orchestrated
campaigns
media
14;
suggest
n.
twice
candidates Br. at
of federal
aid
parties”
tional
dicta based
were
observations
plurality’s
omitted)), I
find
(quotation
record,164see
evidentiary
an inadequate
Supreme Court’s
by the
discounted
largely
subject
it confronts
tune
changes its
when
plurality’s state-
disagree that the
do
I
inferior
prudent as an
directly,”
of non-
would
we
influence
the attenuated
about
ment
seriously”
am
I
mind-
was obiter dictum.
its assurances
to "take
funds
court
federal
ful,
however,
sometimes
Court
“the
that while
*201
397
78;
id. at 28 n.
see also Intervenors Reply scant and contradictory support for the
Br.
114;
at 38 n.
and once to point out that
proposition that
the national party ban
the “plurality stated that
it could under-
“will in fact alleviate these harms in a
stand how Congress, were
toit
conclude direct and material
Turner,
way.”
512
that the potential for evasion of individual
664,
U.S. at
Even were I reprisals to infer voters, from the record an arrangement that the use of non-federal funds has to undermines accountability in the campaign some extent promoted process”); actual or apparent Milkis Expert (in- Report at 25 corruption of federal I candidates —and do terest groups “push government to enact not, see supra Findings 80-82 at policies pages that benefit small constituencies at 349-56—the defendants have offered only expense of the general public”); RNC "respect what the majority says rather Cir.1992) ("If than the Justices pulling leg, our
read
cert,
between
lines.”
Cmty.
Sherman v.
so.”),
let
say
denied,
them
950,
508 U.S.
Consol.
Sch. Dist.
(7th
980 F.2d
113 S.Ct.
(1993).
398 date effective will, after (Herrnson committees ty 98-CV-1207 No. FEC, Civ.
v.
spending non-
donating or
BCRA, cease
of
of non-federal
use
(parties’
208-09
at
Dep.
influence
might
ways
that
money
strong policy-
federal
such
create
“does
funds
at 16
Decl.
elections”); Gallagher
and
contributors
federal
between
IOU’s
oriented
to
narrowly-
contributions
increased
by
(expecting
created
those
as
legislators
Expert
Raja
BCRA);
soft
La
spend
that
after
groups
NARAL
interest
focused
candidates”));
take
(“Interest
will
groups
a few
only
at
help
Report
40
to
money
(politi
the na-
at 27
Report
by
left
the vacuum
Expert
of
advantage
Keller
also
un
historically countered
the nonfederal
raise
to
have
committees
parties
cal
tional
agen
narrow
with
groups
of
raised
parties
influence
due
that
funds
and
processes
political
with
mediating
(agreeing
at 51
Dep.
das
Lux
past.”);
larger,
toward
policy
public
increased
“bend[ing]
of
prediction
discussed”
“widely
Karlan,
&
influence”); Issacharoff
groups);
national
to interest
donations
non-federal
engage
that
(“groups
Exam,
at 1714
supra,
at 61
Bok
of
Witness
Def.
Cross
strong incen
advocacy have
independent
Karlan,
at
supra,
&
(same); Issacharoff
to
around
issue
one
to stress
tives
mon-
“spend
speakers
(observing that
1713
contributors
and
supporters
mobilize
about
they care
because
politics
ey on
po
programmatic
range
opposed
money
“[t]he
and that
outcomes”
political
par
political
and
candidates
that
sitions”
cam-
formal
out
squeezes
reform
Court, 1995
Supreme
take); The
must
ties
somewhere”);
go
process must
paign
cf.
Party
Political
Leading Cases:
Term —
Inc.,
Network,
F.2d
968
Loan
Int’l
v.
SEC
236, 242-
L. Rev.
110
Harv.
Expenditures,
is al-
(“Money
(D.C.Cir.1992)
1304, 1305
views
of diverse
(“In
country
(1996)
43
(quot-
change.”
the pockets
but
ways there
parties
interests, political
competing
and
Stein)).
ing Gertrude
transcend
the electorate
]
enable[
...
as well
Third,
indicates
the record
and
PACs
volun
interests
parochial
to inter-
made available
funds
non-federal
usually united
associations, which are
tary
range
for a wide
used
bewill
groups
est
par
ideologies,
self-interest, narrow
including grass-
activities,
election-related
Finding
supra
issues.”); compare
ticular
activities, voter
get-out-the-vote
and
roots
parties exert
(political
334-35
pages
70 at
events with
fundraising
registration
policy),
public
moderating influence
Finding
supra
See
officeholders.
federal
348^9
pages
at
Finding 79
supra
also,
Resp. of
e.g.,
348^49; see
pages
at
79c
tem
arrange discrete
(interest groups
Reqs.
First
Second
FEC to RNC’s
issues
narrow
to address
alliances
porary
Exam, of Def.
18-19; Cross
at
Admis.
far less
“are
activities
political
15-24;
Exam
Cross
at
Green
Expert
(quoting
parties”
than those
transparent
164-65;
Re-
Milkis
Mann at
Expert
Def.
22)).
at
Report
Expert
Keller
6at
11; Gallagher Decl.
at
Report
buttal
common
Second,
the record
both
officeholders
(NARAL
federal
uses
section
if BCRA
suggest
sense
(New
Aff.
Rosenberg
at
funds);
raise
muster,
supply of
constitutional
passes
officehold-
uses federal
Democrat Network
flowing
currently
funds
non-federal
(Sier-
funds);
Deck at
Sease
raise
ers
to inter-
channeled
bewill
parties
to raise
officeholders
uses federal
ra Club
79d
Finding
supra
groups.
est
(EMILY’s List
at 5
funds);
Aff.
Solmonese
FEC
also,
Resp. of
e.g.,
349; see
page
funds).
to raise
officeholders
uses
Reqs. for Admis.
and Second
First
RNC’s
any
combi-
any one
extent
To the
no evi-
“[djefendants have
(admitting
at 7
corrupting
activities
of these
nation
donors
current
establishing
dence
com-
by the national
sponsored
when
par-
national
money to
nonfederal
(2)
although,
light
of Colorado Re-
mittees —
I,
616-17,
publican
U.S.
116 S.Ct.
Even were I convinced that new FECA
(plurality opinion), I
presume
do not
323(a)
section
materially
prevent
served to
*203
they
that
they are no less corrupting
are —
actual or apparent corruption, I am not
sponsored by
when
groups.
interest
See persuaded that
it would do so narrowly
of FEC to
Resp.
RNC’s First and Second
enough
comport
the First
Amend
19-20;
Reqs. for Admis. at
Cross Exam of
guarantees.
ment’s
Surprisingly, the de
Expert
Def.
Mann at 148-49.
engage
fendants
in only a half-hearted at
tempt
to convince the court otherwise.165
suggest
record,
I do not
that the
as a
86-87;
See Gov’t Br. at
Intervenors Br. at
whole,
supports
proposition
55-57;
Opp.
44-46;
Gov’t
Br. at
Interve
encourages
BCRA
corruption.
light of
Opp.
24-27;
nors
Br. at
Reply
Gov’t
Br. at
here,
scrutiny applicable
strict
howev
35-36;
Reply
Intervenors
Br. at 25-29.
er, the record does “diminish the credibili
essence,
Boiled down to its
their tailoring
ty
government’s
rationale for re
argument rests on a single,
prem
flawed
stricting [non-federal
in
funds]
the first
namely,
that under
the Supreme
ise—
place.” City of Ladue,
52,
512
at
U.S.
114
jurisprudence,
Court’s
we owe substantial
2038.
S.Ct.
Just last Term the Court re
deference to
Congress’s
conclusion
minded us that a speech restriction “can
that “anything less” than BCRA’s broad
not be regarded as protecting an interest
prophylactic ban on the national party
of
highest
order” —and will therefore
committees’ use of non-federal
funds
fail
scrutiny
strict
“it
apprecia
leaves
—if
“would not adequately
appear
reduce the
damage
ble
to that supposedly vital inter
and reality
corruption.”
ance
of
Gov’t
White,
unprohibited.”
est
tional individual, irre- entity or any that to extent suggest amount plaintiffs The spends the party invalid, whether spective constitutionally 323(a) is section re- That handiwork independently. funds 323(b) down be struck must section sure sharp and aof not use flects See, e.g., RNC inseverability. grounds misdi- a blunt but scalpel legislative 323(a) down (“[W]ere struck § Br. at NCPAC, 470 U.S. bludgeon. rected nonfeder- to use freed parties national (“We quibbling not 501, 105 S.Ct. to have 323(b) cease would § money, al concerned ... but are fine-tuning over Br. at effect....”); Opp. RNC any real clearly pro- restriction wholesale about opined to expert defense one At least narrowly conduct”). not ban is tected effect: same at all. indeed, it is tailored tailored; restricting ] provision[ If the ... Q: were struck committees party national 323(a)’s on na- ban FECA section New to continue sense down, it make would fails funds non-federal party use par- tional local on state restrictions pre- interest government’s serve ties? corruption apparent actual venting would case, effort the whole In this A: worse, and, it indiscrim- candidates would parties] national [The lost.... expenditures independent inately restricts as, parties local state longer need no advocacy and issue protected disbursed lost already [Y]ou vehicles.... activities. party-building non-corrupting soft national if the show the whole substantially ban is my opinion, unconstitutional. declared money ban *206 IV.D.l.b.(2), and Part overbroad, supra see how for see hard me it’s gone, it’s If on burden impermissible represents for a rationale find then would court of the na- rights associational expressive [on] law in the limits maintaining the and committees party tional parties. local and state 250, 77 at U.S. donors, Sweezy, 354 see Exam, Expert at Mann of Def. Cross inter- (“Any opinion) (plurality S.Ct. I not do agree, inclined to I am While party of a freedom with the ference whether to decide necessary believe an interference simultaneously are severable —sec- restrictions party state adherents.”). Accordingly, its freedom 323(b) sus- 301(20) cannot and tions on unconstitutional it is hold that would I own terms. on their tained even face. its II.D, sections Part supra repeat, see To 323(b) 301(20) and c. Sections 323(b) and local 301(20) state limit and Scrutiny Fail Strict non-federal spending of party committee scrutiny, sections strict Under activity,” which “Federal election on funds 323(b) state restrict 301(20) and —which regis- (1) any voter broadly as is defined non-federal spending party local regu- of a days activity within tration activity” election “Federal funds —like (2) election; voter federal larly scheduled constitutional passing far short fall wise activity identification, get-out-the-vote (1) the below I conclude muster. “in activity conducted campaign generic do not restrictions party and local state in which any election with” connection pre interest government’s serve ballot; appears federal candidate corruption apparent actual or venting to” a “refers (3) advocacy which issue (2) if the candidates; even federal of- federal candidate clearly identified are they corruption, retard did restrictions “at- “supports,” “promotes,” which fice narrowly tailored. “opposes” tacks” or a candidate for by the spending committee itself. See office, regardless when the oc- advocacy 101(a); § BCRA § FECA 323(b)(2)(B); 2 (4) transmitted; curs and how it is 441i(b)(2)(B). § U.S.C. any If one of these provided by services state or local party unmet, conditions is off; all bets are employee spends who per more than 25 committee may not reap the narrow bene- paid cent his during time any one month fits of Levin Amendment and pay must on activities “in with” a connection for the listed activities subject with funds 101(b); § election. BCRA FECA to FECA’s source-and-amount limits. 301(20)(A); 431(20)(A). § § 2 U.S.C. As a The defendants assert that the restric- rule, general a state or local party commit- tions on state and local party committees tee pay must for such solely activities with “are supported by the same interests as subject funds to FECA’s source-and- the ban on [the use soft money of] restrictions, 101(a); amount § see BCRA national party committees.” Gov’t Br. at 323(b)(1); FECA 441i(b)(l), § U.S.C. 100. I think it more accurate to say that substantially more stringent 301(20) 323(b) sections are unsupport- than those of many States. See Br. ed the same interests. The defendants (dis- Amici Curiae et Delaware al. at 5-8 could not cite a single instance of “dollars- cussing “diverse of state array” campaign for-political-favors” corruption, NCPAC, finance laws and noting permit 29 States at U.S. 105 S.Ct. stemming corporate treasury contributions to state from donation of non-federal funds to the (capitalization altered)); candidates see national party committees. See supra (current also Br. at CDP California cam- Part They again IV.D.l.b. fail with respect paign finance law specifically “was de- to state and local committees. See signed to allow political parties ... supra Finding pages 349-51; 80 at play greater role in State and local elec- also, e.g., Resp. of FEC to RNC’s First tions, theory on the empowering Reqs. and Second 2-4; for Admis. at parties spend to raise and money more Dep. 170-71; McCain Feingold Dep. at relative to candidates reduced the appear- 132; Dep. 206-07; Snowe Dep. Jeffords ance and threat of corruption by providing at 107. And while repeatedly recount an ‘insulating’ effect between large con- *207 as an exhaustive of corruptive set exam- candidates”). tributors and The Levin ples the “access influence afforded and. Amendment carves heavily-condi- out a Tamraz, Roger Riady James and Carl Lin- exception tioned to the general rule der they [sic] after made large contribu- against state-party spending of non-federal to tions state parties,” various Democratic funds on the four of classes “Federal elec- Opp. Intervenors Br. at n. 13 38 (citing activity.” tion Under the Levin Amend- 32-33), Br. they Intervenors have not ment, a or state local party may committee a convincing established link between non- spend FEC-specified amount of federal- federal parties donations to state on the ly-regulated “Levin on funds” voter regis- one hand and tration, “access” to federal candi- identification, voter generic cam- dates on the other. supra paign Findings activity get-out-the-vote and activity 80c, (1) 350-53; 81b-81c pages also, long as see activity the does not refer to e.g., candidate; (2) Resp. of FEC to RNC’s federal First the funds not and are spent Second any Reqs. on for Admis. at 4 communication, broadcast (conceding un- less the lack of solely broadcast refers to a evidence that “officeholders are state candidate; (3) or local person no more to likely donates meet with donors of non- $10,000 more committee; than to the money and federal than with donors of federal (4) the spent funds are raised exclusively money”). then, It is not surprising,
404 leg- on sound-bite reliance the defendants’ justify attempt to barely
the defendants
no-
the
support
to
history thought
direct
aas
islative
restrictions
party
the state
323(b)
301(20)
are
and
apparent
or
actual
that sections
tion
preventing
of
means
of
“access,” corruption;
integrity
the
protect
to
“necessary ...
or even
pro quo,
quid
(cit-
instead
Br. at
contention
Gov’t
primary
elections.”
Federal
prevent
necessary
(daily ed.
are
Cong.
S2138-39
restrictions
ing
Rec.
constitutionally
(statement
of
Sen.
2002)
of
circumvention
20,
Mar.
See, e.g., Gov’t
ban.
party
national
Re-
flawed
Bd.
v. Fla.
McCain));
Kimel
see
of
soft
only regulated
(“If BCRA
at 103
631,
Br.
89,
120 S.Ct.
528 U.S.
gents,
com-
party
to national
money contributed
congressional
(2000) (deriding
L.Ed.2d
soft
funnel
simply
mittees,
would
donors
of
entirely
almost
consisting]
“evidence
state
amounts
in unlimited
money
de-
floor
clipped
sentences
isolated
influence federal
party committees
local
most
reports,”
legislative
bates
13, 59
Br. at
”); Intervenors
....
elections
ipse
resembled
anecdotal
was
at 29-30
Br.
Opp.
(same);
Intervenors
page
supra
also
see
reasoning);
dixit
Cong.
S2928
(same);
also
Rec.
on
Committee
House
by the
evidenced
As
(statement
2001)
Mar.
(daily ed.
on
Report”
both
“Adverse
Administration’s
money
Schumer)
soft
(“[Rjegulating
Sen.
legis-
provisions,
and state
the national
money that
soft
dealing with the
without
least, inconsis-
very
is, at the
history
lative
who
person
like
parties is
to State
goes
301(20)
of sections
necessity
tent on
double cheese-
with his
Coke
a Diet
drinks
323(b):
get
quite
not
It does
fries:
burger
to this
produced
been
has
No evidence
point
plaintiffs
done.”).
CDP
As the
job
problem
“corruption”
of a
Committee
rationale
however,
circumvention
“the
out,
money contributions
stemming from soft
[BCRA]
extent
to the
valid
only
had
there
if
underlying
Even
parties.
[Act’s]
violation
prevents
designed
does
showing,
are
H.R. 2356
limits,” which
such
been
contribution
corruption
narrowly tailored
apparent
attempt
to be
actual
prevent
even
law,
Br. at
Opp.
CDP
to become
candidates.
it were ever
federal
If
remedy.
omitted).
the defen-
Although
ef-
opposite
(emphasis
precisely
have
it would
“Congress
believe
us
would
than
dants
Rather
intend.
proponents
its
fect
allowing state-level
recognized
interest”
“special
power
dimmish
amounts
unlimited
expend
committees
those
actually make
would
groups,
that influ-
activity
funds
unregulated
than
powerful
more
groups even
promote
...
elections would
ences
today.
cor-
reality of
appearance
(2001).
107-131,
2at
Rep.
pt.
No.
H.R.
*208
assertion
atBr.
ruption,” Gov’t
par-
local
Second,
to state and
donations
respects,
four
at least
in
is flawed
nor
unlimited
neither
are
ty committees
to con-
me
indeed,
leads
the record
infra;
directed
are
funds
If such
unregulated.
323(b)
301(20)
are
that sections
clude
elections,
are ordi-
they
influencing state
apparent
or
prevent actual
targeted
gener-
law.
state
by
regulated
narily
corruption.
al.
et
Delaware
Curiae
of Amici
ally Br.
Congress made
qua
First,
Congress
are
funds
donat-
if such
importantly,
More
of BCRA
support
fact
findings of
no
any
influencing
purpose
“for the
ed
re-
local-party
state-
generally
office,” 2 U.S.C.
Federal
election
Accordingly,
specifically.
strictions
al-
“contributions”
431(8)(A)(i),
§
scruti-
the lens
strict
through
especially
source-and-
subject
to FECA’s
ready
skepticism
good
a
deal
view
ny, I
See,
amount
restrictions.
e.g.,
Third,
BCRA
the defendants resist
the plain
102;
§
§
FECA
315(a)(1)(D); 2 U.S.C.
import of FECA and Colorado Republican
§ 441a(a)(1)(D) (“[N]o person
I,
shall make
asserting that “soft money, by definition,
...
contributions
a
committee
is nothing more than a donation that ex
established and maintained by a State
ceeds FECA’s contribution limits or comes
committee of a
party
any
calen
from source that the
prohibits.”
statute
dar year which, in the aggregate, exceed Gov’t Opp. Br. at 1. As the
plaintiffs
CDP
$10,000.”); 2
441a(a)(2)(C)
§
(“No
U.S.C.
demonstrate, however, much non-federal
multicandidate political committee shall money is raised at the state and local
make contributions ...
to any
politi
other
levels, see supra Finding 75a.3 at page
cal committee in any calendar year which, 345, and little if any of it is used “for the
in the aggregate,
$5,000.”);
exceed
2 purpose of influencing” a federal election,
§ 441a(a)(8) (“[A]ll
U.S.C.
contributions
see supra
Finding
at pages 343-44; see
person,
made
either directly
also,
or indi
e.g.,
(California
CDP Br. at 4
Demo
rectly, on behalf of a particular candidate,
cratic and Republican parties have tradi
including contributions which are
any tionally
spent majority of non-federal re
way earmarked or otherwise directed
sources on state and local ballot measures
through an
intermediary
conduit to such
elections for state and local offices
candidate, shall be treated as
(citing
contributions
5;
Bowler Decl. at
Erwin Decl. at
from such person
5));
to such candidate.”);
CDP Opp.
Br. at 5-6. Quoting former
441b(a) (“It
§
U.S.C.
is unlawful
Senator Thompson,
for any
the defendants none
bank,
national
or any corporation
theless insist
orga
that state party spending of
nized
authority
any law of
non-federal
Congress,
especially on issue ad
funds —
to make a
vocacy
contribution or
happens
expenditure
mention
federal
connection with any
candidate —“affects”
[federal] election
federal elections and
”).
....
In light of
therefore
preexisting
has
law,
“potential”
federal
to corrupt
the defendants’ charge
federal
state-party
candidates:
use
of non-federal funds
Republican
the legisla
“distort[s]
and Democratic
can-
Senate
process”
tive
and “is inherently,
didates set up joint
endemi-
fundraising commit-
eally, and
tees,
hopelessly corrupting,”
joining
Br.
with party
Gov’t
committees, to
at 81 (quoting
4),
Rudman
raise
Decl. at
unlimited
hy
soft money donations.
perbolic.
In litigation
joint
involving a
committees
state
then transferred
political party committee,
the soft money
the Supreme
funds to their Senate
Court itself
party
recognized
committees,
that under
which
FECA
transferred the
“[u]nregulated
money
‘soft
money’
their state parties,
spent
[donations]
may not be
soft
used to
money on
influence a
“issue
federal
pro-
ads” ...
campaign, except
moting
when
...
used
limited,
in the
candidates^]
party-building activities specially designat
Gov’t Br. at 101 (quoting 147
Cong.
Rec.
ed in the statute.” Colorado Republican I, S3251
ed.
(daily
Apr.
(statement
2001)
406 able (“Those ¶ are who 7 Decl. Andrews non- regulate constitutionally cannot gress money of sums largest the provide the if parties donations
fedex*al con- more have likely to a more often of are independently spent then funds are Not views. to their given advocacy sideration for issue candidate —whether in the foot help provide it given only does party-building generic activities — for office official’s elected posed corruption a federal for into door opportunity “the that pitch, donor’s the best, “is, attenuated.” to make at a chance and funds by” such 616, to foster at tend I, may U.S. naturally 518 also Republican but Colorado Congress see opinion); hearing.”). (plurality 2309 sympathetic S.Ct. more 116 (“So See, 612 147 45, S.Ct. e.g., 96 at 424 U.S. concerns. Buckley, similar noted 29, expen- eschew Mar. groups (daily ed. and Cong. persons as long S3107-10 Reo. advocate (“[I]t terms important express in 2001) that (Sen.Feingold) ditures clearly identified aof of defeat millions that acknowledge election tous for as much spend free candidate, they are influ- attempt to in an given dollars candidate promote want do.”). as we what ence Against Citizens views.”); also see his (bracketed evi- n. 18 at 16 Br. Opp. Gov’t S.Ct. 102 at Control, U.S. 454 Rent Br. omitted); Gov’t see dentiary citations contributions on limits (“Placing 434 sources); similar (quoting at 79-81 impairs plainly expenditures limit turn in believe, (“I at 3 Decl. also, e.g., McCain expression.”). of freedom offi that elected experience, my based that evidence Fourth, defendants’ in order to ways particular do act cials local to state donations non-federal that donors money large soft assist appear- possibility “raise parties pro legislative shapes skews 196 Dep. at Feingold corruption,” of ance sponsors course, the cess.”). statute’s Of their stronger than added), nois (emphasis itself. Congress are not supporters thereof) lack (or notable evidence mentioned, Congress And, I have polit- produced in fact have donations such donations non-federal finding no made See candidates. federal from ical favors corrupt appear parties local to state and Char- pages at 353-56. 82 Finding supra no find indeed, it made elections; corrup- apparent “evidence” acteristic whatsoever. BCRA support ings in the cite string in a found tion can evi skepticism views Court Supreme brief: opposition government’s find legislative not of “consists dence considera- presented [Defendants ac unexamined, anecdotal but ings, money donations of soft evidence ble Garrett, 531 v. Trustees Bd. counts.” to have appear least very at L.Ed.2d 148 356, 370, 121 S.Ct. U.S. quid pro to secure made been 89, 120 Kimel, 528 U.S. (2001); see 866 ¶ (“[I]t is 13 Decl. ... Simon quos. Flores, v. (same); City 631 S.Ct. of Boerne contributors large for unusual 2157, 138 530-31, 117 S.Ct. U.S. exchange favors legislative seek (same); Lopez, (1997) L.Ed.2d Decl. contributions.”); Simpson their down (striking 562, 115 S.Ct. U.S. in- tobacco (“[Djonations from Act Zones Free School of Gun provision tobacco scuttled Republicans dustry to “[njeither the statute alia, because, inter as contributions just legislation, ex contain[ed] history legislative its nor stopped to Democrats lawyers the trial regarding findings congressional press ¶ (cor- Decl. reform.”); Hickmott tort gun commerce interstate upon effects mon- soft give frequently donors porate zone”). Skepticism school possession legislative to “influence parties ey to in the context appropriate particularly purposes”); business process
407
First Amendment strict scrutiny, where
ture as adequate to carry [the] First
“the usual presumption of constitutionality Amendment burden.” Shrink Missouri,
afforded congressional enactments is re
392,
(2) fact, FEC’s the nal)). Manifesting this 323(b) 301(20) whole- apply and Sections required regulations allocation pre-BCRA expenditures party local to state and sale funds federal percentage certain that a that activities election for state-focused extent to the activities on mixed be used the theo- on elections federal barely affect identification, registration, voter voter that corrupt a may potentially ry that activi- and “other drives get-out-the-vote See, Interve- e.g., federal candidate. given regis- public general urge the that ties Dep. at 196 13; Feingold atBr. Opp. nors partic- aof ter, candidates support vote to state donations (unlimited non-federal federal simultaneous affected party” ular possibility “raise parties local 106.5(a)(2)(iv) § 11 C.F.R. elections. (emphasis corruption” appearance 72a, at 72c Findings (2001); supra see following dis- added)). in the I conclude Twenty 341-42; see also pages Re- YeaR 301(20) and if sections that even cussion (“Some in- expenses ch. supra, port, prevent 323(b) instances in some served commit- party] and local by [state curred supra but appearance, corruption or its federal to both may fact relate ... tees IV.D.l.c.(l), survive they could not Part Party commit- elections. and nonfederal not nar- they are scrutiny because strict generic may purchase tees, example, view, provisions my tailored. rowly bene- that advertisements get-out-the-vote non-corrupting too much restrict candi- nonfederal their federal fit both speech. ads, committees these pay for To dates. and local state that undisputed It portion funds for use federal must activ- “mixed” undertake committees party candidates, may use but federal benefits and federal state of both behalf ities on that bene- portion ... money for soft expenses, candidates; overhead they pay candidates[.]”); Opp. CDP nonfederal fits voting, communicate full-ticket mobilize FEC (in cycle election Br. 6 n. 5 at in cer- engage supporters pay all “to CDP regulations required supra Find- advertising. “joint” tain administrative, [get-out-the-vote] generic 341-45, 73b-73e, 72c, pages 74 at 72a, ings activities with party-building and general at also, Decl. e.g., Benson 166-69; see (emphasis in money” 43% least federal Republican Party (describing Colorado 323(b), 301(20) and Sections original)). ticket” the entire “support programs rough balance however, abandon emphasis on greater place “often but They regulations. struck allocation than legislative races state state-wide spend federal parties state require races”); Decl. at 3-4 Cardenas on federal plausibly will not on activities funds Party’s Republican (describing Florida Consider candidate. any federal corrupt activities); Dendahl mixed payment raised plaintiffs CDP example the “ticket- (describing certain at 6-12 Decl. used the CDP In 1996 argument. oral Republican Mexico of New activities wide” following pay funds non-federal true, as the it is no doubt And Party). electorate the California urging ad radio assert, “[be- repeatedly defendants initia- ballot a controversial against vote partisan proclivities cause tive: toward both express themselves electorate whether decide day we Tuesday is the candidates, parties state and federal state on us. the clock turn back them we let directly even elections influence day day, the Tuesday is election Because supporters they mobilize when Wilson’s Governor down can vote we office.” for state a candidate behalf rights away our civil to take scheme (quoting Green at 27 Opp. Br. E.g., Gov’t *212 end our chance for fairness. The Re- risk [t]he of corruption perceived in publican scheme Prop. is 209 and it cases involving candidate elections ... would eliminate affirmative action which simply is present not in a popular vote helps make our society fair and gives public on a sure, issue. To be corporate every one of us a fair chance at the advertising may influence the outcome American dream. But to say yes to vote; this would be its purpose. fairness and no to mean-spirited Prop. But the fact that advocacy persuade may 209, we say yes have to to voting. On the electorate is hardly a reason sup- Tuesday, we go must to the polls and press it[J cast a important most vote fairness, for Bellotti, 435 790, at U.S. 1407; S.Ct. see for affirmative action—a against vote Intervenors Opp. Br. at 20 n. 49 (noting Prop. 209. Vote No on 209. Vote no on that Court invalidated eontribution-to-com- the Republican scheme to turn the clock mittee limit in Citizens Against Rent Con- back and shut down equal opportunity trol because “the recipient committee had all. for On Tuesday, yes vote for our been formed support a local ballot mea- future and no on Prop. 209. Don’t let sure” and “the Court found [that] there the Republicans get away with it. Don’t was no risk of actual or apparent corrup- stay home. That’s what they’re count- tion” (citing Against Citizens Rent Con- ing on. Paid for by the California Dem- trol, 454 U.S. at 434)). 102 S.Ct. ocratic Party. I note few more of the CDP plaintiffs’ Feingold Dep. Exh. 15. Conceding that examples of state-oriented, non-corrupting 301(20) sections 323(b) would require “Federal election activities]” the non-fed- the CDP to fund the foregoing ad with eral funding of which 301(20) sections federal money,166the intervenors contend 323(b) restrict: that “it is inconceivable that an ad like 1. A generic get-out-the-vote mailer this, which encourages voters go to the stating: “Our Vote is Our Voice. Keep polls to ensure that ‘Republicans [don’t] Asian Pacific American families moving get away it,’ with would have no effect on forward. Vote Democrat.” App. CDP the contemporaneous federal election.” 177; see Resp. of Intervenors Intervenors Opp. Br. at 11 n. 31-32. CDP’s First Set of Reqs. contention, Their for Admis. at 3 if even correct, is irrele- (admitting mailer vant. “Federal Congress cannot, election consistent activity” with First under BCRA and Amendment FEC strict regula- scrutiny, lim- it a tions and party’s must be paid pooling individual, either entire- corporate ly union federal funds or donations to pay with a for an combina- ad that so plainly tion of has no federal effect, funds corrupting funds). and Levin real or imagined, on any federal candidate 2. A generic get-out-the-vote newspa- or officeholder. As the Court held in per Bel- advertisement stating: “On Nov. lota 5th, We’re Voting for Ourselves. Vote 166. The government bank, contends that under the radio, rather than the and did so within newly-issued FEC's regulations, the radio ad election, hours of the it would still consti- would get-out-the-vote not constitute activity get-out-the-vote tute activity even under the because it was disseminated "individu- FEC's regulations." Reply McConnell Br. at means.” Opp. alized Gov’t Br. at (quoting 9-10. The CDP ad would be speech no less § 100.24(a)(3) C.F.R. (emphasis gov- and no corrupting more of a federal candi- ernment’s)). As the plaintiffs McConnell dem- date if transmitted phone than if broadcast " onstrate, however, if the simply CDP ‘broad- on the radio. cast’ the same advertisement phone via a None App. at CDP tion.” Not Important Too It’s ’96.
Democratic anyone mentions communications Resp. other 180; App. CDP To.” office, much remotely tied Reqs. Set of even First CDP’s Intervenors Thus, none candidate. a federal (admitting advertisement less at 4 Admis. “hypo- than more activity” anything under poses them election “Federal *213 a federal corrupting and must of regulations possibility” FEC thetical and BCRA funds). 498, 105 NCPAC, at 470 federal U.S. entirely with for paid candidate. be core of these every one script fea- Yet 1459. phone S.Ct. get-out-the-vote A3. either funded “On be voters: must activities urging speech Jackson Jesse turing strictly- just or with is not funds vote 7th, federal your entirely with November everyone needWe funds.167 Levin candidates. limited about Prop. defeat voting to community our about concerned was Congress If the Prop. initiative. voucher 38[,] school state- of effect corrupting allegedly our discrimination brings new 38 that activities]” election “Federal oriented turned be can children Our schools. a not) affect incidentally (or might might scores, religion or test based on away naught. troubled for election, it was federal get urge you I family income. even suggests remotely the record Nothing in no 7th. Vote November on to vote out list- activities]” election the “Federal that ALIVE!!!” 38, HOPE KEEP Prop. on corrupt appear corrupt or above ed Resp. of Interve- 197; see at App. CDP not whether And candidates. federal Reqs. for Set First to CDP’s nors have also supporters and sponsors BCRA’s script is phone (admitting 5at Admis. and that state concern overstated BCRA under activity” election “Federal “pass- operated parties local paid be must and regulations FEC con- large, direct ... accounts through funds). entirely with unions, and corporations, from tributions ad- urging mailer get-out-the-vote 4. A Br. individuals,” Intervenors e.g., wealthy strong two Anaheim to “Give dressees Cong. S2138-39 Reo. 35 (quoting Gray Davis voting for voices” (statement 2002) Mar. (daily ed. “on November office Daly for state Tom 323(b) 301(20) McCain)), sections for Sen. a candidate 3,” on which a date re- narrowly tailored a represent the bal- do appeared also office Federal indeed corruption is If conduit sponse. at 51. App. CDP lot. level, the most state-party at the problem nn.& 16- at 17-20 Br. CDP generally See enforcement stronger is solution measured fea- communications these The first 20. “contri- already regulate provisions Y. of Norman and likeness name tures of influenc- purpose “for the made butions” (in print) very small and notes Mineta office.” for Federal any election ing “[fjirst Pacific American Asian he is earlier, 431(8)(A)(i). As I noted § U.S.C. posi- cabinet to a appointed be history to (and regula- regulation about correct certain government claims The review), has argument its APA tion excepted withstands would flyers mailers these the facial bearing on the outcome "par- little 323(b) regulation, by FEC section us; RNC demon- as the challenge before mailing[s]' of over [they ticularly are] 'mass if "is flyer or mailer strates, a if state-focused Opp. Br. Gov’t pieces.” homes, is 'individualized' mailed because argument no such make intervenors 10,000, mes- or if the hand-delivery [same] challenging the currently are of them some 323(b)” by § it is covered by phone, sage is relies. government on which the regulation Br. Reply regulations. RNC (D.D.C., even under FEC, 02-CV-1984 No. Shays v. original). (emphasis 5n. at 9-10 is 2002). government if Even the Oct. filed the Court itself has observed that under radio ads that we believe are what is the FECA problem.”), it is one problem the Congress
[a]ny contribution to a party
lacks
ear-
the constitutional authority to solve.
particular
marked for a
campaign is con- Under the Court’s
law,
case
party issue
sidered
contribution
advocacy
candidate
is entitled to full First Amend-
subject
to the contribution
ment protection
limita-
and may not be regulated
441a(a)(8).
§
tions.
(even
A party may not
on the
side)
supply
if expenditures
simply channel unlimited amounts of
therefor are disbursed independently
aof
even undesignated contributions to a
candidate’s campaign.168 See Colorado Re-
candidate, since such
publican
direct
I,
transfers
U.S. at
such as
323(c)
FECA Section
McCain,
of one
when the cost
to Senator
piece
approximately
323(c)
statewide mail
requires any
section
New FECA
(Bowler
20), $10,000
$260,000
Decl. [at]
national,
com-
political party
state
local
communica-
for a lot of
any
allow
funds to raise
does not
to use federal
mittee
(“You
can
or disbursed for
Dep.
money
expended
[at]
that is
tion. McCain
BCRA
activity.”
election
$10,000.”)....
“Federal
print a
of handouts
lot
101(a);
323(c);
§
2 U.S.C.
§
FECA
parties
possibly
cannot
[California]
The
441i(c).
only
demands
provision
§
the federal limits
money under
raise the
Having concluded
passing attention.
a massive California
necessary
reach
301(20)’sdefinition of “Fed-
FECA section
way....
meaningful
Con-
in a
audience
sustained,
cannot
activity”
be
eral election
properly
narrow the
failed
gress has
IV.D.l.c.,
despite
supra Part
any
activities
mean-
of “federal”
focus
(“If any provision of
BCRA section 401
imposed
upon
limit
ingful way,
has
unconstitutional,
this Act ...
is held
be
spend
state funds
parties’ abilities
... shall not
affected
the remainder
to the likeli-
completely
unrelated
I
holding.”),
would hold
section
appearance of
corruption or the
hood of
323(c)
and therefore invalid
is inseverable
*215
corruption of federal candidates.
Supreme Court made
as well. As the
32,
(emphasis
original).
Br. at
CDP
provision
statutory
a
long ago,
clear
fashion,
unrestrained
sections
agree.
I
separable unless it
cannot be deemed
323(b)
301(20)
“necessarily reduce[ ]
that,
alone,
appears
standing
legal
both
expression by restricting
of
quantity
it
given
be
and that
effect can
discussed,
depth
of
number
issues
legislature
provision
intended the
of
and the size
exploration,
of their
stand,
in the
in case others included
act
fall_
Buckley, 424 U.S.
audience reached.”
[A
held bad should
sever-
19,
They
narrow
merely;
an inexorable command.
Kansas,
286, 290,
v.
264 U.S.
Dorchy
301(20)
323(b)’s
New FECA sections
(1924)
(Brandéis,
individual citizens.
In both instances, the
party facilitates
Like its
counterparts
“[d]iscussion of
323(a)
public
at sections
(b),
issues and
323(d)
debate on
section
qualifications
limits the
associa-
tional
candidates [that is] integral
activities of any national,
opera-
state or
tion of
system
local
government
committee
prohibit-
estab-
lished by
ing
our
from giving
Constitution.” Buckley,
non-federal
funds to
U.S. at
groups
414 money." hard [use] freedom general at Decl. Bowler See initiatives.
ballot
added).
(emphasis
27
Br. at
Reply
to Gov’t
formed
committees
most
Significantly,
enacted
Congress
Therefore,
if
even
Cali-
measures
ballot
oppose
support
prevent-
toward
eye
an
with
provision
501(c)(4) organiza-
tax-exempt
are
fornia
money,” sec-
“laundering”
“soft
347;
ing the
page
at
77a
Finding
supra
See
tions.
circumvention
323(d)
beyond
well
goes
tion
Under
at
Decl.
Bowler
also, e.g.,
see
questionable
a
is itself
which
prophylaxis,
from
prohibited
323(d), the CDP
section
po-
realm
in the
objective
non-federal)
governmental
(federal or
any funds
giving
Button, 371
v.
NAACP
See
speech.
litical
organization
501(c)(4) ballot-measure
ato
(“Broad prophy-
328
438, 83 S.Ct.
at
U.S.
one
like
ad
radio
a
purchases
expression
free
area
rules
lactic
vote
electorate
the California
urging
suspect.”).
are
measure
209, a ballot
Proposition
against
action
has
Court
affirmative
Second,
the extent
eliminate
would
15;
Exh.
ratio
Dep.
Feingold
“anti-circumvention”
See
State.
an
recognized
Set of
application
First
limited
carefully
CDP’s
nale,
Intervenors
has
Resp. of
it
(admitting
to circum
at 10
interest
Admis.
governmental
Reqs.
dona-
of funds
such
323(d)
prohibit
disbursement
would
in which
section
stances
more
speech
Col
imagine
tion).
candidate.
is hard
a federal
corrupt
It
may
464-65,
protection.
at
II,
U.S.
Amendment
533
for First
Republican
eligible
orado
donating
party
(while
CDP
barring the
coordinated
2351
But
S.Ct.
or-
corrupt” can
ballot-measure
to the
“power
funds
non-federal
expenditures
323(d)
such
stifles
expenditures
section
didates,
independent
ganization,
orga-
corrup
affects”
“automatically
a chain
link in
speech;
“form[ ]
do
Against
Citizens
Act’s
not subvert
expenditures,
do
tion-by-eonduit”
nization’s
299, 102 S.Ct.
Repub
at
Control,
(citing
454 U.S.
Colorado
limits
Rent
contribution
elec-
“in connection
S.Ct.
at
I,
518 U.S.
lican
NCPAC,
because
only
470 U.S.
office”
Federal
opinion)));
tion
(plurality
bal-
same
on the
appears
1459;
also
Colorado
496-97,
candidate
105 S.Ct.
101(a);
§
BCRA
S.Ct.
initiative.
I,
state
U.S.
as the
lot
Republican
441i(d)(l).
§
no
(“where
323(d)(1); 2 U.S.C.
there
§
opinion)
FECA
(plurality
provision’s
candidate,
*217
the Gov
that
argue
aof
‘corruption’
defendants
The
risk
political
the trade
contributions”
on
even
limit
may
restraint
broad
ernment
“prevent
790,
to
98 S.Ct.
a means
as
justified
U.S.
435
(citing
ideas
Bellotti
and
money
soft
as
collecting
exaggerated
1407)).
parties
intervenors’
organizations
notwithstanding,
other
through
contrary
laundering
to the
sertion
electioneering.” Gov’t
(“[BJallot
Opp.
in federal
Br.
engaged
Intervenors
see
Cong.
S1992
suscepti
as
just
Rec.
(quoting
are
at 117
Br.
committees
measure
(statement of
2002)
18,
machi
campaign finance
(daily
Mar.
parties’
ed.
to
ble
First
settled
Under
I believe
Feingold)).
group.”),
any other
Sen.
as
nations
however, sec-
a state
jurisprudence,
donation
party’s
Amendment
a state
that
this-
justified on
323(d)
opposes
cannot be
organization
tion
measure
ballot
corrupting
other.
risk
any
or
poses no
ground
initiative
state
cand
any
corrupt)
(or
appearing
acknowledges,
federal
First,
government
as
Con-
Rent
Against
Citizens
idate.171
a “restriction
323(d)
operates
section
regulates [do-
"although BCRA
observes
wisely
no
makes
government,
171. The
tax-exempt
parties
nations]
Amendment
the First
attempt
to minimize
measures,
ballot
regarding
speech
value
trol,
297-98,
Third, the
defendants’ “evidence” of
Cong.
Gov’t Opp.
sec-
Br. at 38 n. 39 (citing 144
323(d)’s
tion
prophylactic necessity is in- Rec. S1048 (daily ed.
26, 1998)
Feb.
sufficient
support
provision:
(statement
Glenn) (in
of Sen.
1996 “soft
Congress recognized
money” “supplied
that tax-exempt or-
parties
funds
used
ganizations
as virtual
served
make
arms
to tax-exempt
[donations]
groups,
party committees,
which in
conducting
turn
used the funds to pay for
electioneering activities to
Cong.
activities”);
benefit
election-related
candi-
particular
dates of a
party
being
without
S977 (daily
25, 1998) (state-
ed. Feb.
Reo.
subject to any of
Levin) (“These
the funding source
ment of
Sen.
soft money
contribution limitations or disclosure
re-
issue ad loopholes are used to trans-
quirements that
applicable
are
to party
fer millions of dollars to
organiza-
outside
committees.
example,
For
the RNC in-
tions to
allegedly
conduct
independent
fused Americans
for Tax Reform election-related
are,
activities
fact,
(“ATR”), 501(c)(4)
tax-exempt organi- benefiting parties
candidates.”);
zation, “with over
Cong.
million in
$4.5
Reo. S898 (daily
24, 1998)
ed. Feb.
weeks leading up
(statement
election,”
to the
Ford) (“[W]e
of Sen.
now know
paid
ATR then
“its bills for a
that many
direct
of these
independent
so-called
mail
phone
bank campaign involving organizations, many claiming tax-exempt
four million calls
status,
and 19
pieces
million
established,
operated,
fi-
mail explicitly disputing the
by parties
Democrats’ nanced
and candidates them-
position on Medicare as it related to the
selves—and their finances are
un-
totally
Cong.
5th
November
election.” 144
regulated.”));
Opp.
Intervenors
Rec.
Br. at
(Feb.
1998)
S840
(Sen.Lieberman).
47 (recounting that CDP in 1999 violated
The DNC
engaged
similar
regulations
con- FEC
by contributing more
Moreover,
duct. ...
$700,000
donations solicited than
to tax-exempt organization
directed
national
opposing
committees
state spending reduction referen-
tax-exempt
benefit
organizations
dum).
If this is the best the defendants
conduct
activities create the
offer,
have to
I am unimpressed. The
*218
organizations,
the statute
790-91,
leaves the party
nized
who
officeholders,
donors
and of
obligated
party commit
of
arms
as virtual
serve[ ]
in order
to contribute
compelled
feel
men
As I
atBr.
Gov’t
tees.”
from,
to,
consideration
and
obtain access
that
fact on
of
findings
no
tioned, made
it
(empha-
Br. at 118
officials,” Gov’t
federal
if
even
But
matter.
other
any
or
sec-
to sustain
added)
insufficient
sis
or
—are
former
three
of
opinions
generalized
498,
NCPAC,
*
*
*
323(d)
section
prohibit
would
too much
sum,
323(d)
non-corrupting
section
impermissi-
is an
speech. Accord-
I
ingly, would
provision
ble restriction on
find the
expressive
associa-
unconsti-
tutional on its face.
rights
party
tional
committees
Candidates;
would-be donees.
Tashjian,
See
U.S.
Federal
New
214-15,
(“[A]
S.Ct.
[plarty’s
323(e)
FECA Section
attempt
to broaden the
public
base
par-
323(e)
Section
prohibits any feder
ticipation in and support for its activities is
al candidate or officeholder from soliciting,
conduct undeniably central to the exercise
receiving or transferring non-federal funds
right
of association....
prohibi-
[A]
“in connection with”
federal,
a
or
state
potential
tion of
association with nonmem-
local election.173
§
101(a);
BCRA
clearly
bers would
infringe upon the rights
§ 323(e)(1);
FECA
441i(e)(l).
§
U.S.C.
of the [plart/s members under the First
provision
admits of numerous excep
Amendment
to organize with like-minded
tions, however, and so there are numerous
in support
citizens
of common political ways in which a federal candidate or office
Jones,
goals.”); see also
U.S.
holder can participate in fundraising. Spe
(same).
418 non-federal on restrictions other BCRA’s at a guest a featured or be tend, speak, briefs, McConnell the In three funds. polit- local state or for a event” fundraising para- a than more scarcely spend 101(a); plaintiffs § committee, BCRA party ical without arguing provision, the 441i(e)(3); on graph § 323(e)(3); 2 U.S.C. § FECA impinges “seriously that analysis full on funds non-federal (3) unlimited solicit between free association of right upon the 501(c) organization tax-exempt aof behalf [federal] and committees local and state con- not to is purpose” “principal whose candidates, many and officeholders identification voter registration, voter duct role significant played now whom until “solicita- activity if the get-out-the-vote atBr. McConnell politics.” local and state will funds the how specify not tion does raise plaintiffs and CDP RNC The 30. 101(a); FECA § BCRA spent,” be should lukewarm claims associational 441i(e)(4)(A); similar § 2 323(e)(4)(A); U.S.C. § 41-42; CDP Br. at see, RNC fashion, e.g., $20,000 individual per (4) up to solicit and that incidentally assert 42, only and Br. at voter specifically year calendar per for infringes unconstitutionally provision the get- and identification voter registration, right Amendment First candidate’s federal organization an activity, or out-the-vote Br. at 39-40 see, solicitation, e.g., CDP to conduct is purpose” “principal whose solici- on candidate prohibition (mentioning activities, BCRA of those all any or 323(a) with section conjunction tation 323(e)(4)(B); 2 U.S.C. § 101(a); FECA § national 323(b)’s on restrictions and that emphasizing 441i(e)(4)(B). It bears § mer- lack leaders). claims these I believe provi- challenge not do plaintiffs the agree I inclined am infra, and it,174see do they as vigor same the with sion 8, I, § art. President); U.S. Const, also see McConnell well reject the as would I "regulate power to Congress (granting cl. 3 Thompson the and claim federalism plaintiffs' States"). the several among ... Commerce protection claim. equal plaintiffs' Tenth the has held Circuit The D.C. "[b]y allege that plaintiffs McConnell gov- federal deny the not does Amendment officehold- of federal restricting the activities municipal authority to restrict ernment and respect to state candidates ers and soliciting contri- from professionals securities processes, [sec- campaigns local election state campaigns of for the butions business; Amendment 323(e) the Tenth violates ] tion they obtain whom officials McConnell of federalism." principles compels regulation] neither [The [Sjtates 115; at 23 Br. McConnell see Compl. at as the private parties, regulate ability "dramatically 323(e) (section limits v. York New prohibits, Amendment Tenth 2408, and candidates 144, officeholders States, S.Ct. of federal U.S. 112 505 United candidates” local money (1992), regulates state nor raise 120 L.Ed.2d 120 permitted be otherwise on which directly, would a question where [S]tates law). express no juris- IWhile state Amendment under Tenth Supreme do so Court's other plaintiffs’ unsteady path,” McConnell traveled opinion prudence on the "has Further, 160, non-federal challenges BCRA's S.Ct. 112 id. at federalism III.A, resembling reject anything I Part supra does not provisions, rule fund [Spates’ ability Congress’s power does effect preemptive kind notion processes of non- own election and transfer to control their the solicitation reach state "destructive perceived as might candidate funds where federal 4, San Antonio I, v. sovereignty.” § cl. See Garcia art. soliciting. See U.S. Const, one U.S. Authority, 469 regulate Metropolitan Transit Congress power (granting 1 1016 528, 554, L.Ed.2d 83 S.Ct. holding Elec- 105 "Times, and Manner Places Ashcroft, U.S. 501 (1985); Gregory v. ex- Representatives,” Senators tions for cf. 460-62, L.Ed.2d Senators”); S.Ct. chusing Places cept to "the (1991). 546-47, S.Ct. Burroughs, U.S. at each of Blount, believe I at 949. 61 F.3d authority to congressional (recognizing broad applicable observations Circuit's D.C. Vice- for President regulate elections
419
with the RNC’s assessment
that because
political party’s associational freedom is
“[i]t is the corruption of federal officehold- “unconstitutional
unless
is narrowly tai-
ers and candidates —not the corruption of
lored to
serve
compelling state interest”),
political parties
the Supreme Court
—that
with Colorado Republican II, 533 U.S. at
has recognized as a legitimate interest
10,
448 n.
ly
in the
process,
Thompson
of discrimination on the basis of wealth
¶¶
Compl.
40-41,
government's
re-
ignores the fact
equal
protection prin-
sponse is sufficient:
ciples do
require
"not
equality
absolute
BCRA’s restrictions on federal officeholders
precisely equal advantages,” and do not
make no distinctions on the basis of race or
"require the
equalize
State to
economic
any
suspect
other
classification. The stat-
conditions.”
Moffitt,
Ross v.
417 U.S.
ute
exactly
accords
the same
treatment to
94 S.Ct.
(1974)
2001 [viewed] the way in which speech candi- or association. It is true that by dates raised money as if unethical not limiting a federal candidate or officehold- fully corrupt, with percent viewing er’s solicitation of funds, non-federal sec- [it] as corrupt.” Shapiro Expert Re- 323(e) tion burdens his association with the port 12; but Ayres Rebuttal party of. with whom he is linked ideology Report at 4-5 (appearance of corrup- and with whom he engages “in the com- tion stems only not large dona- mon enterprise of electing up candidates tions of non-federal funds but of feder- and down the ticket.” CDP Br. at 40. well). al funds as Nonetheless, the provision leaves him free (and These statements others in the record to associate with his with other —and them) like are hardly evidence federal like-minded organizations significant —in candidate and officeholder solicitation of ways. As I have mentioned, he may still non-federal funds results in quid actual solicit, receive or transfer funds, pro quo corruption. inBut severing the § see BCRA 101(a); § FECA 323(e)(1)(A), most direct link between the federal candi- (B); 2 § U.S.C. 441i(e)(l)(A), (B); “attend, date and the donor, non-federal see Gov’t speak, or be a featured guest aat fundrais- Br. at 323(e) section can serve to ing event” for a state or local political prevent appearance corruption of party committee, 101(a); § BCRA FECA where it is most acute. See Stretton v. § 323(e)(3); 2 441i(e)(3); § U.S.C. solicit Bd., Disciplinary (3d F.2d unlimited non-federal funds on behalf of a Cir.1991) (“[W]e cannot say that the state 501(c) tax-exempt organization whose may not draw line at point where the “principal purpose” is not to conduct voter effect, coercive or its appearance, is at its registration, voter identification or get-out- most personal solicitation by the intense — the-vote activity if the “solicitation does candidate.”). Although the defendants not specify how the funds will or should be again offered the court no empirical spent,” BCRA § 101(a); FECA evidence, “no smoking gun is needed § 323(e)(4)(A); 2 § U.S.C. 441i(e)(4)(A); where, here, as the conflict of interest is $20,000 solicit up to per per individual apparent.” Blount, 61 F.3d at calendar year specifically regis- voter Second, if “key BCRA’s purpose” tration, is in- voter identification and get-out- deed to prevent “the of use money soft the-vote activity, or for an organization of means buying influence [over] federal whose “principal purpose” is to conduct officials,” e.g., 148 Cong. Rec. H408 (daily any or all of those activities, BCRA provision The Id. causes.” particular 328(e)(4)(B); 2 U.S.C. § 101(a); FECA § danger little present 323(e) seems “per- therefore Thus, section 441i(e)(4)(B). § ad- candidate-to-donor money in the flow stifling solicit candidates
mits federal
more
no
it
elections,
but
conclude
would
vocacy;
local
I
state
with
connection
bemay
than
corruption” by
speech
dangers
restrictive
minimizes
corruption
analo-
apparent
limits
prevent
necessary to
setting source-and-amount
Br. at
Gov’t
officeholders
FECA.
to those
federal candidates
gous
cap
moderate
thinking,
way
my
To
regulates.
solic-
officeholder
candidate
on federal
as an
troubling
nearly so
itation
therefore,
is consistent
323(e),
Section
has
Court
be.
would
ban
outright
guarantees175
First Amendment’s
solicitation
held
believe,
sustained.
and,
must
I
interests—
speech
*224
of
variety
involve[s]
New
Candidates:
State
information, the dis-
of
communication
323(f)
Section
FECA
and
of views
propagation
and
semination
323(f), a state
section
new FECA
causes—that
advocacy of
Under
ideas,
the
spend
“may not
First
the
officeholder
or
protection
candidate
within the
are
sup-
described
a communication
Soliciting financial
for
any funds
Amendment.
funds
301(20)(A)(iii)
reason-
the
subject to
unless
undoubtedly
in section
port is
be
limitations, prohibitions,
must
the latter
but
to the
regulation
subject
able
real-
for the
regard
of the Act.
due
with
requirements”
reporting
undertaken
characteristically
323(f);
is
2
§
U.S.C.
101(a);
solicitation
ity that
FECA
§
BCRA
per-
101(b);
informative
FECA
§
intertwined
441i(f); see also BCRA
§
support
seeking
speech
431(20)(A)(iii).
haps persuasive
(20)(A)(iii);
§
2 U.S.C.
§ 301
particular
or for
causes
particular
for
FECA sec-
that
my conclusion
light
social
economic,
or
political,
on
sustained,
views
supra
301(20)
be
cannot
tion
that without
reality
the
issues,
as well
IV.D.l.c, I would conclude
Part
information
of such
flow
solicitation
given
be
can
legal effect
no coherent
that
likely cease.
advocacy would
strike
323(f),
I would
to section
632, 100 S.Ct.
at
444 U.S.
Schaumburg,
inseverability.
ground
on
down
added).
section
Because
(emphasis
826
323
290, 44 S.Ct.
at
264
Dorchy,
U.S.
federal
prohibit
323(e)
flatly
not
does
deemed
be
“cannot
(statutory provision
soliciting
from
officeholder
or
candidate
that,
...
appears
it
unless
separable
him
preclude
funds,
it does
campaign
given
can
alone,
effect
legal
standing
“par-
of his
range
fall
expressing
it”);
Part IV.D.2.
supra
cf.
economic,
or so-
political,
on
views
ticular
Contributions
Minors’
Ban on
E. The
soliciting
he is
Id. Whether
issues.”
cial
and Donations
matter, wheth-
$10,000
or
$10
—or
sec
finally from BCRA
Turning
or non-federal
soliciting federal
er he
funds,
on non-federal
restrictions
101’s
tion
may, as
or officeholder
candidate
funds —a
which,
section
BCRA
examine
I next
wishes,
support
“seek[ ]
he
as
vigorously
narrow-
provision
because
But
18-19.
at
a free
guarantee of
includes
175. This
in-
compelling
government’s
may
ly
serve
section
plaintiffs claim
Paul
press. The
corrup-
appearance
preventing
terest in
press to
a free
323(e)
right
violates
control”
"editorial
does not exert
tion—and
Representative
prohibits
extent
activities,
(capitali-
id.
18
press
anyone’s
on be-
letters
"signing solicitation
Paul from
press
free
plaintiffs’
altered)
Paul
America, Citizens
zation
—the
Gun Owners
of"
half
merit.
without
claim is
Br.
Paul
RealCampaignReform.org.
or
United
as the
plaintiffs’
Echols
counsel aptly ob-
629, 638,
U.S.
88 S.Ct.
20 L.Ed.2d
served at oral argument, “falls
(1968)
into
(“[E]ven
where there
anis
inva
category of ‘who knows where it came
sion of protected freedoms ‘the power of
”
from.’ Oral Arg.
(coun-
Tr. Vol. 2 at 326
the state to control the conduct of children
sel for
plaintiffs).
Echols
Section 318 bans
reaches beyond the scope of its authority
”
any person under
age
of 18 from mak- over adults.’
(quoting Prince v. Masses
(1)
ing
any contribution whatsoever
any
chusetts, 321
158, 170,
U.S.
S.Ct.
candidate;
(2)
any contribution L.Ed.
(1944))),
no case of which I am
or non-federal “donation”
to a
par-
aware holds
speech
minor’s
is less
ty committee. BCRA
318;
§
FECA valuable to himself—or
to the
§ 324; 2
(“An
§
U.S.C.
441k
individual marketplace
simply
because
youth.
his
—
who is
years
old
younger shall not Therefore,
the fact that section 318 re
make a contribution to a candidate or a
stricts the speech of
minors
opposed to
contribution or donation
ato
committee of adults does not affect the standard by
a political party.”). The McConnell and which the court is to review the provision.
plaintiffs
Echols
contend that
provision
I believe section 318
subject
to strict
runs afoul of the First Amendment. See
scrutiny for the same reasons I have
91-95;
McConnell Br. at
McConnell Opp.
strictly scrutinized BCRA’s limits on non-
59-61;
atBr.
McConnell Reply Br.
47-
*225
donations to
party commit
48. For the following reasons, I agree.176 tees —the ban operates to restrict
the po
speech
litical
of minors who would donate
It is well-settled that minors are entitled
non-federal funds to
the
parties in
to the
range
full
and force of the First
order to participate in collective advocacy
guarantees.
Amendment’s
Tinker,
See
via independent
expenditures.
See
393
511-13,
U.S. at
89
733;
S.Ct.
W. Va.
318;
§
BCRA
§ 324;
FECA
2 U.S.C.
State Bd.
Educ. v. Barnette, 319
(“An
§
U.S.
441k
individual who is 17 years old
624, 642, 63
1178,
S.Ct.
424 “[n]ormally that floor the Senate on [First abridgement unnecessary avoid campaign solicit go out U.S. we freedoms,” Buckley, 424 when Amendment] limit it to not dowe no need to 612, contributions there 25, 96 S.Ct. at to know also want “Buckley We scrutiny or individual. strict whether decide their or Blount, spouse 61 F.3d their not or applies. whether scrutiny” Cf. like Amend- would of First (where adult children outcome minor 942-43 stan- depend upon campaign contributions.” challenge does make some
ment
upon
settle
review,
Mar.
(daily
no need
ed.
Cong.
S2933
dard
Reo.
Dodd).
standard).
2001) (statement of Sen.
applicable
any
not serve
does
First,
(cid:127)
“The Kiddie-
section
from
ranging
Articles
“suffi-
interest,
less
much
“The
governmental
Slate.com
Caper” on
Cash
one.
“compelling”
important”
ciently
Generous”
Young and the
statement
one floor
citing
Repeatedly
asserted
have
Washington Post
claims
Senator,
government
one
big
the next
minors
“gifts
parents
some
recognized
“Congress
Br.
Gov’t
loophole.”
campaign
their children
over
influence
their
use
altered).
(capitalization
n.
assets
children’s
their
over
control
on other
McCain,
(cid:127)
relying
Senator
contributions
on
the limits
circumvent
articles,
reported
newspaper
Br. at
Gov’t
parties.”
candidates
contributions
“some”
floor
Senate
(daily ed.
Cong.
Rec. S2145
(citing 148
tod-
by infants and
made
been
McCain)
2002) (statement of Sen.
Mar.
no exam-
provided
dlers,
he
although
evasion
prevent
“to
added
(provision
(daily ed.
Cong.
S2145
ples.
Reo.
told
limits”)).
The court
contribution
(statement
2002)
of Sen.
Mar.
mea-
prophylactic
need
“[t]he
McCain).
two adoles-
only
cited
He
is clear.”
here
Congress
adopted
sure
specifically.
contributions
cents’
*226
evidence
government’s
But the
Id. at 200.
“found
Angeles Times
(stating Los
id.
200-02
id. at
see
corruption-by-conduit,
of
contribut-
school sisters
high
two
that
remarkably thin:
137-141, is
nn.&
Party in
$40,000
Democratic
to the
ed
to the Con-
(cid:127)
report
FEC
A decade-old
“
”).
decision’
‘family
on a
1998” based
explana-
further
without
states
gress
evi-
government’s
by
I convinced
Were
are sometimes
“contributions
tion that
easily
are
individuals
“wealthy
that
children’s dence
their
in
by parents
given
by
...
limits
contribution
circumventing
Comm’n,
names.”
Annu-
Election
Fed.
contributions,”
(1993).
children’s
RepoRT
1992,
directing their
at 64
al
20,
(daily ed. Mar.
Cong.
S2145
148
Report re-
Rec.
(cid:127)
Thompson Committee
The
McCain)
I
2002) (statement of Sen.
—and
“im-
investigation
an
sulting from
nothing more
does
am not—section
in connection
activities
proper
laws
than do federal
problem
alleviate
campaigns”
election
prohibits
FECA
the books.
already on
ex-
without further
again,
states —once
a contribution
“mak[ing]
person
any
...
sub-
“[t]here
planation —that
“know-
person”
of another
being
are
in
name
minors
evidence
stantial
by
made
others,
contribution
accepting]
parents,
ingly
their
used
per-
another
on con-
in the name
imposed
person
limits
one
circumvent
reg-
an
Rep. at
FEC
§ 441f. And
Thompson Comm.
2 U.S.C.
tributors.”
son.”
until Janu-
in effect
that remained
ulation
child
a minor
1,
ensured
ary
fund-
(cid:127)
Dodd,
experienced
“an
Senator
if he did so
only
a contribution
make
138,
could
stated
n.
raiser,”
Br. at 201
Gov’t
“knowingly
“funds,
and voluntarily,” with
contends
makes
“[i]t
no difference that
goods, or services ... owned or controlled
§ 318 is a
prohibition
limited
of contribu-
him,
exclusively” by
and not with “the
tions rather
than a limit on their dollar
proceeds
gift,
purpose
of a
of which amount.”
Opp.
Gov’t
Br. at 125 n. 133. I
provide
towas
funds to be contributed.”
disagree;
that section 318 is a prohibition
110.1(i)(2).
§
11 C.F.R.
By
govern-
makes all the
True,
difference.
the Court
admission,
ment’s own
all section 318 adds
rejected
has
argument
that the Act’s
to the statutory landscape
provision
is a
$1,000 contribution ceiling employs “un-
(we
told)
that will
be easier to adminis-
realistically low” dollar limits and has held
than existing
ter
laws:
the “Congress’ failure to engage in
[Contributions
minors
ages,
all
...
fine tuning does not invalidate the
adolescents,
even
present
... practical
legislation.” Buckley, 424
U.S. at
difficulties. The Commission either can
S.Ct.
(dismissing assertion that “much
accept at face value self-serving, conelu-
[$1,000]
more than
would still not be
sory,
and sometimes
lawyer-crafted
enough to
enable
unscrupulous contrib-
members,
statements of family
or it can utor to
improper
exercise
influence over a
probe for the truth by querying young-
officeholder”).
candidate or
And the
sters about their knowledge
politics
Court has reminded us that we have “no
and their relationship with
parents
scalpel
probe,
whether,
$2,000
say, a
ways
may
threaten
privacy
ceiling might not serve
$1,000.”
as well as
family.
Id. (quoting Buckley,
842).
519 F.2d at
Gov’t Br. at 207.
government’s
“in
But the Court has also taught us that in
terest”
possible
smoothest
enforce
context,
contribution-to-candidate
“dis-
ment of campaign finance restrictions is
tinctions in degree become
...
significant
not one
articulated
the legislative rec
when
can be said to amount to differ-
Cong.
ord. See 148
(daily
S2145-48
Rec.
ences
kind.” Id. The Congress’s deci-
2002).
ed. Mar.
Neither
one the
sion to enact a prophylactic
ban minors’
Supreme Court
recognized
has
as “suffi
contributions rather
than capping them
ciently important” or
justi
“compelling” to
was
one that
involved “fine tuning.”
fy limiting
(much
campaign contributions
Buckley makes clear that “[a] limitation
them),
banning
NCPAC,
less
470 U.S.
on the amount money person
may give
496-97,
105 S.Ct.
nor one I am
*227
to a candidate ...
involves little direct
prepared to accept for the first time today,
restraint on
political communication,
his
Richardson,
see Frontiero
677,
v.
411 U.S.
permits
for it
symbolic expression
690,
1764,
(1973)
93 S.Ct.
Second, himself, funds he has earned even if section 318 served to (2) supra Findings 356; 83-84 at prevent page apparent actual corruption or parents minor’s federal have “maxed on candidates a out” their way material not law, served existing provision contributions and might could therefore not be sustained seek to because—far from use the minor being as a conduit contrib- “closely utor, drawn” “narrowly or (3) tailored” —it see supra 356; Finding 84 at page grossly overbroad. The government or contribution donation is de minimis
426 on the Lowest F. The Conditions ap- corrupt or remotely even
and cannot
Charge
Broadcast
candidate;
Unit
or
corrupt any federal
pear
(4)
a
makes non-federal donation
the minor
Until the enactment BCRA sec
party committee that
ato
state
305,
Act
tion
the Federal Communications
registration,
on
funds
voter
spends the
(FCA) required a licensed broadcast sta
identification, get-out-the-vote activi-
voter
provide
candidate—during
tion to
a federal
solely
advocacy relating
to state
ty or issue
primary
a
or runoff
days preceding
the 45
defends sec-
government
candidates.
days preceding
60
during
election
prohibition “limited”
calling
tion 318
special
a
or
election—the benefit
general
open alter-
it leaves
pointing
out that
charge
station”
of the “lowest unit
speech.
a minor’s
native channels for
“in
any
advertisement
con
broadcast
(minors may still “vol-
Br. at 204-05
Gov’t
campaign.
nection with”
candidate’s
a candidate for
unteer their services to
315(b).
315(b);
§
§
47
FCA
U.S.C.
committee,”
federal office
FCA to
section 305 amends the
BCRA
independent expenditures
unlimited
“make
charge
unit
deny
candidate the lowest
express
their views” and “contribute to
unless the candidate either certifies
committees”).
independent political
Un-
writing
any
he
not “make
direct
will
longstanding
princi-
First Amendment
der
candidate for the
reference
another
however,
all.
ples,
this is no defense at
office,”
305(a)(3);
§
FCA
same
BCRA
Johnson,
397, 416 n.
See Texas v.
491 U.S.
315(b)(2)(A),
315(b)(2)(A);
§
§
47 U.S.C.
(1989)
2533,
Notwithstanding Article III of the United States government’s ins- Under *228 see, Constitution, “judicial upportable contrary, assertions to the our Power” extends (section Opp. Br. 124 e.g., only Gov’t at 318 live “Cases” “Controversies.” Const, Supreme art. III. the policy embodies “a reasonable choice U.S. As easily judicial Lujan Congress survives re- Court held v. Wild- [that] of Defenders view”), profound life, 112 119 minors’ ban reflects U.S. S.Ct. (1992), congressional disregard of L.Ed.2d 351 “an and un- First essential jurisprudence changing part case-or-controversy Amendment and settled of the I provi- requirement thereunder. would hold that the of Article III” the “core component” standing: sion is invalid on its face.
Over the years, our cases have estab- section 305—are unable on the record be- lished that the irreducible constitutional fore us to carry their burden of establish- minimum of standing contains three ele- ing that provision causes them an “ac- First, ments. plaintiff must have tual or imminent, not ‘conjectural’ or suffered an “injury in fact”—an invasion ‘hypothetical’” injury sufficient to confer of a protected legally interest which is standing. Id. (a) particularized, concrete and ... and Section 305 applies exclusively to candi- (b) “actual or imminent, not ‘conjectural’ dates federal Thus, office. only ” three or ‘hypothetical.’ Second, ... there the McConnell plaintiffs —Senator must be a causal connection between the McConnell, Representative Pence and for- injury and the complained conduct mer Representative Barr —are conceivably Third, .... it must “likely,” be op- as affected by provision.178 See McCon- posed to merely “speculative,” that the ¶¶ nell Compl. at 15-17. Neither Pence will injury be “redressed a favorable nor Barr has alleged provided evidence decision.” ... that he intends in a future campaign run The party invoking federal jurisdiction a broadcast advertisement that will both bears the burden of establishing these any “make direct reference to another can- elements.... Since they are not mere didate for office,” same BCRA pleading requirements but rather an in- § 305(a)(3); § FCA 315(b)(2)(A); 47 dispensable part of plaintiffs case, § U.S.C. 315(b)(2)(A), and omit his own each element supportéd must be in the identification, § 305(a)(3); BCRA FCA same way any other matter on which § 315(b)(2)(C), (D); U.S.C. plaintiff bears the of proof, burden § 315(b)(2)(C), (D). Indeed, i.e., Representa- with the manner and degree of evi- tive Pence testified that he ran nine dence required adver- at the successive stages tisements during the period litigation.... January At the pleading 1, 1999 to 31, 2001, December stage, general Resp. factual allegations inju- §ee Rep. ry Pence to Defs.’ resulting First from the Set of defendant’s con- Inter- rogs. 6-7, at duct may that none suffice.... the ads response “made to a direct motion for [cjandidate reference to summary judgment, another however, plaintiff office,” id., can same no longer rest on he such does not allegations,” “mere but “believe must that [he] “set wage will forth” a campaign by affidavit or other differently evidence ... “specific after BCRA than [he] did facts.” ... And at the before,” final stage, those Dep. Pence And although (if facts controverted) must “sup- Senator McConnell has testified without ported adequately by the ad- evidence contradiction the future he intends duced at trial.” to run campaign ads critical of oppo- his Lujan, 504 560-61, U.S. at nent and “will S.Ct. be subject ... BCRA’s (citations omitted). I believe that discriminatory penalty so,” for doing plaintiffs McConnell only plaintiffs in McConnell Aff. —the he is not “immediate- these consolidated actions who challenge ly in danger of sustaining direct some 178. To the any extent that of the other indi- tiffs "conceivably” affected by section plaintiffs vidual in the McConnell action something of an overstatement. Neverthe- might someday candidates, become less, like the Senator and Congress- the two *229 my McConnell, observation that men, Senator Rep- none of plaintiffs these alleged has resentative Pence and Representative (much former less adduced "specific facts” to dem- (all Barr of might whom in the again future onstrate) “actual or imminent injury” stem- candidates) become federal are only plain- the ming from section 305.
428 de ... for action bring an [to] Congress 305, City section of result” [a] injury as of challenge to injunctive relief claratory 95, 102, 103 461 U.S. Lyons, v. Angeles Los provi any [of its] of constitutionality (1983) (empha the 675 1660, L.Ed.2d 75 S.Ct. be 403(c), therefore is sion[s],” § date he BCRA the earliest added), because sis III Article respect is 45 provision point with the the of effect side the could feel Second, elec primary challenge section Republican standing to the days before Arkansas, the to which v. standing rules Whitmore in 2008. the relaxed tion 1717, 109 at Reply Br. 155, 149, refer, 110 S.Ct. McConnell see plaintiffs 495 U.S. III, Wilson, liti (under 405 (1990) Article Gooding v. (citing 135 L.Ed.2d n. 28 46 is injury 1103, “clearly demonstrate” L.Ed.2d 31 520, must S.Ct. gant 518, 92 U.S. sense”) (quoted “temporal of only to claims “imminent” (1972)), applicable 408 2130). 560, 112 S.Ct. at (like U.S. Lujan, 504 the overbreadth Amendment First plaintiff no that hold I would Accordingly, A to IV. at Parts supra Imany addressed challenge the standing constitutional has embod E). doctrine overbreadth The IV. provision. against rule general the exception to ies con- resist this Trustees plaintiffs standing, see Board The McConnell third-party of They grounds. 482-83, 469, interrelated 109 S.Ct. two Fox, on clusion 492 U.S. v. 403(c) specifi- section (1989), may BCRA that that observe one 3028, 106 388 L.Ed.2d any challenge contemplates facial cally “a real exists there only where invoked of member by any statute provision sig will the statute itself danger istic 46at Reply Br. Senate, see McConnell the First recognized compromise nificantly that, relaxed under 28, argue n. be parties of protections Amendment rules, Senator standing First Amendment Vincent, Taxpayers the fore Court.” for sec- challenge standing to has McConnell 2118; see 801-02, 104 S.Ct. U.S. 466 respect to basis with facial “on a tion 305 al„ FalloN, et generally Jr. H. Riohard Id. applications,” unconstitutional all its Federal Courts Hart Wechsler’s & First, while availing. is assertion Neither (4th System 202-13 Federal the AND effectuating importance recognize I of over- ed.1996) relation (discussing intent clearly-expressed Congress’s doctrines). The case standing breadth pro- single and in expeditiously resolve relaxed rely for a plaintiffs which statute, to the challenge any facial ceeding overbreadth clear makes standard cannot 403(a), legislature § BCRA see for situa reserved generally doctrine constitution- are not authority we grant us “may speakers potential tions v. See Raines to exercise. ally entitled rights exercising their well refrain 3, S.Ct. 117 n. 820 U.S. Byrd, 521 provided sanctions criminal fear of for (“It (1997) settled L.Ed.2d 849 138 pro application susceptible a statute Ill’s Article erase cannot Congress 405 U.S. Gooding, expression.” tected statutorily standing requirements added). Un (emphasis 521, 92 S.Ct. who plaintiff to a sue right to granting above, howev analyzed provisions like see standing.”); not otherwise would E, section A to IV. IV. er, Parts supra Florida, 517 Fla. v. Tribe also Seminole sanction no criminal imposes L.Ed.2d 44, 65, S.Ct. U.S. Instead, denies simply thereof. violation Con- (it (1996) is “fundamental who candidate a federal rate to lowest jurisdiction expand the [may] not gress (1) refer advertisement a broadcast runs the bounds beyond courts same candidate ring another Madison, 5 v. Marburg (citing III” Article iden (2) speaker’s office, omitting (1803))). Cranch) 137, 2 (1 L.Ed. U.S. 305(a)(3); FCA § See BCRA tification. “[a]ny Member permits That BCRA
429
315(b)(2).
315(b)(2);
§
§
What-
political party
U.S.C.
tributions to state
commit-
ever other First Amendment
infirmities
political
tees and “other
committee[s].”
305,
provision
may accompany section
the
CDP
(“By
severely
See
Br. at 50
...
di-
only marginal danger
chilling
raises
sadvantaging
party
state and local
commit-
speech
parties
the
not before the Court.
ability
political
[in]
tees
to
engage
Vincent:, 466
Taxpayers
See
U.S.
communication and
participate
otherwise
801,
Thus,
view,
my
S.Ct.
political
process,
deprives
BCRA
ignore
jurisdic-
court
cannot
standard
protection
[them] of the equal
of the laws
III
requirements
tional
of Article
to con- guaranteed by the Due Process Clause of
plaintiffs’ challenge,
sider the
nor has it
Amendment.”);
the Fifth
Paul Br.
27at
n.
authority
say
any
anything
to
more on the
11 (arguing
“disparate
treatment” of
Co.,
matter. See Steel
Act. I supra Part II.G. would hold that III, plaintiffs Under Article must set plaintiff challenges no who either set of “specific forth opposed facts”—as to “mere provisions standing has to do so. allegations”—establishing the elements of 1. General Increases constitutional standing: (1) In sections BCRA First, plaintiff must have suffered an “hard money” ceilings by raises the Act’s “injury in fact”—an of a legally invasion permitting individual donors to contribute (a) protected interest which is concrete greater and nation amounts candidates (b) particularized, ... and “actual or committees, al party and state see imminent, ‘conjectural’ ‘hypotheti- 307; 315(a)(1); ” §§ § BCRA FECA Second, ... cal.’ there must be a (2) 441a(a)(1); § U.S.C. indexes for causal injury connection between the $10,000 inflation all but the Act’s limit on complained and the conduct of—the in- po individual’s contributions ato state jury ... “fairly has be tracefable] $5,000 party litical cap committee and the defendant, challenged action of the on an “any individual’s contributions to indepen- and not ... result th[e] [of] committee,” other see BCRA dent action of some third not be- 307(d); § 315(c); § FECA U.S.C. Third, fore the ... court.” must be 441a(c); § generally supra Part II.G.l. “likely,” opposed merely “specula- plaintiffs higher The Adams claim that the tive,” will injury that the “redressed protection ceilings equal compo violate the by a favorable decision.” nent the Fifth Amendment “multi 560-61, Lujan, 504 U.S. at S.Ct. 2130 plying money the hard contributions of the (alterations (citations omitted). original) wealthy” thereby “depriving] non- mind, my plaintiff To no carried his has wealthy voters and candidates the abili Indeed, plaintiffs burden. the Adams ty participate” in process the electoral on at have failed least two elements. equal “meaningful “on an basis” and with a First, they have not suffered an invasion (capitalization voice.” Adams Br. at 9 al As Elev- legally protected interest. tered); Opp. passing, Adams Br. at 5. recently finding enth Circuit held—in plaintiffs and Paul raise similar CDP plaintiffs had no to raise an respect standing claims with failure to BCRA’s protection index for inflation the Act’s limits con- equal claim identical to that of *231 430 societal “attribute refusing to plaintiffs “right has one plaintiffs Adams
the
—no
of
high cost
or the
income
in
differences
electoral
overall
in the
influence
equal
to
the State”
to
campaign
...
running
State
Ga.
of
process.”
Conference
Branch,
NAACP,
Angeles
1259,
Los
Cox,
F.3d
(quoting
188
v.
Branches
NAACP
denied,
U.S.
525
MCFL,
1323)), cert.
Cir.1999)
at
131 F.3d
(quoting
(11th
1263-64
424
511,
L.Ed.2d
(“Political
142
1001,
S.Ct.
257,
616
119
107 S.Ct.
at
U.S.
479
describing
(aptly
at 209
necessarily require
(1998);
Br.
Gov’t
not
does
trade’
‘free
“the
that
political
as notion
in the
“real claim”
participate
plaintiffs’
who
all
to
re
equal
government
exactly
the
requires
do so
Constitution
marketplace
plain
raising
Adams
from
the
sources.”)).
none of
citizens
other
And
prevent
be,
do”);
Cit
conceivably will
they
been,
than
more
contributing
has
tiffs
cf.
to
Control,
access
at
or of
vote
454 U.S.
to
right
Rent
his
stripped
Against
of
izens
the
one of
made
Second,
if
...
(“Buckley
even
295,
434
ballot.
S.Ct.
102
it
injury,
an
protected
such
be
did suffer
cannot
plaintiffs
contributors
clear
to
traee[able]”
...
“fairly
make
will
be
not
that others
would
possibility
560, 112
at
S.Ct.
U.S.
Lujan,
contributions!!]”).
upon
504
Relying
BCRA.
larger
has ob
Circuit
cases,
the Second
As
voting rights
2130.
inapposite
wealth
finding that
again, in
have
served—once
insist
plaintiffs
the Adams
equal
standing to raise
no
had
plaintiffs
voice”
“meaningful
their
standing to raise
to that
identical
claim
protection
1-5;
Buck
see
at
Opp. Br.
Adams
claim.
limits, high
plaintiffs
Adams
55,
612
96 S.Ct.
n.
49
—contribution
at
U.S.
ley, 424
contributions
low,
“require
not
do
support
not
do
cases
rights
(voting
v.
Albanese
any candidate.”
to
made
be
to
persons
of some
rights
“abridgfing]
Cir.) (emphasis
(2d
66, 68
FEC,
F.3d
78
in order
expression
in
engage
819, 117
denied,
U.S.
519
added), cert.
seg
of other
voice
the relative
enhance
Thus, any
(1996).
73, 136
33
L.Ed.2d
S.Ct.
so, how
doing
society”).
of our
ments
may suffer
plaintiffs
the Adams
inequality
I
law
case
ever,
none
they confront
individuals,
other
hands of
at the
would
just discussed.179
have
1264
Cox,
F.3d at
183
not BCRA.
reasons,
CDP
the same
For
meaningfully
inability
“alleged
(plaintiffs’
challenge
standing
lack
plaintiffs
Paul
elections
and influence
in
participate
contribu-
certain
index
failure
BCRA’s
and resources
conduct
to the
attributable
Additionally,
inflation.
tion limits
state”);
individuals,
private
brief-
pages
collective
than two
the less
Jones, 131
Branch v.
NAACP,
Angeles
Los
50; Paul
at
matter,
Br.
CDP
see
ing on
Cir.1997)
(9th
(rejecting
1317, 1323
F.3d
nor
the CDP
neither
n.
27
Br. at
to that
similar
claim
protection
equal
any “specif-
to us
cited
plaintiffs
Paul
action
“no state
because
plaintiffs
Adams
561, 112 S.Ct.
facts,”
Lujan,
U.S.
ic
position
a better
wealthy voters
put[s]
index-
that BCRA’s
show
2130, tending to
than nonweal
campaigns
contribute
disadvantage]”
“severely
will
ing scheme
813, 119
denied, 525
voters”),
U.S.
cert.
thy
engage
ability to
“their
them in
(1998);
also
142 L.Ed.2d
S.Ct.
Their
Br. at
communication,” CDP
Cincinnati, 142 F.3d
City
v.
Kruse
Decl.
see, e.g., Boos
allegations,”
“mere
Cir.)
protec
(6th
equal
(rejecting
17n.
“arbitrarily limit[s]”
(indexing scheme
of Adams
to that
similar
argument
tion
given
counsel
disturbing
4—is
acknowledge
Br. at
even to
plaintiffs' failure
the unsuc-
represented
plaintiffs
reply
Adams
until
case law
applicable
each of
protection claimants
equal
cessful
any reli-
they curtly dismiss
brief—in
above.
cited
decisions
circuit
the four
Reply
"misplaced,” Adams
upon
ance
(alterations
(citations
Political Victory
United
Fund’s
in original)
Citizens
*232
opposing
supporting
omitted).
“activities in
or
feder-
Moreover, none of the Adams
al
“unfairly
candidates” and
discriminate^]
plaintiffs is a
in an
candidate
election af-
(index-
Fund); Pratt
at 22
against”
Decl.
by
fected
the millionaire provisions—i.e.,
“arbitrarily
ing
limit[s]”
scheme
Gun Own- one in
an opponent
spend
which
chooses to
of America Political Victory
ers
Fund’s
triggering
in
amount
his own funds—
supporting
opposing
“activities in
or
feder-
and it
purely “conjectural”
would be
“unfairly
al candidates” and
discriminate^]
the court
any plaintiff
to assume that
ever
Fund),
against”
are insufficient to confer
560, 562,
will be.
Id. at
V. ed.1916) (Bacon and Scott Citizenship 143 the Con- III and before in Parts statement made (original stated reasons For the the that all of of New I believe State opinion, stitutional Convention of IV of except 1894). of provisions challenged in York BCRA— (which, in in Part IV.D.4 one discussed an individual that when Many believe sustained) those view, must be and my large makes of individuals association (as to and IV.G in IV.F Parts discussed aiding of purpose for the contributions judgment) no pass I would which —violate parties winning of candidates Amendment to the United States the First elections, expect, and some- they perma- I Accordingly, would Constitution. least, demand, occasionally, at and times enjoin defendants and nently receive, by the beneficia- consideration executing or other- enforcing, agents from not in- their contributions which of ries 202, 203, 204, sections applying wise general to the is harmful frequently BCRA, 212, 213, 214, and 504 of public interest. or otherwise enforcing, executing and from 301(20), (Statement (1924) sections new FECA applying Rec. Cong. 9507-9508 323(d) 323(f), 323(a), 323(b), 323(c), as Robinson). Joseph of Sen. 101 of BCRA.
added
section
money is the chief
know that
We all
all know that
corruption.
of
We
source
OPINION
MEMORANDUM
cam-
contributions
large
KOLLAR-KOTELLY,
Judge.
District
political party
only put
paigns
contribu-
large
to the
obligation
under
I.
INTRODUCTION
tors,
way
in the
of
demand pay
who
confronting Congress
The recent issues
know that large
but we also
legislation,
finance
neither
campaign
related to
are
purpose
money are
used
sums
novel nor unfamiliar:
campaigns
conducting expensive
prevent
great
...
The idea is to
over the
newspapers
through
using their
of wealth from
aggregations
radio;
of all sorts of
publication
in the
funds,
indirectly, to
directly or
corporate
untrue;
literature,
and for the
true and
to these
legislature
send members
expenses of cam-
paying the
purpose of
protection
to vote for their
halls
order
country
out into
sent
paigners
of their interests
and the advancement
true and un-
propaganda, both
spread
public. It strikes
against those of the
true.
has
constantly growing evil
at a
(Statement
(1940)
Cong. Rec. 2720
the confidence
done more to shake
Bankhead).
of this Sen. John
of small means
plain people
in campaign expen-
corporate
The unchecked rise
the use
treasury
funds for
coupled with the absence of limi-
ditures
expenditures
contributions and
to federal
expendi-
tations on contributions and
parties,
candidates and their
forbid the use
tures,
dependence
has increased the
of of
union dues
connection with federal
special
groups
candidates on
interest
elections, cap
contributions
individuals
large
contributors.
to candidates
parties,
presiden
offer
(1974).
93-1289,
H.R.Rep. No.
at 3
option
tial candidates the
of financing their
gone
basically
We have
a small general
campaigns
election
with money
system
country
donor
in this
where the
fisc,
public
from the
subject
coordinat
average person
they
believed
had a
expenditures
ed
to contribution limitations.
stake,
voice,
believed
had a
to one
process
This
has been evolutionary, and
extremely
large
money,
amounts of
the deliberative nature of the legislative
you
player
you
where
are not a
unless
unexpected
effort is not
given the fact that
$100,000
$200,000
range,
campaign finance is an extraordinarily
*234
$500,000
in
many contributions
the
challenging
legislate,
area to
particularly
range, occasionally you
a
get
million
$1
given
strong
the
First Amendment inter
Many
contribution....
Members are
hand,
ests
stake. On the one
congres
picking up
paper every day
tired of
the
sional
in
plainly implicates
action
this area
reading
important
and
about an
issue we
an
right
individual’s
to be free from gov
going
considering,
are
to be
one in which
regulation,
right
ernment
a
unques
many
large
interests have
sums at stake
tionably at its
in
apogee
the context of
part
story
and then the second
of the
political speech.
hand,
the
legis
On
other
reading
large
about the
amounts of mon-
in
designed
lation
this area is
to embolden
ey
poured
that are being
Washing-
into
public confidence in the political system,
ton on one
side
the other of the
which thereby ultimately encourages indi
implication,
issue—the
of
being
course
participate
engage
viduals to
and
in the
clear,
money
large
talks
and
process.
electoral
Republi
Colorado
money
amounts of
talk the loudest.
Campaign
can Federal
Comm. v. Federal
27,
Cong.
(daily
147
Rec. S2958
ed. March
(“Colorado ”),
Election Comm’n
I
518 U.S.
2001) (statement
Thomp-
of
Fred
Senator
604, 609,
2309,
116 S.Ct.
In campaign regula- the area of finance Freeman, corruption”); see also Burson v. tion, congressional largely action has been 191, 198, 1846, 504 U.S. 112 S.Ct. 119 responsive incremental and to the most (1992) (“Perhaps L.Ed.2d foremost 5 prevalent existing abuses or evasions of among these serious issues are cases that particular points law at in time. ex- For Constitution, force us to reconcile our commitment to ample, consistent with the Congress permitted prohibit speech has been free with our commitment to other
434 (“This Court J., dissenting) (O’Connor, govern- embodied rights constitutional its when power of limits acts proceedings”)- ment grounds. constitutional a law on invalidates constitution- competing these Mindful the constitu- place in of our recognition In deliber- moved has interests, Congress al great scheme, must act we tional evasion slowly to address ately and often telling coordi- delicacy when and gravity consensus Building law. of the or abuse absolutely actions its branch nate to the close penetratingly so area amend- constitutional absent prohibited requires Amendment First heart of the cita- ment.”) (internal marks quotation fact, the case Right consideration. v. omitted); serious Nat’l also FEC tions 197, 209, before 103 presently Comm., legislation 459 U.S. to Work (“This (1982) over six took process Court, 552, legislative L.Ed.2d S.Ct. feder- by Congress.1 adjustment and reflection study legislative years careful advance, laws, our in a cautious careful effort thoughtful al electoral This particular lengthy branches, to account by step, such step over corpora- See, attributes e.g., economic time, respect. legal deserves course warrants 223-224, organizations 173, labor Sullivan, tions U.S. v. Rust deference.”) (citation (1991) considerable L.Ed.2d 111 S.Ct. (106th 1999,” H.R. Act of Authorization con- was campaign reform Although finance 1999,” Integrity see, Act "Campaign Cong.); e.g., Congress, during 104th sidered Legislature (106th Cong.); "Citizen H.R. 1867 H.R. ofAct Campaign Reform *235 (106th Act,” 1922 Freedom H.R. Political (considered and (1996) on House Cong. 104th In- 162-259, "Campaign and Election Reform Cong.); floor, 142 by of a vote but failed 1999,” (106th Cong.); 25, 1996)), H.R. tegrity 2668 Act of H8,516 July (daily ed. Cong. Rec. 1999,” 2866 H.R. ofAct "PAC Limitation precursors did on BCRA’s deliberations Cam- (106th Cong.); "Open and Accountable Fifth Con- and One begin until the Hundred 2000,” 3243 H.R. Financing of paign Act the One Hun- bills gress. The introduced and Authoriza- (106th Cong.); Reform “FEC and Hundred Congress, One Fifth and dred (106th 2000,” Cong.); 4037 of H.R. tion Act and Sev- One Congress, and Hundred Sixth Act of finance, Improvement "Campaign Finance relating campaign Congress, enth include, “Campaign (106th 2000,” Cong.); 4685 "Bipartisan H.R. are not limited to: but As- of Personal 1997,” Disclosure Sales Finance 493 H.R. of Campaign Reform Act 2000,” (106th Cong.); 4989 H.R. Act of sets and Elec- (105th "Campaign Cong.); Reform 2000,” 5507 H.R. (105th of 1998,” Voter Act "Informed 3485 Integrity Act of H.R. tion Improve- "Campaign (106th Finance Cong.); Improvement "Campaign Finance Cong.); (106th 2000,” Cong.); H.R. 5596 (105th Act of 1998,” Cong.); ment "Bi- H.R. 3476 ofAct 1999,” 1997,” Act of Campaign Reform "Bipartisan Integrity ofAct Campaign partisan En- (106th Cong.); "Federal Election 26 Report- S. "Campaign (105th Cong.); 2183 H.R. Act,” S. 1998,” Reform and Disclosure forcement 3582 H.R. of ing Disclosure Act and Money, (106th Clean Cong.); "Clean 504 (105th Campaign Reform "Bipartisan Cong.); Act,” (106th "Bipar- Cong.); S. 982 1997,” (105th Cong.); Elections "Senate S. 25 Act of 1999,” S. 1593 Act of Campaign Reform tisan Financing Spending Reform and Campaign Integrity (106th "Campaign Cong.); Finance "Campaign Fi- Act,” (105th Cong.); S. 57 1999,” (106th "Open Cong.); 1997,” S. 1671 Act of S. ofAct and Disclosure Reform nance Financing Act of Campaign Accountable and Money, (105th Cong.); "Clean Clean 179 (106th "Campaign 2000,” Cong.); 1816 S. Act,” (105th Cong.); "Grass- S. 918 Elections 2000,” of Act Disclosure and Finance Reform Federal Sense Campaign and Common roots Campaign (106th "Bipartisan Cong.); (105th 1998,” S. 2565 S. 1689 Act of Reform Election (107th 2001,” 2356 1999,” H.R. of Act Reform of Empowerment Act Cong.); "Voter Citizen Par- "Campaign Reform Cong.); (106th "Bipartisan Cam- Cong.); H.R. 2001,” (107th H.R. 1999,” (106th ticipation Act of Act of H.R. paign Reform Campaign Act,” Finance "Bipartisan Cong.); and Money, Elections Clean Cong); "Clean 2001,” (107th Cong.). 27S. of Reform Act (106th Cong.); "FEC Reform H.R. omitted). quotation Nevertheless, marks Presently before this three-judge Dis- province is the judiciary inter- trict Court are eleven consolidated actions vene Congress when struck has the wrong challenging much of BCRA as unconstitu- balance disproportionately trans- tional and seeking declaratory injunc- gressed First rights Amendment in the tive prohibit relief its enforcement. name of reform. While navigating this Plaintiffs and Defendants have filed cross balance is undoubtedly complex, such a motions for judgment pursuant to Rule 54 task is by demanded dictates of the Federal Rules of Civil Procedure. Constitution and the well path worn it to say, Suffice the legal challenges raised interpretation of congressional action by re- litigation this complex are and raise lating to campaign legislation finance issues fundamental importance to the Supreme Court the United States. conduct and financing of federal election campaigns.
It is within this historical framework the incremental changes Congress In resolving these challenges, I have to accomplish strives enacting the Bi- endeavored adopt a cohesive constitu- partisan Campaign Reform Act tional framework adjudicating Plaintiffs’ 107-155, Pub.L. No. (2002) 116 Stat. 81 claims, premised on the extensive record (“BCRA”) are properly understood. case and Supreme this precedent. Court yet BCRA is another step in the careful It is an approach I believe consis- evolution of the campaign finance laws tent with our common law traditions: a targeted at addressing exceptions to the decision is rooted in the record of this case constitutionally permissible laws and guided by the constitutional bound- already in Indeed, force. BCRA was en- aries established Supreme Court’s acted in large measure to amend the Fed- campaign jurisprudence. finance Under eral Election Campaign Act of approach, I only found three of §§ U.S.C. 431 et seq. (“FECA”), and any the challenged sections unconstitutional: constitutional interpretation 213, 318, BCRA Sections provisions 504. The *236 must, as its starting point, recognize the I have found unconstitutional provi- are all role plays BCRA within the current state sions of BCRA that are not central to its of federal law. In words, other it must be core mission and are entirely severable remembered that the statutory provisions without doing injustice to the remainder of at issue designed were by Congress as a the law. The rest of the challenged provi- comprehensive approach to the abuses of I sions find either nonjus- constitutional or FECA that legislators and ticiable, candidates with the small exception, as ob- were acutely aware of in their capacity as served per opinion, curiam of one political actors.2 BCRA was designed provision disclosure contained in Section ameliorate FECA’s abuses, most glaring In the case of Section Judge while staying true to the constitutional Leon and I (5) have severed subsection boundaries set forth the judiciary. 201; Section a relatively minor change 2. As Hollings Senator Fritz wryly Kosovo, observed you come out and you talk about during the Senate debate on BCRA: talk about budget, you defense talk environment, It amused me the day about the you other when read said scien- finally we had some tific going debate on in statements and everything we —but Senate. The reason we have a debate know about money. boy, Oh do we know. because this subject is the first Cong we know Rec. (daily S2852-53 ed. March anything about. 2001) All (statement the rest of it is canned of Senator Fritz Holl- speeches that the gives you, staff you ings). remaining disclo- impair the
that does Act.3 provisions sure
TABLE OF CONTENTS INTRODUCTION.'.432 CONTENTS.436 TABLE OF FACT. FINDINGS OF CO00 Money (“Soft Money”) Title I: BCRA NonfedeRAL PROVISIONS. CO co Fundraising Spending .... Money Party National Nonfederal CO co Money Spending. The Rise of Nonfederal ^ co “Party Money Is Not Related to The Rise of Nonfederal Building”. Advocacy” Campaigns Funded With Party National “Issue Money. Nonfederal (GOTV). GeM3ut-The-Vote LO Registration. Voter CO Redistricting. CD Funds. Activities Paid for with Nonfederal Other CO of the National Parties Have Become “Branches” The State Parties. lOCO Summary. COtr- Party Nonfederal of Federal Lawmakers Political Role Fundraising. CO00 Party Run Federal Lawmakers Committees. CO00 Nonfederal Funds for National Federal Lawmakers Solicit Party Committees. -3 Specific Funds are Given with Intent Assist Nonfederal Congress; Keep Parties Track of Members of Political t- CO Congress Raise. Members of Contributions Party Committees Solicit Federal Lawmakers and National Nonfederal Funds for State Parties. ^ -3 Summary. GO Corruption. GO ^ Buying/Bribery. Vote GO to Make Contributions to Political Parties Donors are Pressured GO Donates to Parties Federal Officeholders’ Awareness Who GO rfSw Regarding and Access to Federal Evidence Contributions Lawmakers. vP>. 00oo *237 Henderson, undertaking analysis, only agree Judge who I have I cannot with appears my opinion, along found three sections unconstitutional in their to characterize entirety; Judge per opinion, Judge the same three sections that with the curiam Judge opinion, "upholding portion a Leon have each found [of Leon’s Henderson also, Judge striking fragment a I have with [of here and down unconstitutional. Leon, BCRA] Judge [Judge Leon and severed one section from disclosure BCRA]there until 201; Kotelly] legislation Congress provision in Section but this is no differ- have drafted Judge severing phrase enacted'—-all in the name ent from Henderson would never have 323(e). Op. Op. at Part body.” to that Henderson at 5 from Section Henderson deference added, (first important I have emphasis emphasis in IV.D.4. It is also to note that second Nothing my original). my opinion legislation.” I would observe that not "drafted Id. through opinion any what- does not sift sections of rewrites BCRA in manner various accepted challenged, adopting soever. I have the statute on its BCRA that have been constitutional, Rather, face, provisions rejecting finding core my some and others. deci- its exceptions predicated lengthy noted above as to some ancil- sion is on discussions of lary provisions. governing caselaw. both the record and the CONCLUSIONS OF Title II: NONCANDIDATE CAMPAIGN Title III: Misoellaneous Title Sections Expert Reports on BCRA’s II: ELECTIONEERING Communications The BCRA’s Restriction on “Electioneering Federal Candidates and Political Parties Know Candidate-Centered Issue Advertisements Are Empirically Distinguish- Candidate-Centered The Rise of Express Advocacy Widely Current Federal Law The Public The Effect of BCRA on Nonprofit Groups’ Involvement in Federal Elections. State Tailored a General Election Name a Tailored Radio & Television Advertisements and Corporations & Labor able from “Pure” Issue Advertisements . Runs Candidate-Centered Issue General Union General Treasuries Campaign Advertising . Primary Primary Origins Party Fundraising. Conclusion. Summary. CDP and CRP Fundraising. Summary.!. Fundraising By Perception Empirical 201,203 LAW. for State Parties . Treasury Candidate, Issue Definition Definition of Electioneering Communication is Narrowly Broadcast and 204: The Evidence Advocacy Problem Not Funds Corruption. Issue . and Thirty Does Not and Are Candidate-Centered Issue Advertisements. National Interest Unions Advertisements Advocacy Linking While Effect Electioneering Communication Narrowly Congress Sought Campaigns . Prohibition Effective Means of Used Nor An Targeted Distinguish Party Group Activity. Advertisements. Days Avoiding on Advertisements Influence Federal Elections with Donations to EXPENDITURES. Has Political Advertising. that Aefeot Federal Before a Primary Officials & Federal Officeholders Communication”. Funded to that Candidate’s Electorate... Risen Appearing Issue Advocacy. FECA’s Restrictions. Between Pure Issue to Solve With Title II. Electioneering Because it Permits Corruption Appreciate Corporate & Labor Sixty Days Before Their Races. Election, .. Elections. Who That .. Ol Oi Ol o XOlO Ol -3 Ol CO Ol lO to to Ol CO Ol toto Ol oi Ol toto toto oi toto 05© 00CO COC- t* CO CO CO C\](M 03O rHt> rHb- (MrH tHH rHH o CO CO CO CO xo Communications. XO05© Introduction. Standard of XO05 rH Review. XQ0503 Express Advocacy Electoral Not a Constitutional Requirement... XO05 ^ The Evisceration of Section 441b . © Conclusion. © lO t-H Title II of Narrowly BCRA is Tailored to Serve Compelling Governmental Interest. BCRA’s Prohibition on Electioneering Communications; Primary Definition Serves Compelling Govern- mental Interests . 201, 203, Sections and 204 of Narrowly BCRA are *238 Tailored to Compelling Serve Governmental Interests .. xo CO Plaintiffs’ Underbreadth Challenge . ^ CO Challenge Plaintiffs’ Relating Exemption Stories, for News Commentaries Editorials from a Broadcast Station. CO Regarding Conclusion Title II. xo © CO Section xo © © TITLE I: REDUCTION OF SPECIAL INTEREST INFLUENCE. xo I—1 © Section 101: Money Soft Political Parties. xo TH © Money as a Means Background: The Rise of Nonfederal Financing Federal Elections.653 Challenges.656 First Amendment Plaintiffs’ Standard of Review.656 Amendment.657 I Under the First Title is Constitutional Closely I Drawn.693 Title Is Conclusion.708 Equal Claims.709 Plaintiffs’ Protection Underbreadth Challenge.712 Plaintiffs’ Federalism Conclusion.716 III: Title MISCELLANEOUS.716 316, 304, 305, 307, .716 and 319 Sections by .717 Minors 318: Prohibition of Contributions Section PROVISIONS.718 DISCLOSURE Title V: ADDITIONAL . Section 504 CONCLUSION
APPENDIX.719 Advertisements.719 Expert Reports on BCRA’s Effect on Political Data The CMAG Set.719 Policy Reports.722 Annenberg Public Center Expert Report .723 The Goldstein Buying Time Studies.728 Days Primary Run of a Election.752 Advertisements Within 30 AFL-CIO Corruption.755 Empirical Studies on approach. Accordingly, though even re- FACT
II. FINDINGS OF I my of Law am gard to Conclusions involving a record in a case Reviewing I, as in dissent on most of Title as well re- protected rights First Amendment primary to the defini- regard dissent with analysis examination and quires serious electioneering in Ti- tion of communication documentary underlying testimony II, appropriate tle I have found it to ade- Therefore, exceptions, evidence. with few my Factual quately set forth the bases of Find- I have not relied on or cited appellate Findings to assist the review proposed by litigants. To ings of Fact decisions, three-judge District Court’s accuracy any gloss and to eliminate ensure my legal posi- the nature of and because by parties, or characterizations added tions demand it. underlying I have reviewed and cited documents, depositions, or declarations Having following prelimi- set forth the have, instances, many chosen to naries, my Findings I now turn to of Fact. directly original from the sources.4 quote exhaustive-replete the record is While fo- develop multiple point-I I factual sources for each have endeavored to my legal selecting complete record that cused on from the rec- is commensurate with not, itself, reversal,’ findings litigants' reliance on the does warrant Almost exclusive fact, proposed findings I have al possibility 'it does raise the that there was ready finding indicated is a method of fact independent evaluation of the evi insufficient employ, that I should to a careful do not lead may losing party dence and cause the to be reviewing Court of the examination position given lieve that his has not been adopted findings. Berger v. Iron Workers ") (quoting Photo consideration it deserves.’ Rodmen Local 843 F.2d Reinforced Corp. England, Elecs. v. 581 F.2d curiam) ("While (D.C.Cir.1988) (per 'the 1978)); (9th Cir. id at 1408. judge adopted proposed fact that the trial has *239 ord, facts that are probative in supporting and labor unions that prohibited were un- conclusions, my legal distinguishing, where der result, FECA. As a national and state appropriate, between disputed and uncon- parties began to raise so-called “soft mon- troverted short, evidence. In I have exer- ey,” which described these nonfederal my cised discretion to be selective without funds-not subject to FECA limits and re- sacrificing, to the of my ability, best my strictions-to pay for a share of election- due diligence.5 related activities. I: BCRA Nonfederal Money
Title 1.2 It undisputed that past over the (“Soft Money”) Provisions two parties decades the have raised and Party National spent Money Nonfederal an increasing Fund- amount of nonfederal raisiny Spendiny funds.
1.1As
both in
1.3 In
per
discussed
cu-
1980 the
Republican
national
opinion
riam
and my
party spent
own
roughly
conclusions of
million
$15
in soft
law, FECA was
money,
silent on how to draw
lines
Democrats
million.
$4
This
around money raised outside of
constituted 9%
FECA’s
of total spending by the
source and amount
two
parties.
limitations for
national
In 1984 the amount
parties
spend
to
of soft money
activities
were
spent
the national parties
expected not to be used for the
increased
purpose
marginally
to
million
$21.6
but it
influencing a federal election.
(5%)
constituted a smaller
FEC’s
share
of total
opinions and rulemakings
party
drew
national
activity.
line
In 1988 ....
by permitting state and
[pjarty
national party
soft money spending more than
to pay
committees
for the
por-
million,
nonfederal
doubled to $45
which was 11% of
tion of their administrative
costs
voter
national
totals
By 1988,
....
both
registration and turnout programs
parties
with
developed
had
effective means of
monies raised under relevant state
courting large
laws
soft money donors. After
(not FECA), even they permitted
if
election,
contri-
Republicans
revealed
butions from sources such
corporations
as
$100,000
had
gifts
received
each
I
compelled
am
respond
Judge
addition,
although Judge
Henderson de-
Henderson, who,
elaboration,
any
without
has
termines that
largely superfluous
the record is
my
criticized three of
Findings
particular
in
conclusions,
legal
to her
Op. at
Henderson
"
leaving
her
‘with the definite and firm
("[ajlthough
7 n.l
the actions before us have
conviction that a mistake has been commit-
produced
(but
a large
probably unnecessary)
”
ted.’
Op.
Henderson
at 67
(quoting
n.55
record”)
added),
(emphasis
she seemingly
Cromartie,
Easley
234, 242,
v.
532 U.S.
urges
Supreme
adopt
Court
her
"Alter-
S.Ct.
(2001))
from 267 than $100,000 jumped from less tion/advertising or more.... contributing donors million in 1996. in 1992 to million $65 $2 1] 12-13 1-Tab Report [DEV Mann6 omitted). (citations 1] at 21-22 1-Tab Report [DEV Mann omitted). (citation the 1996 elec- During began tracking nonfeder- FEC 1.4 The money top 50 nonfederal cycle, tion cycle. the 1992 election in al donations from ranging contributions Re- donors made the Democratic and cycle During that $530,000 $3,287,175. mil- 22. Three raised Id. at together publican parties $86.1 During money funds. donors to top in 50 nonfederal lion nonfederal major parties raised two cycle the in political parties election 1996 were the national funds; during million in nonfederal Expert Re- parties. $101.6 Mann state they raised cycle $263.5 the 1996 election 1-Tab port [DEV 1]. Tbl. 5 funds; during million in nonfederal money of soft 1.4.2 The total amount mil- they raised cycle election $222.5 cy- midterm election spent the 1998 [in funds; during the 2000 lion in nonfederal in 1996 less than million—was cle] $221— million cycle they raised election $487.5 previous mid- more than double but funds; during the 2002 nonfederal money as a share term election. And soft they raised million cycle election $495.8 parties the national spending of total FEC, News Re- nonfederal funds. See party jumped congressional to 34%. Reaches Party Fundraising $1.1 lease: put premium campaign committees (Dec. 18, Cycle in 2002 Election Billion spending money soft to ad- raising and 2002), http://www. available prospects their candi- vance the election of fec.gov/press/20021218party/20021218 party committees dates .... Both national party.html. finance cam- they had discovered could 1.4.1There was activity their paign on behalf of senatorial party increase national a threefold money in the form of candidates with soft 1992 and money activity between soft advocacy.” pattern, The same more “issue million to million. 1996—from $80 $272 pronounced with the Democrats than the money as a share of total' national Soft in the House Republicans, was evident spending jumped from 16% to party campaign committees. parties their elected 30%. Both (cita- Report at 1-Tab [DEV 1] Mann hard to soft mon- officials worked solicit omitted). tion ey corporations, wealthy from donations financing party money 1.4.3 [S]oft individuals, During labor unions. campaigning exploded in the 2000 election party com- the 1996 election the national cycle. money spending by the nation- Soft 27,- approximately ... mittees received million, parties al reached now 42% $498 federally prohib- 000 contributions Raising total a half billion spending. ... ited sources Less than million $10 money [in 2000] dollars soft took directly million was contributed $272 major parties the national effort in the 1996 to state and local candidates officials, elected but had advan- parties cycle.... The two transferred focusing large their efforts on do- tage money total of million in soft $115 top money ... nors .... The 50 soft donors committees, party state which financed $955,695 and each contributed between party money two-thirds of state soft ex- $5,949,000. Among many money soft penditures money .... State soft challenged qualifications any experts. 6. Thomas Mann is one of Defendants’ designated experts in this case. I note that neither Plaintiffs nor Defendants *241 par- activity to both 1.6% of their total financial in gave generously donors who Crossing, Report Enron and 2000.” Mann at [DEV ties Global 1-Tab 1] were (citation omitted). WorldCom. The table below “shows in money the trend hard and soft dona- Report at 24-25 1-Tab [DEV 1] Mann political parties tions to the since the 1991- omitted). (citation million “A total of $280 cycle, 1992 election when the FEC first money over half the amount in soft —well tracking began figures. money these Soft party the six national commit- raised rose from donations million to parties [in $86.1 $495.1 transferred to state tees —was 1999-2000, 2000], million between 1991-2 and but in hard along with million mon- $135 contrast, money hard markedly the national contributions rose ey.” “By Id. at 26. well, only ... million as million parties contributed million.” $445 $741 $19 candidates, Expert Report local less directly to state and Green7 at 30 1-Tab [DEV money spending 3]. than 4% of their soft
_1991-92 1993-94 1995-96 1997-98 1999-2000 Hard Money_$445.0_$384.7_$638.1_$445.0_$ 741.0 Money_$ 86.1_$101.6 $262.1_$224.4_$ Soft 495.1 $1,236.1 Total$531.1$486.3$900.2$669.4 (Tbl. Commission, Party Receipts Id. 1: National 1992- Election Party National millions) (based 2000) in Fundraising Strong Pre-Election Fil- (figures “FEC ings, http:// available Reports Party Fundraising Increase www.fec.gov/press/20021030 par- 2001). 15, May Defen- 2000” release typre.html/20021030party pre.html. points expert dants’ Donald Green out money flowing into while the amount of Money Spending The Rise of Nonfederal system campaign finance has continued figures 1.5 The above demonstrate that grow, subject “the lawmakers to its although receipts spending nonfederal influence remain constant number.” 1980s, began grow in the this trend Report Rebuttal 5-Tab [DEV Green beginning accelerated in 1996. 1]. attribute Experts parties 1.6 from both During 1.4.4 months of the the first 18 in' money the accelerated rise nonfederal parties re- cycle 2001-2002 election spending to President Bill Clinton and his mil- ported receipts nonfederal of $308.2 political consultant Dick Morris’ use of lion, percent which is a increase over during campaign such funds the 1996 period during cy- the same the 1999-2000 fund increase is cle. The FEC notes promote designed television ads Clin- significant given typical- “all the more promi- the ads ton’s reelection. While
ly parties raise more Presidential cam- President, nently featured the none paign cycles non-presidential than in cam- as coordinated charged these costs were Release, paigns.” Press Federal Election cam- expenditures on behalf of Clinton’s Commission, Party Fundraising Growth party paid the entire paign: Instead the 2002) (Sept. FEC141-0001 cost, Continues never legal argument based on a By par- party [DEV 28]. October before made: that communications over million in non- advo- explicit ties had raised which did not use words $421 Release, of a federal cating funds. News Federal the election or defeat experts. of Defendants’ 7. Donald Green is one Find- money”); “party soft emergence generic like be treated could candidate regime). (discussing allocation 1.26.1 financed, ing accord- advertising and
party rules, awith agree allocation for both sides Experts the FEC ing to 1.7 money. Republican take hard did not “[i]t mix of soft Bob by promoting in kind respond long to In the 1]. 1-Tab [DEV at 18 Report Mann Expert *242 Kemp.” Magleby and Jack Dole La Raymond expert Plaintiffs’ of words 8]; La see also 4-Tab Report [DEV at soft catapulted ... “maneuver Raja, this Vol. at 46 [JDT Ex. 3 Raja Cross Exam. at 45 Ex. 3 Exam. Raja Cross La money.” responded (“The Dole-Kemp campaign 15] Raja, La Joseph (Raymond 15] [JDT party- its own plan with Morris to the Era of in the Parties Political American strategy.”). media based Ph.D. dis- (2001) (unpublished Money) Soft 1996, National Republican the May of of California sertation, University “is- million announced $20 Committee Berkeley). campaign. advertising advocacy” sue money for deploy soft strategy chair- of the in the words purpose, Its in a is described advertising] [political the differences man, “to show would Dick Morris.... of memos series between and Dole and Clinton between attorney[s] with ... “I met says, Morris the is- on and Democrats Republicans had ads I of explained the kinds ... and en- we can country, so our facing sues law Fortunately, they said the in mind. conse- in one of most full-time gage by a expenditures unlimited permitted history.” in our elections quential ‘issue-advocacy’ for such party candidate-specific presidential These race, we had the end of the By ads. ones, tar- ads, were like the Democratic million dollars thirty-five almost spent states key battleground on geted (in addition issue-advocacy ads on (mostly) hard and a mix of financed convention- on fifty million dollars about fi- now parties Both were money. soft media), burying al candidate-oriented cam- part of the significant nancing a building a proposals and Republican candidates presidential paigns support national consensus FECA the strictures outside key issues.” president of the 1979 the bounds beyond well (quoting may at 11 Expert Report parties Magleby8 that national ruling FEC Get- funds and soli- Morris, Office: corporate Behind Oval and union Dick raise from individuals donations All Odds Against unlimited ting Reelected cit purpose of limited “The national “for exclusive (1999)) 8]. 4-Tab [DEV or election influencing the nomination finance two- managed to party Democratic office.” nonfederal for candidates ad’ televi- pro-Clinton ‘issue thirds of its (citation the more advantage of omit- by taking Expert Report at sion blitz Mann 1]; ted) available to see also methods 1-Tab [DEV allocation favorable infra ¶ (Republican consultants’ the Findings 1.20.1 They simply transferred parties. state such advertise- whether about discussion and soft dollars mix hard requisite test”). advocacy the “issue met ments they target- states party committees place of non- committees the use approach had the ed state This 1.8 1- into Report spilled congression- [DEV over Expert Mann funds ads.” federal Report at 20 Expert Ex. Exam. races. 1]; Raja La Cross al Mann also Tab see Deck 1]; Lamson9 see also 1-Tab (discussing [DEV 15] [JDT 37-48 3 at Lamson served January has Joe 9. Since expert for Defendants. Magleby is an 8. David Of- Director for the Communications of Mon- the State of Public Instruction fice (describing parties’ both national com- state where the election is taking place.” mittees’ use of money nonfederal Magleby to run Expert Report at 49 [DEV 4-Tab advertisements in a race for Congress 8]. Plaintiffs’ expert Raja concurs, La find- Montana). ing that political parties “exploit feder- al campaign finance laws using soft By 1.9 the end of the 2000 election money for candidate support even though cycle, it was clear that although “[s]cholars laws require them to use might differ about how best change generic party building.” Raja La Cross campaign system, finance ... they could Exam. 74-75; Ex. 3 at Raja also La not avoid the conclusion soft Exam, Cross at 67 [JDT Vol. (finding 15] money electioneering in the guise of that “more non-federal funds the alloca- issue advocacy had rendered the FECA tion accounts are used for media rather regime largely ineffectual.” Mann Expert *243 than what I call party building”). Report at 26. 1.11As former Senator Brock10 at- The Rise Money Is Not of Nonfederal tests, nonfederal money Related to “Party Building” by and large is not used for ‘party build- 1.10 parties’ “The expanding use of To, ing.’ the contrary, parties soft money promotion for the or attack of and large money use the help elect particular candidates .... [runs] counter federal candidates —in the Presidential to the stated purposes soft money which campaigns and in close Senate and permit were to parties to raise unlimited House elections. Par from reinvigorat- amounts of for money ‘party building’ pur- parties, ing soft money simply has poses, unlike money hard which is subject strengthened certain candidates and a to the contribution given limits to the par- donors, large few while distracting par- ties help or elect defeat candidates.” ties from traditional and important Magleby Expert Report at 11 [DEV grassroots 4-Tab work. 8], Magleby *244 claiming to be an issue discus- while name elections.”); up drive costs that election the reach of federal outside sion ¶12 34] 8-Tab [DEV Decl. Rudman14 express Buckley do not use laws (“The help money use feder parties soft “magic language referred as advocacy by running get candidates so- al elected words.”13 money in with soft called ‘issue ads’ funded races.”); closely contested McCain federal Congress and candidates
Members ¶¶ 15, political party (describing 17 political party Decl. agree office for federal demonstrating political advertising nonfederal paid for with advertisements “parties circumvent federal contribution elections. See 146 often influence funds 2000) (Feb. 15, spending by running candidate (Rep. limits Cong. Rec. H428 ”); advocacy.’ Ganske) guise under the of ‘issue in the 1996 ads (noting parties (stat ¶ 6-Tab Chapin15 12] Decl. 11 [DEV ... mon cycle [nonfederal] “took election 2001, Chapin through early Linda has been cycle the current 15.Since the 1996 election Metropolitan Center the Director cycle, that he and his wife have he estimates University Regional of Central Studies at $100,000 per cycle approximately contributed ¶2 Chapin 6-Tab [DEV 12] Florida. Decl. candidate commit- in funds to federal ¶ Id. 4. about of the votes cast. received 49% political committees tees and other federal 2000, Chapin directed the From 1998 political parties. During not affiliated (Florida) Orange County ¶ Clerk's Office. Id. many period, hosted same he also has that, Chapin to two was elected Prior money fundraising events for federal hard 1994, terms, four-year in 1990 successive Philadelphia. candidates in Buttenwieser Orange County. County Id. as Chairman of ¶ 11], 6 6-Tab [DEV Decl. strong County is a executive The Chairman position roughly mayoral of- equivalent to Valeo, 1, 52, Buckley 44 13. See v. 424 U.S. n. recognition Chapin’s as work fice. Id. (1976). S.Ct. 46 659 96 L.Ed.2d Chairman, County received a Public Ser- she from then-President vice Excellence Award was elected to 14. Senator Warren Rudman and an Alumni Achieve- Bill Clinton Hamp- New Kennedy United States Senate School of ment Award from the University in 1980 where served two terms. in 1999. shire he Government Harvard Chairman, ¶¶ 1, County to her Decl. 3 8-Tab Id. Prior tenure [DEV 34]. Rudman
445 ing that Republican National Cam Congressional Democratic Campaign Com- (“NRCC”) paign Committee ran television (“DCCC”) mittee during efforts the same during advertisements her Congres 2000 ¶¶ election); 9, 17, Lamson Decl. Ex. 2-4 sional campaign designed to influence the [DEV (noting 26] 7-Tab political par- ¶ election); result of the Bloom Decl. 10 ties ran “issue ads” designed to influence [DEV 6-Tab 7]. the outcome of the Montana Congressional election 2000); agree as well. Political in both consultants 1996 and Penning- 17 ¶11 ¶ (“The ton 10-11,13-15 Beckett16 Decl. Decl. [DEV NRCC itself 8-Tab 31] ran television ads in the Congression- (discussing 2000 parties how can and have used al campaign.... which Ias recall issue advocacy elections). were to affect federal run in the prior two months to the general DNC’s director also concurs. ¶ election .... clearly were [which] intended Stoltz18 (“In Decl. 16 [DEV 9-Tab 39] result.”) & Ex. to influence the election my experience, issue ads affect elections. (storyboards of two of these advertise- The ads can either demoralize or confuse ments) ¶ id. 9 (describing 3]; [DEV 6-Tab voters so that they vote, do not or they can she was elected to a four-year term on the Resources, ties: Campaign Southern Direct Orange County Commission in 1986. Inc., Systems, Mail and Summit Communica- Resources, tions. Id. Campaign Southern Terry S. Beckett is a Democratic Pennington gen- founded in does spent consultant who years has about eral consulting primarily for Florida state working political campaigns. Beckett campaigns, but Congressional has also done Decl. 2 [DEV 3]. 6-Tab Beckett worked on Florida, races in including Congressman Cliff the 1976 and 1980 campaigns Presidential Ocala, Steams’ first race in Bill Sub- Carter, Jimmy Congres- 1978 Bill Nelson lette’s campaign Eighth Congres- campaign, sional and she ran Dick Batche- district, sional Congressman Jeff Miller’s lor’s Congressional campaign. Id. special election Panhandle. Id. *245 Beckett also endeavored to establish a House Systems, Direct Mail founded in is a Democratic Caucus within the legis- Alabama direct company roughly mail 100 lature in the em- mid 1980’s. Id. Beckett ran ployees that has done Gary fundraising Hart's 1988 and has campaign Presidential in Louisiana, sent candidates, voter contact mail parties Florida for Gephardt’s and Dick groups campaign Presidential interest Florida. Id. In Florida and elsewhere. 1986, Beckett polling did Id. Systems on Direct Mail Linda Cha- has also sent voter pin's campaign (Florida) Orange County for contact for mail some Republican of Florida’s Commissioner, and Chapin’s ran 1990 and Congressional delegation, as well as state for campaigns Orange County for Chair- Republican parties many other states. Fi- man. Id. Beckett also served as general con- nally, Communications, Summit which Pen- sultant on Ms. Chapin’s 2000 campaign to nington political founded in creates ad- represent Eighth Congressional Florida's dis- vertising for buys television and radio and trict, overseeing work campaign of the airtime campaigns, for various such as Con- manager and the polling media and consul- gressman general Miller’s 2001 cam- election tants. Id. Beckett also has been involved in paign. Id. government having worked on the Executive Staff Bob for Graham from 1981-82 when he 18.Gail employed Stoltz has been as the Polit- was the Governor Florida serving and also ical Director of the since May DNC Chapin's as Ms. Chief Staff from 1991 to through From 1998 she for the worked 1994 when she County was Chairman. Id. In Employees Service International Union as addition, Beckett polling worked for a firm Government Affairs Director. Prior to this she during the 1980s. Id. worked as Political Director for Demo- Rocky Pennington cratic Republican Campaign is a Senatorial political Committee ¶ ("DSCC”) Pennington consultant. 31], Decl. 2 capacities 8-Tab in various [DEV for the is the He owner and ("DNC”). President of three Democratic National Committee companies engaged Florida political activi- Stoltz Decl. 1. .Active military duty... is on active a he against base a voter energize really some- He’s Duty? Bill presi- Clinton... During party or its candidates. 70-Tab [DEV definitely ODP0023-02314 thing.”); year, ads election dential Story,” dis- can- RNC’s “The presidential (script when 48] a difference make ¶ 1.20.1); featured.”). Finding ODP0023- supra cussed didate (national party advertise- political agree addition, both sides experts for “More,” stating that “Under ment titled to and intended “issue ads” these Clinton, illegal[] spending President candi- of federal campaigns support do wages up. While gone has [immigrants] Ex. 3 at Exam. Raja La Cross dates. down.... gone worker typical 101-04; Expert 15], Magleby Vol. [JDT stop bene- giving Clinton Tell President 4-Tab 8]. Report [DEV at 40-42 Washing- and end illegals, wasteful fits Party National Characteristics Nonfed- [DEV ODP0023-02389-92 spending.”); ton Advertisements Campaign eral (three of a national 48] versions 70-Tab party com- Many 1.14 national titled “Con- party advertisement on the have focused ads” “issue mittee boss- “Washington labor stating that trol” actions, charac- general past positions, want groups special interest es and liberal candidates, part of traits of federal ter explain- Congress,” buy control federal elections. influence efforts a named candi- think ing why groups these confirm advertisements Scripts of these way... to return to “will vote date 70- See, e.g., [DEV ODP0021-01393 this. spend- and more wasteful higher taxes National Committee’s (Republican 48] Tab 70-Tab [DEV ing”); ODP0029-00010-25 “Pledge,” (“RNC”) advertisement titled (national political party advertisement 48] ¶ 1.20.2); Findings discussed infra related docu- Taxes” and “High titled 48] 70-Tab [DEV to 95 ODP0023-02288 Con- Taxes” states ments. “High with dif- scripts “Keep More” (sample “in the state while gressional candidate (ie. RNC, CRP, sponsors) identified ferent corporate and voted to raise legislature... name]”). versions of Some “[state per- tax rates almost personal income (“[Member end with advertisement supports raising social se- He even cent. for the promise and voted kept Name] his limits.”); [DEV curity tax ODP0029-00031 it,” vetoed cut. Clinton tax middle-class (national political party adver- 48] 70-Tab “Congressman end with others while *246 Budget,” “Family stating tisement titled [_] increase largest tax voted for raised tax- candidate Congressional that a Republi- against ... history and American government, local and and es while state back.”); ODP0023- efforts to roll can pays your family think you “If concluding: (national political 48] [DEV 70-Tab [_]. Tell ... her in taxes Call enough “Fool Me titled party advertisement taxes.”) (emphasis in stop raising your Once,” “Compare with line beginning [DEV 70-Tab original); ODP0029-00041 rec- the Clinton Clinton rhetoric (national committee ad- congressional 48] President ord,” discussing statements supporting a candidate who vertisement the same made and actions on Clinton things to do with you better “knows issues, line “Tell concluding with the taxes”); see pay higher money than your fooled you won’t be Clinton President 48]; 70-Tab [DEV also ODP0029-00114 70-Tab again.”); [DEV ODP0023-02313 48]; 71-Tab [DEV ODP0029-00169 (RNC “Stripes,” titled advertisement 48] 48]; to 79 71-Tab [DEV ODP0029-00177 ... “Bill part: Clinton states in which 48]; 71-Tab [DEV to 37 trying to ODP0029-00235 something. He’s now really He’s 48]; 71-Tab [DEV claiming ODP0029-00329 lawsuit sexual harassment avoid 48]; [DEV ODP0029-00339 71-Tab “supports a program” that “spends mil- 48]; [DEV ODP0041-00177 71-Tab lions to bureaucrats,” hire more while the 48]; [DEV ODP0041-00202 to 06 71-Tab other “supports proposals that spend less 48]; [DEV ODP0041-00220 to 23 71-Tab on bureaucrats and more on local 48]; ODP0041-00280 to 82 [DEV 71-Tab schools”); ODP0041-00729-32 71- [DEV 48]; ODP0041-00352 to 54 [DEV (national 71-Tab 48] Tab political party advertise- 48]; [DEV ODP0041-01261 71-Tab ment stating that one candidate supports 48]; ODP0041-01275 [DEV 71-Tab a welfare program that “is restoring re- 48]; ODP0029-00138 to 47 [DEV 71-Tab sponsibility, pride self-worth,” while 48]; ODP0036-01403 to 06 [DEV 71-Tab the other “voted against moving able-bod- 48]; ODP0036-02931-32 [DEV 71-Tab ied welfare recipients from welfare to 48]; ODP0041-00269-71 [DEV 71-Tab work”) (emphasis in original); ODP0041- 48]; ODP0041-01024 to 27 [DEV 71-Tab (national 01152 [DEV 71-Tab political 48] (other ODP0041-01219 [DEV 71-Tab 48] party stating advertisement that one can- political party advertisements that focus didate “doesn’t support tax for cuts Idaho on positions, actions, past general working families,” while the other “has a character candidates, traits of federal view”); different ODP0041-01177 [DEV documents). related (national 48] 71-Tab political party adver- tisement Many political stating 1.15 that one party candidate committee was “the only “issue compared ads” have member of positions Congress who did past want to parents actions of tell competing federal when candi- a child mo- dates, lester portraying one moved position into their negatively neighborhood,” and the while positively, other the other part “supports of efforts pro- laws that tect influence federal our children Scripts pro- keep elections. violent crimi- vided to nals See, jail the Court confirm this fact. for terms”); full e.g., (nation- ODP0023-02387 ODP0041-01189 [DEV [DEV 71-Tab 48] 70-Tab 48] (national al political party party advertisement advertisement stating comparing positions issues, one candidate against candidate voted a mea- stating [_] sure to “Congressman “abolish the tax voted code force plan reform,” for our give meaningful per families a while the other $500 child tax credit.... code, “wants abolish tax [Opponent] voted for so we can Jim Florio’s billion create tax code $2.8 tax increase that is fairer simpler income, increased your working families”); and gas sales tax- ODP0041-01198 es.”); (national ODP0029-00149 71-Tab [DEV 48] [DEV 48] 71-Tab (national political party advertisement noting that advertisement one candidate stating that one “supports] “supports families,” tax candidate cuts working per $500 child tax while the other credit and “voted against ending billions tax penalty on of tax couples,” families”); married worth cuts for working while other (nation- “voted against” ideas); ODP0041-01266 [DEV those 71-Tab 48] *247 (nation- al party [DEV ODP0029-00159 71-Tab advertisement noting 48] al “pushed one candidate advertisement for stating tax increases” that one candidate while the other Washington “wants bu- “knows lower taxes and reaucrats responsible to decide right government what’s our for spending are bet- kids,” while the “supports policies”); other ter local [DEV ODP0041-01337 71- control”) (national school (emphasis in original); Tab 48] political party advertise- (na- ODP0041-00585-86 [DEV 71-Tab noting 48] ment “supports one candidate tional congressional campaign committee Kennedy’s Senator ultra plan liberal stating advertisement that one candidate spending mandate increases of 25 billion 448 in elections Florida’s Congressional years,” while next five
dollars over taxes”). District, open-seat very “a close Eighth lower “supports other ¶¶ 4, 9 6-Tab [DEV Beckett Decl. race.” aim their nonfed- parties Political 1.16 gar- candidate (noting winning that the 3] competitive at races. money largely eral vote). parties Political nered 51% of the mil- spend political party committees The campaigns ran so- on both sides of these competitive in dollars lions of nonfederal part- financed “issue ads” that were called hundreds of thou- races and Senate U.S. clearly di- money but ly with nonfederal competitive dollars or more sands of the outcome of influencing at rected Report at 39 Magleby races. House U.S. ran television adver- The DCCC election. Dep. also McConnell 8]. 4-Tab [DEV Chapin, the Demo- tising praising Linda (“I every think Sena- 19] Vol. [JDT candidate, Republi- criticizing cratic that the Na- realizes resources tor candidates, through the Democratic can Republican Senatorial Committee tional advantage Party order to take State deployed to the going are to be [‘NRSC’] money money-soft hard the more favorable where there places ... maximum extent races”); Bumpers19 enjoyed by parties.20 Decl. competitive allocation ratios state are ¶4 ¶ 9, 3]; (“Party 6-Tab committees 6-Tab [DEV 10] Decl. Ex. [DEV Beckett ¶ competitive 12]; on focus their resources see also Chapin Decl. 9 6-Tab [DEV ¶22 races.”); ¶ [DEV McCain Decl. 8-Tab 1-1, 1-4, (describing Ex. Bloom Decl. (“[P]arties their soft generally focus 29] for the 2000 election a similar situation taking care of the money spending first Congressional campaign Florida’s 22nd parties’ current officeholders and on District) 6-Tab The NRCC [DEV 7]. open seats and af- running candidates for tele- Republican Party also ran the Florida challengers running against ter that on the in the two months advertisements vision incumbents”). election, most of which prior general to the positions, and Chapin’s criticized record or example, and ra- 1.16.1 For television in- testify clearly were by political which witnesses electioneering advertising dio important in the tended to influence the election results.21 parties played an role just days purchasing a Bumpers two terms should wait 5 before 19. Senator Dale served Arkansas, handgun. Pro-gun. opposes to 1975. He even man- as Governor of from 1971 ¶ keep Bumpers datory trigger After his children safe [DEV 10]. Decl. 6-Tab locks Governor, Bumpers pro-gun.” served as a Mem- time as from harm. "I’m He’s Ric Kel- Senate, ler, representing you support ber of the United States tell him to should Arkansas, State from 1975 to 1999. Id. gun safety change. sensible for a Senate, 12]; ¶ Senator Chapin After he retired from Decl. 9 & Ex. 1-2 6-Tab [DEV directing 3], ¶ Bumpers spent year the Center one [DEV Beckett Decl. 9 6-Tab Information, nonprofit for Defense think- paid 21.One advertisement for the NRCC Washington, tank based in D.C. Id. He cur- days of the election and stated ran within Washington rently practices law in D.C. at the following: Kahn, firm Arent Fox Kintner Plotkin & law McNeeley, Tyson It vs. Announcer: was PLLC. Id. Pay-Per-View, bought fight shown on during 20. One advertisement run the final paid county jail system. Lin- days campaign, paid by the of the election county jail Chapin's da commission ran the through Party, DCCC the Florida Democratic system paid for Cable TV for convicts Chapin's challenger, stating attacked the fol- Chapin, work-release center. Under [its] lowing: got Convicts also new TVs and VCRs. The day carpeted. pro-gun.” "I’m That's how he Sentinel wrote cells Announcer: *248 furniture, padded for Sentinel. room has such is life described himself to Orlando Orange County prisoners. Pro-gun. get Brady hundreds of Jail He wants to rid of the Bill, Chapin why got Cable TV. says law that we Ask convicts the common-sense
449 ¶ 12]; 10, in in party by 2 6-Tab 2000 mentioned the name Chapin [DEV Decl. Ex. ¶ 3]; 10, ad, 2Ex. 6-Tab except tag indicating [DEV Beckett Decl. line ¶ 14, Ex. 8-Tab Pennington [DEV Decl. 3 party paid committee for the ad.” ¶ 11, Ex. 2 31]; Bloom22 Decl. see also Magleby Expert Report at 49 4-Tab [DEV 8]. in 2000 Florida 22nd (Republican party ads race) Congressional [DEV 6-Tab District 1.18 Out of the estimated million $25.6 7]. spent by political parties on advertise- in contrast groups, 1.16.2 Most interest cycle, ments in the 1998 election $24.6 parties], seek to build relation- [to fund million went to advertisements that im- way officeholders ships with as referred to a federal candidate. See Kras- process proving legislative access to the Expert Report no & Sorauf23 at Table 1. lobbying position. In 44,485 commercials, 42,599 ofOut referred science, empirical strong support there is per- ato federal candidate. Id. Viewers theory groups allocate for the interest percent ceived 94 of these advertisements primarily pursue resources the “access” electioneering Id. at nature. Table 7. meaning they give to candidates strategy, experts 1.19 Plaintiffs’ own and wit- office, likely who are most to win which is testify advertising nesses out- “[i]ssue (see, example, for usually the incumbents electioneering by politi- side the context of 2000). parties, Herrnson Political howev- parties expert cal is rare.” Nelson RNC er, strate- allocate resources for electoral FEC, Polsby Dep. in v. RNC 98-CV-1207 meaning they money contribute to a gies, (D.D.C) (hereinafter “RNC”) 3, potentially is in a Ex. at 5 party candidate who case, election. In 5]. close 66-Tab the Plain- [DEV Raja, expert, Raymond tiffs’ Professor La ¶ Raja Expert Report Vol. [RNC La acknowledges that “issue advertisements” VII]. support cam- are intended to and do in the party 1.17“Almost 92% of ads Raja paigns federal candidates. La 2000 election never even identified at 14-15 Vol. [JDT 15] Cross Exam. Ex. 3 political party, name of a let alone encour- (“[I]ssue ads, however, designed have been aged register party, voters to with the boosting campaigns intent of with the party organization, volunteer with the local than targeted candidates.... Rather support party.” Buying Time or to money up soft to shore weak state and use Expert 2000 at 64 Defense [DEV 46]. or enforce disci- concurs, organizations, local finding “only percent
Magleby primar- percent pline government, parties and 7 of the ads invest ads ¶ 12]; Chapin a member of the Florida Decl. 11 & Ex. 3-2 6-Tab Bloom served as [DEV ¶ ¶ 11; Representatives years, over 18 House of Pennington Decl. Decl. Beckett (representing Northeast from 1974 currently engaged Bloom is in con- County) (repre- 22. Elaine Dade and from 1986-2000 Miami). sulting, speaking, community public ac- senting Id. Bloom Miami Beach and 7], Pro-Tempore Bloom Decl. 2 6-Tab Speaker [DEV tivities. was of the Florida Mayor was a candidate for and also served as Bloom House from 1992 to committees, Beach, legislative Bloom includ- Miami Florida. Id. In chair of several Committee, Leg- general ing the Joint the Health Care was the Democratic candidate in Committee, represent Congres- Management the Joint Florida’s 22nd islative election Committee, district, Auditing running against Legislative Tour- the incumbent sional Shaw, Id. Clay ism and Cultural Affairs Committee. Republican who had served in (Shaw Congress nearly years. Id. won by approximately votes out of 23. Jonathan Krasno and Frank Sorauf the race race, 200,000 cast). experts the 2000 for Defendants. over Prior to *249 candidates.”) so-called running very similar RNC was help ads ily in issue ¶ 16(b) attacking President 15]; Raja [RNC Decl. La “issue Yol. advertisements” [JDT (“Political parties use nonfederal YII] Vol. to assist the part of an effort Clinton as disseminate develop and money to low campaign which was presidential Dole operations di- RNC messages.”). ¶ funds, Findings RNC 1.20. see infra testifies that Nelson24 Terry rector reform addressing welfare advertisements in advocacy order in “issue RNC engages run in the summer were also primary objectives, of our achieve one on welfare rhetoric “comparing Clinton’s Republicans elected.” more get which is to reform.” with his record on welfare reform Vol. This Dep. [JDT 24]. at 191 Nelson I], ¶ 91(d)[RNC Vol. Com- Decl. Josefiak Expert is echoed Defense conclusion statements paring President Clinton’s Expert at 45 Magleby Report Magleby. RNC major theme of his record was (“The content, and tactics 8] 4-Tab [DEV period in during run advertisements political party advertisements] strategy [of campaign. Find- aid of the Dole See infra from the indistinguishable generally are ¶¶ 1.20,1.20.2. ings campaigns, except candidate in Another RNC advertisement ran Oc- generally communications are campaign tone.”) the month tober before a in negative more election, the Re- support in “nationwide provides exam- 1.19.1 An RNC official and Party’s agenda,” education publican campaigns he claims ples of advertisement following script: had the “the exclusive purpose the RNC ran for de- legislative policy ... influencing Every child can learn Male: ¶ Vol. [RNC I]. Decl. 91 bate.” Josefiak25 quality edu- Female: ... and deserves dealt with issues of campaigns These in a cation safe school. amendment, welfare budget the balanced people say some chil- Male: But some reform, education. Id. of these One ... dren can’t learn purpose advertisements’ just ... them Female: so shuffle Republican Par- to communicate the was through. ty’s position government that the federal fair. Male: That’s not appetite for must its reckless control particular adver- spending. deficit This right. Female: That’s not Clinton, President tisement featured Things changing. A new fed- Male: clips stating numerous him included says every child eral law deserves he years number of different learn. budget. adver- would balance make says every Female: It test child to cheap. “Talk is explained, tisement they’re learning give sure them expensive. talk is Tell Mr. Clin- Double if help they’re extra not. support Budget ton to the Balanced Be- Male: schools Hold accountable. Amendment”. cause no child should be a school ¶ 91(c). Id calls this advertise- Josefiak change. that will not teach and will not of the most memorable ment “one says every Female: The law child must advertisements effective broadcast grade. taught to read 3rd history.” was Id. This commercial [RNC] id., right. a new reading time the civil May run the same Because Deputy Terry is the RNC’s Chief of 25. Thomas Josefiak is Chief Counsel Nelson I], Oper- Staff and Executive Director of Political Decl. 1 Vol. [RNC RNC. Josefiak Dep. at 8-9 Vol. [JDT 24] ations. Nelson *250 Male: President Bush’s No Child Left these issue advertisements with nonfederal
Behind Law. funds, including the costs of creating Female: The biggest education reform disseminating and/or advertisements that
and biggest increase education attacked President Clinton’s record on funding in 25 years. reform, taxes, welfare and budgetary poli- Republicans Male: for working bet- cy. Thompson Report 4014-16, Comm. ter, safer schools ... 7520, 8294; Report 66; Annenberg 1997 at Female: ... so no child is left behind. Huyck26 Decl. in Mariani v. United States, Male: That’s ... right Republicans. (M.D.Pa) (hereinafter 3: CV-1701 Mariani) ¶¶3, Announcer: Learn Republican how edu- 60]; [DEV 79-Tab see cation reforms help your can also Huyck children. Decl. Mariani Attach. A Call Help 1-800-843-7620. President (text Supp.-Tab [DEV 9] of advertisements Bush and leave No Child Behind. paid by the RNC and Republican other Paid the Republican National part committees in with nonfederal Committee. money). ¶ 91(e) Josefiak Decl. & RNC Ex. 2428 The RNC conducted a detailed analysis [RNC Vol. I]. decision the RNC to of several advertisements it was planning advertisement, run this legislation about to run in various markets. The advertise- already passed, had within one month ments consisted of two themes: up build of a federal questions election raises about Republican then-Senator and presidential whether promoting education policy was Dole, candidate Bob and attack President only goal of this advertisement. Bill Clinton. These advertisements were presumably These are the examples best tested in groups focus to see the effect the RNC had of its “genuine advoca- issue they had on undecided voters. The adver- cy.” I commercials, find two of these tisement used to up build Senator Dole context,
when viewed clearly had an story told his life and never mentioned electioneering purpose in addition any to for,” “elect,” words “vote any policy third, goal. The concerning edu- “magic express words” of advocacy. The cation, may also sought promote second set of advertisements showed Pres- Republican candidates. These examples ident speaking issue, Clinton on a certain reinforce the determination of the RNC’s then publicly stating own experts: opposite. All genuine issue advocacy on part political parties commercials were tested is a rare occur- supra rence. give would Findings help 1.19. Dole Senator and hurt President polls. Clinton Memoran- 1.20 parties Political also engage in “is- dum Haley Barbour from Charlie Nave sue advocacy” help their candidates and Joel Mincey, May 28,1996, dated FEC whose campaigns are low on funds. For 4553, MUR Dep. Fabrizio Ex. 5 [DEV 55- example, the RNC spent million on $20 Tab (INT011830); 113] 4553, issue FEC advertisements MUR from March Dep. Fabrizio through Republican 83-94 [DEV 55-Tab National 113] Conven- tion in (despite August, designed working as a boost Senator consultant for Sena- Dole, Dole’s image at a when tor time he had virtu- Fabrizio McLaughlin Associ- ally run out matching primary ates were sharing their data with the funds. paid The RNC portion for a RNC, NRCC). NRSC, and 26. Pat Huyck States, was the ¶¶ RNC’s (M.D.Pa) Director of Ac- v. United 3: CV-1701 counting Huyck Decl. in Mariani [DEV 60]. 79-Tab spot needs that this suggests strongly effort example from One 1.20.1 issue pass the spot Making this run. Story”:
“The *251 doing.” some may take advocacy test a moral Dole: We Bob of Audio 48]. 70-Tab [DEV ODP0025-02018-20 an Amer- children our give obligation “[a]ny reason- Levin commented: and values Senator opportunity ica with at that that ad looking at person up in. able grew we the nation season in the Presidential time particular up in Rus- grew Dole Bob Over: Voice welfare an about ad say: It’s he would parents From his sell, Kansas. why about an ad work, honesty spending; wasteful of hard value learned nominee.” particular country that his we elect when should So responsibility. (Sen.Levin). (1999) seri- He was Rec. S12747 Cong. he answered. ... called Paralyzed, “The Sto- himself that in combat. Dole stated ously wounded Senator operations. President. running for nine I’m says he underwent ry” “never I’m the since fairly around look- it’s obvious hope I went that Bob Dole: I Audio me Re- that would make Center picture.” miracle in the only one ing for Loop- Politics, of Tricks: again. A Bag whole sponsive System Finance Campaign he’d never doctors said in The holes Over: Voice months, he 69- (1996) [DEV after again. But at ODP0018-00172 walk wrong. them proved 48]. Tab persev- He Dole: of Elizabeth Audio example Another 1.20.2 his fought He up. ered, gave he never campaign advocacy issue RNC’s paralysis. from total way back “Pledge” Americans, his many Like Over: Voice on not raise taxes I will Clinton: as a serve and values experience life class. middle principle of compass. The strong moral this a lot. We heard Announcer: principle The welfare. replace work to tax class middle gotta give We Clinton: our crim- accountability strengthen relief, else we do. what no matter principle system. The justice inal later, gave he months Six Announcer: Washington wasteful to end discipline history. in tax increase largest us spending. taxes, on income taxes income Higher comes It all down Bob Dole: Voice benefits, payroll more security social you in. What you What believe values. Clinton, Amer- typical taxes. Under for. you stand what for. And sacrifice $1,500 more pays over family now ican ¶ 2; McCain Decl. Dep. Ex. Fabrizio pay for big price A federal taxes. part Story,” “The paid for The RNC Tell President promises. broken his it was intend- money, and
with nonfederal taxes higher can’t afford You Clinton: Presidential Dole help Senator ed spending. for more wasteful ¶ 3 Decl. in Mariani Huyck election. 66; also Report 1997 Annenberg 4553, Fa- 60]; FEC MUR 79-Tab [DEV ¶¶ A 3 & Attach. Mariani Huyck Decl. in 55-113]; McCain Dep. [DEV brizio 60]. 79-Tab [DEV 29]. 8-Tab [DEV Decl. understand political parties 1.21 and Wes Anderson The RNC’s Curt campaigns affect advocacy their issue Chairman to the RNC wrote Anderson them elections, sponsor advertisement, “Story” the Dole regarding evident fact is purpose. This with snag a real run into could stating: “We issue “Operation Breakout” from the 1998 all Story spot. Certainly, Dole NRCC by the campaign mounted advocacy research qualitative quantitative in cooperation with the “Operation RNC. 1.25 As expert Defendants’ Donald Breakout” was as an touted effort to Green, “en- relying article Plaintiffs’ [Republican] sure not only expert La Raja, observes: maintains, expands but majorities our original [T]he exemptions for soft-money Congress.” ODP0031-00299 [DEV 71- justified were partly on the grounds that Tab 48] (September letter from get-out-the-vote activity would help RNC Chair Nicholson to donor thanking strengthen parties. As it happened, him for his “Operation donation to Break- only a small fraction the soft money out”); see also [DEV ODP0033-00534 71- (or hard money, matter) for that *252 (RNC 48] Tab Solicitation letter for “Oper- flowed to state and parties national was Breakout,” ation describing it as an effort spent on voter mobilization activity, even to “hold House”). our majority onto in the broadly conceived to include direct mail and commercial phone
1.22 The banking. nature political Ac- parties’ cording to the advertisements, issue classification system pre- supra, detailed dem- by sented Raja La onstrates any what observer politics Jarvis-Shean has (2001, p.3), 8.5% come to national party know: soft “issue advo- money expenditures went cacy” campaigns are ‘mobiliza- targeted at federal tion’ and elections, ‘grassroots.’ The figures particularly competitive races, for state and parties local to, are intended each and do 15%. affect the outcome of those contests. D. Report Green at 14 n.17 [DEV 1-Tab (citing 3] Raymond Raja National La Parties Expend A Large Elizabeth Propor- Jarvis-Shean, Assessing tion the Impact their of a Funds “Issue Nonfederal for Ban on Soft Money: Advocacy” Party Soft Money Spending Elections). in the 2000 (Unpub- 1.23 The national parties lished manuscript: Institute of Govern- spend a large proportion of their budgets mental Studies and Citizens’ Research on “issue advertisements” that are de- 2001). Foundation signed to help elect federal officeholders and candidates. for example, the National Parties Funnel Nonfederal spent RNC an estimated $70-75 million Funds Through State Parties the Pur- production dollars and broadcasting chase Designed Advertisements Affect of television and advertisements, radio in- Federal Elections cluding both issue advocacy and coordinat- 1.26 The evidence clearly demonstrates expenditures. ed Oliver27 Dep. at 148-49 a large proportion of nonfederal funds 1], Supp.-Tab [DEV Id. “During the 2000 transferred from the national to the state presidential election year, the largest sin- parties is targeted for the purchase of gle portion of the DNC budget was used specific issue designed advertisements for issue advertising.” Marshall Decl. 3 the parties. national These advertise- [DEV 8-Tab 28]. ments are overwhelmingly intended to af-
1.24 expert Defense David Magleby’s fect federal elections. This is done in study estimates that “over half, and large part some- because the state parties have times as much as three-quarters, of soft better allocation federal/nonfederal ratios money expenditures go to broadcast adver- which allows such state-bought advertise- tising.” Magleby Expert Report 49 ments to be purchased with a pro- greater 8], [DEV 4-Tab portion of nonfederal funds. 27. John Oliver Deputy Chairman of the RNC. adver- executing their planning ex- when Magleby expert Defense
1.26.1 memorandum regime tising budgets. One RNC allocation FEC’s plains how transfers to chart which fund contains makes nonfederal par- the national attractive parties already state we demonstrates what clearly ties. know, place any media we clearly money soft can stretch
Parties should be presidential states target transferring soft further even parties. The aver- through state placed parties money to where state hard top target allocation age ballot soft to hard ratio of a better can achieve non-federal, federal —63% states is 37% money they spent if than dollars very well with obviously contrasts the ratio is because themselves. This allo- non-federal our federal —35% 65% if party spending to hard dollars soft cation. patty committees national by the done dated March Memorandum RNC hard for percent and 65 percent soft Target States” Allocation of titled “Ballot percent soft and 40 years, presidential 70-Tab 48]. to 21 [DEV ODP0025-02720 but if years, for off percent hard and 60 *253 by using concludes The memorandum the ratio of soft parties state done di- rather than political parties, the state greater. reason hard dollars is purchase, the RNC rectly making the al- parties are is state this difference in funds on million federal would save $2.8 ratio calculate their lowed soft/hard buy. Id. see also media million $10 to all offices of federal based on ratio 48] to 1367 70-Tab [DEV ODP0021-1365 any year. given in on the ballot offices (memorandum Haley to the Barbour spend- parties have found political Both discussing Republicans, California House accompanying money with its ing soft in buy media California to make a need through state money their hard match buy, accomplish this stating “[t]o most smoothly, for the parties to work transfer funds to would [RNC] readily and state officials acknowl- part, Party, which would Republican California “pass throughs” to simply edge advertising. Under FEC actually buy the ads providing the broadcast the vendors Par- Republican regulations, California or direct mail. advertising with one- ty pay must for the Report at 37 4-Tab Expert [DEV Magleby and two thirds contributions third FEC support and evidence Other 8]. witnesses dollars”); Dep. at nonfederal McConnell contention, disputes. which no one (stating that 19] Vol. [JDT 267-77 ¶ See, 8-Tab e.g., [DEV Marshall Decl. 3 funds to state NRSC to transfer prefers trans- (testifying in 2000 the DNC 28] purchase NRSC adver- parties then who parties to take ferred funds to the state with a more favorable feder- tisements rates); allocation advantage of their ratio); fund allocation Nelson (dur- 106.5(b)(2)® (2001) al/nonfederal § also C.F.R. (stating that Dep at 76-77 Vol. [JDT 24] years presidential election national ing advertisements purchasing pay for their party required committees advantages: through parties state has two in percent at least 65 mixed activities with (dur- (1) 106.5(b)(2)(h) fund alloca- funds); § better federal id. federal/nonfederal (2) years national state dis- ing nonpresidential “having [a] election tion ratios pay required to generally committees advertisement] claimer [on percent in mixed activities with at least 60 having a national disclaimer better than funds). ¶ federal it”); 28] Decl. 3 8-Tab [DEV Marshall largest single (noting that political parties 1.26.2 The national was used for budget the DNC regime portion of advantage of this allocation take advertising, issue but that “[t]he typ- DNC during the 1996 cycle, election $69,031,644 did ically expend money for these issue during the 1998 election cycle, and itself, ads but instead transferred both fed- $265,927,677during the 2000 election cycle. eral and money non-federal to the state Biersack28 Decl. 6], Tbls. 8 [DEV 6-Tab parties to make these expenditures”); 1.26.4 State parties use a large [DEV ODP0023-02358 70-Tab 48] portion of the transferred nonfederal mon- (RNC tally of “1996 Buys,” Media listing ey to public finance communications that purchased, advertisements price, and the support oppose a federal candidate. amount of federal and RNSEC funds See Bowler29 Decl. 15 (explaining that used); [DEV ODP0023-03560 70- “[t]he majority of [national transfers to the (RNC Tab report 48] of 1996 fund trans- CDP] were for issue advocacy”). Accord- fers to state parties used for “party build- ing to expert Plaintiffs’ La Raja, ap- “[i]t ing/media buy”); ODP0025-01560 [DEV pears that both parties (memorandum ... use soft money 70-Tab 48] from the Re- transfers publican primarily to National execute national Finance Committee dat- 24, 1996, campaign ed May strategy through titled parties.” “California state T.V. Money,” Raja La discussing the need to Cross raise Exam. Ex. 3 at $4 103 [JDT million in 15], nonfederal funds two Vol. Raja weeks La finds that “more non- which would then be transferred to the funds the allocation accounts are CRP in to “get order on the air stay used for media rather than what I call on the air for the next three months Exam, party building,” Raja La Cross CA”) (emphasis in original); supra Find- (La 67 [JDT 15] Vol. Raja’s definition of *254 ¶¶ (in ings 1.6 1996 the DNC financed two- “party building” does not include adminis- thirds its presidential Clinton campaign trative spending); Raja Expert La Report advocacy issue through state party trans- ¶ [RNC Vol. (finding VII] that in fers), (Mann) (over 1.4.3 half of the nonfed- 44 percent of transferred nonfederal funds eral money raised by the national party were used for expenditures media and committees was transferred to the state percent for overhead). administrative La parties during the election cycle). Raja concludes that parties “state invest 1.26.3 political The national party com- soft money most from the parties national mittees $9,710,166 transferred in federal races,” in federal but notes that “these political funds to state party committees investments have considerable effects on during the 1992 election cycle, $9,577,985 races further down the ticket.” La Raja during the 1994 cycle, $49,967,893 election Cross Exam. Ex. 3 at 139 [JDT Vol. 15] during the 1996 cycle, $30,475,897 election (La Raja dissertation) 15]; [JDT Vol. during the 1998 cycle, election and La Raja also Cross Exam. 17-18 (stating $131,016,957during the 2000 cycle. election he stands by the conclusions reached The national party committees dissertation). in his $18,646,162 transferred in nonfederal funds state 1.26.4.1 A party good example system committees of this during the 1992 cycle, $18,442,749 election comes from Republican Party of New during the 1994 cycle, $113,738,373 election (“RPNM”). Mexico A 1998 financial state- 28. Robert W Biersack served Supervi- as the Currently, Deputy ishe Press Officer for the sory FEC, Statistician for FEC position from 1983 to he has February held since February ¶1 2002. As the Supervisory 6], Statisti- 2002. Biersack Deck [DEV 6-Tab cian, responsible he was for evaluating the quality, reliability, validity of information 29. Kathleen Bowler Executive Director contained in the FEC ¶ disclosure databases. of the CDP. Bowler Deck 1. Congres- Representatives of that it 1.26.6 party shows the state ment from fund acknowledge that $1,524,684in nonfed- committees sional revenues received state orga- Republican from their committees other transfers from transfers eral contribu- $1,110,987in for federal elec- nizations, primarily individual used parties are ¶ $889,552 transfers tions, in federal Decl. 68 just advertising. See Jordan30 tion organizations. (“In Republican my experience, 21] 7-Tab [DEV of its over one-third spent RPNM of the DSCC’s nonfederal majority large advocacy— “issue revenues, $1,062,095,on party and local commit- to state transfers television, mail.” INT810-1605 radio support nonfederal have been to tees 33) (RNC 114]. [DEV NM0406326— advocacy communications. of issue share refer to these communications Frequently, issue advertisements These 1.26.5 funds Re- nonfederal transferred candidates or their funded Democratic Senate support federal intended to mainly expressly while not opponents, publican Raja expert La Plaintiffs’ candidates. de- any election or advocating candidate’s of national of the goals” that “one *255 share of issue advoca- port the nonfederal pursue money hard money like soft —to these Frequently, cy communications.... winning elections.” goal the short-term Republican House communications refer at 75 Raja [JDT Exam. La Cross Ex. opponents, or their Democratic candidates 15]; (stating see also id. at Vol. any expressly advocating candi- while not “in money primarily is- parties invest soft defeat.”); Wolfson33 election or date’s candidates”). According help sue ads (“In ¶ experi- my 44] Decl. 63 9-Tab [DEV spending Raja, parties’ national to La ence, majority of the large DCCC’s “they are proof funds is of nonfederal par- to state local nonfederal transfers winning parties dedicated functional support been to ty committees have 25; Raja La Id. at also elections.” advocacy issue commu- ¶ nonfederal share of 11(a) (La Decl.) Raja Ex. 1 Cross Exam. these communica- Frequently, nications. (“American parties have focused to Democratic House candi- ....”) tions refer winning [JDT elections primarily on while 15], opponents, Republican dates or their Vol. is General Counsel for 32. Donald McGahn Director 30. Jordan is the Executive James ¶ ¶ 1 [DEV 30]. McGahn 8-Tab 7-Tab NRCC. Decl. 21]. Jordan Decl. 1 [DEV the DSCC. Executive Howard Director Vogel for the Wolfson Counsel General Alexander 44], ¶ 41], ¶ Decl. 1 9-Tab [DEV the DCCC. Wolfson Vogel [DEV Decl. 1 9-Tab NRSC. expressly not advocating any candidate’s senior employees.”); ¶¶ McGahn Decl. 58- defeat.”) election or see also La Raja (“When Cross the NRCC transfers funds to (La Exam. 3Ex. at 69 dissertation) Raja party state committees, including nonfed- (“It [JDT 15] Vol. would particularly be funds, eral for the purpose of disseminat- surprising congressional for campaign ing issue advocacy communications, it first committees to venture outside their tradi- develops the communications consulta- tional scope of helping candidates and in- tion with the party state and media consul- vest in state organizations.”). tants, and provides then the communica- Representatives
1.26.7 of the tions congres- to the state party, together with the sional campaign committees also admit necessary funds to distribute them locally. they retain control over parties advertise- State may, not, but generally do ments their nonfederal money transfers reject the communications.... The NRCC ¶¶ are purchase. used to Jordan Decl. 72- does permit not issue advocacy communi- (“When 73 [DEV 7-Tab 21] the DSCC cations supports to be recorded pro- or transfers funds to state party committees, duced they until been approved have including funds, nonfederal purpose me, as counsel, NRCC and NRCC senior of disseminating issue advocacy communi- employees.”); ¶¶ Wolfson Decl. 66-67 cations, it first develops the communica- (“When the DCCC transfers funds to state tions in consultation with media consul- party committees, including nonfederal tants, who generally retained funds, for the purpose of disseminating state party at the request suggestion issue advocacy communications, it first de- DSCC, provides and then the commu- velops the communications in consultation nications to the state party, together with with media consultants, who are generally the necessary funds to distribute them lo- retained by the state party at the request cally. parties may, State generally but do or suggestion DCCC, pro- and then not, reject the communications.... The vides the communications to the par- state DSCC does permit issue advocacy ty together with the necessary funds to it supports communications to be recorded them locally. distribute parties may, State produced until they have been approved but not, generally reject do the communi- by DSCC counsel and DSCC senior em- cations .... The DCCC does not permit ployees.”); Vogel Decl. 67-68 [DEV 9- issue advocacy it supports communications (‘When Tab 41] the NRSC transfers funds to produced recorded or until state party committees, including non- been approved by DCCC counsel and funds, purpose of dissemi- DCCC senior employees.”). nating issue advocacy communications, it 1.26.7.1 On September 28, 1998, NRSC *256 first develops the communications in con- Executive Director Steven Law wrote with sultation the party state media and then-NRSC Chairman consultants, Senator Mitch who are generally retained by McConnell recommending the that the state NRSC party at the request or sugges- fund an issue playing tion ad NRSC, off an article that provides and then appeared in largest Nevada’s newspaper. communications to the state party, togeth- er Democratic Senatorial necessary funds to candidate Harry distribute locally. “got them Reid bad State reviews parties may, for an gen- over-the-top, but erally not, reject performance, do hostile suggesting a communica- line of tions .... The NRSC attack permit does that not builds on our issue six-month-long advocacy supports communications it message to Harry be says Reid one thing in produced recorded or until they have been Nevada and opposite does the in Washing- approved by NRSC counsel and NRSC ton .... If we went direction, in this I 60]; Hazelwood 79-Tab campaign) [DEV one election spot for running this suggest would (RNC transfers 118-19 Dep. be at point], to ratings 34 [gross at 1000
week pay for issue parties in the Nevada to last ad to state with our funds followed lawyers’ advertisements). 2000, raised campaign, on RNC advocacy issue 71-Tab million, [DEV was majority ODP0036-02931-32 fees.” over $254 in implemented was later Law’s idea 48]. for various parties to state transferred by the Republi- for paid an advertisement Vol. [JDT at 76 Dep. Josefiak activities. Nevada. Committee Central can State Trans FEC, Party National 11]; see also 48]. 71-Tab [DEV to 06 ODP0036-01403 January Committees: fers to State/Local record also 2000, in the Documents available 1.26.7.2 to December parties political that the state demonstrate http://www.fec.gov/press/051501party at the national merely conduits between are (during the fund/tables/nat2state.html consul- media and their parties political made transfers the RNC cycle election 28] Tab See, [IER e.g., CRP tants. million approximately $93.2 $129 million— Victory CRP’s (fax to the from the NRCC million and funds $35.8 in nonfederal “wiring info” proving CRP project parties). state local funds—to federal party that informing the state these from expenditures greatest today your account “[m]oney will advertising and political were transfers Me- Strategic back .... Please wire Dep. at expenses. Josefiak administrative 2103-04, 02095-101, [IER dia”); CDP 11], Vol. [JDT 76-77 (wire instructions transfer 12] Tab clearly dem- above The evidence 1.27 buys); for media the CDP DNC parties political national onstrates (detailing 12] Tab [IER 02984-89 CDP through their money nonfederal transfer to CDP from DCCC transfer of funds purpose of affiliates for party state buy). media “issue advertisements” buying so-called trans and DNC also RNC 1.26.7.3 The advertise- ratio. These allocation a better parties pay funds state fer nonfederal by the and controlled are created ments the national over which for advertisements the state parties, with political national See Cas retain committees control. party the non- merely accepting 2002) parties at 111-12 (Sept. Dep. tellanos passing the money on advertise transfers working federal (stating when National Media as directed parties, ments for state on to media consultants funds representative, RNC These parties. dealt with an by the national ¶4 member); Decl. Marshall party state affect fed- intended advertisements normally approved the DNC (noting that advo- using express without eral elections of the advertisement the content cacy terminology. calling before money spent to be amount of (GOTV) Getr-Out-The-Vote “to let know party question the state ef- GOTV undisputed that 1.28 It Dep. coming”); Josefiak an ad was funds forts, nonfederal paid for with (acknowledging that 11] Vol. [JDT 97-98 targeted at committees national parties to state transfers funds the RNC federal elections, directly assist advertisements); Huyck pay for RNC candi- candidates, local as state and as well *257 (stating that 1995- in Mariani Decl. elections party of the same whose dates funds to state transferred RNC day. Declarations the same are held for issue adver pay party committees major of the four representatives from to the 1996 Presidential tisements related Dep. at 10. Hazelwood director. RNC's Blaise Hazelwood 34. Elizabeth congressional campaign committees attest to the Victory fund, ’96 which will support ’ to the fact that these committees “trans- the party’s ‘get out the vote operation and ] federal and nonfederal funds ferí to state help us ensure a successful campaign in local and/or committees for ... get- ”) California ... (emphasis added); infra out-the-vote These efforts have a ¶ (McConnell efforts. Findings 1.60 letter noting significant effect on the election of federal that the Kentucky Victory 2000 campaign, ¶ candidates.” Jordan Decl. 69 [DEV 7- which included a GOTV component, “was ¶ 21]; Tab Wolfson Decl. 64 [DEV 9-Tab an important part of President George W. 44]; ¶64 Vogel Decl. 41]; [DEV 9-Tab impressive Bush’s victory in Kentucky last ¶ McGahn Decl. (em- 56 [DEV 8-Tab 30] year, and it will be critical my race and added); phasis ¶ see also Josefiak Decl. 26 others next year”). [RNC (Republican Vol. I] Party ‘Victory 1.28.2 Defendants’ expert Donald Programs” which include compo- GOTV Green concludes that nents are designed to benefit candidates at [t]he evidence from California, as well as federal, state and local levels)(empha- opinion numerous surveys and exit added); sis Philp35 Dep. (when at polls that demonstrate powerful cor- asked “[are there a]ny other services that relation between voting at the state and the party provides to federal candidates,” levels, shows quite clearly that a answering that the Colorado Republican campaign that mobilizes residents of a Party’s GOTV “program is designed to highly Republican precinct will produce candidates.”). benefit all a harvest of Republican votes for candi- 1.28.1Documentary evidence corrobo- dates for both state and federal offices. rates the testimony that GOTV efforts as- A campaign need not mention federal sist federal See, candidates. e.g., CDP candidates to have a direct effect on (letter 00859 [IER Tab 1.1] thanking a voting for such candidate. par- That CDP donor and noting that “get- CDP’s ties recognize this fact apparent, ” for out-the-vote would help “increase efforts example, from the emphasis that the number of Californian Democrats in place Democrats on mobilizing pre- the United States Congress, continue venting ballot roll-off among African- Democratic leadership in Senate, the State Americans, whose solidly Democratic take back the State Assembly deliv- —and voting proclivities make them reliable er California’s 54 electoral votes for Presi- supporters office-holders all lev- dent Bill Clinton’s and Vice President A1 practical els. matter, As generic cam- re-election.”) Gore’s (emphasis added); paign activity has a direct effect on fed- CRP 07164 (letter [IER Tab l.F] from the eral elections. Executive Director of the Dole-Kemp Expert Green Report at 14 campaign, [DEV stating in 1-Tab part: “Unfortunately, 3]. federal law prohibits the Dole/Kemp cam-
paign from accepting any 1.28.3 contributions af- RNC transfers nonfederal ter the last day of the national funds convention. state parties to subsidize However, you can still support the voter mobilization Dole/ activities of the state Kemp ticket by sending your parties. contribution ¶31 Banning36 Decl. [RNC Vol. Philp 35. Alan testified on behalf of the Colora- Officer since and has employed by been Republican do Party. Philp Dep. 9 [JDT the RNC in these capacities and other Vol. 26]. twenty-six years. Banning Decl. 1 [RNC Vol. III]. Jay Banning has served RNC's Di- rector of Administration and Chief Financial *258 affect ¶¶ on the ballot candidates federal with Decl. 11-12 Duncan37
III]; also see clear GOTV Josefiak, It is elections. federal According to VI]. Vol. [RNC party’s parties target a certain local and activities helps state RNC also to them attempts get ef- to mobilization and likely voters these voter for fundraise ¶¶ 63, such Decl. 65-72 if the intent behind Even polls. Josefiak forts. See ¶ 10 Decl. I]; Benson38 and local only see also affect state Vol. were [RNC efforts (“[T]he na- Republican of Demo- VIII] Vol. number contests, increasing the [RNC [the also assist party committees in a state and tional vote crats, example, who for raising Party] Republican Colorado undoubtedly increase will local election building pro- party these money for Democrat- the federal of votes for number grams.”). ballot. the same who share ic candidates appreciated and is well-known This fact conduct and the CRP The CDP
1.29 parties federal campaigns, canvassing the national door-to-door GOTV federal, mailings. Since candidates. phone banks the same are on candidates state local Registration Voter California, all efforts affect these
ballot regis- undisputed that voter 1.31It fact This on the ballot. candidates efforts, with nonfederal paid for tration usually required why these efforts explains committees party by the national funds mix of federal parties use the state elections, directly federal period before for such money pay and nonfederal candidates, as state as well federal assist ¶20^>. See, Bowler Decl. e.g., activities. party from the same and local candidates and door cards CDP slate (noting that day. on same held elections are whose federal mention both hangers often Dr. Mann As notes: fund- thus were candidates nonfederal advisory opinions, (50 In a series funds); to 60 id. mix of with the ed por- that a to ensure sought Commission make paid banks phone of CDP’s percent benefiting party activities of state and must tion to a federal candidate reference funds); candi- and nonfederal mix of federal for both paid [sic] be with therefore ¶ money. hard important paid It is Aff. also Erwin dates 1975-21, however, BCRA’s Lev- Commis- note, Advisory Opinion that under may political parties committee state local in Amendment ruled that a sion and federal part mix of pay use a nonfederal hard dollars to still to use had for elections for GOTV efforts and voter pay expenses funds administrative itsof candidates, long as as drives, federal grounds that include on the registration raised accor- funds they use nonfederal have an indirect these effect functions course, for provision. Of with the opin- dance this It used elections. on federal a federal candidate elections without gov- it issued in in regulations ion impose any ballot, BCRA does ex- allocation of administrative erning restrictions. and nonfederal penses between to be allocation was accounts. funds that nonfederal It is clear
1.30 the amount proportion “in made for elections efforts to finance GOTV used the Colorado Chairman of Benson is 38. Bruce of the RNC is a 37. Robert Duncan Member ¶ 1 Parly. [RNC Decl. Kentucky. At Benson Republican the time State filed, VIII], was he Complaint in case RNC's Vol. RNC, July but served as Treasurer Dun- Counsel. he its General became VI], Vol. [RNC can Decl. 1
461 expended funds on federal and non-fed- Erwin testifies that the CRP paid has eral elections, or on another reasonable voter registration a mix of federal —with (11 106.1(e) basis.” 1978). C.F.R. and nonfederal through Opera- its funds — Expert Mann Report tion Bounty program, [DEV 1-Tab 1] which Republican added). (emphasis county committees, central Republican vol- unteer organizations 1.32 Representatives Republican major the four can- didates for congressional federal and state campaign committees, partici- office con- pate. firm Through that the Operation four its committees “transfer[ Bounty ] drives, federal and nonfederal funds CRP has typically registered state 350,000 local party over and/or Republican committees for ... voter voters in each registration ... cycle efforts. election These efforts since the 1984 election cycle significant have a effect 1997-98). (except ¶ election of 9; Erwin Aff. federal ¶ candidates.” Jordan Decl. 69 also CDP App. at 1185 [PCS 4] (charting 21]; [DEV ¶ 7-Tab Wolfson Decl. 64 [DEV CRP’s voter registration activity by elec- 44]; ¶ 9-Tab Vogel Decl. 64 [DEV 9-Tab tion cycle cycle). since 1984 41]; ¶56 McGahn Decl. [DEV 30] 8-Tab Ms. Bowler states that the expen- CDP’s (emphasis added); see also CDP 00859 ditures on voter registration consisting of — (letter [IER Tab 1.1] thanking CDP do- a mix of federal and nonfederal funds— nor noting that CDP’s registra- “voter were approximately $145,000 in the 1996 tion ... efforts” help would “increase the election cycle; $300,000 in the cycle; number of Californian Democrats in the $100,000 in the 2000 cycle; election United Congress, States continue Demo- $185,000during the period from January cratic leadership in the Senate, State take to June 2002. See Bowler Decl. back the State Assembly deliver Cal- —and ¶ 20.a. Ms. Bowler notes that the CDP’s ifornia’s 54 electoral votes for President expenditures for voter registration were Bill Clinton’s and Vice President A1Gore’s higher (a year with eight statewide re-election.”) (emphasis added); see also elections) (a than in presidential elec- ¶ (McConnell Findings 1.60 letter noting tion year). Id. CRP and CDP officials that the Victory 2000 campaign, in- testify that “it is often the case that these cluded a voter registration component voter registration activities are primarily “was important part of President driven the desire to affect State and George W. Bush’s impressive victory in ¶ local races.” 14a; Erwin Aff. Bowler Kentucky year, last and it will be critical ¶Decl. 20.a.
to my race and others year”); next Philp (when Dep. at 49 asked “[are there a]ny Whatever intention, the evidence other services that provides to supra, makes clear that these efforts affect candidates,” federal answering that elections; federal particularly as demon- Republican Colorado Party’s “pro- GOTV strated the CDP’s fundraising materi- gram is designed to benefit all candidates. ¶ als. 1.32). {See Findings Moreover, un- That could include registration voter der the Levin Amendment state political forth.”). so on and so párties may still use mix of nonfederal 1.33 CRP official Erwin39 federal funds to testifies that conduct voter regis- “[t]he overwhelming amount tration [voter reg- efforts for elections that include istration] activity ‘generic’ voter regis- candidates, as long use tration activity urging potential registrants nonfederal funds raised accordance with ” ‘Register ¶ Republican.’ Erwin Aff. 9. provision. course, Of for those elec- Ryan Erwin is the Operating Chief Officer of the CRP. Erwin Aff. *260 pro- redistricting hard, to influence on the candidate a federal without tions cess”. restric- impose any ballot, does not BCRA 1- [DEV at 11-12 Report Expert
tions. Green 3]. Tab Redistricting mix of federal uses a RNC The 1.34.2 use nonfeder- parties national The 1.34 redistrict- support funds to nonfederal and funds, toward funds, as federal as well al litiga- redistricting efforts, including ing efforts, efforts these redistricting and ¶74 I]. Vol. [RNC Decl. tion. Josefiak be- Congress to Members are of value ap- budgeted the RNC example, for aof composition in changes cause the redistricting. million on proximately $4.1 difference mean can district Member’s redistricting budget of the Seventy percent and defeat. reelection between money. nonfederal with was to be funded expert Donald Defendants’ 1.34.1As ¶28.1 III]. Vol. Banning [RNC Decl. notes: Green legisla- state more overall on spends RNC activity important legislative The most re- congressional redistricting than on tive House mem- of U.S. lives in the electoral ¶ 74 Vol. [RNC Deck districting. Josefiak a redistricting, during place takes bers ¶ (For- 1.78.1 Findings I]; see also infra in the hands placed process that money bud- nonfederal Company tune that a The chances legislatures. state [na- “because both noting that request get by unfa- bewill ousted House incumbent to influence working parties will be tional] are often district boundaries vorable two the next during redistricting efforts defeat at the chances of than greater be asked anticipate that will we we years, Thus, challenger. typical of the hands to these money contributions to make soft belong to who legislators federal key a once-a-dec- Redistricting is efforts. a tremendous majority party have state very high parties have effort both ade legis- attuned to the state incentive to be list.”). priority on their leadership. party and the state lature Philp, Alan of the Colorado 1.34.3 Mr. Republi- early example, For party that his Party, testifies Republican Committee, recognizing can National Party played Democratic the Colorado legislatures Tennessee that state legislative role in the state’s significant a redistricting, Georgia soon control would Philp Dep. at 65 process. redistricting money sums transferred substantial 26], re- Philp that the states Vol. [JDT in an parties Republican to those states’ redistricting “[c]an process sults necessary to the few seats effort to win candidates impact” on significant a Bender, in As Edwin gain majority. He notes Id. at federal office. for Institute report the National delega- Congressional the Colorado “In a explains: Money in State Politics the Colo- redistricting with tion discussed legislatures with number of states Id. Republican Party. rado win margins, a by narrow are controlled Paid with Other Activities Nonfederal House or Senate in state or two Funds the difference between 2000 could mean Expenses: The controlled redistricting committee 1.35 Administrative ad- RNC to for its pay and districts allowed the Republicans, FEC
Democrats or salaries, including .... other ministrative party over the that favor one overhead— benefits, supplies for result, party organizations equipment, national As headquarters Wash- operations cam- at RNC flooding the states have been a mix donations, money ington, D.C.—with both soft paign ¶ nonfederal funds. See Banning Decl. 27 nonfederal funds and $671,000 in federal Ill]; ¶ [RNC Yol. Bowler Decl. 15. “Dur- funds on such training and support. See ing the 2000 election cycle, spent the RNC ¶ Banning 28(c) Decl. [RNC Ill]; Vol. million $35.6 of nonfederal funds and $52.9 also Raja La Expert Report at [RNC million of federal funds on administrative Vol. VII] (parties “help candidates by overhead.” Banning Decl. 27 [RNC Vol. training them and their campaign staff,” *261 III]. “Administrative overhead includes the support which “can make an important operating costs of facilities, RNC such as difference whether a candidate chooses utility bills maintenance, and fundraising to run office, for particularly in an era of costs, and expenses routine for and travel cash-intensive campaigning that requires supplies. Administrative overhead also in- application skillful of advanced campaign cludes the salaries of RNC employees.” technologies”). According to La Raja, the Id. According to Plaintiffs’ expert La Raja, spent RNC $8.5 million in nonfederal the spent RNC about one-quarter of their funds directly on all of its grassroots and nonfederal disbursements on administra- voter mobilization activities for the 2000
tion and overhead during the 2000 election cycle. election Raja La Expert Report cycle and transferred percent the ¶ 14(c) [RNC Vol. VII]. This constitutes parties. state Raja La Expert Report about ¶ one-half of percent one 14(c) VII], all RNC [RNC Vol. State parties spent nonfederal spending during percent about 30 2000 elec- their nonfederal mon- tion cycle. ey See disbursements Biersack Decl. during the Table election [DEV cycle on 6-Tab 6] administrative expenses (showing and spent over- RNC $163,521,510 ¶ head. La Raja Expert Report nonfederal [RNC funds during VII]; Vol. ¶ see (stat- also the 2000 Bowler cycle). Decl. 15 election Furthermore, by ing that allocation is required for virtue of adminis- the fact these activities paid were trative expenses rent, like utilities, and for with a mix of federal and nonfederal salaries). The fact expenditures these re- funds demonstrates that they affect feder- quired mix of federal and nonfederal al elections. funds demonstrates that these activities 1.37 State and Local Governmental affect federal elections. See Af- also supra The provided RNC $100,000 ¶ of seed fairs: (Plaintiffs Findings 1.26.4 expert La money for the formation of a Raja Republican stating expenses administrative state attorneys general association “party that fo- building” activity). cuses on state issues. 978; Ex. RNC 1.36 Training Seminars: Banning tes- ¶¶ also Josefiak Decl. 82-84 [RNC Vol. I]. tifies that the RNC used a mix of federal According to Banning, during the 2000 and nonfederal funds to conduct training cycle election spent $199,000 RNC seminars for Republican candidates, party nonfederal $333,500 funds and in federal officials, activists staff, and campaign funds on state and governmental local af- many of whom are involved in state and ¶ fairs. See Banning Decl. 28.b [RNC local Vol. campaigns and Topics elections. in- III]. The nonfederal cluded funds grassroots spent RNC organizing, fundraising on state and and local compliance governmental with campaign affairs finance reg- ulations. constituted a During the minuscule percentage 2000 election cycle at 10,000 least people $163,521,510 RNC’s attended RNC-spon- nonfederal budget for sored training sessions, the 2000 election including cycle. 117 “nuts See Biersack Decl. and bolts” grassroots seminars on Table 2 organiz- [DEV 6-Tab 6]. Furthermore, by ing get-out-the-vote activities. During virtue of the fact these paid activities were cycle same spent $391,000 RNC in with a mix of federal and nonfederal funds (cita- 1-Tab 1] Report [DEV at 26 Mann federal elec- affect demonstrates omitted). tion
tions. provides testimo- RNC also Banning 1.39.1.1 Outreach: Minority 1.38 significant devotes federal it “sometimes ny a mix RNC used states that competitive states support efforts toward resources funds nonfederal races though mem- even races minority involvement gubernatorial increase During Party. competitive.” less Republican offices are in the bership I], ¶ spent Accord- cycle RNC Vol. 62 [RNC 2000 election Deck Josefiak funds Josefiak, most observers $1,211,000 in nonfederal ing to support of funds $2,163,000 in federal a “safe” state Indiana was believed minority outreach. it did not groups allied and that Bush George W. also expenditure “Nevertheless, This nonfederal id. 28.e. Senate race. competitive *262 percentage minuscule constituted significant resources committed RNC for the spending nonfederal total RNC’s influencing the hopes to the state Decl. Biersack cycle. ¶ See election 2000 Josefiak Deck race.” gubernatorial Furthermore, by 6]. 6-Tab [DEV Table I], Vol. [RNC paid were activities fact these of the virtue fig- no provides declaration Josefiak’s and nonfederal federal a mix of for with what to determine allow the Court ures to feder- affect funds demonstrates Fur- resources.” “significant constitutes al elections. may been thermore, although Indiana The Elections: Local and 1.39 State presiden- Republican a “safe” state “the RNC testifies RNC’s Josefiak candi- Republican and the tial candidate on its many of resources focuses actually Senate, Indiana ballot date for U.S. activity,” local election and purely state races federal with three provided voters however, ¶ I]; Vol. [RNC Decl. Josefiak vote, many expendi- meaning that which to do not Court provided figures only tures, influence if intended even example, For contention. support this race, election federal affected single state approxi- RNC donated 2000 the 1999 and nothing in importantly, races. Most funds in nonfederal million mately $7.3 un- using the RNC prevents BCRA Deck Josefiak local candidates. state and affect funds to of federal limited amounts ¶ 28(a) I]; Deck Banning Vol. [RNC any state election. However, is a this amount III]. [RNC Vol. Louisi- Kentucky, 1.39.1.2 Five States — $163,521,510 in non- fraction small Virgi- Jersey ana, Mississippi, New elec- during the 2000 spent funds federal of- and local for state nia—hold elections 2 [DEV Deck Table cycle. Biersack tion years when there fice in odd-numbered Raja finds La expert Plaintiffs’ 6]. 6-Tab bal- on the candidates no federal typically just Party allocated Republican I], ¶41 Vol. [RNC See Josefiak Deck lot. million) ($9.5 their non- percent seven including Likewise, numerous cities— cy- election during the 2000 funds Angeles, Min- Houston, Indianapolis, Los can- and local to state for contributions cle mayo- City New York neapolis and ¶ 14(b) —hold Expert Raja Report La didates. years. in odd-numbered ral elections Furthermore, according VII]. Vol. [RNC that for elections RNC officials state id. Mann, national expert two to Defense no federal candidate in which there directly million “only parties donated $19 state ballot, frequently trains the RNC candidates, than 4% local less state candidates, to state contributes local 1.6% spending and money their soft committees, campaign local in 2000.” and candidate activity financial total funds communications calling for election The State Parties Have Become “Branch- or defeat of state and candidates, local es” the National Parties supports get-out-the-vote activities. See 1.41 The evidence supra clearly dem- ¶ 28(a) Banning Decl. Ill]; [RNC Vol. Jo- onstrates that nonfederal money has not ¶¶ 19, sefiak Decl. 41-59 [RNC Vol. I]. The been used primarily for “party building” RNC’s CFO Jay Banning testifies that in activities as the authorizing rationale envi- including transfers to state sioned; rather, the funds are being used parties, direct contributions to local and by the parties national for electioneering state campaigns, and direct expendi- RNC activities and the parties state have been tures, the RNC spent approximately $21 coopted part of this effort. million in nonfederal funds in 1999 and 1.42 emergence of nonfederal 2001 (approximately million $5.7 money potent aas force in politics national 2001). million in $15.7 Banning Decl. has made the state political parties, ac- ¶ 28(a) Ill]; [RNC Vol. see also Duncan cording to Plaintiffs’ expert La Raja, ¶¶ Decl. [RNC 14-15 Vol. VI] (discussing “more reliant on the parties. national RNC contributions to Kentucky state and They have worked more with the national races). local Defendants’ expert Mann parties. They have become what I term states that donations to gubernatorial can- branch organizations, which to me is not a *263 didates an odd year numbered is not pejorative. It means they work more something intended to affect Federal closely with the national organization,” Exam, election. Mann Cross at 71. “they still retain autonomy. However, Again, BCRA does not preclude the na- they’re integrated more with the national tional political parties from spending un- party Exam, structure.” Raja La Cross at limited federal funds on such activities. 43-44, 60 [JDT Vol. 15]. This has lead to Furthermore, political state parties can a “nationalized party system, [where] state spend nonfederal funds on such campaigns parties use national party resources to ad- without limit as long as no federal election vance national party goals.” Id. at Ex. 3 is held at the See, same time. e.g., Tor- at 101. “The parties national employ ¶ res Decl. 8 [3 PCS] (stating that the the parties state as instruments pursue spent CDP has millions of dollars in non- federal electoral goals, particularly federal funds supporting candidates in Los through issue sponsored ads by state orga- Angeles). [paid nizations for with nonfederal money transferred from the national par- 1.40With the exception of administra- ties].” Id. at 104. tive expenses, the paid activities for with 1.43 The close nonfederal affiliation between funds listed supra constituted a state, local and very national parties small portion clear parties’ cooperation their expenditures during nonfederal election during the 2000 campaigns that include cycle. election state and Furthermore, federal administra- elections. tive expenses, training seminars, expendi- tures on state and governmental local af- 1.43.1 Ms. Bowler testifies that fairs, and minority outreach, paid were all CDP works closely with the plan- DNC in
for with a mixture of federal and nonfeder- and ning implementing “Coordinated Cam- al meaning funds that these activities have paigns,” purpose of which is to allocate impact some on federal elections. resources and coordinate plans for the 40. Art Torres is the elected ¶ chair the CDP. Torres Decl. [31 PCS]. brochures, banks, mail, telephone direct up and candidates of Democratic
benefit stickers, officials, bumper cards, signs, yard Party state ticket. entire down volunteer and door-to-door the ticket and hangers, levels door all candidates in Coordinated participate Id. agents activities. make decisions collectively Campaigns and Josefiak, According 1.43.2.2 solicitation, direct- receipt, regarding approximately $42 transferred the RNC funds, both CDP’s spending ing, Victory to use parties state million to ¶¶ 5, Decl. Bowler and nonfederal. federal (about mil- percent $25 programs, Plan Bowler, the CDP According to PCS]. 29 [3 money, not lion) nonfederal was of which Id. [DNC].” related to “integrally “issue on money spent broadcast including ¶ ¶ 31 [RNC Decl. advertising.” Josefiak are “Victory Plans” RNC’s 1.43.2The ¶¶4, 8-9 Decl. I]; Peschong41 also Vol. sup- designed programs contact voter RNC (stating “[t]he VI] Vol. [RNC Republican ticket entire port the share very substantial provides typically RNC federal, state, and local levels. victory programs.”). funding of state design, every state works party officials Republican State 1.43.2.3 Ben- Plans. See implement the fund nu- are there often that because observe VIII]; Josefiak f Vol. [RNC Decl. son than and local races more state merically I]; ¶26 Decl. Peschong Vol. [RNC Decl. election, Vic- given during races ¶¶ VI]. 4-5 Vol. [RNC emphasis” place greater “often tory Plans Coun- RNC Chief According to 1.43.2.1 Benson races. the non-federal Josefiak, Victory Plans formulated sel ¶ VIII]; Decl. Bennett 8 [RNC Decl. Vol. and con- extensive after implemented (stating VIII] 17.k Vol. [RNC RNC between tinuous collaboration local candidates average ratio state tailored Plan is parties; each the state *264 in 2002 is 18 in Ohio federal candidates to each State unique needs to the 1). change does This observation to activism grassroots designed stimulate designed Plans are Victory fact hopes in the increase voter turnout Decl. Benson ticket.” the entire “support at all levels benefitting candidates added). ¶ ¶¶ (emphasis Vol. [RNC VIII] 25-40 Vol. [RNC Decl. ticket. Josefiak Erwin, the CRP Mr. According I]. the Role to Address of Nonfederal Efforts planning RNC closely with the works Limit Must Finance Campaign Funds The Vic- Victory Plan. implementing a Funds Party Use State Nonfederal general in the implemented tory Plan Federal Elections Affect full involvement cycle with election political that state It is clear 1.44 staff, legislative staff, state CRP RNC elections, affect federal activities electoral representatives leadership and and federal elections when especially state Erwin campaigns. See ticket top of the The record on the same date. are held nature, ¶ “By their PCS]. Aff. 4 [3 value officeholders establishes programs specified and the Victory Plans nonfed- they solicit and that services these just year, not the calendar span in them parties the state eral donations to the election.” days prior or 120 the 60 campaigns. own their ¶4 to assist in order VI]. [RNC Vol. Peschong Decl. non- parties also solicit rallies, National incorporate generally Plans Victory ¶ chong Decl. 1. Regional Po- Peschong RNC's is the 41. John Region. Pes- for the Western Director litical federal donations for their state counter- ties use soft money help elect federal parts and transfer nonfederal funds as candidates both by organizing reg- voter part of their efforts affect federal elec- istration and get-out-the-vote drives that tions. ¶ Findings 1.59. The infra help candidates at all levels of ticket, workings of this campaign finance system using soft and hard money to run demand that if one wants address the ‘issue ads’ that affect federal elections. impact of nonfederal money, one cannot Therefore, for money soft reforms to be ignore the state role system. For- truly effective, it is vitally important to mer Members of Congress concur. For- require the use of hard money at the mer Senator Rudman states clearly: state to pay level for activities that af- To curtail soft-money fundraising and fect federal elections. giving, is necessary to have a compre- Brock Decl. [DEV 6-Tab 9]. hensive approach that addresses the use Summary
of soft money at the state and local party levels as well as at the national 1.45 The supra evidence clearly dem- party level. The fact is that much of onstrates that nonfederal money has be- what state and parties local do helps to come an increasingly important part of the elect federal candidates. The national national political parties’ campaign efforts. parties it; know the it; candidates know The increase in nonfederal fundraising and the state and parties local know it. If spending, especially since has been state and parties local can use soft mon- dramatic, and is due to the advent of the ey for activities that affect federal elec- so-called “issue advertisement.” Political tions, then problem will not be party issue advertisements do not include solved at all. The same enormous in- of express words advocacy, but engi- centives to raise the money exist; will neered to still have an impact on federal the same large contributions by corpora- elections. Despite effect, their the fact tions, unions, and wealthy individuals these advertisements do not consti- will made; the federal candidates express tute advocacy has po- allowed the who benefit from state party use of litical parties to use nonfederal money, these funds will exactly know whom in part raised from the of corpo- treasuries are; benefactors the same degree rations and unions, labor to fund these of beholdenness and obligation arise; will *265 commercials and thereby skirt campaign the same distortions on the legislative finance Furthermore, laws. these adver- process will occur; and the public same tisements make a mockery of the original cynicism will erode the foundations justification for allowing the political par- our democracy except it will all be — ties to funds, raise these they as public’s worse the mind because a nothing to do with perceived “party building.” reform was undercut once Plaintiffs’ expert own again by finds loophole these big allows mon- funds have ey into been spent the system. primarily on elec- tioneering and not on strengthening the ¶ Rudman Decl. 34], 19 [DEV 8-Tab For- political parties. mer Senator Brock comments: It does no The good fact to close the soft the money national political par- loophole at the ties level, national huge found a loophole but then through which allow state parties local to use circumvent the and. mon- federal campaign finance ey from corporations, unions, regime only and was the first In step. order wealthy individuals in ways that affect maximize the power of this new-found federal elections. State and local political par- tool, the political national parties is identified candidate affiliates, guidance[;][a] and party state coopted elec- the them, throughout party affiliation calls expert Plaintiffs’ branches office, and ballot, while through tion, on the funds nonfederal and funneled books[;][a] candidate advantage of successful history take order them in leader, party allo- more attractive and the party parties’ political becomes a state so, national doing during By the candidate rely ratios. cation continues of federal amount public party’s minimized campaigns[;][a] parties subsequent purchase advertisements needed candi- funds what its defined largely is image elections-adver- federal to affect designed candidate do[;][a] party’s say and dates of FECA spirit in the tisements for what his by voters held accountable with completely paid have been should does[;][a] suc- party says her result, politi- the state As a funds. federal its whether depending on ceeds or fails part of integral parties became cal polit- No other or fail. succeed candidates money parties’ nonfederal political national ties with comparable actor shares ical to deal any effort and therefore strategy, Republican Brief of Colorado candidate.” in the funds of nonfederal use Republican in FEC v. Colorado Party address- regime requires finance campaign II”), (“Colorado Comm. Campaign Fed. parties. political the state ing 2351, 150 431, 457, 121 S.Ct. U.S. spent on funds are nonfederal all Not 19-20; id. (2001), also L.Ed.2d 461 advertisements, adver- but these political 26-31; Dep. [JDT at 47-54 7-8, Philp category largest constitute tisements 26]. Vol. the national spending of of nonfederal Com- Party Run the Federal Lawmakers Furthermore, other parties. state mittees activities, registration as voter such national committees 1.47 The part with non- GOTV, paid for that are Repub- are: the parties major political two elec- clearly affect federal federal funds (“RNC”); Committee lican National local elections state and tions when Committee Republican Senatorial National elec- day as the same federal held on the Con- (“NRSC”); Republican the National federal efforts affect Redistricting tion. (“NRCC”); Committee gressional are held. when no matter elections (“DNC”); Committee National Democratic nonfeder- sum, parties used Campaign Com- Democratic Senatorial affect circumvent FECA al funds (“DSCC”); the Democratic mittee elections. Committee Campaign Congressional in Po- Lawmakers Role of Federal ¶6 9-Tab (“DCCC”). Vogel [DEV Decl. Fundraising Party Nonfederal litical ¶ 30]; 8-Tab 41]; [DEV Decl. McGahn entities, political par- other 1.46 Unlike ¶ 21]; 7-Tab [DEV Wolfson Decl. Jordan relationships with uniquely close ties have 44], The primary 9-Tab Decl. [DEV *266 support, and they nominate candidates committees congressional of the purpose D. who, turn, party. See the in lead and election of candidates the to ensure 1-Tab Report at 7-9 Expert [DEV Green respective to their respective parties their ¶¶ 8-Tab 3]; 22-23 [DEV Decl. McCain the body support and otherwise legislative has Party Republican Colorado The 29]. party. Id. goals their its party “A and litigation: past in stated domi- are party committees The national strongly bound uniquely are candidate officials—the public by nated elected recruits party [a] to one another because: presidential candidate president his or and is its candidate and nominates Demo- the Republican support case source first and natural her cratic Committees, National top United States Senate .... The chair of the House and party Senate leaders for the DSCC is appointed by the Democratic congressional campaign committees.... Leader of the United States Senate.”); There is no meaningful separation be- ¶4 McGahn Decl. (the [DEV 8-Tab 30] tween the national party committees and NRCC includes the “entire Repub- elected public officials who control them. lican leadership” its executive commit- Mann Expert (citations Report at 29 tee includes omit- “the Speaker of the House, ted) 1]; [DEV 1-Tab also Krasno Leader, & Majority the Republican Expert Sorauf Report at 9-10 (“Simply Whip, Conference Chairman, the Confer- put, no wall between the parties national ence Vice-Chairman, the Conference Sec- and the national government exists.”), 12- retary, the Policy Chairman and the 13 (“Party committees are by headed or NRCC Chairman”); ¶¶4 Wolfson Decl. enjoy close relationships with leading (the [DEV 9-Tab 44] DCCC is comprised officials, by individuals who virtue of their of sitting (or Democratic Members of Del- positions, reputations, and control of the to) egates the United States House Rep- legislative machinery have special influ- resentatives, and the Chair of the DCCC is ence on their colleagues.”) [DEV 1-Tab by elected the Democratic Caucus of the 2]; Expert Green Report at 9-10 [DEV 1- United States of Representatives). House (“Political Tab parties, 3] it should not- 1.48 “For at least century [the na- ed, are structured along very different tional party committees] have been melded principles from the American government. into their party’s presidential campaign ev- One such principle is the separation and ery years, four often assuming a subsid- dispersal power, of which one finds iary role to presidential candidate’s many examples in the Constitution.... personal campaign presi- committee. The Leaders of legislative party may caucuses dential candidate has traditionally been also serve as members or leaders of party conceded power to shape and use the campaign committees. Furthermore, par- committee, at least campaign.” So- ty leaders are drawn disproportionately Report rauf/Krasno in Colorado Republi- from the ranks of those who hold impor- can at 27 [DEV 73-Tab C]. legislative tant leadership posts.... [T]he parties Political are primarily concerned internal parties structure of permits, for with electing their candidates and the example, former U.S. D’Amato, Senator money they spent raise is assisting their who chaired 1995-97, [RSCC] from candidates’ campaigns. As Congressman at the same time as serve chair of the explained: Meehan Senate Banking, Housing, and Af- Urban goal ultimate fairs of a political Parties, Committee. contrast such as the Democratic lawmaking Party is to they inhabit, get institutions many as organized Party possible members ways into concentrate authority, office, elective entrusting multiple doing so par- roles to to in- ticular individuals.”); ¶ voting crease and Party activity by Rudman Decl. aver- 34]; [DEV age 8-Tab Vogel Party Decl. 4 members. [DEV The Party 9- does (NRSC Tab 41] comprised developing sitting principles on public “Republican Members of the policy United States matters the Party for, stands Senate .... The chair of then finding NRSC is candidates to run for the elected by Republican Caucus various offices who represent *267 United ¶ States Senate.”); Jordan Decl. 4 principles those for the Party. When (the [DEV 7-Tab 21] DSCC comprised “is the Party candidates, finds its it tries to of sitting Democratic Members of the raise money get to help peo- like-minded (3) these in accord with governing elections, and and to in the participate
pie to some- these efforts Although views. Party’s candidates get try to occur frequently overlap, they also times mes- their get to they need resources another. of one independently my experience, In to voters. sage out I], ¶22 have economic Other do Vol. parties political [RNC Decl. Josefiak goal however, record, their ultimate show apart from interests in the documents par- to office. candidates state Republican their electing and of that the RNC Republi- to elect purpose is primary ¶¶ ties’ 68- [DEV 3-4 in RNC Decl. Meehan See, e.g., RNC’s to office. can candidates that 30], Bumpers testifies Tab Senator RNC, No. RFA’s FEC Resp. to the [Democratic] that aware is “not he 35]; [DEV ODP0021-02003 68-Tab [DEV of in the outcome any interest party has (RNC in which Memorandum 48] 70-Tab separate from that is debates public policy “The states: Haley Barbour Chairman electing its supporting and interest its elect its party is to purpose of ¶ 6- [DEV Decl. 6 Bumpers candidates.” office, our first and public candidates testifies McCain Senator 10]. Tab president.... Dole Bob is to elect goal politi- history of and function “[t]he entire it priority, but highest Dole is our Electing get their is to system our parties in cal is to goal Our only priority. not our is elected, that is particularly and candidates majorities both houses our increase has ended campaign primary true after and state among governors Congress and select- has been candidate party’s and the Exam, at Knopp42 Cross legislatures.”); 29], ¶23 8-Tab [DEV Decl. ed.” McCain primary (stating that 13] Vol. [JDT espouses general, RNC 1.49 In Republi- elect RNC is “to of the purpose mis- guiding the principles three core office”); local, state, national and cans to Party, Republican national sion of the ¶4 (“The VIII] Vol. [RNC Brister43 Decl. to na- electing candidates includes primary Party of Republican Louisiana’s represent who tional, offices and local state Republicans help elect purpose tois practice, views. the RNC’s White the courthouse ‘from office pri- is the RNC’s these candidates electing ”). Par- Republican House’ Whether mary focus. pursuit of drive its principles” ty’s “core Counsel, Chief 1.49.1 RNC’s versa, ais majorities, vice electoral Josefiak, attests Thomas I quandary chicken-or-the-egg type Party long has a is Republican juncture. What [t]he at this not resolve need princi- core advocating evidence, however, some history rich clear from low- government, or not is done ples: a smaller federal of whether regardless freedom, Repub- taxes, principles, the party’s individual er advocate the The RNC is the primary defense. election Party’s goal national lican strong through three will be advocates principles who these its candidates achieves (1) ob- an issue As Dr. Green promoting principles. core means: primary power obtain positions order to advocating Republican serves: “In agenda elections; to win state, order nation- win local, regional, must on issues (2) elections, officials scramble elected importance; al international deeds legislative good claim credit espouse these who electing candidates oppo- offices; the misdeeds publicizing local, while state national views Republi- is the Chairman Deputy Di- 43. Pat Brister Knopp RNC’s Janice ¶ 1 Brister Decl. Knopp Party can Louisiana. Finance/Marketing Director. rector Vol. VIIIl. [RNC Vol. V]. Deck 1 [RNC *268 (“Soft party.” Expert sition Report Green money is often raised directly by [DEV 3]. 1-Tab federal candidates officeholders, largest amounts are by often raised 1.50 The evidence makes clear that the President, Vice President and Con- party national are committees creatures of gressional leaders.”); party Feingold Dep. members, their politician elected federal ¶ 6]; at 91-93 [JDT Vol. Shays Decl. 18 run priorities. who them and set their It (“Soft [DEV 8-Tab money 35] is raised is clear that the party national committees directly by candidates, federal officehold- electing focused on their candidates to ers, and national party leaders. office, the case of the DNC National party officials often raise these actually and RNC are by subsumed funds promising donors access to elect- respective Presidential cam- candidates’ ed officials. parties The national and na- facts, paigns. Given these it is not sur- tional congressional campaign committees prising party that the national committees also request that Members of Congress use their elected officials to solicit dona- make the calls to money soft donors to tions. funds.”); solicit more Meehan Decl. Federal Lawmakers Solicit Nonfederal ¶ (“Members RNC 6 [DEV 68-Tab 30] Funds Party National Committees Congress raise money for par- the national practice 1.51 It is a common for Mem- ty committees, and I have been involved in of Congress bers to be in raising involved such fund-raising for the Democratic Par- both federal and nonfederal dollars for the ty. At request Party Members committees, national sometimes at of Congress go to the [DCCC] and call parties’ request. personal in- prospective provided donors from lists volvement high-ranking Members of Party to ask them to participate in Congress major component raising events, Party such as DCCC dinners or federal and nonfederal funds. [DNC] dinners. These lists typically con- persons sist of who have contributed to the Current and former Members of Con- Party past.”). Democratic in the gress See, acknowledge this fact. e.g., ¶ Rudman 34]; Decl. 12 [DEV 8-Tab Representatives of the House and Sen- ¶¶ Bumpers 10]; Decl. 7-9 [DEV 6-Tab ate congressional campaign committees ¶ (“While Simon44 Decl. 7 [DEV 9-Tab 37] testify that their committees and their I in Congress, was the DCCC and the leadership ask Members of Congress to DSCC would phone ask Members to make specified raise funds in amounts or to de- seeking calls contributions to party. specified periods vote of time to fundrais- They assign names, would me a list of ¶33 ing. 21]; Jordan Decl. [DEV 7-Tab people I ¶¶ had not previously, known I Vogel 41]; Decl. 32-33 [DEV 9-Tab just go ¶¶ would down the list. I am certain 30]; McGahn Decl. 34-35 [DEV 8-Tab they ¶ did this because found it more Wolfson Decl. 35 [DEV (stating 9-44] calls.”); effective to have Members make DSCC, NRSC, NRCC, that the and DCCC ¶4 Simpson45 38]; Decl. [DEV 9-Tab ask Congress members of money to raise ¶¶2, committees). McCain Decl. 21 [DEV 8-Tab 29] for the 44. Senator Paul Simon served Representatives as a United from 1954 to 1962 and in the States Senator for Illinois from 1985 to Illinois State Senate from 1962 to Si- 1966. ¶ 37], and was a Represen- Member of the House mon Decl. 9-Tab [DEV tatives from being 1975 to 1985. Prior to Congress, elected to Senator Simon served as Simpson Senator Alan served as United Lieutenant Governor of Illinois from 1968 to Wyoming States Senator from from 1979 to and served in the Simpson Illinois House of Decl. 2 [DEV 9-Tab 38]. *269 is matters What no connection. have that Mem- testify also donors Political what the Member done donor has the money. nonfederal solicit Congress bers asked.”). ¶¶ See, 8- [DEV 6-9 e.g., Decl. Randlett46 Members find that political Lobbyists in also (“I’ve involved been 32] Tab for fundraising in involved are Congress remember enough to fundraising long Decl. Rozen47 parties. political their to federal little had value money soft when (“Even ¶ soft though 33] 8-Tab 15 [DEV ago, a Senator years Ten candidates. political go often money contributions and the donor donor potential a might call the so that money given the parties, like, love to would something T say would to, recog- and be close can contributors yours; fan of check; biga I’m you a write Presidents, Members, Ad- and by, nized maxed, it. I can’t do so federally I’m but power. have who officials ministration money a soft like, write I could you If party Members, staffers party not And the Sena- party.’ your state check to money soft chairs, large raise much The soft bother. ‘Don’t say, might tor not have do Party chairs contributions. any good.’ do me just doesn’t money and the DNC power much because cycles, Mem- election However, in recent power don’t by themselves the RNC have asked committees national bers and people giving are So anything. do money soft to write donors money soft Mem- party chairs. close to the to be solely parties national state and checks to and the President Congress bers campaigns. Most federal in to assist The elected parties. order heart of national really raising don’t care ask and don’t ones who are money donors are the soft officials through their particular directly or money, a either going money is why the see also in Mar- Dep. Murray48 they may agents.”); a with which party, state association, non-profit, and corporate, trade Chief Officer Executive Randlett 46. Wade Congress and clients before both WideWeb individual Technology, a World of Dashboard work includes Branch. His the Executive in San consulting based technology firm writing lobbying strategic plans, founding preparing Francisco, Prior California. complex is- papers, explaining and difficult served Technology, Mr. Randlett Dashboard staff, drafting proposed legislative and sues to two other soft- management teams of on the for organizes also fundraisers legislation. He the Democratic He was companies. ware ad- Network, and time-to-time from Technology federal candidates at the political director political TechNet, contributions. clients vises a Palo Alto-based as also known ¶ 33] 8-Tab [DEV Decl. 4 political Rozen service corporation non-profit in he organization co-founded government re- Murray a served 48.Daniel TechNet, many spent he starting Prior Bell- Sprint, GTE and specialist for lations general political fundraiser years as a As until 1995. Corporations from 1982 South consultant, working primarily in companies, he Director those Executive California, Valley of Northern area Silicon selecting can- them and their PACs assisted and to throughout some California but also sup- groups for financial didates metropolitan areas other major extent funds. and nonfederal port both ¶Decl. 2 [DEV parts Randlett of the nation. Dem- on the During period he also served 32], 8-Tab DNC, Ad- Council of Business ocratic Leadership visory of the Democratic lobbyist Council worked as Rozen Robert Council, Wunder, Convention DNC and 1992 firm law interests various Committees, DSCC Leader- Selection Diefenderfer, Site & Thelen Cannon Circle, Com- Dinner ship DCCC Annual years, has six he been last 1997. For the until Committee, mittee, RSCC Annual Dinner Washing- lobbying called firm partner in many House steering Counsel; committees Washington Council Ernst ton now 1995, he acted campaigns. Since has variety Senate represents a Young. Mr. & Rozen 58]; at 41-42 [DEV iani 79-Tab Rozen who have contributed to that Member the 38], Decl., Ex. A 7 [DEV 8-Tab maximum amount of ‘hard money’ allowed *270 under the [FECA] order to request —in Finally, documentary evidence corrobo- further donations Party to the including rates testimony. ODP0037-00062 those which are not restricted the Act (Letter [DEV 48] 71-Tab to NRSC Chair- (‘soft money’).”) 30]; [DEV 68-Tab Bill- man’s Foundation member seeking re- ¶ Decl., ings Ex. A 12 5]; [DEV 6-Tab newal signed by contribution Senator ¶20 (“When Jordan Decl. [DEV 7-Tab 21] McConnell); ODP0037-00884 [DEV 71- donors have reached their federal (letter contri- 48] Tab from Senator McConnell limit, bution the DSCC frequently encour- $5,000 thanking donor for federal and ages them make additional donations to $25,000 nonfederal donation to NRSC’s is- the DSCC’s account.”); nonfederal Wolf- advocacy sue campaign); ODP0031-00821 ¶ (same son Decl. DCCC); (letter Vogel for from contributor to RNC with con- ¶20 (same Decl. NRSC); for McGahn tribution, stating “Congressman Scott ¶ (same NRCC); Decl. 21 for Mclnnis Sorauf/Kras- deserve most of [sic] the recruit- Report no Republican, Colorado at 13- credit”); (a ment ODP0037-00882 solicita- 44]; 14 [DEV 68-Tab ODP0018-00620 to tion letter from Senator po- McConnell to '21 (federal [DEV 69-Tab 48] candidate tential donor at the Corporation, Microsoft noting that he “recently sent a letter to expressing hope person that this would [his] maxed out donors suggesting contri- a leadership “take role with [McConnell] NRCC”); ¶8 butions to the Kirsch49 Decl. in support the NRSC of the Committee’s (“[0]nce a federal candidate understands advocacy issue campaign. The resources that a out, donor has maxed there will raise we now will us to allow communicate often request be a the donor our make strategy through Day.... Labor Your soft money donations ato national party immediate commitment to this project committee, as has suggested been mean a when I great would deal to the entire situation.”) been Republican [DEV Senate 7- personally.”); and me 23]; Tab Raja La Cross ODP0037-01171 to 72 Exam. Ex. 3 at 54 [DEV 71-Tab 48] (“[I]t (correspondence [JDT Vol. practice 15] is common referencing solicitations by federal candidate to encourage donors to candidates); give officeholders and ¶ (Fortune when Finding 1.74.3 have ‘maxed’ compa- infra ny’s federal stating documents contributions to his or her Members of commit- tee”). Congress requested had nonfederal dona-
tions). Vogel, 1.53 Mr. General Counsel of the NRSC,
1.52
parties
“The
“[s]ometimes,
often ask
testifies that
Members
to solicit soft money from
NRSC urges Republican
individuals who
Senators to con-
have maxed out to
particular
tact
Member’s cam-
donors because of shared
¶
paign.” Simpson
public
views,
Decl.
policy
[DEV 9-Tab
such as outreach ef-
38];
¶
see also Meehan Decl. in
6 forts to
high-tech
RNC
community by Sena-
(“Party leaders
also ask Member to call
tors
interest in those issues.” Vo-
¶
or her
his
own ‘maxed out’
gel
donors—those
41];
Decl. 28 [DEV 9-Tab
see also id.
government
as a
relations consultant for busi-
tion.
has donated
He
of dollars to
millions
Murray
ness
other clients.
Aff.in Maria-
Party
"progressive
Democratic
¶¶
59],
ni
3-5 [DEV 79-Tab
¶¶ 2,
groups."
candidates and
Kirsch Decl.
[DEV
23].
7-Tab
T,
49. Steven Kirsch is founder and
Ex-
Chief
Propel
ecutive Officer
Corpora-
Software
Vol.
17 [RNC
Decl.
(draft
B. Shea50
nors. See
letter
066-000009
NRSC
Tab D at
policy
by RNC
She states
V].
and NRCC
NRSC
from chairmen
Chairman, Co-Chair-
High
RNC
inviting
practice,
Committees
Technology
Chairman,
fundraising
Republican woman, Deputy
the 1998
Technology CEOs
your
“to
response
major
groups—
donor
Dinner
staff or members
House-Senate
cutting
a voice on
initial
officeholders—undertake
industry’s plea
federal
future
to the
important
major
so
donors
edge issues
solicitation
contact and
the din-
noting that
technology”
funds.
Id.
high
and nonfederal
both
*271
event,
annual
prestigious
“most
fed-
ner is the
initial solicitations
not
or
Whether
the U.S.
members of
Republican
and all
the RNC
on
of
officials
behalf
eral
attendance.”)
will be
and Senate
House
they are made.
rare,
that
record shows
engages
The DCCC
41].
[DEV 9-Tab
from
letter
(May
RNC0178497
¶ 31
Decl.
Wolfson
practices.
similar
Sena-
Barbour to
Haley
RNC Chairman
(“Sometimes, the DCCC
44]
[DEV 9-Tab
for a “mem-
tors,
their name
to use
asking
con-
Members
House
urges Democratic
while
which
package,”
bership recruitment
of shared
donors because
particular
tact
funds,” “will serve
directly solcit[ing]
“not
example,
For
policy views.
public
membership invi-
for the
letter
set-up
assistance
and received
sought
DCCC has
several
be mailed
package
will
tation
House Mem-
particular Democratic
from
Furthermore,
letter.”).
this
days after
commu-
from the labor
fundraising
bers
for
solicit funds
Congress
Members
strong
had a
those Members
nity, because
in the
who have donated
those
RNC from
labor.”); see
for
support
public record
(hand-
See, e.g.,
past.
RNC0266088-91
¶
32]
8-Tab
6 [DEV
Decl.
also Randlett
Member
determining which
written notes
often feel
(“National party committees
particular potential
would call
Congress
amount of soft
certain
raise a
need
1997 so-
donors);
(April
RNC0250514-15
cycle. To reach
given election
money for a
ask-
Gingrich
Speaker
from
licitation letter
up po-
they may divide
goal,
that overall
support
[their]
“to continue
ing donors
affiliated or-
by geography,
tential donors
Moreover,
Club”);
it
the President’s
[for]
party
interests.
or issue
ganization,
for
speak
does
clear
Ms. Shea
is
Members of Con-
decide which
committees
clearly use
or the NRCC
the NRSC
do-
potential
these
contact
gress should
See,
Find-
e.g.,
funds.
to solicit
Members
put in a
then
nors,
these Members
¶
ings 1.51.
national
time
of call
certain amount
for the
funds
Raising
money. A Mem-
1.55
nonfederal
soliciting
committee
in
in a Member’s
may matched
can be
parties
donor
potential
ber
legislative
of mon
on a
the amount
example,
is
the Member
For
because
terest.
partic-
has a
the donor
for the
Congress
in which
raises
committee
ey a Member
ideolog-
interest,
economic
whether
often
ular
party committees
national
ical.”).
give to
committees
amount the
affects the
See, e.g.,
campaign.
the Member’s
assist
evidence,
foregoing
Despite the
1.54
(“[T]he
¶4
6-Tab 8]
[DEV
Decl.
Boren51
states
of the RNC
Director
the Finance
organiza
party
other national
DSCC and
rare” for the RNC
“exceedingly
that it is
records,
much
‘tallies’ of
how
kept
tions
person-
for
officeholders
rely
on federal
for the
had raised
money a Senator
major
soft
do-
telephonic solicitations
al or
as a United
Boren served
David
Di-
51. Senator
Finance
the RNC’s
Beverly Shea
1979-
from Oklahoma
V],
States Senator
¶ 1
Yol.
[RNC
Shea Decl.
rector.
¶
8]
6-Tab
[DEV
Decl.
1994. Boren
party. The
then gave
DSCC
little [non- Members also have an interest
in a
money
federal]
to the campaigns
strong party
of those
that can assist
its federal
See,
who had not
Senators
raised
officeholders.
adequate
e.g., Bumpers Deck
(“When
view,
[DEV
funds.
In my
[nonfederal]
6-TablO]
a Member
raises
practice
money for
very
demonstrates
clearly
party,
there is a
part
sense on the
money
soft
not used
Member that
purely
‘party
he
or she is
activities,
helping his or her
building’
but
own campaign
there is at
by virtue of raising that
a working
money.
least
When
understanding among the
Members raise
DNC,
funds for the
helps
party officials and Senate candidates that
perform
the DNC
its function of keeping
money
will
benefit
individual Sena
statements,
tabs
policies, and votes of
campaigns.”);
tors’
id. (explaining that be
opposition party members and groups.”).
cause he “minimized” the amount of time
spent
he
DNC,
soft
raising
money for the
Former DNC and DSCC official and
he “received almost
money
no
from the
lobbyist
current
Robert Hickmott52 testi-
Party
Democratic
my
campaigns.”);
*272
that
fies
even incumbents with safe seats
¶
Bumpers Decl.
11 [DEV 6-Tab 10] have incentives to
money
raise
for the
(“Members who raise money for the DSCC parties. He explains:
expect some of that money to come direct
Incumbents who were not raising money
back
ly
to them. Part of this unwritten
for
they
themselves because
up
were not
not unspoken
but
you
rule is that if
do not
for reelection would sometimes raise
raise a certain amount of money for the
money
Senators,
for other
or for chal-
DSCC, you are
going
not
to get any back.
lengers. They
$20,000
would send
to
The
give
DSCC does not
a candidate the
the DSCC and ask that this be entered
maximum allowed unless he or she has
on another
tally.
candidate’s
They
raised at least a certain amount for the
this,
might do
for example,
if
were
¶
DSCC.”);
(state
Findings
1.56.1
planning to run for a leadership position
infra
ment of
Simpson).
Senator
and wanted to obtain support from the
1980, during
In
President Carter’s re-elec
(“HUD”).
Development
Urban
Id. In
campaign,
tion
Robert Hickmott worked at
1999,
left HUD
joined
Hickmott
the
("DNC”)
Democratic National Committee
Group (“Smith-Free”),
Smith-Free
a small
as an Associate Finance Director. Hickmott
governmental affairs firm
Washing
located in
¶2
Deck
Following
[DEV 6-Tab 19].
the
ton,
¶
D.C. Id.
currently
3. Hickmott is
a Sen
general election, Hickmott
the
became
Execu
ior Vice President at Smith-Free and one of
tive Director of a new
entity,
DNC
the Demo
principals
the six
in the firm. Id. Hickmott is
("DBC”),
cratic Business Council
where he
regular
a
contributor to candidates for Con
1985-86,
served
During
until 1983. Id.
Hick-
President,
gress, for
party
the national
mott served as National Finance Director for
committees, primarily to Democratic candi
then-Congressman Timothy Wirth’s Senate
dates, but also
Republicans,
to several
as well.
campaign,
1989,
early
1987
from
until
Id.
cycle,
In the 1999-2000
he contributed
that,
Senator Wirth’s Senate staff. Id. After
$7,000
just over
and in
cycle,
the 2001-2002
private
Hickmott
practice
was in
as an attor
$10,000.
he has contributed a little more than
1991,
ney
January
until
joined
when
he
provided
Id. Hickmott
a declaration in Feder
Democratic
Campaign
Senatorial
Committee
al Election Commission v.
Republi
Colorado
("DSCC”) Deputy
as
Executive Director.
Id.
Committee,
can
1993,
Campaign
Federal
41
years
Hickmott worked for four
F.Supp.2d
(D.Colo.1999),
1197
aff'd,
the Associate
213 F.3d
Congressional
Administrator for
(10th Cir.2000), rev’d,
1221
Affairs at the
Unites
U.S.
States Environmental
Agency,
(2001) ("Colorado
Protection
S.Ct.
years
then for
sonally benefit control Democratic to retain part their that testifies Simpson 1.56.1 Senator preserve would Senate, which be- really differentiate do “[d]onors Democratic Sena- all power legislative they often money; and soft hard tween tors. an favor with gain to assist contribute ¶ 6-Tab [DEV Decl., AEx. Hickmott give donors When politician. individual ¶ that Sena- (attesting 19]; id. also is some- there parties, money to the soft whether about very concerned were tors understanding implicit at least times tallied were checks donors’ or not to benefit will be used money that ¶ (describing 1.56.3 Findings them); infra Likewise, Members candidate. certain system). Sena- tallying/credit DSCC they assist if that know tor McCain attests money, soft be hard fundraising, Members encourage parties [t]he campaign.” their later assist party will of soft amounts large raise Congress 38], ¶6 “Al- 9-Tab [DEV Simpson Deck others’ own money to benefit directly given money cannot though soft meet- caucus recent At one re-election. candidates, everyone knows praised Congress was ing, Member through money easy push fairly isit dollars million raising $1.3 can- specific system benefit tortured our Greenwood, Republican party. James under- Wirth53 7. Senator Id. didates.” re- Pennsylvania, Congressman funds for he raised when stood Times York New cently told *273 re- he would that DSCC, expected donors money fund- soft consider leaders House multi- their donations the amount of ceive chairman- assigning in raising prowess the DSCC number that by certain plied I jobs.... sought-after and other ships assuming that predetermined, had concerns. Mr. Greenwood’s share funds. Wirth other raised had DSCC ¶ Final- 29]. 8-Tab 7 [DEV Deck McCain 43]; ¶¶ see 5, 9-Tab [DEV A Ex. Deck over Mem- power parties’ political ly, the Fed. Republican v. Colorado also FEC incen- additional provides Congress of bers II”), (“Colorado Campaign Comm. party national for tive to fundraise L.Ed.2d 461 431, 121 S.Ct. U.S. “The notes: Dr. Green As committees. ¶¶ 6- [DEV 10-12 (2001); Deck Bumpers play in parties that role ubiquitous ¶ 9-Tab 10]; [DEV no Deck that Simon Tab means officials of federal lives fundraising ambi- ignore 37]. can official Expert party.” her Green of his or
tions money do- nonfederal Individual 1.56.2 3]. 1-Tab Report [DEV at 15 that requests made specific nors their nonfed- apply party political mth Intent national Given Funds Nonfederal cam- federal particular Congress; money gifts to Members eral Specific to Assist [DEV99], Contribu- See, Track Keep e.g., RNC0035464 Parties paigns. Political (fundraising Raise Congress 92] [DEV tions Members RNC0032733-34 money that nonfederal requesting letters money given often Nonfederal 1.56 particular be used donations intent that with parties to national ob- elections). donor experienced As one campaigns assist will be used for the as Senator served through 1992 he U.S. in the Timothy served Wirth 53. Senator Senate. States the United State Colorado Representatives House 43], ¶ Dis- 9-Tab Congressional A 2 [DEV Ex. Wirth Deck representing the Second From 1987 of Colorado. of the State trict serves: “The committee receiving ... a parties with the intent that they will be money soft donation by [solicited a Mem- used to assist federal candidates. Fur- ber of Congress from a out’ con- ‘maxed thermore, if Mr. Mclnerney wants to do- tributor] understands it has been nate funds to parties state for activities particular raised or for a federal candi- that affect state elections, and local noth- date, and this affects how much the com- ing prevents BCRA him from doing so. spends mittee on behalf of that candidate. ¶ also Findings 1.61. infra I have party discussed national com- 1.56.3 The DSCC maintains a “credit” mittees the spending of such money soft program that credits money nonfederal benefit federal candidates.” Kirsch Decl. raised a Senator or candidate to that ¶ 23]; 8 [DEV 7-Tab see also Dep. Hiatt54 Senator or candidate’s state party. Jor- at 114-18 (explaining anyone donating ¶¶ dan Decl. 21], 36-39 [DEV 7-Tab nonfederal money is indirectly giving it to Amounts credited to a party state can campaigns of federal candidates and reflect that the Senator or candidate solic- officeholders, and stating his soft donation, ited the or can serve as a donor’s money par- donations were earmarked sign of tacit support for the state ticular candidates but that he does not ¶¶ the Senate candidate. Jordan Decl. 37- if money know the was actually spent on JO, F, 21], Tabs G [DEV 7-Tab According candidates). those to former Hickmott, official DSCC Sena- 1.56.2.1 Plaintiff Thomas Mclnerney, a tors were very concerned about whether large individual contributor Republi- to the donors’ checks were tallied to them. Party, can states he donated amounts ¶ Decl., Hickmott Ex. A 13 [DEV 6-Tab $57,500 in excess of per cycle election to 19]; (Sena- also supra Findings 1.55 Republican organizations national, at the tor Boren commenting on the tallying sys- state and local levels. example, For tem and effect aof fundraising candidate’s $250,000 he RNC, donated to the for the national committee on the addition to other national, donations to support the candidate’s campaign received state and local committees. He from the party). national *274 states that his donations were intended to 1.56.4 Both the NRCC and NRSC are support state and local po- and candidates aware of which Members have raised ¶¶ parties. 4, 10, litical Mclnerney Aff. committees, funds for their may and advise [9 PCS]. Mr. Mclnerney’s affidavit does of Members they raised, amounts in have not state or not whether these funds were order to encourage to in Members aid the desired, used the manner he only that collective of preserving interest “it is his or obtain- understanding” they that were ing a majority ¶¶ for the 11, used such House or 13, activities. Senate. Id. ¶¶ Regardless McGahn of Decl. 30]; whether 34-35 [DEV his 8-Tab donations were for Vogel ¶¶33, used state and Decl. political activities, local 36 [DEV 9-Tab 41]. the record is Similarly, clear that Mr. Mclnerney although the DCCC uses “no represents an exception to the formal general rule credit tally program,” it “advises give that donors money to the national Democratic House Members of the 54. Arnold engaged Hiatt politi- 1996, $500,000 substantial gave October of he a nonfed- spending cal years. for a number of He esti- eral donation the February DNC. In of mates that cycle from the 1992 election $5000 he made money hard donation through he donated approximately League PAC, to the of Conservation Voters’ $60,000 funds, mostly federal to federal only believes money that the hard candidates, with a few contributions to feder- given donation he has since 1997. Hiatt political ("PACs”). ¶ al action committees 18], Decl. [DEV 6-Tab pro- federally DCCC, any contribution the raised for
amounts the hibited source. contributions ascribing particular in ques- the Member ¶ 44]; Vogel of efforts fundraising 9-Tab Decl. [DEV Wolfson 44]; ¶ 9-Tab [DEV Dec. Wolfson Decl. 41]; ¶ tion.” Jordan 9-Tab 41 [DEV Decl. 32] Vol. 28-29 [JDT Dep. at Thompson char- experts Two 21]. 7-Tab 45 [DEV “provide[s] DCCC (testifying as system fundraising joint acterize with Caucus Democratic entire in effect candidates “in Senate one every name of money raised amounts in their own money for use soft raise[] [a]t Congress.... member Democratic Report Expert Sorauf Krasno and races.” I meeting.... Caucus Democratic 2], 1-Tab [DEV 13at people know to let method used it’s a think record clear from 1.58 It is be successful going to DCCC is if the actively Congress practice Members participate.”). should members all to their donations nonfederal large solicit non- raise also candidates 1.57Federal behest at the often parties, fundraising joint through money federal po- parties. direction commit- national with formed committees to soli- encourage Members parties litical ¶¶ 8-14 Decl. Buttenwieser tees. those who and reward such donations cit method common 11]. One 6-Tab [DEV cam- assisting are successful congres- a national for fundraising is joint rais- Furthermore, although the paigns. joint separate form committee sional is rationalized nonfederal funds ing of can- a federal committee fundraising building” activi- “party pay for effort fundraising joint A committee. didate money is solicited ties, it is clear contribu- deposits collects committee by donors with given by Members pro- allocates expenses, tions, related pays used to assist understanding that will participants, expenses ceeds federal candi- particular campaigns of records, over- and discloses required keeps dates. activity to the FEC. fundraising joint all 44]; ¶40 Vogel 9-Tab Party [DEV Decl. and National Wolfson Lawmakers Federal 41]; ¶¶ Jordan 9-Tab [DEV 39-45 Decl. Funds Solicit Committees Nonfederal 21]; ¶¶ Oliver 7-Tab [DEV Decl. Parties State Supp.-Tab 1]. Dep. [DEV at 258 committees direct National 1.59 joint formula allocation typical A money to state nonfederal give donors [congressional between fundraising campaigns to assist the in order parties can- and a federal committees] campaign See, Decl. Kirsch e.g., candidates. $2,000 of the first allocate didate will *275 (“The ¶ Demo- national 23] 7-Tab [DEV to from an individual every contribution in important role played party cratic $1,000 candidate, with participating the money to state soft to donate my decisions election primary to the designated cycle, recom- 2000 election] parties [the election; the $1,000 general to specific funds I mending donate cam- [congressional $20,000 to the next election. just before parties state Be- account. federal committee’s] paign help said, you if want essentially, They campaign com- [congressional cause election, these the Presidential with us out only participant normally the mittee] hurting, parties are state particular funds, any nonfederal receive eligible and other get-out-the-vote money for need con- individual of an amounts remaining activities.”). Robert campaign minute last [con- to the allocated bewill tribution offi- DNC and DSCC Hickmott, a former non- committee’s] campaign gressional cial testifies: entirety of account, will the you’ve helped Once a federal candidate did. The Democratic Party then made by contributing money hard to his or her clear to me that although there was a limit campaign, you are asked sometimes to to how much hard money I could contrib- do more for the candidate making ute, I could help still presi- Clinton’s donations of hard money soft and/or campaign dential by contributing to state committees, party the national the rele- Democratic committees. appeared There vant state it can party (assuming accept to be little difference between contributing corporate contributions), or an outside directly to a candidate and making a dona- group that is planning on doing an inde- tion to party. Accordingly, at pendent expenditure or issue advertise- request DNC, I also made donations help ment to campaign. candidate’s my own behalf to state Democratic types These requests typically come committees outside of my home state of from staff at the national party commit- Rhode Island.... Through my contribu- tees, the campaign staff of the candi- tions to parties, I was able to date, the staff, candidate’s fundraising give more money to further Clinton’s can- or former staff members of the candi- didacy than I was able to give directly to office, congressional date’s but they also ¶ his campaign.”); Randlett Decl. 9 [DEV sometimes from a come Member Con- (“[N]ational 8-Tab 32] committees have gress or his or her chief of staff.... asked soft money donors to write soft Regardless of precise person who money checks to state and parties national makes the request, these solicitations solely in order to assist federal cam- always almost involve an incumbent ¶ paigns.”); Josefiak Decl. 68 [RNC Vol. I] Member of Congress rather than a chal- (“It is ... not uncommon for the RNC to lenger. result, aAs there multiple put interested donors touch with various avenues for a person or group that has parties. state This often occurs when a the financial resources to a federal assist donor has reached his or her federal dollar candidate financially her or her elec- RNC, limits to the but wishes to make effort, tion both with hard and soft mon- additional contributions to the party. state ey- this happens, When the RNC will often ¶ Hiekmott Decl. 19]; 8 [DEV 6-Tab suggest that the donor make contributions ¶ also Buttenwieser Decl. 16 [DEV 6-Tab to certain parties state that are most (“The 11] DSCC has requested also that I time.”). need of funds at that provide parties.”); assistance to state Has- 1.60 Federal (“In senfeld55 Decl. officeholders direct- [DEV 6-Tab 17] 1992, when I ed contributors to the parties told the state Party Democratic when I that wanted to support contributors have then-Governor “maxed out” to the Bill presidential Clinton’s candidate campaign, they appears or when it that the state suggested $20,000 I make a hard can effectively most use additional money DNC, contribution I money help that officeholder or other 55. Alan G. Hassenfeld has served as Chair- of Trustees of University Pennsylvania *276 man of the Board and Chief Executive Officer and Academy, Deerfield he serves on the Hasbro, 1989, global Inc. since company Dean's Kennedy Council of the School of in Rhode based Island with Harvard, annual revenues Government at and sits on the $3 in excess of designs, billion. Hasbro Refugees man- board of He International. also run ufactures, toys, games, and markets interac- three charitable foundations: the Hasbro software, puzzles tive products. Trust, and infant Charitable the Hasbro Children's Foun- He also sits on a philan- number of civic and family dation. and a Hassenfeld foundation. thropic ¶¶ boards. He is a member the Board Decl. 2-3 [DEV 6-Tab 17].
480 he in the manner used funds were these so candidate’s As one candidates.
federal understanding” desired, limit that “it is his stated, only at the are “you letter licitation my activities. for such directly contribute used they were that you can of what my help in 13, nothing ¶¶ further can “y°u 11, Regardless, but campaign,” Id. Re the Colorado assisting from do- Mclnerney campaign Mr. prevents BCRA Repub v. FEC Cobrado Party.” publican party orga- and local funds to state nating Comm., U.S. 533 Campaign Fed. lican types the only restricts law nizations—the 2351, L.Ed.2d 458, 431, 121 S.Ct. nonfederal these of activities fund- August (2001) (quoting However, Mr. if spent. may funds be Al- then-Congressman letter raising these donating purpose Mclnerne/s Vol. [JDT Ex. 14 Philp Dep. lard); see also parties local and state is to assist funds 117- letter); (same [DEV MMc0014 26] that his candidates, ensures BCRA and stating: (letter to a contributor 2] Tab only on activities spent funds will max legal the have contributed you “Since parties local and state exclusively affect Committee, Senate to the McConnell imum practices elections, not on and and still you can know that you to I wanted activity. election federal constitute program Victory 2000 contribute Summary part important was an This program .... impressive W. Bush’s George clearly demon- of President The evidence 1.62 it will Kentucky year, last victory in only not officeholders that federal strates next and others my race be critical the nation- for donations nonfederal solicit McConnell by Senator signed year” committees, also state but political al important note: “This the handwritten docu- testimony and parties. Buttenwies help”); you can Hope to me. that candi- makes clear mentary evidence (“Fed ¶¶ 11] [DEV 15-16 6-Tab er Decl. much almost as donations value such dates tome asked have often candidates eral cam- to their directly made donations rather than parties, to state donate fed- assist these donations paigns and that that’s committees, they feel when joint Furthermore, campaigns. candidates’ eral help their extra some need where national makes clear evidence amounts given significant campaigns. I’ve donations nonfederal parties also direct Dakota parties South state to the the purpose affiliates party state all the Senators because North Dakota evi- This federal elections. affecting friends, good states representing those findings also corroborates dence large to raise I it’s difficult know that registration efforts and voter GOTV ¶ states.”); Decl. Hickmott in those sums See, elections. federal parties affect state Findings supra (quoted 19] 6-Tab [DEV ¶¶ 1.28, Most 1.31. Findings supra e.g., ¶ 32] 8-Tab 1.59); Decl. [DEV Randlett between close nexus importantly, have asked (“Members Congress]... [of office- and federal political parties national money soft money donors write soft to conclude led framers BCRA’s holders solely parties national checks to state that: campaigns.”). to assist order operate parties national Because the Mclnerney Thomas 1.61 Plaintiff inextricably level, and are the national $10,000 per donates over that he states officeholders with federal intertwined orga- party local year to state and money for candidates, who raise local state and spent on to be nizations committees, is a there the national Mclnerney and elections. organizations funding of between close connection ¶¶ Mr. [9 PCS]. Aff. Mclnerne/s corrupting parties and national whether does not state affidavit *277 dangers of soft money on the federal ber whom I thought [sic] cast a ballot political process. only way effective because of a contribution.”); 147 Cong. to address this money] problem [soft of Rec. (daily S2936 27, 2001) ed. March corruption is to ban entirely all raising (statement Wellstone) (“I of Sen. don’t and spending of soft money by the na- know any individual wrongdoing by any parties. tional Senator of either party.”). Cong. 13, Rec. H409 (daily ed. Feb. 1.65 Senator Rudman notes: 2002) (statement of Rep. Shays). I understand that those who opposed Corruption passage of Bipartisan Campaign Act, Reform and those who now chal-
1.63 The fact that Members of Con-
lenge its constitutionality
Court,
dare
gress are intimately involved in the raising
elected officials
point
specific
money
[in-
political parties,
particu-
stances of vote buying],
I
larly
think
unlimited
this
money
nonfederal
dona-
tions,
point
misses the
opportunities
altogether.
creates
for corruption.
ac-
[The
The record
cess and
does not
any
contain
evidence
influence accorded large do-
of bribery or vote
buying
exchange
nors]
is inherently,
endemically, and
donations of nonfederal money; however,
hopelessly corrupting. You can’t swim
presented
evidence
in this case con-
in the ocean
wet;
without getting
you
vincingly demonstrates
large
that
contri-
can’t
part
system
get-
without
butions, particularly those nonfederal con-
ting dirty.
tributions surpassing
limits,
the federal
¶
Rudman Decl. 10 [DEV 8-Tab 34].
provide donors access to federal lawmak-
1.66 Consistent with Senator Rudman’s
ers which is a
ingredient
critical
for influ-
testimony,
record,
while not containing
encing legislation, and
Supreme
which the
evidence that nonfederal
pur-
funds have
Court has determined constitutes corrup-
votes,
chased
testimony
includes
from for-
Valeo,
tion. See Buckley v.
424 U.S.
mer and current Members of Congress
n.
(1976)
S.Ct.
also 148 Cong. Rec. Large S2099 (daily donors of ed. both hard and soft mon- 20, 2002) (statement March Dodd) ey Sen. special receive treatment. matter No (“I have never known of a particular Mem- busy politician how may be during the *278 482 Express Federal support he that time to make always will she he or
day, us just gave “they of because amounts large amendment gave who donors see testi- for Members Boren $100,000”). Former who work Senator money. Staffers are, and those big donors who know fies: re- calls phone their get always
people dona- money Donations, soft including to see allowed are first turned how do affect parties, to tions not. are others when Member natural, only It’s operates. Congress ¶ testifies: Simon busy Former Senator often, a Id. 9. all too happens contributors large for will spare not unusual to It is minutes Senator with for exchange favors legislative to the call returning seek minutes spend those example of good A contributions. their than rather money donor soft large aof be- my mind out stands that which constituent.... any other call of oc- and recent so stark was cause it Finance the Senate of As a Member day to last the next on curred pressure Committee, experienced the I Ex- Federal session. legislative 1995-96 when occasions On several hand. first being con- amend bill to wanted press bills, I important tax debating we were Committee, to by a Conference sidered into the get to police escort needed drivers truck of their coverage shift be- hearing room Committee Finance Act Relations Labor National from crowding were lobbyists many cause so air- Act, includes which Railway to the to chance one halls, to last trying get was This and railroads. lines, pilots Sena- to each Senator. pitch make their Express, Federal to benefit clearly of lobbyist rep- knew which generally tors reports published to according large of which the interests resented in the last million $1.4 contributed had I limited glad that I was often donor. Members to incumbent cycle 2-year I fundraising money of soft the amount soft million in almost Congress $1 contributions, PAC not and did take op- did I parties. money Caucus, extremely difficult would be it Democratic because this in posed donors legisla- to these good if it beholden that even was not to feel arguing without approved first-hand my tion, not know from it should I otherwise. cave we should hearing, holding my interactions experience my senior interests. One special feel they did with Senators other said, ‘I’m tired up and got colleagues large donors. beholden inter- special talking about always Paul ¶¶ 6-Tab [DEV Decl. 7-8 Boren Senator who attention to pay ests; got we’ve Congressmen (“Many 8]; id. see also never I will bread.’ buttering our is committees particular positions vie example of a clear was that. This forget Means in Ways and Finance such way, not on their getting donors easier it much it makes large part because just be- but legislation, merits spend They money. then to raise them I big contributors. been they had cause raising time their scarce large amounts any question think there do not from businesses money for their passed. is the reason pending before matters specific ¶¶ 37]; 9-Tab [DEV Decl. 13-14 Simon committees.”). n. II, 533 U.S. also Colorado political parties clear that It 1.67 Si- (2001) Senator (quoting 121 S.Ct. of- influence federal in efforts involved 6] Dep. [JDT Vol. Feingold mon); the passage regard ficeholders 1996 a senior fall of that in the (testifying motiva- legislation. specific Feingold defeat to Senator suggested Senator *279 tion behind may these efforts not im- but was “[i]t made clear to a number parted However, to the officeholder. my colleagues if they voted for the internal document shows that on at campaign reform, least finance get would one occasion the motivation doing for so no campaign contributions”); McCain was associated donors’ with interest in the (“At Decl. 7 [DEV times, 8-Tab 29] when legislation. seek support Members legislation their congressional leaders oppose, they are
1.67.1 Senator Rudman testifies that threatened the prospect while the RNC would lobby him to take a leaders will withhold money being soft position legislation, on it never him asked spent behalf.”); on their Expert Defense particular position take a because a Exam, Mann Cross at [JDT 118-15 Vol. donor had money contributed soft to the (“I 17] would be shocked if [the RNC] ever party. Dep. Rudman at 77-82 [JDT Vol. did such a thing.... point [T]he is to win 27]. Senator McCain testifies that “there seat, margin to control the majority for many times where Republican Na- not to party, weaken a potentially vul- tional Committee change tried to votes my nerable candidate.... It would be self- other votes of Republicans other ... works.”). defeating. That isn’t how it Republican [T]he National Committee con- The FEC does not investigate stantly or make weighs legislation in on before the determinations of parties Congress national States,” using of the United McCain federal money to induce Dep. 18], legislators at 171-72 Vol. [JDT but he also support or oppose specific states that legislation, he does “know it [if was] exchange for therefore has no knowledge donations not.” wheth- Id. The record, er such however, practices occur. Vosdingh Dep. also contains a call sheet VIII], 89 [RNC Vol. titled “Team 100 One-On-One with na- [a association],” tional for a call that took 1.69 Plaintiffs’ own expert Raymond place 28, 2000, on February in Chairman Raja La recognizes corruption poten- Jim Nicholson’s office. RNC0159740 tial inherent in nonfederal donations to the [DEV 95]. Included on the sheet were political parties. In a recently published instructions to group thank the for upgrad- book, Raja La argues that limiting nonfed- ing to Team 100. Id. The call in- sheet eral money donations reduces poten- “the comments, cludes including: handwritten corruption tial for by eliminating super “Gary Miller sponsoring Brownfield Legis- donors.” Report Green Rebuttal at 4 lation. + Bliley Boehlert against. Work- [DEV (quoting 1] 5-Tab Raymond La ing Speaker. Asked help. JN JN w/ Raja, Sources and Uses Money: of Soft @ agreed to talk to possible Boehlert Know?, What Do We in A User’s Guide time. When appropriate_ Call Sen. 106) (Gerald Campaign Reform at Lu- C. Abraham support about homebuilders— 2001). ed., benow He continues: Property Rights Bill .... Lott good friend If only portion modest party soft of homebuilders.” Id. money goes ads, to fund issue it is worth
1.68 Although one expert Defense be- re-examining question: how is soft occur, lieves it does not present two money Mem- harmful? The obvious answer is of Congress testify bers permits candidates, threats have that it contributors, been made parties with- parties, to circumvent federal laws hold financial support due to Members’ limiting campaign par- If contributions. (cid:127) positions on Shays Dep. issues. See ty money help soft can specific candi- 172-84 date, [JDT Vol. (stating Republican 29] unions, corporations, then Party never attempted vote, to change his wealthy individuals can simply funnel navigate To around the federal restric- through candidates
contributions pro potential quid money parties parties. And tions soft between contributor exchange par- their state quo developed close ties with with the size escalates policymaker spe- affiliates receive ties because these the contribution. building activi- exemptions cial *280 105). fact, ty. Raja In La (citing Id. same potential reduce “[t]o that asserts added); (emphasis see also id. at Id. at 51 Congress that corruption, I recommend parties “exploit (concluding 74-75 fed- or, money contributions soft place capa on campaign using eral finance laws soft banned, on raise the limits money if soft money support though for candidate even (citing Id. contributions.” money hard require them to use it for laws dissertation, 106). Raja La his same at Raja La generic party building”); Cross La recommendation. a similar makes (stating 17-18 that he [JDT 15] Exam. Vol. Ex. at 147 Raja [JDT Exam. Vol. Cross in by the conclusions reached his stands (“In in 15]; society at 105 see also id. dissertation). unequal political participation groups it is discom-
among socioeconomic are Pressured to Make Contribu- Donors wealthy people and think that forting to Parties tions to Political disproportionate might have organizations donors, Corporate 1.70 trade associa- policies simply government influence tions, pressured are and individual donors large they can write checks because large parties. to make to the contributions alone, policy- For this reason politicians. 1.70.1 The for Economic Committee pause granting before dis- might makers (CED)56 Development “survey, released parties though these pensations which was conducted Tarrance perform valuable func- may institutions Group, telephone ... drawn from inter- Raja politics.”). La tions in democratic corporate sample views of a random of 300 concludes that employed by major corpo- executives U.S. using are two distinct benefits of [t]here ¶ rations.” Kolb57 Decl. 9 7-Tab [DEV First, parties can raise money. soft survey “[n]early showed that 24]. large in increments. Al- these funds three-quarters of executives of the [senior money contributions though most soft (74 percent) largest nation’s businesses] average per relatively small—the placed say pressure is on business leaders $10,000 parties source is less than —the large political to make donations. The corporations, amounts from large solicit corporate main reasons America makes wealthy individuals.... unions contributions, the executives said important advantage of soft Another buy is fear of retribution and to access to can money parties is that concen- Seventy percent say po- lawmakers. five key By races. ex- trate these funds rules, give advantage litical donations them an parties ploiting money soft shaping nearly legislation; four-in-five ceilings effectively sidestep the federal (78 percent) system executives called the allocating re- prevent them from in the closest contests. ‘an arms race for cash that continues to efficiently sources non-partisan president. independent 57. Charles Kolb is CED's Kolb 56. CED is "an re- policy organization search and of some Decl. I 1 7-Tab [DEV 24]. prominent Trustees who are business leaders ¶ 1 [DEV-Tab and educators.” Kolb Decl. I 24], ” get more and more out control.’ Id. Lobbyist 1.70.2 Robert Rozen testifies ¶ 9 Ex.& 6. [i]n some corporations cases and trade
1.70.1.1 Plaintiffs challenge poll these associations do results, not want Kolb, give noting President, CED’s amounts over limits, the hard provide money could not but regarding details how pressured feel give Group greater the Tarrance survey. conducted the amounts and Proposed up end Findings making Fact of the soft money RNC, Republican Party Colorado, They donations as well. pres- are under sure, Republican Ohio, Party of Republican sometimes subtle and sometimes Mexico, Party of direct, New County Dallas give Members to at levels (Iowa) Republican County Central Com- higher than money the hard limits. For mittee, (“RNC and Mike Duncan Proposed *281 example, some in position Members a ¶ 115(b) Findings”) (citing Dep. Kolb legislation influence important to an in- 13]). 145 [JDT Vol. They also state dustry naturally why company wonder that many survey of the questions did not in that industry is not participating distinguish between federal and nonfederal fundraising events. 5). (citing funds. Id. Dep. Kolb Ex. With ¶ Rozen Deck 33]; 8 [DEV 8-Tab regard criticism, to the first the fact that a Brian McGrory, also Businesses Drawn to person who study commissioned could Reform, Campaign Globe, Boston Febru- explain how polling firm actually 13, 1997, ary ODP0018-00457-60 [DEV more, conducted the survey, without does 69-Tab (quoting Marlowe, 48] Howard not render poll flawed. Plaintiffs have Washington lobbyist, saying: “We are provided no information which indicates spending tens of millions of dollars to sat- that the Court should view the Tarrance isfy the constant craving of congressmen Group’s fact, work with In caution. in his parties or the for money and our own deposition, explained Kolb that the Tar- craving for access.... You don’t know if Group rance “a professional polling firm. say you you ‘no’—and may given five They know how to do their pretty business already times they will shut off —whether they’re well and fairly respected well from you the access have been buying with all tell,” everything we could Dep. Kolb at 145 these other contributions. We need the 13], [JDT Vol. and the RNC did not chal- access.”).
lenge this assessment deposition in the 1.70.3 A survey major national of con- fact, their filings. the record shows gressional donors in 1997 conducted found that The Coalitionan organization sup- a majority that were critical of the cam- ported by a number of Plaintiffs used the paign finance system supportive of Group Tarrance polling. its own Green, ¶ Herrnson, reform. John Lyn- Paul Findings 2.6.2.2. As for the second infra Powell, criticism, Wilcox, Clyde da it is pollsters true that the Individual did Congressional not ask surveyed Campaign those to distinguish Contributors: be- tween funds; Wealthy, federal and nonfederal Conservative how- and Reform-Mind- ever, (1998), 101-0282, the fact that nearly percent ed FEC called 0283 [DEV 45- the campaign system Eighty percent finance “an Tab respondents 110]. arms race for cash agreed that that get continues to more regularly pres- “office-holders and more out contributions,” of control” strongly suggests donors for sure while one- that party contribution agreed coercion half “that regularly contributors stop does not once a donor reaches the pressure office-holders for favors and seek federal contribution limits. government.” access Id. at 0290. donors identity of of the aware are made testifies Boren Former Senator
1.70.4 parties, to national money Now nonfederal feel victimized. ... that “Donors far to be a real effort from “made hear he office, I is because sometimes left that I’ve process [he so ‘shaken of the they part away feel large donors ” how exactly aware of Deck to or not privy is] Boren down.’ done.”); it’s extent and what that’s done Who Awareness Federal Officeholders’ at 178-79 Dep. Meehan Congressman Parties Donates un- he was (explaining that 22] Vol. [JDT past officehold- present 1.71 Some Commit- National the Democratic aware of documenta- by separate ers, corroborated by which process, “tallying” tee’s many Congress evidence, testify ry spends on a the DNC money amount of contributors identities aware are to the related candidate particular political parties. to the large donations candi- money that of nonfederal amount they per- testify that officeholders Some DNC, that he was but for the raised date donates of who unaware sonally are they people last one of the “probably mostly parties, but tallying pro- know let about would these aligned against co-sponsors, BCRA Vol. cess”); [JDT Dep. 75-78 Rudman contributions large, unregulated types not know while he did (explaining that 27] nonfederal participants active and not *282 who donated identity dis- of contributors the who or fundraising, Members RNC, money” in- receiving this or soft “either hard tanced themselves him provided “probably” RNC formation. he “didn’t have but information with that Congress tes- Members 1.71.1 Some the most disinter- in it. was interest I any they person- this case state tifying in you’ve anyone money ested candidate money to who donates unaware of ally are such And [if run into.... probably ever Dep. at 115-16 Feingold parties. See their office, [adminis- came to the reports] are ... (“Q: generally How 6] Vol. [JDT probably them and assistant] took all, trative of, at if made aware Senators them.”). money do- read of soft identities amounts A: I committees? the national nors to that dur- has stated Senator McConnell that’s how exactly how done don’t know States Sen- years in the United his 18 ing done.”): at 223-24 Dep. Snowe much it’s of Americans met thousands he has ate (unaware do- of nonfederal 31] Yol. [JDT hands, posed for he has shaken with whom RNC); Dep. at 96 Jeffords to the nors dis- questions answered photographs, (“somewhat” non- aware 11] Vol. [JDT The overwhelm- legislative issues. cussed par- national political to the federal donors meetings were with of these ing majority [JDT 22] at 179 Vol. ties); Dep. Meehan to the do donate funds people who nation- (aware donors few nonfederal national, state, or Party Republican at committees, “from only because party al also states McConnell local level. Senator they are in the who I read time to time the dona- unaware typically that he is that when The record shows newspaper”). with whom he history of individuals tion con- identity of do not know Members PCS], ¶Aff. [2 McConnell meets. because those tributors, it is sometimes may generally McConnell While Senator effort to made a conscious officeholders history of donation aware of the not be handled or that their staff remain unaware meets, he he of the individuals each See, Fein- e.g., Senator such information. spe- some history of of the donation aware (explaining Vol. gold Dep. [JDT 6] at example, Senator For donors. large cific Senators know how he does not that while sent following McConnell letter to a had “heard that some Members even keep part: contributor which stated in lists of big offices,” donors “you pleasure It cannot seeing you good was be a Democratic or good Senate-House Republican Dinner last week. The Member and not be talk, good dinner was not a time to I aware of gave who but money party. If you wanted to let know about the Au- someone in $50,000 gave Arkansas to the gust fundraiser I am having your DNC, example, for I would certainly know neighbor’s] ... home.... that.”); Cong Rec. H352 (daily ed. $2,000 13, 2002) (statement your In addition to Feb. contribution Rep. Shays) cycle, the last election I proud was (recognizing that “it’s the candidates them- $1,000 also receive each from [five other selves surrogates and their who solicit soft Their support again donors]. would be money. The candidates know who makes appreciated. greatly huge these contributions and what these donors expect. Candidates not Dep. only McConnell Ex. 11 solicit Vol. [JDT 19] (MMc0987). themselves, these funds signed letter is meet “Mitch” with big and includes following donors important handwritten who have issues pending you recall, note: may any “As contribu- before government; sometimes, my campaign tions to ’02 against will count the candidates’ or the party’s position ap- $25,000 your money annual hard limit pear change after meetings.”); such + not ’99. you ’02 can Hope help.” Id. Senator Simpson Decl. [DEV 9-Tab 38] (explaining that “[p]arty Another handwritten letter leaders would states: in- “Thanks so much form your Members at continuing meetings caucus who the friendship support. big Your commitment donors were. If the you leaders tell each + your from you lady $2000 will that a person certain group has donated very helpful in my reelection next year. large sum to the and will be at an *283 again Thanks + I forward hearing look to event Saturday night, you’ll be sure to you soon. Mitch.” Id. Ex. attend get to know person the behind ¶ (MMc0753); (let- see Findings also 1.60 the donation.... Even if some members ter noting to contributor that he had given did not events, attend they these all still the maximum amount of federal to funds knew which gave donors the large dona- Senator McConnell’s campaign); McCon- tions, publicizes as the party gives who Dep. nell at 38-41 [JDT Vol. (explain- 19] ¶ what.”); Senator Boren Decl. 6 [DEV 6- ing particular that a company collected Tab (testifying 8] that “[e]ach Senator $47,000 for his campaign because its chair- knows biggest who the donors to the party man, who is a of Senator friend McCon- are” prefer because often “[d]onors to nell’s, hosted a fundraiser for the McCon- hand their money [nonfederal contribution] nell campaign) checks the to Senator personally, or their Many 1.71.2 others that testify lobbyist informs the large Senator that a officeholders candidates are typically made.”); donation just was Congressman of aware who parties. donates to their Thompson Bennie G. Dep. 28-29 [JDT 32] Vol. (testifying that the “pro- Former and DCCC current Members of Con- gress they state that entire Democratic and their Caucus with colleagues vided are money aware of who amounts of large makes raised name contribu- of See, parties. every tions to their e.g., Democratic Bumpers Congress.”); member of ¶¶ ¶ Decl. 20 [DEV (explaining 10] 6-Tab McCain Decl. 6 [DEV 8-Tab (“Legis- 29] that parties officeholders both parties of lators of both know often who the identities, aware of large contributors’ he money that soft par- contributors to their upcoming industry, discusses particular who legislators those are, particularly ty representa- group’s meeting between money,” “[d]onors soft have solicited McConnell, of then head and Senator tives particular inform a often lobbyists or their “objec- sealed]. [citation the NRSC. large dona- made a they have that Senator “apprising included meeting ¶ tives” 9- [DEV Decl. 16 tion.”); Simon Senator with atten- concern industry’s of [sic] him to likely he was more that (stating 37] Tab their to directly related an issue tion on” to a call of donor telephone first return group’s] “expressing [the industry and not who had campaign than someone his resource, substantively be a willingness to for access donated, increased and that a maintaining assist politically, to to the contributions large give who those Id; in 2000.” majority Republican afford who cannot not fair those party is ¶¶ about (testimony 1.75.1 Findings also all); Decl. Wirth give contributions do- deliver personally choosing donors (“[Candidates ¶ 43] 9-Tab A 17 [DEV Ex. he when Chuck Robb to Senator nations of the sources aware generally were (Sena- DSCC), 1.75.2 was Chairman party committee enabled funds that their “Donors or tor McCain statement: campaigns.”). their support Senator particular often inform lobbyists state political donor and a Party officials donation.”), large have made that are made Congress that Members McCain). (statement by Sen. 1.75.2 large donations who makes aware of supra from the evidence 1.72 It is clear ¶¶ [DEV Decl. 25-28 Vogel party. know Congress many Members dis- that the NRSC (explaining 41] 9-Tab political parties, to their donates who incum- potential donors lists of tributes easily find such can who those do donations); solicit they can so that bents suggests the record In fact information. ¶¶21, 8-Tab 34-37 [DEV Decl. McGahn the identi- not to know for Member ¶¶ 20, (same NRCC); Decl. Jordan for 30] donors, she active- he or must of these ties (same DSCC); 21] 7-Tab 25-28 [DEV provided knowledge as ly such avoid ¶¶21, 9-Tab [DEV 28-31 Decl. Wolfson parties and national by the (same DCCC); Randlett Decl. 44] par- is not finding This themselves. donors (“Information what about 32] 8-Tab [DEV many given ticularly unexpected given travels money donors soft fed- actively solicit Congress Members ways. in different among the Members for their contributions and nonfederal eral Member who solicited Obviously *284 ¶ Findings 1.51. supra parties. See is also who know money knows. Members who know Members fact that some The major donor the various with involved their money to large amounts donates retreats, attend, they such events which necessary corollary to a parties political there calls. And and conference meetings demon- findings which set of the next about among Members is communication donations many give large who strates and at money donations made soft who has unre- parties, particularly political to the and this they given, what level donations, provided are nonfederal stricted by the and understood widely known This to federal lawmakers. access with staff.”). and their Members op- donors with provides these access contains evi- also The record 1.71.3 legislation. to influence portunity do- large that sometimes showing dence Contributions Regarding Evidence Mem- known to their identities nors make Lawmakers to Federal Access memorandum Congress. This bers of contains a substantial The record group 1.73 interest large, influential large do- showing that of evidence amount corporations from major consisting of political parties, particularly they actually nations to the to the DSCC because believe contributions, provide politics.... nonfederal donors in Democratic The majority of special access to federal lawmakers. political those who contribute to parties do This access is valued contributors be- reasons, so for business gain to access to necessary to lawmakers is a cause access influential Members of Congress and to ingredient influencing legislative get to know new Members.” Hickmott process. Contributors find that nonfederal ¶ Deck, 19]; Ex. A. 46 [DEV 6-Tab at obtaining spe- funds are most effective ¶ also Rozen Decl. 10 (“[L]arge political access, they cial and to ensure that main- contributions are worthwhile because of tain this access donors to both contribute potential benefit to company’s bot- political parties. political parties take line.”) 33]; tom [DEV 8-Tab Andrews58 advantage of desire for ac- contributors’ Deck (stating sophisticated politi- by structuring programs cess their donor “typically cal donors are trying wisely increase, so that as donations so do the political invest their resources to maximize special opportuni- intimacy number and return.”) Wright [DEV 6-Tab An- 1]. Congress. ties meet with Members explains: drews clear that The facts below make this effect Sophisticated political particu- donors— corrupts politi- of nonfederal donations larly directors, lobbyists, PAC and other system. cal political acting spe- insiders on behalf of Donors Give Donations in Or- Nonfederal cific groups interest in the —are der Special to Obtain Access to Federal dispensing money business of their Lawmakers purely ideological oh or charitable Testimony Rather,
1.74 in the record from lob- grounds. political these donors byists, Congress, Members of and individ- typically trying wisely invest their donors, corporate ual and demonstrates resources to maximize return. major par- contributors Sophisticated donors do up not show one give pur- ties nonfederal for the donations contribution, day with a hoping for a to, pose obtaining increased access Instead, vote next day. favorable strengthening relationships with fed- longer relationships. term build eral officeholders. convey The donor seeks to to the mem- ber that he or she is a friend and a Lobbyists
1.74.1 state that their clients supporter help who can be trusted to political parties make donations to federal elected official when he or she is According lobbyist, achieve access. official, Presumably, needed. most former DNC and Robert DSCC very recognize Hickmott elected officials that continued “[t]here is rare strata of large support contributors who contribute amounts financial from the donor often attorney throughout lobbyist 58. Mr. Andrews is an sented clients from nation *285 abroad, Washington, they major corpo- D.C. firm Butera & An- and included of have drews, rations, associations, coalitions, specializing government in trade and relations legislative representations. governmental and federal He state entities. He has worked lobbyist Congress array been active a has an before with clients on broad of issues includ- matters, taxation, time, ing since 1975. Prior to that he served as environmental services, Legislative banking, housing, Chief United and Assistant to then financial forming many two States Senator Sam Nunn. Prior to others. He has served terms as Andrews, govern- League Lobby- Butera & worked of he in President American ists, Washington Washingtonian magazine practice at and named ment relations of- him Sutherland, “Washington's Top Lobbyists.” & [sic] fice of the law firm of Asbill of ¶ career, During repre- [DEV 1] Brennan. his he has Andrews Deck 1 6-Tab ¶ 34]; see 8-Tab [DEV Decl. feel- Rudman upon the donor contingent may be ¶ 10] 6-Tab [DEV Bumpers Decl. a fair also has received or she he ing that Members give donors to (“Although some of degree consider- some and hearing they support simply parties because and support. ation or Member, the lion’s party or particular ¶ Lobby- 1]. 6-Tab 8 [DEV Decl. Andrews people money given because of share that testifies Rozen ist Robert money to a gives If want access. someone money to gives a contributor [t]ypically, Member, friendship with of party, out to lob- relationships, to be able establish in anything ask for may never that donor Members, issue, close to get to an by on people However, many although return. an influence. While have to to be able present intention no money with give not have does official course elected return, know they anything asking somebody gave, something because to do can they need access they if ever that a relation- helps establish a contribution thus serve can it. Donations probably get you give better and the more ship, ¶ insurance.”); (testify- id. type of as a legisla- that is not relationship. It com- party to money people ing give that response in direct being written tion is “ingratiating they are feel that mittees money. a lot somebody giving officeholder the federal themselves” relation- Rather, step removed: it is one Decl., donation); Wirth solicits who people because are established ships ¶ (stating that 43] 9-Tab [DEV A. Ex. relationships are money, give a lot made contributions who those donors more deepened because and are built always did so be- “almost party the state you gets that money, and and more the contributions that they expected cause the ac- getting threshold to across that, and campaign,” support my would want, estab- you because have you cess Sena- expected [the “they generally, relationship. lished contribu- their would remember tor] ¶ Decl., 33]. A 12 8-Tab [DEV Ex. Rozen ¶ 5(a) tions.”); 9] 6-Tab [DEV Brock Decl. Mem- and current 1.74.2 Some former part, their givers “for large (testifying expect testify that donors Congress bers of officials. ‘call’ on these they have a feel relationships with officeholders to establish unions, wealthy individ- and Corporations, their nonfederal donations return money to amounts of large give these uals Former Sen- political parties. the national improve their they can parties so explains: ator Rudman party over elected and influence access world, in- the business large, (“By raise soft officials who Elected members. unions, gives corporations cluding this.”); 9 [DEV Boren Decl. money know parties... [because] money (“[Members know Congress] 8] 6-Tab solicita- that if decline they believe donors money why most soft exactly contributions, elected such tions for influence special get access give—to views ignore their officials will appointed contributions.”). based worse, inter- or, business competing also testi- contributors Business 1.74.3 large contributions do make ests who parties are donations to fy nonfederal advan- will question officehold- to federal to obtain access made other legislation influencing tage Tamraz, busi- an American Roger ers. true decisions. same government banking in investment involved nessman where of cases preponderance in the made energy projects, international $50,000, *286 wealthy give individuals the 1996 during to DNC donations $250,000, po- to $100,000, or even more during Con- donations.”). asked cycle. When election money in parties soft litical gressional hearings whether one of the particular See, Members of Congress. reasons he made the contributions was e.g., Internal Fortune 100 company memo- he “believed might get because [him] randum entitled “Justification for donation access?,” Mr. Tamraz responded: “Sena- (October 2000) to [DSCC]” [citation tor, I’m even going only farther. It’s the (“I sealed] am requesting a check for ” get reason-to Thompson access.... $50,000.00 to the Democratic Senatorial Report Comm. at 2913 n.46 (quoting page (DSCC). Campaign Committee Senator 63 of Mr. testimony Tamraz’s before the Robert Torricelli is chairman for the committee). Some corporate donors view in DSCC and a recent conversation with nonfederal donations as the cost of doing Senator, he requested the above ¶ business. See Hassenfeld Decl. 16 amount from company]. [our Senator Tor- (“Many in corporate large world view ricelli has been a company] [our friend money soft as a doing donations cost of many years for and he has shown himself business, frankly, a good investment thoughtful to be a voice regarding in issues potential relative to the economic benefit industry. our currently He serves on the to their business.... remain I convinced Judiciary, Foreign Relations & Govern- in publicized cases, some of the more mental Affairs and Rules and Administra- federal officeholders actually appear tion I Committees. feel this would be a have sold themselves party cheap- and the great opportunity to strengthen our rela- ly. They gotten could have even more tionship with Senator Torricelli and the money, potential because of the impor- DSCC.”); Internal Fortune 100 company tance their to the decisions affected memorandum entitled “Justification for do- businesses.”) 17]; [DEV 6-Tab Randlett (December 12, 2000) nation to [DSCC]” Decl. 5 [DEV 32] (stating 8-Tab (“I [citation am sealed] a requesting check “many soft money given donations are not $50,000 amount of to the Democratic personal or philosophical reasons. (DSCC). Campaign Senatorial Committee They given by are donors with a lot of (D-WA) Patty Murray Senator is the new money who believe they need to invest chairman of the .... DSCC Mur- Senator federal officeholders can protect who ray sits on the Senate on Ap- Committees specific advance through policy interests Health, Education, propriations, Budget, action or inaction. Some soft money do- Pensions, Labor and and Veterans Affairs. $250,000, give $500,000, more, nors year This donation would further enhance our year, after in order to goals. achieve these with get ties donors, DSCC our relation- For most you’re institutional if ship with put in, Murray Senator going good that much off to a money you need start.”); return, just see a though Internal Fortune 100 you company were investing corporation or some memorandum “[DCCC]/Congress- other entitled venture.”); 2001) economic also Kirsch Decl. Bill man Luther” (May [citation ¶ 14 (stating that “[major] (“I perceive donors am requesting sealed] a check for getting business benefit $25,000.00to the support party [DCCC] access, through special and that it is building response request activities to a them.”) good investment for [DEV 7- Congressman Bill Luther. Con- 23]. Tab Luther gressman has a friend to [our been company] many years .... He current- Documents submitted show that a For- Committee, serves ly on the Commerce company tune 100 large makes contribu- tions national Subcommittees for Telecommunica- committees with the expectation tions, that its contributions will culti- Trade & Consumer Protection as or strengthen vate “relationships” its as the well Finance and Hazardous Materi- *287 ¶ 11 6-Tab [DEV influence.” Hiatt Decl. great opportuni- be a this would
ais. I feel relationship with Con- our ty strengthen 18]. to Luther.”); Fortune 100 Internal gressman expert Raja La testi- 1.74.5 Plaintiffs’ “Georgia entitled company memorandum groups probably pursue fies that interest 2001) (July [citation 2002” Senate they give money strategy an access when (“I for requesting a check am sealed] Exam, parties. Raja La Cross to $10,000.00 Georgia Senate on behalf [JDT 15]. at 89 Vol. reaching has been
2002. Senator Cleland Donations Provide Do- Large Nonfederal he con- key supporters and has out to his Federal Lawmakers nors Access to financial assis- company] for [our tacted 2002. This is Georgia tance with Senate 1.75 The record demonstrates Max important to Senator Cleland very donations, especially nonfederal con- large Cleland has years, Senator and over tributions, political parties provide to the company]. I to good [our been a friend to Members of Con- donors with access great opportunity a feel this would be a trove of gress. The record is treasure relationship with Senator strengthen our in- testimony Congress, from Members of Cleland.”). advocate from legislative One donors, lobby- corporate dividual and reap- the benefits company this described ists, evidence, documentary es- as well as $100,000 contributing ed from contributions, especially tablishing that “I think we established some NRCC: donations, with large given nonfederal Tauzin, both goodwill [Congressman] expectation they provide will the donor contributing at by company] [our officials, with access to influence federal $100,000 dinner he level to the NRCC expectation is fostered by my participation chaired last month expectation parties, national and that this for the in the Finance Committee NRCC former Member is often realized. As one com- [our dinner. Tauzin understood Congress puts it: is it. Ac- “[A]ccess level as the pany] participated at same power. cess is Access is clout.” Boren did, major industry] companies [in ... our Rep. (quoting [DEV Decl. 6-Tab 8] try- interest expressed genuine and he Mazzoli). competitive ing to out to the begin reach Testimony lobbyists dem- 1.75.1 sum, industry. I think the event was donations, large particularly onstrates that positive company].” real Internal [our form, necessary ingre- in nonfederal are a enti- company Fortune 100 memorandum lobbying campaign dient for a successful 2000,” Leadership tled Dinner “NRCC they provide because their clients with ac- 4, 2000, April dated [citation sealed]. lawmakers, cess to federal which allows An internal RNC document also shows legislation. them to influence par- give that donors often to the national Lobbyist Rozen testifies that Robert ties to achieve access to lawmakers. (note large nonfederal donations are essential written on RNC0177216 [DEV 95] Director, developing relationships with Members stationery of Team 100 RNC’s access, Barbour, Haley “they pretty Congress, have which in turn lead to stating .... join They much decided T-100 policy. turn lead to influence over .... political players want access to Their I organizations know of who believe reform”). top issue tort seriously Washington, treated be player that I mean to and to 1.74.4 do- experienced One individual access, mon- you give need to soft money nor testifies that soft do- “[l]arge result, ey. organizations do give many nors access and As order obtain *288 spe- mon- business. There doesn’t have to be a They give soft give money.... soft result.”). that’s what cific tie-in to achieve the ey they because believe better contacts helps establish Hickmott, Lobbyist Robert who is a for- doors Congress gets Members official, mer DNC and DSCC testifies that they want to meet with opened when his make he advises clients to contribu- that question Members. There is no relationships. tions in order to “establish relationships. money creates the Com- Having relationships many ways those in particular interests before panies with helps get meetings then us and continue have to the committees need to access relationship.” Dep. Hickmott at 50 committee, chairman of that make dona- 10]. Vol. Hickmott testifies that [JDT tions, go to events where the chair- when Senator Robb was chairman of the man will be. Even if that chairman is go DSCC he would to the DSCC offices will tie the type not the of Member who “accept he would where checks from indi- to- legislative goals contribution and the who organizations viduals wanted to they can’t so gether, donors be sure give money they to the wanted DSCC make mon- play want to it safe and soft face time with Chairman Chuck Robb.” Id. ey large contributions. The contribu- at 94-95. Donors would “use this as an them to establish tions enable relation- opportunity only make contribu- ships, and that the chances increases DSCC, convey tion to the but also to public they’ll be successful with group Senator Robb what their or individ- policy agenda. Compared to the position ual was on an issue.” Id. at 95. spend companies amounts that as a Lobbyist Murray’s testimony Daniel in a whole, are large political contributions case, prior incorporated which has been potential worthwhile because of the ben- case, into the record states that company’s line. efit to the bottom contributing] money prov- soft ... has ¶ 33]; Rozen Decl. 10 8-Tab see also [DEV provide en to excellent access to federal ¶ (“You are a favor for some- doing id. officials and to candidates body by making large money] dona- [soft elective office. Since the amount of soft they appreciate Ordinarily, tion and it. individual, corporation money that an people reciprocate feel inclined to favors. limit, entity may other contribute has no is, bigger Do a favor for someone—that money has become the favored soft a larger write check—and feel even sup- supplying method of compelled reciprocate. my more ex- port. money begets ... both ac- [S]oft perience, rarely overt are ex- words membership cess to law-makers and contributions, changed people about but do groups provide greater ever ac- understandings: re- Member has opportunity cess and to influence. ceived a favor and feels a natural obli- Murray Aff. Mariam 79-Tab [DEV gation helpful to be in return. This is how 59], relationships legislative human work. The Although varying 1.75.1.1 there arena is the same as other areas of com- are a lobbying views as to whether efforts merce and life. It is similar to a situation achieving means of access more effective an recently: that has been the news large than nonfed- to federal officeholders banking firm made investment shares contributions, dispute there is no eral public offerings hot initial available to the Inc., provide contributions large nonfederal officers of WorldCom while WorldCom obtaining means of access to giving Inc. executives were the firm tens additional investment-banking generally part of millions of officeholders and are dollars nonfederal many entities that donate lobby- one plans. While lobbying modern spend vast parties also him funds hire be- his clients ist concedes officehold- money lobbying federal sums of them access *289 provide to he able cause exceeding their donations ers, client’s dona- sometimes of regardless lawmakers Resp. of Interve- many multiples. able to ways he is history, one tion Reqs. for First and Second through nonfederal nors to RNC’s service provide this top five (admitting that arrange firm his Admis. at 23-24 he and donations during political donors and Congress corporate nonfederal Members $9,009,155 pre- not Moreover, campaign have donated Plaintiffs 1996 election parties. lobbyist same five single and testimony of a committees to national sented the $27,107,688 money lobbying dona- on spent that nonfederal corporations believes who (admit- alone59); in their efforts 24-25 clients id. at do assist during tions lawmakers. of non- corporate influence federal top five donors gain ting access donat- 1997 and 1998 during federal funds lobby- testimony presents 1.75.1.2 Some party committees $7,774,020to national ed obtaining effective method ing as a more spent corporations five same than nonfed- lawmakers access to federal same during that $42,000,000 lobbying on Finance Di- See RNC eral donations. Exam, at Primo Cross see also period60); ¶45 Vol. [RNC V] Deck B. Shea rector nonfederal (noting that 27] [JDT Vol. (“It major donors to the why is obvious money piddling amount donations “is their donations regularly use RNC do not spend on corporations what ... relative to All or virtu- ‘access.’ to obtain as means Mann philanthropy”); ... lobbying and organization- personal or ally all who Exam, (“It’s not Vol. [JDT 17] at 49 Cross government the federal al business with lobby- money on spent or. more either Is lobbyists.”); employ professional retain or It Yes. money donations? ing than soft Dep. in RNC at Bumpers Former Senator it’s In some sectors tremendously. varies really (“[Mjoney does 1] 39 [DEV 63-Tab 4-1, given 2-1, You have in 10-1. others level that’s true some buy [a]t .... access 15-1, case of example particular in a contributions, and it’s almost campaign organizations is most of the the fact but lobbying”) but in the cases always true lobby- doing (Former economic interests Sena- 1.75.2 Findings see infra are also lobbying, ing, inside outside Rudman, Simpson’s views Boren and tors finane- political in the intimately access). involved presented also on Evidence was ($2,446,316 Philip ($3,017,036 were Morris 60. The donors Philip were Morris 59. The donors politi- politi- to national to national contributions contributions in nonfederal in nonfederal $19,580,000 $38,800,000 lobbying expendi- lobbying expendi- parties, in parties, cal in cal ($1,938,- tures), Seagram Joseph & Sons tures), E. of America Workers Communications to national contributions 845 in nonfederal ($1,464,250 to na- in nonfederal contributions $550,000 lobbying expen- political in parties, $460,000 lobbying parties, in political tional ($1,442,931 ditures), in nonfed- RJR Nabisco ($1,340,954 non- in expenditures), AFSCME parties, political eral contributions to national par- political to national federal contributions $1,637,688 expenditures), lobbying Walt in ties, $2,460,000 expenditures), lobbying in ($1,359,500 contri- Disney in nonfederal Co. ($1,312,500 con- Amway Corp. nonfederal $980,000 parties, political butions national parties, to national tributions Rich- lobbying expenditures), Atlantic $240,000 expenditures), American lobbying ($1,250,843 contributions field in nonfederal ($1,210,000 Group in nonfederal Financial $4,360,000 in fed- political parties, to national parties, to national contributions Resp. expenditures). lobbying eral and state $20,000 $40,000 lobbying expenditures) and Second to RNC's of Intervenors First Reqs. for at 23-24. Admis. contribute, large money they contributions the amount of hard ing game making lobbyist states political parties.”)- One lobbying money it’s the amount of large part him in that his clients hire they expend in order to influence members Capitol Hill and because of his contacts Furthermore, Congress.”). testimony officehold- because he has access to federal lobbyists help shows contributions ers whether or not their clients have do- lobbyists gain access to lawmakers. Lob- candidates, money nated officeholders byist Wright Andrews comments: 46-47, parties. Dep. See Hickmott The amount of lobbyist influence that a 10]; 50-51 Vol. but see id. at 50 [JDT directly has is often correlated to the gives firm “contributions (noting his *290 money amount of that he or she and his relationships. Having those to establish political or her clients infuse into the ways helps in then us relationships many system. help lobbyists large Some raise get meetings and continue that relation- “soft money” donations host and/or Exam, ship.”); Andrews Cross at 19-20 many fundraising key legisla- events for (acknowledging Vol. some [JDT 1] simply represent single tors. Some a organizations gain by access means other very deep pockets client with and can celebrity money, by using than such as easily large corporate reach into un- or individuals). money” ion funds for “soft donations Lobbyists maintain that “basic” 1.75.1.3 expenditures may other allowable lobbying or traditional activities are “alone legislative influence actions. Those who in many insufficient to be effective instanc- heavily are most involved in and giving To have true lobbying es endeavors. raising campaign money finance are fre- clout, political giving raising and of quently, lobby- surprisingly, not campaign money politi- for candidates and political ists with the most clout. parties critically important.” cal is often ¶ 1]; ¶ Andrews Deck 5 6-Tab Mur- [DEV 1]; 12 [DEV Andrews Decl. 6-Tab ¶¶ ray Aff. in Ma/riani 6-7 79-Tab [DEV Dep. Hickmott [JDT 10]. also at 50 Vol. ... (testifying “[a]long with each 4] Andrews testifies that has become legislative plan plan to ‘advance the [a practice lobbyists common “host client’s and essential legislative agenda’], Deck number of fundraisers.” Andrews develop I achieving goals, the client’s ¶ explains that 1] 6-Tab He [DEV In parallel political support plan. financial political parties periodically “[w]hereas words, I my other advise clients as to organize ‘gala’ large events ballrooms (or candidates) which federal office-holders donors, lobbyists filled with hundreds they should contribute what prefer attending now often smaller events amounts, in order to best use the re- lobbyists, only hosted other with ten or they sources are able to allocate to such sitting all at a people participating, fifteen legislative agenda. efforts to advance their table with the invited dinner or breakfast plans money also would include soft Such al- guest type elected official. This event political parties contributions to and inter- lobbyists opportunity a better to build lows groups political est associated with is- relationships ex- personal more and to sues.”); Dep. in see also Meehan RNC Id. change views.” (“[P]ower 40-41 66-Tab and influ- [DEV 4] 1.75.2 Former and current Members just Washington ence in is not the amount contributions-provide Congress testify that money industry of soft contributes to donors access to influence federal with I political parties. say would that also Former Rudman de- lawmakers. Senator money it’s amount of PAC candidates, system bluntly: it’s scribes the contribute to the and the ear member get the ear large amounts give who interests Special access—and ac- They parties do in the staff. have money to of soft They power. do objectives. Access is Access their cess is it. fact achieve Sitting thing Senators works...” access. That’s how this get special clout. (D-Fla.) limited amounts has Similarly, Rep. House Members Bacchus Jim time available in time, they make many but sat “I have on occasions explained: representa- to meet schedules solely because people down and listened wealthy unions of business tives my cam- they had contributed I know sums to their large gave who individuals 8] 6-Tab [DEV Deck 7 paign.” Boren idle chit-chats These are parties. omitted). (citation Simon Former Senator democracy. philosophy about the attests: interests, special meetings, these these helps also Giving to committees lobbyists, press accompanied often I Members. While gain access to you who either officials—Senators elected fa- buy don’t argue some donors realize special interest from the money raised vors, That access is they buy access. directly or benefit question who I got all of us. If and it affects abuse *291 to contributions indirectly from their I when was midnight, hotel at Chicago a position adopt their party Senator’s —to Senate, phone there were in the them. Sena- interest to on a matter of me, I them names waiting 19 of calls for to benefactors pressed by their tors are I someone recognize and the 20th didn’t legisla- amend legislation, to introduce $1,000 my to as a donor cam- recognized to vote on tion, legislation, to block I person would that is one paign, way. No one legislation in a certain for gratitude feel a sense of calk You do you should money so says: gave ‘We true is even more support. their This say one needs help this to us.’ No larger much do- prevalence of with the par- by all perfectly it—it is understood nations, to a go those donations even if meeting ticipants every such people Because few party committee. $20,000 or over give can afford to contributions fact Large money soft committee, $25,000 peo- those party ato They af- process. legislative distort the substantially ple can receive who will it gets and how gets done fect what elected federal leaders better access to Senators and They affect whom done. only can afford smaller people than who see, spend they whom House members can not afford make contributions or with, they get, input their time what you increase any contributions. When about it—this and—make no mistake people are allowed to the amount that as well money affects outcomes people give let without limit give, or 34], ¶¶ 7, 8-Tab [DEV Decl. Rudman danger parties, you increase groups Simpson used testifies Senator unfair access. your was give to someone who “to ¶ 37], 9-Tab Sena- [DEV Deck 16 Simon you so philosophy,” giving “[fit’s but now tor notes: McCain Dep. at 11-12 Simpson get can access.” minimum, money large At a soft dona- 30], finds Boren [JDT Vol. Senator opportunity for the purchase an tions colleagues have “comments some of [his] to elected to make their case donors completely system about made officials, President including the For experience”. consistent with [his] own leaders, (D- way average in a Congressional Mazzoli example, Rep. former Romano Many legislators have citizens cannot. Kentucky) “People said: who contribute somebody ... I would meet with would where they where been in situations they gave money.”); a soft soft Snowe appointment in an because rather fit losing his Dep. (stating than risk at 210-11 Vol. she money [JDT 31] contributor Legisla- party. any to the given preferential or her donation has never access to know who the parties donor, nonfederal, often tors of both federal or to their large money soft contributors my office to the “[everybody has access are, legislators those particularly available”); that I have time Jef- extent money. soft Mem- who have solicited Dep. (stating 11] fords at 96-97 Vol. [JDT interact with donors Congress bers of par- national person’s status as donor to dinners, weekend frequent fundraising not “affect deci- ty [his] committee does retreats, parties, briefing cocktail who with or give[s] [he] meet[s] sions as to exclusively held sessions that are to”);' Dep. at 180 [JDT access Meehan Vol. party. Donors or donors to the large provides preferential he no (stating 22] particular lobbyists often inform Exam, donors); Cross access nonfederal large made a they Senator Shays (agreeing 20-21 [JDT 29] Vol. When, of a Mem- result donation. open policy much door “pretty [has] he solicitation, sig- makes a ber’s someone people want talk to [him] to meet who donation, money and then nificant soft issues”). important legislative about Giv- month the Member a the donor calls Congress en the efforts these Members meet, very diffi- and wants to it’s later past years have made over the to reform no, say do no. say and few of us cult to political system, surprising it is not ¶ 29]; see Decl. 8-Tab [DEV McCain policies. would have such These Shays [DEV 35] Decl. 8-Tab also Members, however, *292 speak do not claim to (“Soft donations, particularly corpo- money colleagues. for the of their rest donations, buy access and rate and union that Corporate testify 1.75.3 donors large donors to thereby make easier provide access to influence contributions to influential Mem- get points their across testifies that lawmakers. Wade Randlett large Congress. The donors of bers of communi- “many members of business par- money soft to the national amounts of they if want to influence ty recognize that leadership and to the ties are well-known Washington, they in have to happens what Congress. Members of many other They are money game. play the soft large officials that donors access to elected accelerating, in an arms race that is caught average citi- goes beyond receive far many they feel cannot afford but that heard.”). opportunity zen’s to be speak Randlett against.” leave or out who tes- 1.75.2.1 Defendant-Intervenors ¶ 32]. Decl. 14 8-Tab [DEV they personal- tified in this case state that testifies Gerald Greenwald61 Chairman to individ- ly provide special do not access that provide large that corporations uals or regularly leaders are labor and business parties, regardless
contributions di- experience advised that—-and in federal or non- whether the donation is organizations rectly confirms Feingold Dep. at federal funds. See that — (“I po- money donations to large make soft imagine cannot a situation 6] Vol. [JDT that, was vice chairman currently United. Prior to he Chairman 61. Mr. Greenwald is Airlines, largest Chrysler Corporation em- and worked at Ford Emeritus of United company ployee majority-owned in the United Company. Decl. 2 [DEV Greenwald Motor through his retirement States. From 1994 2000, 6-Tab 16] Chairman and CEO of he served as the preferred Company An Eli get Lilly in fact do memorandum parties litieal political officials. That ac- government states that its 1995-96 “contribu- access from attendance at gamut cess runs the tions and the related activities we have opportunities to they have events where in- participated key have been to our informally view to law- present points of ability get creased role and our views direct, private meetings in an makers to right policy heard makers on a pending legisla- official’soffice to discuss basis; words, timely in- other smart regulation that government tion or a Lilly Company vestment.” Eli Memo- company or union.... (Jan. [Some affects the 1997), randum ODP0018-00481 to soft corporations] give large unions and [DEV 48]. 69-Tab money political par- contributions to 1.75.4 The former Chairman of the political par- to both ties' —sometimes “[m]any DNC testifies contributors they are afraid to unilat- ties' —because Republicans large moneyboth sums of erally They disarm. do not want their gain gov- access to Democrats — competitors enjoy alone to the benefits otherwise ernmental officials large money that come with soft dona- access, would not have. With this contrib- namely, tions: access and influence peo- utors are able to make their cases to Though money Washington. soft ple public policy who make and take offi- might check be made out to a governmental cial action.” Fowler62 Decl. party, labor and business leaders know ¶ 6 [DEV 13] 6-Tab open that those checks the doors to the testify 1.75.5 Individual donors important offices individual and Mem- provide contributions access to influence Congress bers and the Administra- federal officeholders on issues of concern tion, giving opportunity donors the to them. Steven Kirsch testifies that corporation’s argue for their or union’s [p]olicy discussion with federal officials statute, position particular on a regula- major sponsored occurs at donor events tion, governmental or other action. La- I parties. have attended bor and business leaders believe—based many They typically such events. in- experience good and with reason— *293 speeches, volve question and answer ses- that such access them an gives opportu- sions, discussions, group policy and but nity shape governmental to and affect there is also time to talk to Members ability that decisions and to do so individually about substantive issues. derives from the fact that they have example, For at a recent event. I was given large money par- sums of to the speak represent- able to with a Senator ties. ing a state other than California and we ¶¶ 10, 12 Greenwald Decl. 6-Tab [DEV had a short conversation about how our ¶¶ (“I 16]; see also Hassenfeld Decl. 23-24 respective working staffers were togeth- think in companies some industries have particular er on a issue. reason to believe that because their activi- ¶ 12 Similarly, Kirsch Decl. [DEV 7-23]. closely ties are so linked with gov- Peter Buttenwieser testifies: actions, they participate ernment must in Events, money system the soft in order to suc- meetings briefings and held for ceed.”) money provide opportunities [DEV 17]. 6-Tab soft donors January 62. Mr. Donald Fowler from 1971 until til he served Chairman of the he served as Chairman of the South Carolina Democratic National Committee. Fowler ¶ Party January Democratic and from 1995 un- Decl. 6-Tab [DEV 13]. speeches speak the donors to hear to use the occasion to in favor of with federal
engage policy campaign discussions finance reform. I used the office holders. There is also a certain opportunity to talk to the President politicking lobbying amount of the campaign system about how finance particularly crisis, these events. This is true country in this had become a discussions, in the side in which donors argued provided op- that the crisis approach can office holders discuss portunity for the provide President to their issues. leadership. some I don’t think that we got leadership I seeking ¶ was on the Decl. 25 6-Tab [DEV 11]. Buttenwieser issue, finance I campaign get but did He also observes that personal to pitch chance make a to the who, question is no that those [t]here my President as a result of donation. me, large money like make soft dona- ¶9 special powerful tions receive access Hiatt Decl. [DEV 18]. 6-Tab Hiatt federal office holders on the basis of the testifies others attendance also I am donations. close to number policy shared their views on matters of Senators, I very see them on a consis- importance to them as the event was ad- basis, regard Majori- tent and I now opportunity “give vertised as an advice I ty Leader as close friend. under- president.” Dep. to the Hiatt at 119-21 I have stand unusual access 10]; [JDT Vol. see also Hassenfeld Decl. ¶ I correlates to the millions of dollars (“[W]hen given [DEV 17] 12-13 6-Tab committees, given opportunity, try pi- some donors myself I delude thinking and do not into Members, geonhole or corner a less many people give otherwise. Not can diplomatic way, than to discuss their issues scale, money naturally soft on that and it ¶ events.”); these Decl. Geschke63 limits the number of those with that 6-Tab (testifying [DEV 14] connec- level of access. $50,000in tion with federal and nonfederal made to donations the DNC he and his Id. Arnold Hiatt testifies that 12 people wife attended a dinner of 10 to $500,000 my money a result of soft [a]s “lasting] with President Clinton two or DNC, donation I was offered the hours, consisting] primarily three of a chance to attend events with Presi- importance conversation about issues dent, including events at the White program”); the nation and the President’s House, a number I of times. was of- (note from 7] RNC 0026901 Tab [IER special fered access as a result of the program Team 100 director RNC’s made, I though gen- contributions had I thanking “facilitating a donor for Dow erally that ac- advantage never took to the generous contribution [Chemical’s event I cess. One did attend was a Party. timely *294 Republican It’s a donation Mayflower dinner at the Hotel in Wash- into the final hours of the as we head ington, approximately D.C. March a call ... we can campaign. Give me and 1997 with President and Vice- Clinton bring figure good out when is time President Gore. The dinner was for the DNC, your leadership Dow into town largest thirty [Chemical] donors to the about [Barbour], I people. plan attending Haley Chairman] did not on to see [RNC but Majority I Leader Dole & people urged [Senate Robert] went because several me $150,000 63. Mr. Charles Geschke is Chairman of the that he has donated over in federal committees, Inc., Systems, Board of Adobe he co- to federal funds $18,000 ¶ to national [DEV founded in 1982. Geschke Decl. 1 6- over in nonfederal funds ¶ 1994, Id. party 14]. Since committees. 6-Tab 14]. [DEV Tab Mr. Geschke estimates I’m [Speaker [Gingrich].”); House] Newt sentatives and staff folks when on the (letter 7] RNC 00031843 Tab from Hill [IER tomorrow.” ODP0031-01403 to 04 28, 1995, donor to RNC Chairman Jim Nicholson A [DEV 71-Tab March 48]. I have telling [sic] him “I do feel benefited letter Ways from House and Means Com- in the from Team 100 audience has (R-TX) Bill mittee Chairman Archer leaders”); me RNC afforded with the donor thanked the for “intri- donor his (letter l.E] from [IER Tab RNC guing” proposal, noting personal Archer’s pharmaceutical company asking to a preference gift that the estate and taxes company opinion suggestions for its repealed completely. ODP0031-01412 package” the enclosed RNC “health care 71-Tab A March let- [DEV 48]. $250,000 join and a donation to the RNC’s ter from donor Team 100 Director program). Season Pass Timothy Barnes enclosed the donor’s 1995 Mclnerney, a large Thomas contributor membership request- Team 100 check and Republican party, to the states that his provide ed that Barnes Barbour with a support Republican Party for at the copy of Archer’s March 1995 letter. national, state, and local levels not de 11 [DEV ODP0031-01406 to 71-Tab 48]. pendent upon gaining access to federal $100,000 Team membership requires Mclnerney officeholders. states that he $25,000 every years, donation four support Republican would Party intervening year. donations in each Find- whether or not he was solicited a feder ¶ ings 1.77.1. al officeholder whether or not his con 27, 1995, A handwritten note dated Oct. tribution resulted in attendance at an Haley from RNC Chairman Barbour asks event included federal officeholders. Majority Senate Leader Bob Dole to meet Mclnerney so, Aff. 17 [9 PCS]. Even Pfizer, with the CEO of a member of the Mclnerney attests that he has been offered “Team money RNC’s 100” nonfederal do- access to federal in exchange officeholders nor group, to discuss an extension for his donations of nonfederal funds. Section 936 tax credit: Id.64 Dear Bob The Political Parties Facilitate Access to [_], Pfizer, CEO of has asked to see Congress Large Members Their you on extremely loyal Wed. He is 11/1. Contributors generous. He also is not longwind- Party 1.76 leaders facilitate direct com- ed. He’ll tend to his business and not munications on policy matters of between up eat extra time. They proposed money nonfederal donors and officehold- § a [Internal Revenue Code solu- ] 936 ers. Several documents the record [Republican tion that Senator William] demonstrate this fact. [Republican Congressman Roth and example, For a handwritten note dated Archer are I’m considering. Bill] sure February 1995 from RNC Chairman appreciate is the issue. I’d it if Haley stated, major Barbour to [a donor] Bill, you’d [signed] Haley. [_]: in part: “Dear you Thank [DEV ODP0025-02456 to 57 70-Tab 48]. your very thoughtful memo on the estate gift tax A pass law. I’ve read it and will letter the chairmen of the Con- Senators, it along appropriate Repre- gressional Forum of the NRCC addressed *295 ¶ Mclnerney’s 64. Mr. affidavit includes state- Aff. 8 [9 PCS]. His affidavit also contains understanding legal suggest incomplete ments about his of the statements which an un- campaign effect New derstanding impact York laws which is BCRA will have on Mclnerney irrelevant to the cases at campaign bar. See his donations. Lawyers any Trial containing message- you to the Association of other (memorandum upcoming Congres- choose.”); America discusses an ODP0042-000654 Dinner, Forum Chairman’s sional to all Congressional Forum members from you an excel- give “[o]ur notes: event will chairmen, informing up- them of an opportunity to meet with the Mem- lent coming featuring dinner members of the [Judiciary bers of the to dis- Committee] Committee, Banking noting that “[o]ur your to organization.” cuss issues relevant give you event will an opportuni- excellent 48]; see ODP0042-00025 71-Tab [DEV ty to meet with members of the committee July also 1996 letter from John Palmer your to discuss issues relevant to organiza- (reminding ad- [redacted addressee] tion”); ODP0042-01111 [DEV 71-Tab 48] join that Palmer had him to dressee asked (letter from Manag- NRCC to the Federal noting the RNC’s Team Association, ers’ noting upcoming din- new RNC Chair Barbour escorted Team ner where the express addressee could [_] Energy 100 member and CEO on upcom- “interests and concerns regarding appointments “very signifi- that were four (letter ing legislation”); RNC0156717 from companies in legislation affecting cant” like staffer, Hdgel RNC to Senator asking Sen- industry”), and made him “a hero in his his Hagel ator to meet with a donor for four 48]; [DEV ODP0023-02043 70-Tab “key” reasons including: runs “[h]e [sic] (Memorandum RNC0044465 [DEV 93] $80,000,000 business,” high tech and “[h]e Royal Tim from Barnes of RNC to RNC.”). $100,000 just contributed to the noting compa- Roth that someone from [a documents, In addition to these the rec- ny] “trying had been a contact establish testimony ord includes corroborating like in company Senator Dole’s office for [a know, you of former Senator Wirth who executive]. [this executive] As states: very generous has been to the If RNC. The Democratic national campaign com- assist, you any way there can would mittees sometimes asked me to meet greatly appreciated.”); be ODP0030-03512 with large donors to the whom I (notes telephone 71-Tab [DEV 48] party’s had not met before. At the re- call between Jim Nicholson of the RNC quest, I I met with donors. under- member, and Team 100 which states that in goal making stood that the donors’ up an Nicholson will take issue discussed large contributions was often to oc- Lott); with Senator Trent Let- [DEV 71] meeting(s) casion with me or other ter from RNC Chairman Jim Nicholson to prominent congressional Democratic donor], 18,1998, August copies to House [a press positions legis- leaders to Speaker Gingrich, Majority Newt House occasions, lative these some- issues. On Armey Congressman Leader Dick times all I knew about the donor would ODP0033-00534(stating John Linder “I be the issue which he was interested. appreciate your helping interest us hold Wirth Decl. Ex. A 15 9-Tab [DEV 43]. I majority onto our the House.... can Fowler Former DNC Chairman Donald you every single your tell dollar of contri- testifies: directly go Operation bution will into partici- Party government officials you your Breakout.... If will check make pate raising large contributions (which personal corporate) can out pending interests that have matters be- Republican National Committee and Congress, agencies, fore Executive Operation annotate it for Breakout I will Newt, government agencies. Party and other personally copy show a of it to Dick officials, who are not themselves elected Armey and feel John Linder. Please free officials, accompany large money it with a letter donors transmittal offer *296 Further- Congress). with Members gov- meet with senior to opportunities stated, op- more, “Staf- Donors use these Simon has officials. ernment Senator congres- House and know the portunities for Members who fers who work —White views on press their meetings are, people always sional and those big donors —to government. the pending before matters are returned first and calls get phone ¶ others 18]. 6-Tab the Member when [DEV Decl. 8 allowed see Fowler ¶ Findings 1.66. supra are not.” See Director at- Finance The RNC’s 1.76.1 meet- arrange that the RNC does tests parties have struc- 1.77 The any of officials ings government with so that do- programs donation tured their B. or nonfederal. its donors—federal larger encouraged are contribute nors ¶ states V]. She [RNC Decl. Vol. Shea more get access to amounts in order Division, a “[a]s the RNC Finance that events at which and intimate exclusive requests passes along policy,” matter of present. The Congress Members of a federal with meetings donors for from parties use evidence also shows schedul- to that officeholder’s officeholder larger of access to secure the enticement pur- into ing inquiring “without staff example, a letter donations. For meeting,” “neither proposed of the pose Chairman Senator McConnell then-RNSC meeting ascertain[s] a nor advocate[s] ... $25,000 fund explained that a nonfederal arranged,” meeting has been a whether provide the donor member- donation would sche- provide to the officeholder’s does not Founda- ship the NRSC’s Chairman’s money that donor the amount of the duler five “include four to tion whose benefits party. Id. has to the contributed annually, each fo- meetings small dinner during her policy this asked about When specific a cused on Senate Committee. cross-examination, Ms. Shea testified briefing meetings consist of a with informal, policy. unwritten policy is an members, followed 29], top committee staff She Dep. B. at 80 Vol. [JDT Shea with the applies reception and dinner staffers say policy does not whether or to only Finance Division Republican to the RNC members committee Furthermore, the entire committee. Foundation mem- issues. discuss than Ms. Shea’s policy is more nuanced Trust invited to all Senatorial bers are also According to Ms. implies. declaration provide an additional four events which Shea, “policy” the RNC Finance Division’s year to meet with our Re- opportunities is not “force” federal officeholders Majority.” ODP0037- publican Senate donors, may pass but that meet with 48]. 71-Tab [DEV scheduler to a Member’s along requests show 1.77.1 RNC documents member, could a Team 100 say “this is greater offer ac- programs donor RNC’s if in.” Id. you you could fit them holders as dona- cess to office a Team 100 Indicating person that a highest with the level grow larger, tions member, the RNC they give which means personal access offered to the and most $25,000 $100,000 every years, four money largest donors. ODP0018- soft while not intervening year, each donations (RNC Bro- 48] 00113 to 69-Tab [DEV precise informing the scheduler of Resps. Programs”); “Donor see also chure RNC, money gave the donor amount RFA’s, No. [DEV FEC’s First RNC to message give the office the does Member’s 10], offers its The RNC donors 12-Tab meeting in a individual interested for a programs, donor range of different Find- major supra, donor. also levels (other range of different donor financial offi- ings 1.76 instances RNC to 79 and interests. ODP0025-00375 up meetings major cials donors setting
503 (“Summary gram, opportunity participate 70-Tab of RNC’s in in- 48] [DEV missions, President’s Programs”). Donor The RNC ternational trade and other bene- $1,000 ODP0025-00377, a annual contribu- required ODP0025-00424, Club fits. tion, $2,000 per couple per year, or and ODP0025-01705 to 13 70-Tab [DEV 48]. in meeting Washington, held a D.C. program The Season Ticket a required year policy a which included least once $250,000 donation upon joining and re- by Republi- briefings and discussions led newals thereafter. ODP0022-03045 Id. at can leaders. ODP0025- ODP0022-3046, ODP0023-02480, 00375; V]. B. Shea Decl. 14b Vol. [RNC 48]; [DEV ODP0025-01569 70-Tab Advisory required The Board Chairman’s [DEV ODP0030-03408 71-Tab The 48]. $5,000 money annual hard contribution program “Season Ticket” or “Season Pass” “vigorous and offered a and informal ex- greatest offered the and most exclusive among change of views Board members benefits, range of program RNC donor in- meetings and leaders.... Board including membership, one Team 100 two discussions, panel clude or four each three memberships, Eagle special access to a by Congressional chaired leader or sen- Republican events, range Party and the policy particular expertise ior adviser with support assistance of RNC staff. area under consideration.” ODP0025-01569 70-Tab The [DEV 48]. to 77 [DEV 48]. ODP0025-00375 70-Tab Regents program RNC also offers the de- document, According to the the Chair- signed give aggregate for members who Advisory “to man’s Board was established $250,000 per amount of in nonfederal funds personal professional energy enlist the two-year cycle. election B. Shea Decl. Republican expertise of leaders business ¶ 14.g Vol. [RNC VI. community developing policy affairs in 1.77.2 The NRSC also offered several campaign highest strategies major programs. donor In 1995 and party.” for the levels ODP0025-00375 corporate pro- the NRSC donor offered Republican 77 70-Tab The Ea- [DEV 48]. “G21,” “Group 21” gram called or gles required an annual contribution of $100,000. required an annual donation of (with (individual) $15,000 $20,000 spouse or ODP0037-02246, ODP0037-02275, nonfederal/corporate). Id. or ODP0025- [DEV 48]. ODP0037-02281 71-Tab The 70- [DEV ODP0025-00429 “Group program 21” donors “small offered Eagles program Tab The offered a 48]. [then-NRSC Chairman] dinners with Sena- regional meetings series national and D’Amato and other and other tor senators” Republican Congressional with elected [DEV “VIP benefits.” ODP0037-02275 leaders, special Republican access 71-Tab The Chairman’s Foundation 48]. events, other benefits. ODP0025- corporate (meaning an annual required 48]; 70-Tab [DEV ODP0030-02838 $25,000. money) nonfederal donation of to 39 The Team 100 [DEV 48]. 71-Tab 71-Tab The [DEV 48]. ODP0036-03603 $100,000 required a program donation an annual dona- required Senatorial Trust upon joining every year fourth there- (cor- $10,000 $15,000 (personal) tion of after, $25,000 required donations 71- porate). [DEV ODP0036-03873 to years. the three intervening each of The Presidential Roundtable re- 48]. Tab ODP0014-00983, ODP0014-01457 to 58 $5,000 in quired an annual donation pro- [DEV 48]. 69-Tab The Team personal corporate ODP0037- funds. gram members and re- offered national See also [DEV 48]. 71-Tab gional meetings Republican Party with the (letter signed by Senator leadership year, special ODP0036-03525 throughout events, him asking membership Eagles pro- McConnell to NRSC member by Democratic Senators.” year attended membership, noting
to renew his donations for also solicits Id. DSCC contribution “[y]our non-federal *298 put example, to special will allow us events. For Foundation Chairman’s Dinner, directly towards the a Annual Fall dollars DSCC’s 1999 our federal desper- they are $50,000 bought where the do- campaigns, donation Senate nonfederal (letter needed.”); ODP0036-3562 ately including priority a table nor benefits ad- thanking McConnell signed by Re- Senator one ticket to the VIP the dinner and Foun- joining (DSCC- the Chairman’s dressee for L Attach. ception. Jordan Decl. (letter dation); signed L-0025). ODP0036-03595 to soliciting someone McConnell Senator offers individuals or 1.77.4 The NRCC Foundation);
join Chairman’s $15,000 annually, or PACs that contribute brochure) (NRSC to 69 ODP0037-01861 $20,000 annually, corporations give ¶ (“The 48]; Vogel Decl. 71-Tab [DEV Forum membership Congressional its to variety programs of donor a NRSC uses its mem- designed give been to which “has These to donate funds. persons motivate develop strong- setting an intimate bers of donors tend to be associations programs Re- relationships with the new working er fundraisers, by the grouped who are and majority,” Congressional publican given or of the funds nature and extent 48], 71-Tab [DEV ODP0042-01226 (2002 raised.”), A, 41] 9-Tab [DEV Tabs J mem- attracts most Forum “benefit that materials). Trust Senatorial with Committee bers are the dinners differ- hosts several DSCC 1.77.3“The Republican and the members Chairmen persons events motivate types ent Committee,” each OD00042-00028 events are often at- funds. These donate dinners “aver- 71-Tab These [DEV 48]. Senators, Demo- Democratic tended Members— age people including about 75 candidates, Democratic other Senate cratic at least two Committee Mem- means office, Democratic Cabi- of federal holders every bers at table.” ODP0042-00171 who nei- and other celebrities net officials “In to the 71-Tab addition [DEV 48]. federal office.” Jordan ther seek nor hold dinners, monthly we offer two annual ¶ example, 21]. 7-Tab For [DEV Decl. weekends, golf tournament and meeting cycle, the 1996 election DSCC during the Leadership a dinner with the Elected “Leadership memberships in its offered included as a all the Committee Chairs is 78-Tab [DEV Circle.” COL0002-00698 membership.” Id. of .... Forum benefit 152], $10,000 an- Membership required also include all the Bene- Forum benefits donors, and for individual nual contribution pro- of the House Council fits NRCC’s $15,000 included PACs. Id. Benefits 48]; gram. [DEV ODP0042-01226 71-Tab re- “special Leadership Circle weekend (invi- 20] see also ATT 000018 7-Tab [DEV with seminars Senators treats issue Republican tation to 1999 Senate-House Leadership Washington officials.... Dinner, including escalating benefits to the also receive tickets Circle members receptions and a breakfast with meetings, Dinner, by a Fall annual Senate followed leaders). Congressional day meetings with Sena- of issue oriented variety 1.77.5 uses “The DCCC The DSCC political experts.” Id. tors persons motivate donor programs “Majority memberships to its also offered tend to be programs donate These funds. Trust,” program donor premiere “the fundraisers, of donors and associations who contribute the DSCC for individuals the nature and extent grouped by who are $20,000 Id. “The Ma- per year.” calendar or raised.” given Wolfson funds jority important programs, Trust offers For the 2002 44]. the Decl. 53 9-Tab throughout retreats [DEV weekends and meetings with officials such receptions and “Major Donor the DCCC’s cycle, election Feinstein, Forum, Dianne U.S. Senator as U.S. included the Business Programs” Boxer, Lt. Barbara Governor of Senator contribution an annual required Davis, (DCCC-J-0007). Kathleen Connell Gray Controller $10,000. at Tab J Id. figures.”); national CRP-00269 includ- and other Members’ benefits Forum Business “The California Golden Cir- (flyer re- titled briefings and “[b]i-monthly political ed cle,” “[t]hrough Golden Circle noting Lead- Democratic with the House ceptions contributions, Republicans have California pro-business other Democratic ership and *299 from the able to elect leaders Representa- been White in the House Members House,” that ajnnual State Golden House tives!, with retreat Chairwom- an “goal will assist the CRP Circle members House Democratic Lowey and the fifty-five electoral votes for ... Democratic Con- deliver Leadership!, annual an] Republican Presidential nominee our package!, a] and Dinner event gressional 2004, Republican majority a. call/briefing with maintain bi-monthly conference Republican a Congress, Legisla- and elect Low- and Chairwoman Gephardt Leader ture,” altered). Golden including among and Circle The Ma- (capitalization Id. ey”. “private recep- $50,000 Benefits” “Membership annual a required jority Council throughout held California contribution, bi-monthly tions/meetings included the and local, Republican and national call, invita- with “complementary state conference issues”). events, to discuss current in- leaders fundraising all DCCC tions to Congres- Democratic the Annual cluding request to be seat- 1.77.7 Contributors reception and private Dinner with sional lawmakers at these donor ed with certain in- complementary briefing!, and] example, an RNC “Table events. For Lead- Premiere Retreats with vitations to for “The Official Buyer’s Guest List” sheet Lowey, House Gephardt, Chairwoman er out Republican Inaugural Gala” filled Ranking Leadership and Democratic Bank” “Am. Banker’s by Ass’n/Nation’s altered). (capitalization Id. Members”. with certain request a to sit contained Finance National Membership to the “anyone on Congress and Members of $100,000 contri- annual required Board Banking ODP0023-8288 House Comm.” bution, all of and included as benefits 48]; see also RNC 70-Tab [DEV “two as well as “Majority benefits Council” undated, Levels, Leadership Gala Gephardt, Leader dinners with private 92]; At- 2000 RNC [DEV RNC0022509 Democratic Lowey, House Chairwoman Forms, April tendance and] Leadership Ranking and Members! (filled Mi- by out 97] [DEV RNC0236323 and Gephardt with Leader two retreats requesting to be seated attendee crosoft Telluride, Lowey in CO Chairwoman “Leadership or particular Senator awith al- (capitalization MA.” Id. Hyannisport, Judiciary”); Comm. Commerce tered). (filled out 93] Chev- [DEV RNC0145258 attendee, to be requesting corporation ron parties also use 1.77.6 The state California, a Member from with seated of access to federal lawmakers promise Texas); See, RNC0202199 [DEV e.g., Louisiana donations. encourage larger table, (filled re- (CDP for the MBNA 96] out brochure [DEV 106] CDP particular with five to be seated questing who contribute showing that those (filled Senators); [DEV 96] RNC0202200 $100,000 by the are classified CDP table, Resources, Inc. “Trustees,” for the Reliant the CDP out and that party as Rep- specific with one asking to seated supporters extraordinary “recognizes its Senators); five named provid- resentative extraordinary opportunities,” with 0032799 [DEV RNC briefings, RNC “[e]xelusive ing “Trustees” 0032805— Burger King legislative Chairman issue that (request 92] discuss member who donated an interest in. Contributors also and Team 100 use $100,000 relationships the events to establish seated with Senator Fred to be Senators, advantage then take of the access Thompson and three other later, calling legisla- the Member about a showing Thompson document Senator was table). coming seeing tive issue or back and placed Burger King Obviously Member in his or her office. PhRMA’s Judith Bello testifies that perspective, from the Member’s Congress PhRMA listed five Members request hard to turn down a for a meet- requested “YIP” to be seated at its as you just spent ing after a weekend with Republican table at the 2000 House-Sen- company just gave a contributor whose ate dinner were all Members who had large your political party. contribution to oversight responsibility or over issues of importance pharmaceutical industry. to the 33]; 11 [DEY Rozen Decl. 8-Tab see also Dep. [JDT 1]. Bello at 82 Vol. (flyer listing COL0002-00698 DSCC Donor Programs, including part of its political parties 1.77.8 The have used *300 Majority program, Trust 1996 “a weekend opportunities promote such to their vari- in Aspen, in January, Superbowl CO week- example, ous donor clubs. For Senator end, Breaux, Mardi with Gras Senator a NRSC, McConnell, as head of the wrote a Charlottesville, Jefferson Weekend VA solicitation letter which noted that the Re- June, and the annual summer retreat on ($5,000 publican Senate Council annual in July.”). Nantucket Island contribution) PAC and the Chairman’s ($25,000 corporate gift) Foundation annual 1.77.10Sometimes the link between provide opportunities “excellent for both large special donations and access to elect- corporate Washington rep- and executives ed federal officials is even more direct. A resentatives to meet and discuss current call prepared sheet for then-DNC Chair leading Republican issues with Senators.” Fowler him to instructs call number of 48]; donations, ODP0036-03603 71-Tab large [DEV contributors ask for (offering also 0286400 [IER 4] RNC Tab invite them for lunch with the President of $250,000 (“POTUS”). Co- donors to RNC Gala the United States DNC 113- (“Ask Chairman status which included a “Break- 00137 to 38 134-Tab [DEV 7] her to fast and Opportunity [Senate Photo give year 80k more this for lunch with Majority [Speaker 27th.”) (“Ask Trent Leader] Lott Potus on October him to Gingrich,” House] Newt as well as a write another 100K to become a Managing Republican “Luncheon with House and Trustee for the campaign and come to Leadership 27.”). Senate the Republican lunch with A POTUS Oct. CDP List, House and Senate Committee Chairmen of call sheet entitled “Child Call choice”). your 5/16/96,” po- includes the notation that a tential they donor should be “if asked According lobbyist 1.77.9 Robert $25,000 might mtg able to do for a small Rozen: President, you with the steep, know it’s money contributions built around [S]oft but want to types include them these sporting Super events such as Bowl meetings.” [IER CDP 00124 Tab 11]. or the Kentucky Derby, you where Donations are More Nonfederal Member, Effective might spend a week with the than Procuring Federal Contributions at are even more useful. At the events Access Donors that contributors are entitled to attend contributions, as a result of their some give money, 1.78 Donors nonfederal subtly not-so-subtly contributors will money, political par- or rather than federal uses, namely help that Member or other nonfederal donations large because ties candidates obtaining access to elections. effective for are more $100,000, $200,000, Many giving donors than several small federal federal officials million, See, Decl., are doing even because it is e.g., Hickmott $1 contributions. ¶47 than a bigger money favor smaller hard (explaining 19] Ex. A. 6-Tab [DEV helps contribution would be. That donation get to know Mem- you want “[i]f you get person close to the who is making Congress, or new Members Con- bers your that affect company your decisions or $15,000 it is more efficient to write gress, industry. That is the reason most eco- get opportu- and to check to the DSCC give money, nomic interests soft certainly meet them at the various events nity to they want to help because state candi- $1,000 fifteen than it would be to write rarely dates because want the Senators, different checks to fifteen bigger to succeed.... The soft mon- candidates.”); Andrews Decl. Senators ey likely contributions are more get ¶ (stating prop- that “a 1] 6-Tab [DEV your get you call returned or into the $100,000 corporate erly channeled soft Member’s office than smaller hard money Republican national money donation to the contributions.”); Decl. [DEV Geschke congressional campaign or Democratic (“Corporations 14] 6-Tab and individuals corporate donor get committees can money get special can use soft donations to than several smaller hard more benefit access to federal office holders and at least corporation’s dollar contributions appearance of influence on issues that techni- Although PAC. the donations are important financially politi- to them cally being political party commit- made *301 cally. money Hard contributions do not tees, savvy likely carefully are donors provide opportunities same influ- officials can choose which elected take policy money ence on federal as soft dona- If a credit for their contributions. Com- ¶ do.”); tions Simon Decl. 16 9-Tab [DEV member of the mittee Chairman senior (“Because people few can give 37] afford to Leadership House or Senate calls and asks $25,000 $20,000 party over to a commit- par- his or large for a contribution to her tee, people those who can will receive sub- ty’s campaign national House or Senate stantially better access to elected federal committee, lobbyist’s and the client is able people only leaders than who can afford so, key to do elected official who is smaller contributions or can not afford to contribution, in bringing credited with contributions.”); any make Kirsch Decl. officials, possibly likely and the senior are ¶ (“Corporations 6-Tab [DEV 14] recognize to remember the donation and to money individuals can use soft donations that such interests merit care- big donors’ get special access to federal office hold- ¶ consideration.”); ful Randlett Decl. appearance ers and at least the of influ- (“[Soft money get [DEV 32] donors] 8-Tab important that are to them ence on issues $1,000 level of attention that hard politically. money financially or Hard con- money donor never will. Even someone provide oppor- tributions do not the same $1,000 money who wrote 25 hard checks policy on federal tunities influence money going get but no soft much do.”). money soft donations appreciation less attention and than some- large money one who wrote one soft high- In a memorandum to a 1.78.1 check.”); Decl. 12-13 8-Tab company [DEV Rozen level Fortune 100 executive out- (“Donors parties to the national under- lining proposed 33] million nonfederal $1.4 stand that if a federal officeholder is rais- budget fund for FY members of the money supposedly ‘non-federal’ affairs staff not- ing Company’s governmental soft — raising are it for federal ed that money they— Congress companies and the both houses contribute soft mon-
[w]ith noted, ey, and which don’t. hotly cycle, contested As our tra- House this White competitors ditional continue to contrib- money, of soft and con- importance ute large money amounts of soft and as parties sequently the efforts company] expands [our its into business money, greater more soft raise even cable, internet, (e.g. new areas network- side, than the Democratic ever. On ing) types competitors, it faces new company’s] already advocates have [our primarily computer in high tech money fielded soft calls from House industry, that also contribute heavily. Gephardt, Democratic Leader House money par- Failure to maintain our soft Frost, Democratic Chairman Caucus ticipation during cycle— this election Congressional Campaign Democratic given heightened scrutiny those con- Kennedy, Chairman and Democratic in tributions will receive the current Campaign Senatorial Chairman Torri- competitive may give our new climate — celli. Similar contacts to raise soft mon- competitors and traditional an advan- ey by Republican been made con- tage Washington. in gressional leaders. Three, the next Administration will also to the pressure addition increased be cycle. determined this election leaders, party congressional Consequently, we will be asked use competitors is clear our direct money soft support contributions to both potential competitors weighing parties national greater at an even level money soft big donations. than during year. a non-Presidential compa- Memorandum from a Fortune 100 Funding for the national conventions ny’s legislative advocate to a high-level year’s next national commit- executive, 4, 1999, dated March requests anticipated [citation tee should year’s budget budget nonfederal and contributed when request sealed]. appropriate development to foster the justified by was a number of rationales: relationships key with the officials of the First, significant due to a [sic] next Finally, Administration. because *302 by number of events scheduled the par- parties both will working to influence donors, op- for their ties number of redistricting efforts during the next two portunities develop relationships ... years, anticipate we that we will be with elected and administration officials money asked to make soft contributions has never been greater. parties As the to these efforts. Redistricting key is a compete vigorously more money soft once-a-decade parties effort that both dollars, the number and quality of very high on their priority list. interacting events for with both the priority Given of the redistricting leadership and rank and file Members efforts, relatively small money soft con- greatly has been increased. Between in tributions this area could in result (DNC, DSCC, main six committees disproportionate benefit. NRSC) DCCC.RNC, NRCC, there are Id. events both in and [Washington, out of every day D.C.] almost of the week. Donors Contribute Often Nonfederal Major Funds to Both Political Parties in Two, ... parties have become in- Order to Ensure Access and Prevent Re- creasingly money reliant on soft taliation both feel it is critical to their success in
coming elections. Not surprisingly, this 1.79 The many record shows that large has parties especially made the give political parties. sensitive contributors to both employees money nonfederal do- about imbalance. White top Forty of trouble”). par- political stays to both House Dem we are in in 1996 donated nors ties, top money nonfederal Similarly, compa- did 35 of an internal Fortune 100 Report at Expert in Mann ny donors the following: memorandum states top 1-Tab Most of 1]. Tbls. 5-6 [DEV please Attached find an invoice from the gave only who nonfederal contributors company’s] NRSC for commitment [our politi- party were either state one $25,000 know, money. you in soft As (four 1996) in la- committees party cal request approved during this was 2000). (three seven bor unions meeting recently PAC this week. We political fundraising involved in Id. Those approved money a soft donation to the practice that this result explain Fund, requested New Dominion Sen- special to have access donors’ desire ator Chuck Robb. At the time this re- parties, and out lawmakers from both also quest approved, was the team deter- if gives that the contributor concern support mined that in this race our per- the other will only one equal. request would be attached punish the donor. ceive an imbalance company’s] support balances [our dem- corporate from the world Evidence race, as a contribution to the RNSC has major that nonfederal donors onstrates requested by been Allen. George political parties both order give to (Oct. 26, 2000), Internal memorandum [ci- po- access to lawmakers from both ensure tation sealed]. parties. CEO Randlett comments litical explains many lobbyist One “com- if goals, a donor with business “[a]s give that do panies and associations soft your get- chances of you want to enhance money typically parties both contribute to paid attention to and fa- ting your issues ... access to because want Members of Con- vorably reviewed Members Rozen Deck on both sides of the aisle.” way to bipartisanship right is the gress, ¶ 7 Members of Con- [DEV 33]. 8-Tab money sides go. Giving lots of soft to both give that donors gress cognizant are also right way go is the from the most parties. for- nonfederal funds to both As perspective.” pragmatic Bumpers “Giving mer Senator observes: corporate Internal documents corrobo- money parties, Republi- soft to both testimony. An Eli rate Mr. Randlett’s Democrats, no cans and the makes sense Company shows Lilly and memorandum she at all unless the donor feels that he or company was concerned about a ¶ 15; Bumpers Deck buying access.” Washington listing Post article it as a com- (noting see also id. the “business Republican party. to the significant donor *303 often”). munity quite makes such donations The memorandum discusses contributions acknowledge that Individual donors also being party made at Democratic events par- money give nonfederal donors to both occurring in the near future. The memo- special in access to ties order to ensure “[_] randum concludes with: has talked lawmakers on both sides of get to the House and we can back White ¶ Hiatt Deck 6-Tab [DEV 18] aisle. $50[,000] 100,000 by giving this to into — money dona- (testifying “[p]eople give soft pleased DNCsays they would be they want to parties tions to both because 48]; this.” 69-Tab [DEV ODP0018-00463 (the they regardless make have access sure Wash- see also id. ODP0018-00461 House, filling who’s in the the Sen- article), White (pho- ington Post ODP0018-00462 seat, representing Congressional handwrit- ate tocopy part of the article with ¶ district.”); [DEV Buttenwieser Deck 23 stating upset. “Dems are Calls ten note (“I aisle, am aware that you 6-Tab some soft side of the need to fear that 11] donors, money corporations, you may as some a if penalty you such suffer don’t major all, give give. substantial amounts to both First of hard to get it’s atten- my political parties. your Based observa- tion for if you’re giving. issue tions, Then, they typically they you’ve do this because once play decided to agenda they money game, you have a business want to to worry have about bets, imbalanced, hedge they get being especially to ensure access if there’s bipartisan to office holders on the issues that are in control or influence Wash- important fact, to them. This occurs at ington, usually which there is. levels.”); 1990’s, during national and state Geschke Decl. it became more and ¶ (“In view, my acceptable someone, 6-Tab more saying [DEV 14] donors to call give large money you who of soft gave person, amounts to saw he to this he so major parties probably hedging both are give you person’s should also to or the in trying get They their bets to influence. opponent. Referring fi- to someone’s may feel that party influence with one is nancial activity arena limits, not sufficient to achieve their clearly financial or used to be off and now it’s policy goals, especially power now that increasingly common. balanced.”).
Congress pretty evenly is ¶ Randlett Decl. 12 [DEV 8-Tab 32]. political parties 1.80 The aware 1.80.1 maintain Plaintiffs that the rec- practice, this as evidenced an Ohio Re- ord “establishes that in- organizations and publican Party “Why document titled Peo- may dividuals give parties to both because Give,” ple which lists “so that they will they actively desire to be involved have access to whoever winner” as political process.” Proposed RNC Find- one reason behind contributions. RNC ings (citing of Fact Bello Dep. at 39 l.H], OH 0418778 [IER Tab The record [stating that it is “traditional” for PhRMA they demonstrates that parlayed have “support the convention activities for knowledge leverage into they use to Republicans both and the Democrats” be- pressure donors who given to the good participants”] cause “we are civic other give to theirs as well. CEO Dep. Herrnson65 at 495 [DEV 65] [ac- explains political parties Randlett how the knowledging possible” “it is that “donors advantage take of this situation: money provide money of soft you’re [I]f giving money lot of soft parties they support because some mem- side, one the other side knows. For bers of ... party, one and some members many economically-oriented donors, of another party”]). This self-serving side, there in giving only risk one statement of a representative PhRMA because the other may side read Dr. acknowledgment Herrnson’s that a through reports hypothetical FEC and have staff or a possible, scenario support was friendly lobbyist call and indicate that the RNC’s contention “organizations someone with interests before a certain may give parties individuals to both committee has had their contributions because desire actively to be involved the other side They’ll noticed. get political process.” The extensive message that basically asks: you testimony “Are and documentary evidence dis- *304 you sure supra, however, want to be giving only to one cussed pri- shows that the side? you Don’t want to have friends on mary why reason entities and individuals both sides of the If your do aisle?” give parties inter- to both is to ensure access subject ests are anger from Moreover, the other to federal lawmakers. interests 65. Professor Paul experts. Herrnson is one of Defen- dant’s process targeted informally races and credited in the participating in members, obtaining legisla- in access to soft-money interest contributions to are neither incom- to influence them parties tors and section 527 committees con- mutually patible nor exclusive. members, expendi- nected to and direct campaigns. tures on ‘issue ad’ Linking Evidence Donations Empirical Corruption “ways Id. at 34. Mann concludes that the (and potential and means of influence cor- in case Experts testifying this
1.81 ruption) are much more diverse than those study attempting to statisti- agree that no scholarly in re- investigated early empirically link donations to cor- cally or Many search.” Id. at 34.66 of these stud- flaws. by federal officials is without ruption However, uni- also suffer from the fact that the inter- even if these studies were ies versally accepted, legislative is clear that actions between donations purposes See, utility limited for the e.g., would be of action are difficult observe. Exam, expert As Defendants’ Thom- 31]; of this case. Cross Vol. [JDT Sorauf notes, of this research as Mann (for “[m]ost Appendix III more analysis see also between examined the connections has studies). of these (a for inter- surrogate contributions PAC Summary in money) and votes the House ested quantity 1.82 The immense testimo- Expert Report Mann at 32 Senate.” in documentary nial and evidence the rec- However, 1-Tab as Mann ob- [DEV 1]. large ord demonstrates nonfederal serves, there are provide special contributions donors access re- myriad ways groups to influence federal lawmakers. This ac- beyond or are denied favors roll- ceive by cess is shown to be coveted these do- express public can call votes. Members provides opportu- nors because it them the support opposition legisla- in various nity to have their voices heard and to amendments, venues, tive offer mobilize legislation policy matters of influence support, help place items on or off the action, Testimony lobby- concern to them. speed delay pro- agenda, ists, donors, lobbyists. They major special vide access to lawmakers requests. officials, decline each of these can also as well as internal documents, corporate political party and (citations omitted). addition, at 33 Id. expect to receive this shows donors that the Mann notes access, expectation that this is fostered currency of ex- campaign contributions lawmakers, political parties and federal beyond contributions to tends well PAC provided special and that access is fact campaign members’ committees. These evi- major Corroborating donors. if individu- include brokered not bundled money dence is the fact that nonfederal contributions, al contributions to leader- political parties, members, give donors often to both ship PACs controlled con- cases, many parties tributions to and candidates which demonstrates Buy Congressional Votes? Evidence 66. Mann notes that where the variables of ests "[p]arty, ideology, constituency, public Legislation). Paper mass Services from Financial opinion president signifi- and the .... are less delivery (prepared at the 2002 Annual cant, group there is evidence that interest Meeting Science As- American Political contributions, particularly junior members sociation, Boston, August September), —1 Congress, have roll call votes— influenced Proceedings Web available from the APSA regulation.” example, on services financial org/Site/pa- http://apsaproceedings.cup. site: Report Expert at 32-33 1-Tab [DEV 1] Mann StratmannT.pdf.2002. pers/022/022023 Stratmann, Special (citing Can Inter- Thomas *305 political system. donations have to do the large less This fact has not nonfederal than with obtain- political philosophy general public, been lost on the as is ex- The power. record also ing access plored infra. the best method of ob- makes clear that Perception Corruption Public of to federal taining special access lawmakers 1.83 The record demonstrates that the donations, large nonfederal through public believes there is a direct correlation rather than smaller donations under between the size of a donor’s contribution regime. finance campaign political party to a and the amount of political parties have taken advan- to, on, access and influence the officehold- special of donors for tage desire political party ers of that donor structuring their entire fundrais- by access enjoys thereafter. programs larger to entice ing donations 1,300 poll 1.83.1 A research of adult promise
with the of increased and more by prominent Americans conducted two intimate access to federal officials. The political pollsters, Mark Mellman67 and political parties pressured have also do- Wirthlin,68 Richard public finds that donations, playing off give nors to donors’ perceives that large having donations as a fears of denial access retri- corrupting influence on federal officehold- record it bution. From this is clear that donations, particularly Report ers.69 See Mellman and large unlimited Wirthlin contributions, corrupted nonfederal [DEV 2-Tab 5]. 67. Mark Mellman "CEO of The campaign Repub- Mellman and in 2001 was one of four Group, polling consulting a firm.... University's licans awarded American 'out- helped guide campaigns Mellman has standing campaign contribution to consult- Senators, some fifteen U.S. over two dozen ing.’ year, designated In the same he was Governors, Congress, Members of and three 'Pollster of the Year’ the American Associa- as well state as numerous and local officials. tion of Political Consultants.” Id. at 3. The addition, variety Mellman works with a of Washington prince Post named Wirthlin "the public organizations corpo- interest ... and pollsters” George Gallup, Jr. said rate clients ... He has served as a consultant very Wirthlin is "one of the best at our craft.” News, politics presidential on to CBS de- Id. PBS, analyst contributing bate analyst Hotline, daily for The National Journal's survey period 69.The was conducted over a briefing politics, currently and is on the days (August through September five faculty George Washington of The Universi- 1, 2002), pollsters average and the made an ty’s Manage- Graduate School of Political dialings per telephone 4.58 number in the Report ment.” Mellman and Wirthlin at 2 sample sample set in order to ensure that the [DEV 5]. 2-Tab representative. was See Mellman and Wirth- Report lin at 22-23 2-Tab [DEV 5]. The
68. Richard Wirthlin is "Chairman of the study’s percent, contact rate was 38 more Worldwide”, Board of strategic Wirthlin industry average than double the per- of 15 opinion research firm he founded in cent. Id. at 23. The rate of refusal of the top companies which now is one of the in its respondents polled who refused to be was perhaps field. Wirthin is best known as Pres- range within the normal for a Reagan's strategist ident random tele- pollster.... phone survey Report conducted in the United Mellman and Wirthlin States. 2-3 2- [DEV 5], pollsters steps Id. The widely respected Tab took several to avoid He is in the "field of Exam, 24; bias. Id. at social science research also Wirthlin Cross and one of this coun- try's (explaining respected political pollsters steps at 40 that the most took business strategists.” by randomly strategist ordering ques- Id. Wirthlin "was avoid bias chief tions, sweeping presidential sequence developed two of the most "so that there is no history victories in the question may, of the United where always States. one if asked order, In 1981 he was acclaimed Adman of the ques- Year the same the second affect[] tion.”). Advertising Age for his role margin sampling The statistical *306 (81%) party or political to their or more “[a] conclude that and Wirthlin
Mellman $50,000 more of paid believe for or worth majority of Americans who significant (80%). to contributions large political who make ads on radio TV those that major impact on contrast, have a parties in four Americans political By only one by federally elected (24%) made the decisions Congress that a member of think addition, Mellman officials.” opinion of someone likely give is to many Americans believe find Wirthlin at special consideration.” Id. like them big contributors of these that the “views than do the weight carry more sometimes and Wirthlin Re- 1.83.1.1 The Mellman interests best
views of constituents or public’s under- port did not measure 2-Tab 5]. Id. country.” [DEV system, finance of the standing campaign poll include: findings of their major The respondents if under- did not ask (cid:127) of Americans percent Seventy-seven nonfederal the difference between stood political big contributions believe Exam, Cross and federal donations. See impact have at least some parties Mell- 22]. at 31-35 Vol. [JDT of Mellman govern- by the federal made decisions poll purpose that the man testifies percent thought big Fifty-five ment. perceptions. public’s measure the was to impact; great had a deal of contributions expert, Plaintiffs’ According Id. at 31. had such donations percent thought not Q. Ayres, public does Whitfield impact. Id. some between federal understand the distinction (cid:127) percent of Americans Seventy-one aware and is not and nonfederal donations some- Congress members of “think that regulations. campaign finance vote on an issue decide how to times ¶ 8(a). Shapiro, Dr. Report Ayres Expert to their big based on what contributors Defendants, responds expert an want, if what it’s not political party even detailed not need public does [t]he want, or people in district most their ... the nuances of ex- knowledge about it’js they think is best if even what regulations, and isting campaign finance country.” at 7. for the Id. regulations these the extent to which (84%) (cid:127) think that “large majority A opin- strong to form enforced order likely will be more Congress members finance. The campaign ions toward money to give to those who to listen politi- how easily public can understand to their response political access can cal donations lead donations.” Id. large solicitation parties and influence—how those pay will attention politicians (68%) (cid:127) of Americans two-thirds “Over The parties. money to the give who politi- contributors to big ... think that the motiva- long questioned public has block decisions parties cal sometimes distrust of, responded tions im- that could government the federal unions, spe- corporations, toward labor Id. at 8. everyday lives.” prove people’s generally, and interests more cial (cid:127) think a four in Americans five “[AJbout espe- public itself. government likely Congress would Member by these animated cially troubled opinion to the special consideration give blatantly problems when become individual, group, corpora- issue incidents and $50,000 widely publicized visible tion, donated labor union who be with- error, is, opinions Americans will actual sampling ver- due to the error reported in points of those percentage every in 2.7 pollsters American if the talked sus Id. at 22. States, the time. study percent of points: percentage 2.7 the United *307 involving opinions as those Enron tions and scandals such toward the substantial money large and the soft donations to political donations in the form of soft mon- Party the Democratic and the roles ey political parties?” contributions Id. Administration, played by the Clinton 3, According Shapiro, poll at results Clinton, Bill and Vice Presi- President “public opposed large show that has A1 dent Gore. unregulated money soft contributions to political parties Shapiro Report public [and] Rebuttal at 9 5-Tab that the has [DEV (citations omitted). Ayers by large 2] Mr. also been money troubled soft dona- addition, comments his research finds that “ev- Shapiro tions.” Id. at 13. ery conclusion that Wirthlin-Mellman poll concluded that the data showed “that report reached about [large’ ‘big’ contri- proportion public a substantial has applies butions and contributors equal perceived corruption in political sys- new, money to the hard in force limits tem, and that we have been losing Ayers Report BCRA.” Rebuttal at [RNC ground.” Id. at 11. Vol. Mr. notes that what VIII]. Wirthlin 1.83.3 Former and current Members of Ayers’ Mr. research demonstrates is that Congress testify that their constituents be- eyes “in most Americans ... large lieve that these par- contributions to $50,000 large” is considered contribu- [a] present appearance ties corruption. tion, but comments that if that is the ease Simpson Decl. 9-Tab [DEV 38] then the nonfederal given donations in the (testifying during that “[b]oth and after $50,000 past which far exceed would be Senate, in my service I have seen that larger. viewed as even Wirthlin Cross parties citizens of both cynical as about Exam, 32], 148,155 And, [JDT Vol. “as government they have ever been be- scale, you up the going move there’s to be cause of corrupting effects of unlimited pretty close to unanimity on what consti- donations.”); soft money 144 Cong. S. Rec. big tutes the form of campaign contribu- (Feb. 1998) (statement S1041 of Sen. Exam, tions.” Mellman Cross at 69 [JDT Baucus) (stating “[p]eople'tell they me 22], Vol. Congress think that cares more about ‘fat 1.83.2 The results of the Mellman- special cat in Washington’ interests than study Wirthlin by are confirmed the re- the concerns of middle class families like Shapiro, search of Robert professor theirs. they Or tell me think the University, analyzed public Columbia who political system corrupt.”); Cong perception money of nonfederal contribu- 2000) (statement (May Rec. S4262 political parties tions to all reviewing Feingold) Sen. (stating appear- that “[t]he publicly opinion survey available data corruption.... ance of We all know it’s Shapiro Expert Report sources. at 7-8. there. hear it We from our constituents survey Shapiro [DEV 2-Tab data 6]. regularly. press, see it in We we hear comprised mostly examined was of tele- news.”); about on the Letter Rep- phonic opinion polls. Id. at Specifically, resentative Asa Hutchinson to RNC Chair- Shapiro on “public opinion focused data 9, 1997, July man Nicholson dated responses
based on to surveys that were (declining ODP0014-00003-4 to support fielded pub- since 1990” to determine the proposed Nicholson’s campaign finance lic’s answers to several questions, includ- legislation because Hutchinson had to bal- ing questions two which read: “To what ance Nicholson’s concerns “with a concern degree public perceived corruption has the my politics constituents which is that their influ- connected to the influence of money politics large being ence campaign donations?” diminished and “What public’s percep- have been the money abuses of soft .... If our party is ,and pre- progress fi- then is no meaningful campaign there enact unable to scription we’re in a ter- drug program. while control There’s nance reform to act I this failure then believe Congress, appearance rible there. There’s a terri- and create cynicism in more will result appearance Drug when the Generic ble ef- in our lack of confidence growing Bill, passes by through 78 votes forts.”); Meehan Deck Congressman Senate, brought is not allowed to be *308 ¶¶ (stating RNC [DEV 4] 15-17 66-Tab shortly huge in the House after a up in feeling my [Con- strong that “there is a with multimillion con- fundraiser dollar is cor- money that soft gressional] district pharmaceutical drug tributions from influenc- political process and rupting the opposed to the companies legis- who are that My constituents feel ing elections. lation. large donations to the commit- very Dep’. Vol. [JDT 18] McCain 174-175. tees, twenty-five, fifty the order of that Feingold Senator commented from one thousand dollars one hundred members of the National Consumer individual, corrupting have a company or Coalition, Bankruptcy industry lobby- an ¶ influence.”); 8- [DEV Rudman Decl. 13 major ing group up made of the credit (“The only not money system soft 34] Tab card such as Visa and Mast- companies process, it breeds legislative distorts the representing ercard associations public. deep cynicism in the minds of retailers, big gave Nation’s banks and in experience own my I know this from in nearly million contributions to $4.5 and voters over the talking to citizens parties candidates.... Some years.”). from com- campaign contributions these by groups made Large 1.83.4 donations panies carefully to be timed to seem pending an interest persons very effect. It is hard have maximum activity, corrupting, even if not
legislative argue largess that the financial espe- corruption, appearance create an do with its inter- industry nothing has in close cially given the donations are when bankruptcy est in consideration of our bills of proximity legislative action on example, very on the legislation. For McCain interest to the donors. Senator passed the House day [in 1998] states: and sent it report year last conference pend- [generic drug] bill was While Senate, Corporation gave MBNA to the 2002], and NRCC held ing the NRSC [in $200,000 money contribution soft gala fundraiser to raise almost large Republican Senatorial the National largely money soft contri- million $30 Committee. butions, portion phar- a substantial from (Nov. companies. According 5, 1999); maceutical Cong. 145 Rec. S14067-68 largest reports, among the newspaper see also Dep. 6]. at 67 Vol. Feingold [JDT gala contributors to the were GlaxoS- $200,000 given [was] contribution “[A] ($250,000), PhRMA PLC mithKline up marked a bank- days after House ($100,000), ($250,000), Lilly Pfizer Eli & OK, illegal. by MBNA. ruptcy bill ($50,000) ($50,000), Bayer AG Go. corrupt, Maybe it is not even Conceded. ($50,000). Merck & Co. certainly appearance cor- but it has ¶ many people.” I think to 8-Tab to me and [DEV 29]. McCain Deck ruption 1999) (Oct. 14, Rec. Cong. S12593 appearance corruption] [of [T]here’s (statement Feingold). of Sen. Senator contribu- when there’s a million dollar ap- “[t]he also stated that Feingold has dollars tion Merck and millions of rampant our held, corruption is pearance of you last fundraiser that your ¶ (“It is 6-Tab [DEV 17] senfeld Decl. 19 every issue it touches system, dona- large money soft Cong. Rec. S2446 obvious to me that us.” comes before 2001) (statement (Mar. access, Fein- they of Sen. can influence buy tions do Cong. Rec. S3248-49 corrupting gold); policy, see also and that Levin) 2001) (statement of Sen. (April and to donors. officeholders to federal corrup- appearance of (“[P]ermitting the donations to Additionally, these unlimited our very foundation of tion undermines greater a far risk political parties pose sys- people democracy trust to candi- money hard contributions than do —the tem.”). if not the appearance, dates of at least the sub- The Defendants have also influence on fed- special 1.83.5 interest reality, of re- press number of a substantial 7- mitted Deck 15 policy.”); [DEV eral Kirsch money large soft suggest ports (“[T]he of financ- system current 23] Tab of cor- appearance present donations permits corruption to ing federal elections *309 See, Koszczuk, e.g., ruption. ¶ Jackie flourish.”); [DEV Deck 30 Soft Buttenwieser Hill Loudly Capitol on Money Speaks (“Large money soft donations 11] 6-Tab 27, 1998, Season, Q., at Cong. June This appearance of influ- can create at least the Abramson, A 1736; Money Buys Lot Jill ”). policy making... ence on federal Times, Access, N.Y. Nov. More Than major survey congressional A national 4; Money Mayer, Inside the Jane in 1997 found that a donors conducted Yorker, 3, 1997, Machine, The New Feb. campaign fi- majority were critical of Atta, Fritsch, 32; and Jane Don Van Jr. supportive of reform. system nance $25,000 Access to Con- Buys Donors “Best Powell, Green, Herrnson, Lynda Paul John 27, 1997, 1; Times, Aat gress”, N.Y. Jan. Wilcox, Congres- Individual Clyde Report at 19- Krasno and Sorauf see also Wealthy, Campaign sional Contributors: ¶ 2]; 1-Tab Primo Rebuttal [2 20 [DEV (1998), Conservative Reform-Minded news media rein- (stating “[t]he that PCS] 101-0282, 110]. 45-Tab [DEV FEC money distorts [that forces this view percent surveyed of those be- Seventy-six by portraying politi- political process] ei- campaign system finance is lieved being by campaign driven process cal replaced,” or and needs to be ther “broken ....”). Senator Rudman contributions changed.” problems and needs to be “has states surveyed sup- those Three-quarters Id. reports every day, press on Almost large money’ a “ban on ‘soft dona- ported public being that are important issues tions.” Id. at 0291. Inevitably, the Congress. considered in press a connection between an expert Raja *310 provide the record surveys entered into in fective ads the effort to elect Vice- large powerful proof presence that the Gore, President such as NARAL. The appearance create the of cor- donations assumption was that the funds would be majority in the ruption eyes the for television ads or some other activ- used point Although Plaintiffs out Americans. a difference in the ity would make limits are con- that BCRA’s new federal ¶ Kirsch Presidential election.” Decl. by large Americans to constitute sidered 23]; 7-Tab Buttenwieser also [DEV contributions, remains that non- the fact (“I estimate [DEV 11] Decl. 6-Tab were made under FECA federal donations decade, that, I given over the last have much and therefore would be larger often groups interest en- roughly million to $2 corrupting. by seen Americans as more activity, including in non- gaged Major participate and witness donors who I profit corporations.... [because believe fundraising nonfederal believe these they important can have do] the field work very ap- least an present donations the I political campaigns. on decide effects pearance corruption. Members of Con- primarily to groups give which of these cynicism have seen first-hand the gress own, though I have also discussed my have large, unregulated these donations groups personnel with DSCC constituents, of their bred the minds activities.”). grassroots at these effective acknowledge appearance the of cor- RNC, NRSC, 1.85.2 The and NRCC ruption large inherent contributions all nonfederal donations to the have made legislation interested in as made those Committee, an inde- Right National to Life legislation being considered fed- the can- Republican that assists pendent group clear eral lawmakers. While it is not through advocacy” activities. didates “issue public the understands the whether or not to Life Pis. To Defs.’ Resps. Right Nat’l campaign finance exact contours of the 5]; Interrogs., No. 3 10-Tab [DEV First money the system and nonfederal/federal RNC0065691A, RNC0065691 distinction, see also large con- it is clear view (October 18, 1996, let- Supp.-Tab 3] corrupting. [DEV tributions as “[i]nfrequently, attesting that official National State Republican ter from Right to contributions to National also makes small DNC Elections Committee donation, $500,000 stat- non-profit voter enclosed groups Life outside such efforts to continued “[y]our ing part organiza- out the vote registration get public American and inform educate minority their efforts on focusing tions the NRSC’s After recognition”). deserves communities, assist with low-income Sen- donation, then-NRSC Chairman empower- work in important groups’ these Post Washington told ator Phil Gramm citizens.”). minority and low-income ing because made this donation that the Right The National Work 1.85.4 used on behalf would be the funds knew from advertising for its “pays Committee Republican candidates specific of several admits that certain treasury, [and] its “made a Senate, he had saying for the Executive Congress Members money help provide some .to decision.. generally encour- Branch Officials key in some states voters pro-life activate Right support for aged financial pivotal to the elec- they would where and, sup- for the specifically, cause Work 5975; RNC 0373365 see also tion.” Id. these advocating of NRTWC port (letter Republican from 31] Tab [IER issues, issue through lobbying as well as Committee to Elections National State Rt. advertising.” Resp. Nat’l Work notifying American Defense Institute Comm, RFAs, $300,000 First No. [DEV donation to Defs. group of component” to as- “nonfedera! RNSEC’s 12-Tab 2]. to educate group’s “efforts sist the Congress Members of assist 1.85.5 living overseas of
inform Americans pur- groups raise funds for nonprofit 0373370, RNC responsibilities.”); civic elections. Con- affecting national pose (three Ameri- letters to signed Ric Keller Club gressman all dated in October Tax cans for Reform fundraising July letter dated Growth $1,000,000, providing group *311 own the Club for his 2001 which credited $2,000,000, $600,000 in rec- donations poten- success and assured 2000 electoral “efforts to educate ognition group’s of the be used money that their would tial donors Thomp- public”); the American inform of Con- “help Republicans keep control to (majority re- Report at 4013 son Comm. 5]; 130-Tab gress.” [DEV CFG00208-10 (“In contributions port) to direct addition (let- 129-Tab [DEV also 2] see NRW-2812 nonprofit groups, the from RNC to Pete ask- Congressman ter from Sessions helped to leadership of RNC senior to meet with ing recipient National coalition’s non- many raise funds personnel re- to Work Committee Right (minori- at 5934 profit organizations.”); id. “stop to the Committee’s effort garding (“[T]he received evi- ty Committee report) of Con- Big seizing from control Labor political parties indicating that both dence November”). Nonprofit groups gress in that make suggested supporters to federal influenced outcome of sympathetic groups”), contributions ¶¶ 15, 19 advocacy’ groups Pennington Decl. (“Tax-exempt elections. See ‘issue systematically were (discussing and other conduits the Club for 31] 8-Tab [DEV campaign fi- used to circumvent federal impact Congressional the 2000 Growth’s laws”.) District); nance Eighth in election Florida’s ¶ (“Mem- (Bumpers) ? Findings also has also made contri- DNC 1.85.3The infra that suggest parties sometimes bers groups to be used on nonprofit butions to make donations corporations or individuals that affect federal elections. activities ¶ (DNC run ads.’ ‘issue groups to interest 8-Tab [DEV 28] Marshall Deck Bills, 26, 2002, paign from Finance Reform Feb. campaigns benefit whose Candidates help of appreciate congressional at 6 29-Tab “For greatly [DEV 3]. these ads leaders, groups.”). groups appear these to collect about money campaign as much as their commit- testifies that most 1.85.6 Ms. Bowler leadership much tees and often as as their support organized that are committees Id. at 9. PACs.” in oppose ballot measures California 501(c)(4) committees. She organized as basically 1.85.7.1 “There are two kinds all the ballot mea- virtually states politics: in of 527s active those that engage sure committees California (which promote politicians exist certain get- can characterized as activity that 527s’) ‘politician Public calls Citizen under Bowler activity out-the-vote BCRA. ideas, promote those that exist to certain This fact is undoubted- PCS]. Decl. 30 [3 partisan interests and orientations in elec- summary judg- ly known to the CDP as campaigns.... gener- tion Politician 527s politi- the state against ment was entered ally money serve as soft arms ‘leader- its nonfederal contribution cal PACs,’ ship which incumbents to aid use which was not a ballot measure committee other candidates and otherwise further spent reported to the FEC and almost campaign their own careers. Like the activities. entirely registration on voter Congress, committees of members of lead- (E.D.Cal. CDP, See FEC v. No. S-97-0891 ership only money’ can PACs receive ‘hard 1999) (order summary granting Oct. contributions, which in amounts are limited Burrell, Judge E. Jr. judgment). Garland may directly corpora- not come found of the Eastern District California tions or unions. Politician 527s use their that on of this conduct the CDP the basis sponsor money mainly soft events and the allocation had “violated the FECA careers, promote help create a own by funding generic rules voter drive ‘farm team’ of state and local successful ex- targeted Democrats.” Id. at 15. This candidates, spur partisan ‘get-out-the- ample that ballot measure commit- shows (GOTV)’ vote efforts.” Id. efforts engage tees voter mobilization Many donors to Member 527 1.85.7.2 elections, see also Find- that affect federal intent of in- organizations donate with the ¶¶ 1.32, 1.28, non- permitting and that ings example, fluencing federal elections. For and solicitations to such federal donations early Peter Buttenwieser testified that cir- groups political parties would allow $50,000 organiza- to a 2002 he donated cumvent BCRA. *312 Democrats, tion, ran Daschle broad- “Virtually every member of Con- 1.85.7 supporting in Dakota Sena- cast ads South leadership position has gress in a formal response in to the attacks tor Tom Daschle all, group.... 527 In Public his her own Mr. against that had made him. been found 63 current members Con- Citizen willing “I to do Buttenwieser stated: was Another gress who have their own 527s. I attacks were this because felt that the in Congress 38 members of have stake Tim hurting Daschle and Senator Senator Black Congressional [] Caucus campaign re-election as well.” Johnson’s influen- groups popular 527 are also with ¶ 11]. 20 6-Tab [DEV Buttenwieser Decl. tial committee chairmen.... congressional (includ- Twenty-seven 1.85.7.3 industries increasingly popular are with And 527s executives, individuals, associ- ing such want to Congress, other members of who ” industries) contributed ated with the Public be more influential.... Citizen $100,000 just single year in to Watch, or more Leaders’ Congress Congressional These top politician groups. Money Accounts Show Need for Cam- Soft groups organiza- participating all these percent of for 52 accounted industries Revenue Code section Internal politician 527s. tions are top 25 to the contributions were: contributing organizations. top 10 industries & invest- securities computers/Internet, ¶ 9. Erwin Aff. firms, telephone utili- ments, lawyersAaw are elections state Since California’s TV/movies/music, estate, air ties, real elections, time as at same federal held building tobacco, gas, and oil & transport, affect fed- in will efforts California GOTV corporate Top and equipment. materials elections, if these effects even eral T, AT & SBC Com- included contributors ¶ Findings 1.28. supra See unintentional. Morris, In- munications, Mortgage Philip BCRA, to prior clear that 1.86 It is America, Clifford Companies surance funds parties donated nonfederal political American Offices, Tobacco and Law U.S. used those which then nonprofit entities to Overall, percent of total only 15 Airlines. ways federal funds affect elections to politician 527’s top contributions that donat- political party $5,000. assisted of less than in amounts came Furthermore, can- federal money. and unions ed committees party Democratic $100,000 top nonprofit to the over didates have solicited funds contributed also fact, Democratic them in politician corporations 527s. assisted DNC) (mainly the were that the committees note campaigns, and donors politician contributor largest single candidates parties and (81 money per- all of this 527s. Almost specific donate to them to have directed cent) Black Congressional to the went affect federal in order nonprofit groups Congress Citizen 527. Public Caucus shows is that the record What elections. Watch, Leaders’ Soft Mon- Congressional of this bud- framers were aware BCRA’s Fi- Campaign Need ey Accounts Show a gap- become practice which would ding Bills, 10-11 Feb. nance Reform by the cam- if ing loophole not addressed 3]. 29-Tab [DEV light legislation reform paign finance to Kathleen According Bowler 1.85.8 col- affecting the provisions other BCRA’s CDP, include organizations Section funds of nonfederal lection use has The CDP contributed political clubs. political parties. national and state very [them] “to assist groups to these Group on Interest The Effect of BCRA organizational basic administrative Activity ac- costs, registration voter as well as for little of the Experts expect that 1.87 at- Bowler Decl. Bowler tivities.” money nonfederal donations “traditionally en- groups that these tests be made by BCRA will now parties barred activity, they GOTV gaged grass-roots Mann Cross groups. to interest in con- in direct activities are not engaged Exam, (“I think 17] [JDT 164-65 Vol Simi- elections.” Id. nection with federal produce a tremendous going [BCRA] larly, ground television shift resources cycles pro- has election many CRP for *313 mobilization, get registration, activities-— regis- paid partisan voter vided and Yes, will some of this be out the vote. tration, Operation Bounty its through Report groups.”); interest Green Rebuttal Republican County program (“I that much doubt 1] at 19 5-Tab [DEV Committees, Republican volun- Central parties currently goes to money that Republican candi- organizations teer go instead to money in the form of soft will may and federal office dates for state organizations. tax-exempt other PACs and supplementary participate, through parties is political to money donated paid drives. Most voter registration given eye special with an toward the groups favors replace could never political par- ties). only political that party can deliver ubiquitous dint of its role in all levels of 1.90 supply Plaintiffs the Court with government. No interest group ap- can testimony showing prior BCRA, that to
proximate scope polit- or influence of a interest groups, political unlike parties, party; ical no interest group has the same were rarely required public to make disclo- presence in the politi- lives or careers of donors, sure of their receipts, disburse- cians. It therefore unlikely seems that ments, and activities. See Beinecke70 money seeking access will in apprecia- flow ¶¶ 3, Decl. (prior [RNC Vol. IX] to quantities ble propitious to much less in- BCRA, National Resources Defense Coun- destinations.”). terest group (NRDC) cil did not have to file disclosure forms with FEC or disclose to public 1.88 group politi- One interest and one foundations); amounts donated by predict cal consultant that Galla- some nonfederal ¶ gher Decl. 15 (prior [RNC Vol. money XIII] donors will to money donate their BCRA National Abortion and Michelman, Reproduc- interest groups. Kate Presi- (NARAL) tive Rights Action NARAL, League was dent of has stated that nonfeder- required to track whether it al donors received seeking people to “elect who persons donations from embody outside United their values will looking be ¶ States); Sease71 Decl. NARAL, [RNC Vol. groups [donate to] like which do BCRA, (prior XIX] Sierra political Club was not serious work and are seasoned generally ¶61 required report operatives.” identity Gallagher Decl. [RNC (“If individual donors to any government enti- XIII] Vol. [nonfederal can’t donors] ¶ ty); see also Expert Keller72 Report give parties to the ... going [RNC Vol. (stating VIII] Michelman)). his under- find other means.” (quoting standing Lux, activities of Michael President and Co-founder of groups interest “are far less transparent Progressive L.L.C., Strategies, parties”). than those of firm, consulting expects testifies that he will organizations “[t]here be who will may While this prior been the case be able to raise more money because folks BCRA, provisions BCRA contains ad- give who used to party to the will now give dressing the lack of transparency in inter- groups. to outside hopefully And I will group political est activity. See BCRA involved in many projects,” of those al- Therefore, §§ testimony de- though “obviously you never know the scribes conditions under a different cam- consequences specific unintended pieces paign finance regime and does little to legislation”. Lux Dep. at 50-52 and Ex. assist the Court determining impact Vol. [RNC 16]. campaign any finance disclosure of hypothetical future increase in interest 1.89 One RNC official testifies that she group activity. does not groups believe interest can re- place political parties. B. Dep. Shea Republican 1.91 State officials (agreeing [JDT 29] Vol. interest comment that interest groups engage 70. Frances Beinecke is the Executive experts Director 72. Morton Keller is an for the Plain- ¶ of the NRDC. Beinecke Decl. 1 Vol. [RNC tiffs. IX]. Legislative 71. Deborah Sease is the Director of the Sierra Club. Sease Decl. 1 [RNC Vol. *314 XIX].
522 numbers) (over tar- among identification, 1996 get- turnout voter registration, voter York, in New percent of- activities, lobbying groups geted and out-the-vote ¶ percent in [RNC Decl. and ficeholders, percent Florida Dendahl73 ¶ 11 [RNC Decl. VIII]; Exam. Ex. 3 [JDT Bennett74 Green Cross Vol. Missouri. read about has (declaring he 9], effort, which cost VIII] Vol. The NAACP’s Vol. me- in the activities group million, such interest was funded approximately $10 Benson, dia). the Chairman Bruce million donation aby single large part $7 Party predicts Republican Colorado 20, Ex. Id. at anonymous by an individual. fill the void will Groups Interest “Special Exam, at [JDT 73-74 3; Cross McCain Party in Political reduction caused 18]. Vol. report not have to they will activity since Mary Galla- According to Jane 1.94 any contributions the unlimited President, Vice NARAL’s Executive gher, spend.” and able raise they will be source and million spent NARAL $7.5 ¶ VIII]. Vol. [RNC Decl. Benson pro-choice voters. 2.1 million mobilized Benson’s assessment that Mr. appears It phone million 3.4 also made group new BCRA’s into account not take does pieces of elec- million mailed 4.6 calls and expen- for certain requirements disclosure ¶ [RNC Decl. 24 Gallagher tion mail. See See groups. by interest made ditures XIII], Vol. §§ BCRA have BCRA I find the will 1.95 effect Re- the RNC’s Peschong, 1.92 John activity unclear. While group on interest for the Western Director gional Political that some in the reveals testimony record cy- election “In recent Region states na- to the that went donations nonfederal of the cles, that some I observed have FECA, and parties under tional such as the AFL- groups, major interest BCRA, gowill barred under now NAACP, re- NEA, CTA, CIO, provided has no witness groups, interest issue broadcast reliance on duced their how much nonfederal as to an assessment to grass- reliance advocacy, and shifted to interest money will be redirected Pes- activities.” mobilization roots voter Furthermore, re- the evidence groups. ¶¶ VI]. Vol. [RNC 13-14 chong Decl. with re- transparency lack of garding the weeks of the closing During 1.93 activity group interest gard to National Vot- campaign, the NAACP new BCRA’s into account does not take 200,000 people, registered Fund over er apply to such requirements disclosure 40,000 field, contacted put in the 80 staff helpful to activities, is not and therefore promoted get- target city, people in each the Court. hotline, newspaper three ran out-the-vote issues, separate Fundraising made several print Party ads State banks, telephone operated mailings, direct Party Fundraising By National Officials organiza- to affiliated grants provided Parties State & Federal Officeholders Exam, 15-20, tions. Green Cross officials, Exam, According RNC 1.96 9]; Vol. McCain Cross [JDT Ex. 3 fundraising provides RNC financial 18], re- The NAACP Vol. [JDT at 70-72 and local candidates to state assistance mil- turned out program ports that variety parties through means. black voters increased lion additional of the served as Chair Bennett has Robert Chairman 73. John Dendahl is State Party 1988. Bennett Republican since Ohio Party Republican Mexico. Dendahl New VIII], ¶ VIII], 1-2 [RNC Decl. Vol. Vol. [RNC Decl. 1 *315 ¶ VIII]; See Dendahl Decl. 10 Vol. officers, [RNC RNC the majority of which in- ¶ VI]; Duncan Decl. [RNC Vol. Josef- volved providing fundraising assistance ¶ 44, I]; iak Decl. 65-72 [RNC Vol. B. to state parties and local and candidates. ¶¶ V]; Shea Decl. 32-40 [RNC Vol. example, Id. For Ann Wagner was the ¶ 12(b) Raja Expert also La Report [RNC keynote speaker at a fundraising dinner Vol. (discussing VII] party sup- national for Shelby County Tennessee Re- port for parties state generally). For ex- publican Women’s Club on September ample, RNC officers have sent fundraising 2001. See RNC Exh. 301. letters on behalf state and local candi- ¶ Proposed RNC Findings of Fact dates during off-year See, cycles. election However, the Josefiak Declaration upon (RNC 0332976) (fund- e.g., RNC Ex. 292 which the RNC relies support does not its raising signed letter by Deputy RNC contention. only Josefiak states Chairman Jack Oliver on behalf of Bret “majority of trips these had signifi- Schundler’s Jersey New gubernatorial cant fundraising components them,” Jo- campaign); Decl. Josefiak RNC Ex. 1162 ¶ I]; sefiak Decl. 70 [RNC Vol. says he [RNC Vol. (fundraising signed I] letter nothing about type of fundraising ac- Haley Barbour on behalf George Allen’s complished during trips. these Only one Virginia gubernatorial campaign); Josefiak trips these 146 is documented to have (fund- Decl. RNC Ex. 1766 [RNC Vol. I] been for purposes of state or local raising signed by letter Haley Barbour on party fundraising. See RNC Ex. 301. behalf of New Jersey Republican Party); (fund- Feingold Ex. 12 Dep. Nothing prevents [JDT Vol. 6] RNC officials from raising letter from Jim Nicholson on behalf raising federal funds for state candidates. of Norm Minneapolis Coleman’s mayoral 101(a); § See BCRA 323(a); § FECA campaign). Duncan, Robert current Gen- 441i(a) § U.S.C. (barring agents officers of eral Counsel and former Treasurer of the national party committees from RNC, actively was involved in fundraising soliciting or directing contributions “that activities for Republican Party of Ken- subject are not limitations, prohibi- tucky and Kentucky state candidates. tions, and reporting requirements of this sponsored receptions He and hosted and Act.”). attended fundraising in support dinners 1.97 Senator McConnell attests that he Republican Kentucky Party. Duncan engages in fundraising activities for state ¶¶ Decl. 5-6 [RNC Vol. VI]. candidates, and local such as speaking at a prior BCRA, RNC states state fundraiser or attending a can- RNC were intimately officers and sub- ¶ didate rally. McConnell Aff. 5 [2 PCS]. stantially involved in helping state and BCRA, Under Senator may McConnell local candidates money raise in accor- attend, continue “to speak, or be a fea- dance with state and federal law. Since guest tured aat event fundraising becoming Chairman the RNC in Feb- State, district local polit- committee of a ruary Marc Racicot has made 82 party.” 101; § ical BCRA FECA trips in capacity his as Chairman to 67 323(e)(3); § 441i(e)(3). § 2 U.S.C. cites in 36 states. Virtually all of these CDP and Fundraising CRP trips have assisting involved state and 1.98 The parties present
local
CDP
CRP
candidates with fund-
raising.
regarding
evidence
their general
See Josefiak Decl. 70.
fundrais-
RNC
ing
Co-Chairwoman Ann
Dep-
activities and claim
Wagner
that BCRA will
uty Chairman Jack
adversely
Oliver have made 31
affect
revenues.
Bowl-
¶¶
trips
respectively
becoming
12, 19, 23,
since
er Decl.
35 & Ex. A [3
*316
three-judge
the
provided
has
party
non- No
and
federal
(discussing CDP’s
PCS]
into
this fact
taking
achievements,
analysis
meth-
with
panel
fundraising
present
BCRA
also
difficulties,
impact
and CRP
the
The CDP
and
account.
ods, and
Torres
fundraising);
con-
evidence
documentary
CDP
on
and
testimony
will have
¶
effect
(discussing the
PCS]
Levin Amendment
[3
Decl.
the
effect
cerning the
therefore
fundraising and
on CDP
BCRA
fundrais-
nonfederal
their
on
will have had
¶¶ 12,13,15(a)
activities);
Aff.
Erwin
¶
CDP
A [3
Ex.
Decl. 19 &
Bowler
ing. See
(discussing
PCS]
[3
at 1189
App.
& CDP
¶7
PCS]; Erwin
[3
PCS];
Decl.
Torres
activities
and
programs
fundraising
CRP’s
being
¶
to not
In addition
PCS].
Aff. 13 [3
these
have on
will
BCRA
the
effect
serious, forward-looking
of a
product
however, are
claims,
activities). These
sufficiently
testimony is not
analysis, analysis.
any
on
not
based
speculative
itas
many questions
leaves
precise and
(ac-
3]
[JDT
at 9-14
Vol.
Dep.
Bowler
evi-
example, the CDP’s
For
answers.
not dis-
that
the CDP had
knowledging
Levin
impact of the
regarding
dence
either
changing
strategies for
any
cussed
money fund-
its nonfederal
amendment
operational activities
fundraising or
its
if
amount
clear
not
raising does
make
BCRA,
requirements
adjust to the
in-
be “reduced”
it claims will
funds
with
had
talked
CDP
no one
that
$10,000of these donations
initial
cludes
respect
or consultants
strategists
any
for federal
be used
permitted to
are
change
might
ways in which
BCRA, or deducts
activity under
election
activi-
operational
fundraising or
its
either
accurate
a more
present
those sums
BCRA, and ac-
to the
response
ties
Ex.
19 &
Bowler Decl.
calculation.
that
assessment
CDP’s
knowledging
A [3 PCS].
analysis on
on an
was based
BCRA’s effect
past
affected
would have
how the law
expert Raymond
Finally, Plaintiffs’ own
at different
looking
without
fundraising
limit
that
“new rules
Raja
La
finds
raised); Er-
could
been
money
ways
present
fundraising will not
money
soft
(admitting
5]
Vol.
Dep.
[JDT
at 131
win
already constrained
parties
problem for
analysis of
an
not
did
conduct
the CRP
Raja
law.” La
under state
similar limits
fundraising or
its
change
how would
15]
148'
Vol.
[JDT
Ex. 3 at
Exam.
Cross
BCRA,
adapt
operations
dissertation).
“in
notes that
(La
He
Raja
ramifica-
“know what the
not
party does
expensive
campaigns
states where
fundraising
will be on its
of BCRA
tions”
such
major donors”
rely on
parties
where
how
not know
does
receipts, and
he
activity and
hamper party
“will
measures
was
money that
nonfederal
much of
Although state
confusion....
create some
now
will
parties
by the national
collected
weak-
middling and
adapt,
parties will
CRP);
Philp
at the
also
be directed
suffer the most....”
might
parties
er state
(testifying
[JDT
26]
at 18-22
Vol.
Dep.
However,
“[o]ne
that the
he concludes
Id
Party has
Republican
the Colorado
parties will
of is that
be sure
thing we can
to determine
analysis
no formal
done
they will
rules and
ground
figure out
reve-
political party’s
on the
BCRA’s effect
with-
for themselves
important
role
find
fund-
flow,
has
consulted with
nue
Id
regime.”
finance
campaign
in the new
different
to determine
experts
raising
at 150.
BCRA).
under
ways to fundraise
CRP’s
such,
CDP and
I find the
As
Furthermore,
the state
since
fund-
impact on their
analysis
BCRA’s
in small
donations
many
collect
parties
lacking
speculative
raising activities
as ei-
increments,
classified
could
probative value.
contributions.
or nonfederal
ther federal
II:
1.99 The amount of
money
nonfederal
Electioneering
Title
Communications
the CRP and CDP raise themselves is
that Affect
Federal
Elections
much more than the nonfederal funds they
Origins
2.1 The
of the Problem Con-
receive from transfers from the national
gress Sought to Solve With Title II
(in
parties.
*317
1171 [S PCS]
CDP/CRP
Federal law
long prohibited
has
cycle,
corpora-
2000
19.1 percent
election
of all CRP
tions and labor unions
nonfederal
money
spending gen-
came
par-
from national
eral
transfers);
ty
treasury funds in
37, 39
connection with a
[3 PCS]
CDP/CRP
(in 2000,
federal
percent
36
Supreme
of all
election. The
CDP nonfederal
in-
Court’s
money
transfers).
terpretation
was from national
FECA in a series of cases
states, however,
Ms. Bowler
beginning
that
per-
“the
1976 has limited FECA’s con-
centage of
money’
‘soft
falling into
trol over
corporate and labor union in-
category
vary
state,
would
from state to
as
volvement with federal elections. Prior to
by
well as
cycle
election
...”
BCRA,
Bowler Re-
corporations and labor unions ex-
¶
buttal Decl. 3 [3 PCS].
ploited these limitations and spent general
treasury
funds massive amounts to in-
1.99.1According to Ms. Bowler “[t]he
fluence federal elections with “issue adver-
majority of [national transfers] were for
tising” campaigns.
advocacy,
issue
although money has been
transferred
registration,
for voter
get-out-
2.1.1 In
v.
FEC Massachusetts Citi-
activities,
the-vote
and even administrative
Inc.,
zens
Life,
Supreme
Court held
for
expenses.
areWe
able to
raise
substan-
that
prohibition
corporations
on
tial amount of money for our non-Federal
labor unions using general treasury funds
activities
rely
and do not
on national party
expenditures
on
in connection
awith feder-
transfers
purposes.”
for those
Bowler
al
overbroad,
election was
narrowing the
¶
¶
PCS];
(ex-
Decl. 16
[3
also id.
12
corporate
restriction to
spend-
and union
plaining
cycle,
1999-2000
ing
“express
advocacy.” FEC v. Mas-
$15,617,002
CDP raised
in nonfederal
sachusetts
Life,
Citizens
Inc.
for
funds,
which used to fund state and local
(“MCFL”),
238, 249,
479 U.S.
107 S.Ct.
activities);
Bowler Rebuttal Decl. 4 [3 616,
(1986) (“We
2.2.3 In million discussing the 1999-2000 Limits, elec- U.S. Term mil- $20 (4%). tion cycle, the Annenberg lion Center found Id. These groups and the two type “[t]he of issue ad that parties dominated accounted for two out of every depended greatly on how close we were to (67%) three spent dollars on issue ads in general election.... Though candi- cycle. Id. (noting that other date-centered issue ads always up made a groups spent a combined million $166.2 majority ads, of issue as the election ap- (33%) on issue advocacy during the 1999- proached percent [of] candidate-cen- cycle); election Raja also La spots tered percent increased and the ¶ 20(b) Decl. & Figure 10 [RNC Vol. VII] legislative decreased, and image ads such (quoting Annenberg data and noting that *319 that the by last two months the before figures “[t]hese closely ... match my own election almost all televised issue spots data on party-based issue ads by collected made a case against a candidate.” examining financial reports filed with the added). Id. at 14 (emphasis FEC”). Overall, 2.2.4 the Annenberg Center 2.2.5In addition to spectacular the rise that concludes “[o]ver the last three elec- in candidate-centered issue advertising, ads, tion cycles the numbers groups, of experts scientists and testify that and spent dollars on issue advocacy has by the 2000 election cycle, PAC interest Id. at During climbed.” the 1996 elec- groups dramatically ran fewer advertise- tion cycle, the Annenberg Center estimat- ments that referred to a federal candidate ed that million $135 million was $150 than non-PAC interest groups. spent multiple on broadcasts of about 100 2.2.5.1 Anthony Political Scientist Corra- advertisements. Annenberg Report 2001 do found one that of the “most notable 22], at 1 [DEV 38-Tab In the next elec- direct consequences of the FECA” was the tion (1997-1998), cycle the Annenberg “proliferation of Anthony Corrado, PACs.” Center found that 77 organizations aired A History Federal Campaign 423 Finance advertisements at a cost of between of Law at [DEV 18 million and 29-Tab $250 17]. million. Corrado’s M78 $340 election historical cycle, 1999-2000 research concludes that “from Annenberg Center found that 1974 to groups spent 130 over number of committees an 1,100 estimated registered million on $500 distinct with the FEC increased 1,146 advertisements. For Id. 4,157, 1999-2000 while the they amounts ing data show that types there are two distinct Annenberg The report Study produced ads, of issue those basically that are candi- following cycle placed the 1997-1998 election nature, electioneering date-oriented and at $275 estimate between $340 million to only and present those urge action on Center, Annenberg million. Policy Public Is- nearly issue. The former identical in Advocacy sue Advertising During 1997- format, structure, timing produced to ads Cycle (“Annenberg Report Election candidates, by while latter little bear or no 1998”) 6], [DEV 66-Tab electioneering.”). resemblance to Annenberg period, the year a seven over rose from about candidates contributed that: inter alia concluded Center million.” Id. Corrado million $105 $12.5 1) “issue regula- money spent finance campaign The amount of determined rapidly. of growth advocacy” rising in the factor major was a tion PACs, sanctioned FECA 2) “The of PACs. Id. creating number Instead in- had an organizations hoped, issue groups had Buckley v. Valeo voices law estab- since the PACs groups to form such as advocacy centive allowed limit for PACs gain contribution higher and labor parties, lished business 18-19; Id. donors.” individual than for voice. louder ¶¶ 57 Vol. [RNC Decl. Keller see also 3) between issue advoca- The distinction (“[T]he consequences unintended VIII] fiction. advocacy is a express cy legislation [has campaign finance previous 4) identity of advocacy masks Issue pow- and more PACs growth been] doing, it by so key players some groups.”), interest advocacy and erful information about citizens of deprives (PACs) have (“Political committees action tells research messages which source of numbers.”); Milkis Decl. grown rapidly message assessing part a vital us is (“Consequently, dur- VII] Vol. [RNC credibility. Ac- 1970s, of Political the number ing the 38-Tab Report [DEV 2001 at Annenberg (PACs) exploded”). tion Committees Raymond La expert J. As 22]. Plaintiffs’ “ finds Magleby expert 2.2.5.2 Defendants’ states, the last three election Raja ‘Over cycle, the number election the 2000 sponsoring groups cycles, the number 4,499. Ma- only increased to had PACs often and consumers exploded, has ads 4-Tab 8]. Report [DEV at 16 Expert gleby are, who groups know who these don’t expert *320 31, 2002, of the number ¶ March 24(h) VII] Vol. Raja [RNC La Decl. 4,328. Keller Decl. dropped to had 1). PACs Report 2001 at Annenberg (quoting ¶ VIII]; also Milkis see Vol. [RNC It is therefore uncontroverted 2.2.7 ¶ (same). By the VII] Vol. Decl. 35 [RNC especially by early 1990s and “[b]y that interest cycle, non-PAC 2000 election a groups developed had interest 74,024 advertisements political ran groups an effectively communicate strategy candidate, compared to a federal referring against for or electioneering message 3,663 PACs. by group interest only using without particular candidate at 10 3- Expert Report [DEV Goldstein avoid disclosure re- words and thus magic (Table IB); also Rosenthal 7] Tab limits and contribution source quirements, ¶ since 1995 (discussing Decl. Report at 10 Expert Magleby limits.” inde- any made PAC has not AFL-CIO’s Doug- Political consultant 8]. 4-Tab [DEV Magleby Re- pendent expenditures); of. until why it was Bailey explained L. not las (“If parties 8] 14-15 4-Tab port [DEV corporations cycle that the 1996 election effectively commu- groups can and interest heavy to make use began labor unions message against’ for’ or Vote nicate Vote of advocacy as a tool electioneer- of issue electioneering money and party soft with Bailey Political consultant testifies: ing. they the studies show advocacy money, as of cam- I on dozens When consulted that we have can, surprising not then it is 1980s, oper- we in the paigns 1970s form of cam- growth much in this seen so essentially the of under same set ated cycles.”). in recent election paigning 1996, many but of governed rules con- practices would been today’s rise studying the dramatic 2.2.6 After then, wrong both dangerous and sidered advertisements of candidate-centered issue politically and legally. post-Wa- 433,811 advertisements by aired candi- era, we tergate were about worried not dates met express advocacy test dur- only rules, obeying the but assuring also ing the 2000 federal election. Goldstein that our clients were trying seen as Expert Report Amended [DEV 3- up clean image political pro- Tab Conversely, 7]. percent 88.6 of candi- cess. But due to a lack of enforcement date advertisements in 2000 “were techni- and a willingness on part of some to cally by undetected the Buckley magic costs, atwin all appear these concerns to words test.” Id. This result demonstrates have dissipated. “that magic words are not an way effective ¶ 2], Bailey distinguishing Decl. 14 political between [DEV ads that 6-Tab have the purpose main of persuading citi- illustrates, 2.2.8 As this section the un- zens to vote for against particular .or controverted record demonstrates candidate and ads that purpose have the since the cycle, 1996 election candidate- seeking support for or urging some action centered issue advertisements have been on a particular policy or legislative issue.” used corporations and labor unions to Id. Former Senator Rudman confirmed influence federal elections general empirical these results treasury observing that funds. “[m]any, most, if not campaign ads run by Express Advocacy Widely 2.3 Not parties candidates themselves nev- Used Nor An Effective Means Cam- er ... ‘magic use words.’ It is unneces- paiyn Advertisiny sary.” Rudman Decl. 18 [DEV 8-Tab Exacerbating this development, is the 34], undisputed fact that the overwhelming ma- 2.3.2 The uncontroverted testimony of jority of campaign modern advertisements political consultants demonstrates that it is do not use express words of advocacy, neither common nor effective to use the whether they candidates, are financed by “magic words” express advocacy in cam- political parties, or organizations. other It paign political advertisements. The con- is also uncontroverted that consul- sultants’ testimony, which I adopt part as tants do employ not express advocacy my Findings, is toto; worth repeating in when making campaign advertisements be- particularly given the fact testi- cause do view it effective mony of these consultants is un- means of campaign advertising. As a re- *321 controverted sult, points on these corporations is not and labor unions are by production rebutted the any able con- pay to for the most effective form of trary political consultant political testimony by advertisements seeking when to Plaintiffs discussing subject. influence federal elections. Republican Douglas Political Consultant 2.3.1 Empirical study demonstrates L. Bailey79
that campaign modern advertisements do express use words of advocacy. Dr. In the modern world of 30 politi- second finds, Goldstein percent that 11.4 advertisements, the cal it is rarely advisable Bailey Bailey, founded consultant, campaign Deardourff 2]. As Bailey's job was Associates, & among which was the first na- plan campaign "to the and then broad- create firms, political consulting tional working for cast shape that would advertisements its out- Republican Governor, candidates for Con- ¶ come.” Bailey Id. 2. In among was Senate, gress, President. firm’s eight the first recipients of the American Uni- clients included Gerald Ford’s Presidential versity-Campaign Management Institute's Campaign, fifty and over successful cam- "Outstanding Campaign Contribution to Con- paigns for Governor or the United States Sen- sulting given Award” to the consultants "who ate in 17 Bailey states. Decl. [DEV 6-Tab up to make these “feels” a lot of it takes for” as “vote clumsy words such to use campaign Thirty second designing campaign. am If I a against.” “vote or the be collec- conclusion to therefore, viewed ads, must be and want ad ad to use the “20,” I would number the political impossible It is tively. lead I would from 1 count positive a truly close ad consultant “20,” I never would but to think viewer to build has he had time after sale until un- professionals advertising All say it. series through image a the candidate’s adver- effective the most derstand spots. of 30 second own or her to his viewer leads the tising electioneering ad aired if an Even their forcing it down without conclusion used or October September, August, politi- true especially is This throat. for,” “support,” “vote gen- such as words people advertising, because cal little ballot,” made it would do claims skeptical your very “cast erally may change minds politicians. People’s or about good. people would many they intend day to what how Contrary day to about among known believe, is it well signifi- like to aren’t vote, likely, more “swing consultants campaign until to vote for on whom focused cantly determine regularly who voters” elec- to the immediately prior days can- usually vote on of elections outcome Thus, only real sale date tion. issues. rather than personalities, didate In the in November. day election topic of substantive Regardless date,’ the up to that ‘sale leading months most ad, single of the one any particular can thing an ad positive important most that a message [sic] important aof impression general a do is create senti- underlying convey is ad can internalize will voters candidate that similar has values candidate ment sink time, hopefully that will over target viewers than the to or different day. election is most commercial campaign A the ad. perceived if candidate effective early-September of an goal if the Even in their relaxing the citizens likeable to a direct to make electioneering ad were feel rooms, if the viewers living im- nearly vote, it would pitch for a shares candidate comfortable It is amaz- effectively. to do it possible Often, is- the substantive values. really is thirty seconds short ing how to demon- used the vehicle merely sue is craft trying you are when qualities. personal strate enough time barely ad. There is ad, it is a 30 second In the era If theme. convey single effectively election- particular any to view mistake sec- final five in the change you course campaign aas eering advertisement ad, everything may undo you of an onds *322 time, campaign a Over of itself. accomplish attempted you that a combina- through a candidate defines Therefore, 25 seconds. previous in the Even issues. image, style, tion see a you would uncommon it is ad, target the watching an after shortly television political advertisement remember doesn’t usually audience crime” tough on X is says “Candidate Rather, details. substantive ad’s that flow switches and then breaks candidate. for the a feel just get viewers Bailey has also Id. process.” profes- democratic the ideals represented have best ad- parties and issue political work for done consequences concern sion and shown ¶¶ vocacy groups. Id. 9-12. om- about public attitudes campaigns on separate point you’re entirely trying give people of “Please What to do is X.” enough vote for Candidate information they can make [sic] up course, their own minds. you’re Of ¶¶ 2], 3-4, Bailey 6-8 6-Tab [DEV Decl. leading up them to make their minds Raymond Democrat Political Consultant direction, one but I don’t call that hard Strother80 People sale. tend not to vote for issues prefer putting consultants [M]edia anyway, They most of the time. tend electioneering messages across without individual, vote for the they mea- using words such as “vote for.” Good sure the individual by issues. people media consultants never tell Exam, 32]; Strother Cross at 43 [JDT Vol. X; rather, you vote for Senator make see also id. at 44 (observing that 90% your case let voters come to candidate put advertisements Strother has In my experi- their own conclusions. together in his career have not used ex- ence, actually proves less effective to press advocacy). you instruct viewers what want them to expert 2.3.3 Unrebutted testimony con- They do. have to come to their own firms political the view of consultants. conclusion. Americans like to think Krasno and Sorauf state that: they up their own and de- make minds practices advertisers are termine their own fate. Without even not dissimilar from those of commercial election, mentioning upcoming an rarely advertisers. Car ads exhort media consultant can count on the elec- Chevrolet, “buy” viewers to nor do soft toral context and voters’ awareness urge people drink ads to “drink” their coming. the election is Voters will product. aggressive The most ads usu- your themselves link ad to the upcoming ally urge viewers to do no more than call years election. When viewed months or or visit website for information.... particular after the election a might ad atmospheric This pure advocacy approach look like issue to commer- unrelated However, advertising-where product to a federal election. cial during election, political presented ads-whether candi- in various desirable tableaus- ads, ads, ads, date sham issue true issue has increasingly popular. become It ads, positive negative ads or whatever- general serves the strategy advertis- just each seen voters as one more present variety ers to viewers with a ingredient cajún thrown into a big stew. product, hoping reasons to choose their Thus, precious there is little difference will latch onto one. Too you go crafting how about “issue ads” heavy-handed approach might inter- and candidate ads. process by raising fere with this viewers’ ¶ ads to follow defenses. Political seem [DEV 40]. Strother Decl. 9-Tab Dur- ing period, strategy, hoping’ the same that citizens cross-examination Strother grow prefer made another observation: will without candidate consultant, Bentsen, Simon, Lloyd Gary 80. Strother is a and Pres- included Paul Strother/Duffy/Strother. Hart, Clinton, Gore, Landrieu, ident and founder of Mary Bill Al Strother Decl. 9-Tab He is [DEV 40]. and Zell Id. Miller. last two decades also Chairman of the Board of the American alone, "helped his firm has elect candidates Consultants, Association of Political and last countries, including 44 states and 13 Sen- five *323 year served its President. Id. Since ators, Governors, Congress and scores of campaigns. he has worked more for than 300 [His members. firm won more Demo- has] Representative presidential, Id. clients at the any cratic Primaries than other firm." Id. congressional, gubernatorial and levels have officeholders and former That 2.4.2 Present polls. troop to the told being uncontro- provide likewise and candidates ap- an effective not be may may or do testimony “magic words” verted one that advertisers it is the proach, but advertisements distinguish pure issue not must and courts regulators use and advertise- issue from candidate-centered reckon with. (Sen- (2001) Cong. Rec. S3072 ments. at 54 Expert Report and Sorauf Krasno (“People didn’t need Feingold) ator Russ omitted); (footnote see 1-Tab [DEV 2] to know magic words hear the so-called [DEV 8] at 15 4-Tab Report Magleby also about.”); all really what ads were these in (“The magic words electoral absence of (Senator John Rec. Cong. S3036 impede the abili- not does communications McCain) (“[W]e that the can demonstrate to craft an elec- media consultants ty of advocaey’- ‘express Court’s definition fact, candidates message. tioneering today’s in bearing no real magic words-has in their own words rarely magic use ads.”). Carl campaign Senator world of ads.”). on the following statement Levin made the Not Law Federal Does 2.4 Current in 1998: floor of the Senate Adver- Distinguish Pure Issue Between law, at To the absurd state show Issue tisements and Candidate-Centered circuits, just can look we least some Advertisements that was ads one televised League of Conservation paid for advocacy express only are Not words to House and referred Voters campaign ad- and ineffective uncommon Ganske, Republican Greg a Member undisputed that it is vertising, also Iowa, then who was Congressman from distinguishing for ineffective are criteria way the ad This is up for reelection. issue advertisements genuine between read: express use that do not advertisements land; America’s our It’s water. our to influence designed advocacy but But in protected. environment must election. months, Ganske Congressman just 18 provided uncontroverted Experts 2.4.1 12 times to weaken 12 out has voted “The point. support testimony to Congress- protections. environmental Buckley v. Valeo ‘magic words’ defined corpora- voted to let even man Ganske way to deter- provide effective do cancer-causing releasing continue tions have the advertisements mine whether Congressman into our air. pollutants op- supporting purpose effect and/or big corporations voted Ganske Magleby candidates.” posing particular gave him lobbied these who bills 8]; also at 5 4-Tab Report [DEV dollars contributions. thousands of Report at 58 Expert Krasno and Sorauf Tell him to Congressman Ganske. Call test, (“The magic words 1-Tab [DEV 2] For protect America’s environment. however, distinguish between does not our For our future. families. and candidate- [pure issue advertisements that was an sponsor claimed The ad advertisements]; indeed oriented issue ad, an that discussed issues ad issue spon- between ads does not distinguish candidate, so could be rather than any type of issue sored candidates and undisclosed by unlimited paid ad, commer- even between if changed, If one word were funds. utility Ganske,’ its advertising. cial Whatever Congressman of ‘Call instead been, said, is now Congressman this standard might once have ad ‘Defeat Ganske,’ qualify as clearly are de- it would political ads irrelevant to how lim- contribution subject ad candidate signed.”). *324 533 requirements. In the what a saying. its and disclosure candidate is These ads world, that one word difference influence the outcome of real elections change simply stating the character or sub- “tell him opponent] [the doesn’t quit doing of that ad at all. Both versions this.” “magic stance The words” unmistakably completely advocate the defeat of test inadequate; viewers get the Congressman message against Ganske. to vote some- one, though may even the ad never ex- (1998) (Senator Cong. Rec. S10073 plicitly say “vote-against-him.” Levin) (advertisement italics); text Carl ¶ ¶26 10]; Bumpers see also Deck of Elaine Bloom 5 6- [DEV Deck 6-Tab [DEV ¶ (“In my experience campaigns Chapin Tab Deck 7] [DEV 12] 6-Tab also federal, office, (“Based including my for state and local on experience in campaigns my office, involvement in the advertis- for television federal and local including the my ran in race for ing Congress, advertising we no television ran in my we races particular advocacy County words of are needed Congress, Chairman and I am for an ad to influence the outcome of an familiar with campaign ads. No Many particular election. so-called ‘issue are advocacy ads’ words of needed results.”).81 run in order to affect election order for an ad to influence the outcome election.”).82 Bumpers As former Senator Dale testifies: Congressman Christopher Defendanb-Intervenor, Shays, a testifies: money way Soft also finds its into our system through Although Supreme so-called “issue adver- Court has identi- sponsored by organi- tisements” outside fied a limited category “magic words” mostly right zations that air before an that make an advertisement a campaign advertisement, run Organizations my experience election. can effec- as a can- tive that benefit a issue ads candidate didate and a Member the House is coordinating without with that candi- inadequate limited test They experienced profes- identify date. campaign Campaign ads. ads analyze sionals a race and phrases reinforce need not include such as “vote 2001, currently engaged early Chapin 81. Elam Bloom is in con- Since Linda has been sulting, public speaking, community ac- Metropolitan Director Center for ¶ tivities. Bloom Deck 2 2001, 6-Tab [DEV 7]. In Regional University Studies at the of Central Mayor Bloom was a candidate for ¶ Chapin Florida. Deck 2 6-Tab [DEV 12]. Beach, Miami Florida. Id. In Bloom Chapin was the Democratic candidate in the general was the Democratic candidate in the general represent election to Florida’s represent Congres- election Florida's 22nd District, Eighth Congressional which was an District, running against sional the incumbent ¶ open-seat race. Id. 4. In the November Shaw, Republican Clay who had served in election, general Republican opponent her re- (Shaw Congress nearly years. Id won cast, ceived about of the votes and Cha- 51% by approximately the race 500 votes out of pin received about of the votes cast. Id. 49% 200,000 cast). race, over Prior to the 2000 ¶4. 2000, Chapin directed From 1998 to Bloom served as a member of the Florida (Florida) Orange County Clerk's Office. Id. Representatives years, House of for over 18 that, Chapin 2. Prior to was elected to two (representing 1974 to Northeast terms, four-year successive in 1990 and County) (repre- Dade and from 1986-2000 County Orange County. Id. Chairman of Miami). senting Miami Beach and Id. Bloom County strong Chairman is a executive Pro-Tempore Speaker was of the Florida position roughly equivalent mayoral a of- House from 1992 to and also served as County fice. Id. Prior to her tenure as Chair- committees, legislative chair of several includ- man, four-year to a term she was elected Committee, ing Leg- the Health Care the Joint Committee, Orange County Commission Management islative the Joint Committee, Legislative Auditing and the Tour- ism and Cultural Affairs Committee. Id. *325 upon the that are not based from those to be against” “vote or for,” “re-elect” particular of tools, prac- absence presence and the mere campaign effective of so-called “issue “vote for” is at phrases such as large numbers tice of words it. proves an election IWhen ads” before a historical anachronism. best business, up this first entered ¶ 35]. 8-Tab 12 [DEV Shays Decl. mid-1980s, regu- we were through and candi- officeholders Federal 2.4.2.1 minute purchase five slots larly able that, expe- based on testify dates also spot, In minute I time. a five of air issue advertise- rience, behind intent candidate, bring the introduce could a name of federal mention ments that the candi- level with to a comfort viewer before the elec- candidate, right aired are substantive date, a few different cover to the candidate’s tion, broadcast end, issues, the candi- the election. electorate, to influence (“It’s possi- 5]Vol. a vote. appeal [JDT at 27 Chapin Dep. make direct date that [fact era, could debate you that it made sense for a ble by-gone days run within 60 issue advertisements directly for appeal votes candidate to influ- intended can be both an election for,” “sup- as “vote using words such in- an election the outcome ence on the your “cast ballot” basis port,” or perspective a particular promote tended to story told full or substantive a more issue], but policy public particular on a By con- period. time in a five minute are almost entire- those ads my experience ad, there is not trast, in a 30 second an the outcome of to influence ly intended positive direct time to make enough 27-28 election.”); Dep. Paul also sale. (Plaintiff Ron Congressman 25] [JDT Vol. 2]. 6-Tab Bailey [DEV Decl. 5 group outside issue that the testifying Paul Congressional cam- in his 2000 run ads Raymond Political Consultant Democrat to influence the elec- intended paign were Strother tion.). easy for consultants in Because it is so testimony uncontroverted 2.4.3 The influ- ads that will my to make business there is that political consultants confirms triggering without ence federal elections campaign advertise- between no difference pay dollars to need to use hard express advo- words of ments that contain mon- them, between hard the difference adver- issue cacy and candidate-centered If I joke. is a want ey money and soft to influence designed tisements to influence an elec- money use the to use soft that do not elections but tion, difference what I Buckley. Consequently, there is no real “magic words” only thing consul- it is uncontroverted do to create ad. easily create advertise- at the end. tag are able to line tants different is the federal elec- designed to influence ments a media con- point view of From the express words of that do not use tions sultant, real be- there is no difference therefore, paid for can be advocacy, and advertisement with ending an tween (corpo- sources prohibited with funds ending X” versus for Senator “Vote treasury general and labor union ration X “Tell Senator advertisement funds). working hard for America’s continue Douglas simply Political Consultant does not Republican public families.” The Bailey L. that are other- ads between differentiate identical, slightly contain these but wise influ- intended to
The notion ads very end. lines at the tag separated different easily be ence an election can design, produce, When we and run “is- est groups spend would not hundreds of sue ads” that mention specific candi- thousands of dollars to runs [sic] these *326 dates for federal office days and that are ads 15 before an election if they election, in proximity aired to an these were not trying to affect the result. only ads are for purpose: one These candidate-specific effect ads are not [sic] the outcome of an usually election. To call run year before election these ads “issue ads” is a sham. week after. We tag usual final know that line for soft paid money these ads have been electioneering is to with soft “call” or money; why we know “ask” or we have “tell” a candidate to hired; stop or been and continue doing we know easy something, how it is often something vague to make sham issue like comply fighting ads that for the law, priorities. right with the but This is pretty silly, nevertheless affect fed- be- cause it’s imagine eral hard to elections. We know this even thousands of with- people calling the explicit out in response instructions from our clients. candidate to the ad Any saying, this, and keep media consultant says doing who other- this is wonderful. wise isn’t These telling the truth. standard final This is what words, “tell,” like everyone have become business does the real you and “magic know what words” modern you supposed are produce. campaigning. I imagine some smart playing It is lawyer up within the came current set of them, rules, because the real but these audience for rules need to be voters, them is not the changed. but the courts may who be examining the ad after the One common trick that job makes the election. creating sham issue ads even easier is Pennington 31], the two-camera candidate Dec! 10 [DEV Some- shoot. 8-Tab times, Both the Chamber of media consultant for the can- Commerce and AFL-CIO admit campaign didate’s way “[t]he will ultimate committee shoot to tell an the film elective official sell it something to the media do consul- is through voting process.” tant for a third for a G. Shea reasonable Dep. 30]; at 46 [JDT Vol. They Dep. rate. Josten simply take 2 cameras on a (“I Vol. [JDT would say 12] shoot they [vot- when are filming the candi- ing against a is probably candidate] one of date’s ad. Camera A shoots the footage ways politician best to tell a you ad, don’t for the candidate’s and Camera B like what they doing.”). at- Plaintiffs nearly takes identical footage that tempt challenge premise this by citing then sold other media consultants for text from Senator Feingold’s deposition a nominal fee. The media consultant for that his constituents do call him about party just the third buy has to the film they may issues have seen in issue adver- from B put Camera on a tag clever tisements; however, a reading careful line at the way, end. this the candi- colloquy makes clear type that the date’s gets media consultant direct con- his may advertisements constituents trol images over the of the candidate seen is never clarified. I cannot conclude used in groups’ the issue ads. exchange the advertise- ¶¶ 3, 8, Strother Decl. [DEV 9-Tab 40]. ments that led telephone to those calls Republican Political Rocky Consultant would be covered Title II BCRA. Pennington During deposition, his Feingold Senator Many soft money ads that avoid the only indicates that he calls from receives magic clearly words are intended to af- response constituents in to television ad- fect federal elections. Parties and inter- vertisements. Senator Feingold was and the Club paign Committee] if advertisements these asked specifically such constraints. do not have II of Growth Title under type covered were observations, the candidate my Based Vol. Dep [JDT at 238-39 Feingold BCRA. race, Congressional ads in the ads, I have (“Q.... You mentioned 6] with federal funds which were financed so call Senator say you ads shown (“hard actually more money”), were Your and so. so so, Senator contact supposed than the “issue “issues” about you con- do call sometimes constituent and interest parties Q. by political run Yes, ads” A. do. they not? you, do tact *327 fi- were which I understand groups, in- issues talk about they sometimes And with non-federal part in nanced at least and abortion, to life issues right cluding funds(“soft money”). Yes, they do. A. issues, they not? do other they are sometimes opinion, ¶ Q. your In 3]. 6-Tab [DEV Beckett Deck 8 they have by advertisements affected Joe Lamson Operative Political Democrat A. I’m sure on television? seen in my experience managing on Based are.”). I am campaigns, many federal election Terry S. Political Consultant Democrat advertising. No campaign familiar with Beckett advocacy are needed words of particular particular the idea I am aware to influ- for an advertisement in order required in or- might be “magic words” an When outcome of election. ence influence an an advertisement der for run groups and interest political parties However, particular fact no in election. an election that just ads” before “issue order advocacy are needed in words do and tell her to say “call” a candidate of an the outcome to influence for an ad purpose typically is something, their real be of such words could No list election. voters about some enlighten not to 50, savvy political list you if complete: issue, the result of but to influence Fqr example, more. find 100 actors will election, do ads often and these by par- run “issue ads” many so-called groups general- and effect. Parties just groups interest before ties and pre-election “issue ads” ly run these candidate, by then end election attack a the races are com- only places in where the viewer to “tell” urging supposedly generally ads” These petitive. “issue stop being the candidate “ask” election. For day on the stop really are almost never These ads way. run ads groups these could example, always are They almost issues. about position on explaining Nancy Keenan’s ads, affect elec- designed to election general November the issues after the elec- result, many do affect the tion people could discuss election so that clear- can see this You most tion result. ta- Thanksgiving dinner over the them personal amount to ly in ones that ble, seem to work that but doesn’t a attacks, criticize candidate or that way. fact, “issues.” unrelated several 26]. Decl. 6 7-Tab [DEV Lamson shy tend to candidates my experience, NRA Political Former Chair Plaintiff be- negative attack ads away from such Tanya Metaksa83 Victory Fund K. repercus- political would cause there regulato- legal, Today, there erected But entities like them. sions for advocacy po- ry between issue Congressional Cam- wall DCCC [Democratic Director the NRA Institute as Chairman of Nation- Executive 83. Metaksa served Legislative made the statement Action. She Victory Political Fund al Rifle Association (Statement Jeffords) (“The advocacy. And the wall is built of of Sen. litical James sturdy emper- as the ‘magic the same material words’ standard created the Su- clothing. preme or’s Court 1976 has been made use- less realities of modern Everyone sees it. No one believes it. political advertising. Even in any prac- It is there candidate foolish believe advertisements, what many say would advocacy tical difference between issue clearly advocacy of a candidate. advertisements made to convince separates support candidate, voter to advocacy po- particular What issue advocacy only percent litical is a line in the sand the advertisements used ”); windy day. ‘magic drawn on a words.’ Cong. also 148 (2002) (Statement Rec. S2116 of Sen. Carl engaged advocacy many We issue Levin) (“[T]he Brennan Center study country. locations around Take found that of the ads run Indiana, actually by can- Bloomington, example. paid didates and for with read, money spe- hard city Billboards in that cifically on behalf of their election or de- “Congressman right.” Hostettler is *328 feat, only percent used magic the seven don’t take “Gun laws criminals off phrases by words and identified the Su- Bloomington’s streets.” preme Court. compelling That is evidence “Call 334-1111 and thank him for fight- magic words by identified ing by getting tough crime on crimi- Supreme complete Court are not a test of nals.” what constitutes electioneering ads. More really hoped people Guess what? We at just is work here than magic seven Congressman, would vote for the Court.”). by words identified Supreme just people thank him. And did. When 2.5 Candidate-Centered Issue Advo- away we’re three months from an elec- cacy tion, Has Risen Because it not a dime’s Permits Cor- there’s worth of differ- porations & Labor “thanking” ence between Unions to Influence elected officials Federal Elections with “electing” them. General Trea- sury Avoiding Funds While FECA’s Re- INT Opening Remarks at strictions American Ass’n of Political Consultants
Fifth on General Session “Issue Advoca- It is uncontroverted that the shift to- 17, 1997, cy,” Jan. at 2 [DEV 38-Tab 25]. ward using advocacy issue can be ex- plained “First, by phenomena. three it 2.4.4 As a result of develop- these ments, permits FECA, groups and individuals Congress found that as to avoid Second, by construed disclosure. it only Courts to limit inde- allows them to avoid Third, pendent expenditures containing permits contribution limits. Buckley- some (such express defined advocacy, longer groups corporations no was and labor unions) political relevant to modern advertising. spend generally prohibited from See, (2002) e.g., Cong. Rec. Magleby Report S2117 sources.” 4- 18 [DEV opening above knowledgeable in her remarks to the Ameri- who was about NRA’s strategies” can Association of Political Consultants’ Fifth and was someone who was "a Advocacy.” General trustworthy employee Session on "Issue INT reliable and of NRA.” 015987, Opening Remarks at Dep. the American LaPierre at 11 [JDT 14]. Vol. Plaintiffs objected
Ass'n of Political Consultants Fifth General have not to Ms. Metaksa’s statement 17, 1997, Advocacy," hearsay grounds Session on "Issue given Jan. Mr. LaPierre’s comments, During litigation, [DEV 38-Tab 25]. this I find Ms. Metaksa's statement Wayne NRA Executive trustworthy rely purposes my Vice President La- on it for Findings. Pierre testified that Ms. Metaksa is "someone especially negative, more to be tended Ex- Krasno Sorauf 8]; also Tab campaign. (“Avoid- the 2000 early stages 2] 1-Tab [DEV at 50 pert Report any to collect advertisers allows ing FECA ¶49 (citing VII] Vol. [RNC Decl. Milkis they can. any source money sum 2001). from the Aside Report Annenberg to con- advertisers allows FECA Avoiding Milkis expert Plaintiffs’ observation disclosing without operations their duct relating lack of disclosure about public.”). activities their advertisements, exam- further two Disclosure Avoid point: 2.5.1 ples illustrate advantage to (cid:127) for helped pay that one the AFL-CIO disputed It is not advertising Congres- issue Fifth using candidate-centered in the Connecticut ads elections group through influence District race sional pur- FECA’s outside Our advertisements to Make the “Coalition named not re- disclosure Accordingly, view. de- Rosenthal Heard.” Steven Voices paying organization for the quired obscure under an campaigning fended Expert Magleby these advertisements. “Frankly we’ve saying, case in this name (“The 8] 4-Tab [DEV Report at [other of their book page out taken all exam- cycles saw election and 2000 places in some groups] because interest ac- to avoid sought who ples of groups by run an ad more effective it’s much communications countability for Make Our Voices the ‘Coalition electioneering advertis- pursuing ‘the paid say than it is to Heard’ ” than strategy rather advocacy ing/election the AFL-CIO.’ women of men and *329 ex- independent activities limiting their 4- Report [DEV at 18-19 Expert Magleby expressly activities other penditures or at a comments (citing Rosenthal’s Tab 8] Indeed, FECA.”). Plain- by the permitted Pew panel discussion lunchtime notes: Milkis Sidney expert M. tiffs’ Conference). Press however, out, point important It is used (cid:127) the funds of more sources orOne increased have also groups that interest one least finance at NRA to by Plaintiff that con- advertisements their political that identified advertisement the discussion nect, subordinate indeed on was broadcast and that candidate itof electioneering, much of issues days the 60 within or radio television Annenberg anAs in tone. negative a state or election in general preceding indicates, the study Policy Center Public can- which district Congressional represent- groups interest special ads of has office for federal running was ads didate on issue spending all of ed 68% publicly groups disclosed. been interest cycle; the 1999-2000 these million than spent $347 more Political the NRA the NRA and Resps. of The names advertisements. issue for Req. First FEC’s to Def. Victory Fund viewers to tell little groups did these (“The Admis., 9] 12-Tab [DEV No. messages these sponsors who the law applicable under required NRA is not they were indeed, cases were; in some pro- who individuals specific to disclose Citizens example, The For misleading. respects it funding, vide with Medicare, spent $65 for Better many of its members strong desire ads, pri- is funded on television million anonymous.”). to remain contributors industry. pharmaceutical marily by the Limitations Source 2.5.2 Avoid sources funding only Not were the corpora- long prohibited has law Federal misleading more ads groups interest using labor unions tions ads, also than party-sponsored general treasury funds for federal election Examples from the record demonstrate Therefore, purposes. organizations advantage another use candidate-centered to candidate-centered issue advertising advertising issue as a means of avoiding FECA’s restrictions. paid advertisements can be general treasury thereby funds and 2.6.1 AFL-CIO’s Issue Advocacy Me- avoid FECA’s source Magle- restrictions. Campaign dia Surrounding the 1996 Fed- by Expert Report at 19 [DEV 8] 4-Tab eral Election (“The ability corporations and trade un- The evidence demonstrates effectively campaign ions to through elec- AFL-CIO’s issue advertising campaign in tioneering advertisements and election ad- and around the general 1996 federal elec- under the rubric vocacy” advocacy of issue was designed tion to influence the election words, by avoiding the magic “makes paid and was general for with treasury laws.”). sham of these longstanding federal funds.
2.5.3 Avoid Contribution Limitations Mitchell,84 2.6.1.1 Denise Special Assis- tant Public Affairs to AFL-CIO Presi- As donations of nonfederal funds are not John Sweeney, dent J. states that she law, limited “groups can raise “realize[s] that AFL-CIO advertising larger money amounts of in less time.” could affect how citizens vote.... [T]hey Magleby Expert Report at 19 [DEV 4-Tab may in some cases have an indirect effect (For example, “groups 8] like Citizens for This, on election outcomes.... however, Medicare, Better Pharmaceutical Research has never been the point of our broadcast America, and Manufacturers of NAACP advertising program....” Mitchell’s state- Fund, NARAL, National Voter were ment is controverted evidence from the individuals, able far exceed what PACs record that the AFL-CIO did not attempt or parties could through do hard money rebut or discount: contributions.”); (“[T]his id. at 10 method (cid:127) A September 1996, memorandum advocacy groups accept allows unlim- polling from a analyzed firm poten- ited pay contributions to for the communi- *330 tial impact of five issue advertisements cations.”). provides This fact another ad- in terms of likely effect on voters. using of vantage candidate-centered issue Guy Memorandum Molyneux from and advocacy. Molly polling O’Rourke of the firm Peter Organizations’ 2.6 ofUse Candidate- Associates, D. Hart Inc., Research to Advocacy Issue Centered Special AFL-CIO’s Assistant for Mitchell Special Denise is the years. Assistant for position, Id. In her current Mitchell Affairs to Public AFL-CIO President John J. primary has the responsibility overseeing for ¶ Sweeney. Mitchell Deck 1 [6 PCS]. She public all relations activities of the AFL-CIO appointed position was to this on November including all AFL-CIO use of broadcast and 1, 1995, shortly Sweeney after was elected ¶ print responsible media. Id. 2. Mitchell is President of the AFL-CIO. Id. Prior to as- making operational for decisions as to suming position, Mitchell had worked both the substance and the method of com- Sweeney in a with similar role for a number message munication of the AFL-CIO's to un- years when he was President of the Service ion general public. members and to the Id. Employees International Union and she had strategic Mitchell logistical makes the campaign in his assisted election to the regarding decisions the AFL-CIO's media position of AFL-CIO President. Id. Mitchell and, buys, policy guidelines, within makes the marketing has worked in media relations regarding editorial decisions the content of organizations for unions and non-profit other the AFL-CIO's communications. working family on issues for more than 20 fol- had to never they have Mitchell, under rules Tar- “Ad Affairs, Denise Public 18, 1996), AFL-CIO before.... low (Sept. geting” (“[The advertise- 124] man- do] is [DEV firms can 001614-16 of these [all What single to be the appears Taxes in a volatile message ment] age the reaching the spot, terms strongest environment. 'peo- affecting voters range widest of Jo- Cowart from Joe Memorandum Is- the incumbent’s impression ple’s to Consulting Campaign seph Cowart especially be It should position. sue Mitchell, Con- “Political Media Denise adver- [The voters. younger to directed (Mar. 29, 1996), AFL-CIO sultants” strong, and very is also Kids tisement] 124], [DEV 001702-04 young peo- to directed be again should (cid:127) 9,1996, internal memoran- An October Medicare, advertisements] ple. [The Brian Weeks the AFL-CIO’s from dum most effective are Homes, Retire discussed Mike Klein AFL-CIO’s only you If can audiences. older placed to might buys media where Retire advertisement] spots, [the run 4 in his Illinois Senate help Dick Durbin (emphasis drop.”) one probably lack of re- Durbin’s race, Mr. based on from Memorandum added); also in certain to air advertisements sources Molyneux of Peter Guy Geoff Garin Brian from markets. Memorandum Associates, Inc. to Research D. Hart Klein, Buy Mike “Electronic Weeks Mall Inter- Mitchell, “AFL-CIO Denise (Oct. 9,1996), AFL- Illinois Senator” 1996), AFL- (Sept. Survey” cepts (Mall 125]. [DEV Inter- CIO 124] [DEV 001582-84 CIO reactions individuals’ Survey of cept AFL- regard to Accordingly, with including how advertisements these campaign advertising issue CIO’s respondents made the advertisements election, I general the 1996 before aired posi- congressman’s about fictitious feel indi- statement that that Mitchell’s find issue); see also Mitchell each tion on has never outcomes effect election rect Exam, 23]. Vol. [JDT at 66-75 Cross broad- point AFL-CIO’s been (cid:127) 29,1996, received Mitchell On March Dec! advertising program, Mitchell cast campaign consul- memorandum PCS], weight light no carries [670 media consul- analyzing tant internal documents. these The memoran- the AFL-CIO. tants for the AFL-CIO’s It is clear 2.6.1.2 dum stated: designed was advocacy campaign issue superheated en- campaigns Political and was election general influence not, objective is where the vironments through candidate-centered accomplished spot. looking make the best always, *331 avoid FECA’s advocacy as to so issue the to communicate with objective is The expert Independent limitations. source mak- they are the time at persuadables not be which has countered testimony, pivot Being able decision. ing their contrary expert any the AFL-CIO with right exactly at the campaign the entire AFL- the that testimony, demonstrates con- of a media real talent time the was advocacy campaign 1996 issue CIO’s lit- there is Consequently, firm. sulting federal elections: designed to influence spots. great tle reward unregu- into by labor 1996 initiative con- you than how knows better No one electioneering com- unlimited lated can be.... suming The AFL- substantial. was munications done], can but advertisements [These dollars million spent reported $35 CIO will be you that understand you must Beck, Jeffrey (see Taylor, Paul Deborah to do consultants asking these
541 Rivlin, Stanger, Douglas “Issue Ad- fies that Congress adjourned after on Oc- vocacy Advertising During 3, 1996, the 1996 tober the AFL-CIO discontinued Campaign: Catalog,” report A series its broadcast advertisements “aimed at im- Center, Annenberg Policy Public no. mediately pending legislative issues.” 16, 1997, 10), September 16 much of it PCS], Mitchell Decl. 42 [6 The AFL-CIO television, defeating aimed at began then run “electronic guides” voter Congress, members of including 32 compared positions congres- heavily targeted Republican freshmen. sional Id.; candidates on various issues. Herrnson, Congressional See Paul Elec- Exam, Mitchell Cross [JDT 183-84 Vol. Campaigning tions: at Home and in (“Is any 23] there ad which the AFL-CIO Washington, (Washington, D.C.: Con- ran in 60-day period prior to the fed- 1998), gressional Quarterly, 123. Labor 2000,1998 eral elections and 1996 where broadcast television in forty commercials you that purpose concede was to affect districts, distributed over 11.5 million the in vote the forthcoming election? ... in guides twenty-four voter districts and Well, A you would include indirectly af- ran in many radio ads others. “La- you fect? Do want Q to ask it way? that bor Targets,” Congressional Quarterly I will start way. that A You Okay. Weekly 1996, 3084; Report, 26 October know, certainly the voter guides particu- Dugan, Jeanne I. “Washington Ain’t lar had that purpose.”); as a see also id. at Yet,” Nothin’ Seen Business Week Re- (“Q You do concede that the ads that port, May you ran in 60 days prior Magleby Expert Report at 10 n.7 4- [DEV might and ’96 have had the effect of influ- (citation omitted); 8] Tab Expert Mann encing election, votes in forthcoming (“The Report at [DEV 1-Tab AFL- 1] don’t you? I right, A I don’t deny don’t— CIO was one of the first nonparty groups that among things they other might have in 1996 to seize the opportunity to broad- had an effect on how perceived citizens electioneering cast ads under guise office and had an holders effect on their 1999); issue advocacy (Dwyre they contin- vote.”). ue to avail themselves of that opportunity 2.6.1.4 In investigation an FEC into or- 2002).”); today (Magleby Rrasno and So- ganized election, labor’s role in the 1996 Expert Report rauf at 52 [DEV 1-Tab 2] the General Counsel found: (“For example, the AFL-CIO in the first In the flights nine issue ad broadcast between campaign in House elections in mid-September, 1996, late June acknowledged help its intent to Dem- candidates, ocratic would and its advertisements criticize results were the in- (footnote measured cumbent accordingly.”) Congress member of omit- named ted); therein, Dep. terms, also Mitchell frequently 96-97 in harsh [JDT about (stating Vol. 23] in the 60 his or her record on the issue was election, days before of dol- subject terms of the advertisement. How- spent by lars the AFL-CIO on broadcast ever, with exception aof flight advertising, majority substantial topic advertisements on the of the mini- money spent was on advertisements wage mum aired late June *332 that mentioned of members the House of 1996, early July, there was no clear con- Representatives). nection between the content of the ad- fact, any legislation
2.6.1.3 In Mitchell vertisements that admits that some subject AFL-CIO’s was then the of legisla- advertisements were intensive intended directly indirectly or tive action at the influence time of the advertise- the 1996 election. general Mitchell testi- targets ments. The of these advertise-
542 AFL-CIO was the against the FEC Republicans uniformly both were
merits Republican Con- flights by the National eight brought In the incumbents. (“NRCC”). and con- McCain September late Committee gressional in began that (Com- day, the adver- Deck, 29] election F 8-Tab through [DEV Attach. tinued of so-called 4307). the form took NRCC stated The tisements plaint MUR comparing the guides,” voter “electronic complaint: in their the Demo- incumbent Republican careful TV ads [AFL-CIO] The (or Republican the challenger cratic contained phrases specifically violate nominees, of the cases Democratic 100.22(a) against as “vote such in Sec. issue; seats) the particular aon open accompanied by Hickory” or “defeat Old was uni- record candidate’s Democratic or or more picture of one candidate/s/” favorably than more formly presented there However “reject incumbent”. the scripts The candidate’s. Republican the 100.22(b). of Sec. clearly a violation If ap- advertisements of of kinds both language that section one reads of carefully designed been to have peared including picture the entire and looks at of the elec- advocacy” “express to avoid any it is external events obvious any candidate.... of tion or defeat knows clearly American informed Re- Counsel’s General FEC MUR “expressly these ads purpose 5-6, INT003837-38 at port, June Republican advocating” defeat omitted) 52-Tab The (footnote 3]. [DEV ad. subject who is the tactics into the AFL-CIO’s investigation added). (emphasis 1 Id. at AFL-CIO had whether ascertain sought to presented no The AFL-CIO has 2.6.1.6 communica- election-related coordinated to substantiate office, evidence uncontroverted for Federal candidates tions with purpose of that the intended parties. their claim or with campaigns, “developed regard to the advocacy no investigation their issue at 1. The Id. in which any instance unrelated to general evidence election was to the any communication made AFL-CIO federal electing defeating candidates with a after coordination public concede, general does The AFL-CIO office. party committee recipient candidate fact, advocacy does have issue that its coordination the standard for that meets cycle. during the election on voters affect The Coali- v. Christian set forth FEC Moreover, dispute no there is (D.D.C.1999).” Id. tion, F.Supp.2d af- campaign did advertising AFL-CIO’s conclusion, at 3. As result Of the general election. fect the 1996 to the recommended Counsel General freshmen the AFL-CIO Republican House into or- investigation Commission that 1996, 12 defeated. An- were targeted in role in the 1996 elections labor’s ganized 38-Tab Report [DEV nenberg Although the at 1. FEC closed. Id. 21]. coordination there was no concluded Work- 2.6.2 The Coalition-Americans caselaw, agency did governing under Advocacy Issue Me- Change’s ing Real exception the issue ad- one find that with 1996 Fed- Surrounding the Campaign dia particular directed were vertisements eral Election during and candidates officeholders that similar demonstrates cycle. evidence election advertising issue cam- the AFL-CIO’s political organizations 2.6.1.5 Other cycle, busi- during the 1996 election paign advertising the AFL-CIO’s issue viewed (known The Coalition- ness interests designed influence campaign as re- Change) Working for Real Americans filed with complaints elections. One *333 sponded with their own advocacy issue business legislation initiatives and favored campaign designed to influence the elec- by the Coalition. “My objective was to paid corporate tion and for- with general knock down impressions that Mr. Sweeney treasury thereby funds permitting these and his advertisers and campaigns were corporations to evade FECA’s source limi- trying to undertake and express our view- tations. The record also demonstrates points exactly opposite of that and let by running candidate-centered issue the viewers make their own decision about advertisements The Coalition was able that dialogue that was being imposed on avoid requirements FECA’s disclosure and them.” Id. at 88. corporate sponsors hide its behind an am-
biguous unobjectionable pseudonym. 2.6.2.2 Josten’s testimony is controvert- by specific' ed evidence in
2.6.2.1 In record that their proposed findings, the indicates that purpose one Commerce, NAM, Chamber of advertis- ing Associated Builders and campaign Contractors was to claim influence the 1996 that “Defendants’ assertion that general The Coali- election: tion’s 1996 activities preelection show that (cid:127) the Coalition sought proposals issue ads merely candidate ads in dis- from advertising firms for a “campaign guise mistaken. Participants in The to re-elect pro-business Congress.” Coalition were unanimous that its ads were TC00698 [DEV 121]. Media consultant intended respond being issue ads run Alex Media, Castellanos of National Inc. by the AFL-CIO.” Proposed Findings of opened proposal his to the Coalition by Chamber, NAM, Fact Associated Build- stating: “Thank you the opportunity Contractors, ers et. al. Bruce present two 30 second television and Josten, Executive Vice President for Gov- one 60 second scripts, request- radio ernment Affairs for the U.S. Chamber ed, Commerce, your campaign to pro- testifies that purpose re-elect business Congress.” advertisements aired during the Id. respond election was to to attack (cid:127) The Coalition commissioned firms to paid advertisements for by the AFL-CIO polls conduct and focus groups to mea- organized president, its Mr. John sure voter responses to their advertise- Sweeney, and not to influence the election AV0024-40, 0046-47, ments. 0060-64, any federal candidate. Dep. Josten 0106-118, 121], 0139-41 [DEV The Co- (“The 165 [JDT Vol. purpose 12] of alition retained polling organizations two coalition, specifically, only, uniquely towas Group Tarrance and Ameri- respond to [John Sweeney’s] ads and the can Viewpoint, to test specific whether them, false statements in cases, up in some Coalition and AFL-CIO advertisements to 75 Congressional districts. That was would make participants more or less coalition.”). the mission of this Mr. Josten likely vote for particular federal can- explained that there “were TV markets didates. FEC MUR No. General where John Sweeney ran ad accusing Report, Counsel’s April 20, 2001, at 22- member of Congress about votes on 6]; 23 [DEV 53-Tab Dep. Josten at 68- the issues I earlier, that mentioned T14 Vol. [JDT One firm surveyed 12]. spring he started running ads that nationwide,” “voter attitudes true, were not TC 00513- and we would follow him” 121], 37 [DEV paid survey television ads and another by the tested Coali- Id. possible tion. Josten, Coalition According to Mr. ads on groups, focus the AFL-CIO including commercials attacked one of “Swing Mem- Voters.” of Congress bers who supported had pro- AV0139-41, [DEV 121]. AV0037-40 *334 been there has of whether indication an 1996, Group
(cid:127) 28, Tarrance A June buy, or whether media stated: or double single the Coalition memorandum swing voters among Id. pulled. result been buy net the has “The participants 25% of that was Cleveland (cid:127) 1996, commis- the Coalition In late Re- voting for a closer were moved Group to conduct Tarrance the sioned Congress and candidate publican The analysis. post-election detailed were participants the about half Post-Elec- Group, Coalition Tarrance labor leaders. national against moved NAM0206-27, at Analysis, Survey tion not words, response ads the In other Tarrance 121]. [DEV NAM0213 field, put but playing only leveled Group reported: Republican board for on the points some this re- commissioned The Coalition 121] [DEV AV139 as well.” candidates impact of their to assess search Members Republican (stating that campaign and advertising two-month under attack “currently Congress in the face voters effect on its relative “out- and are advertising” AFL-CIO year-long cam- very aggressive, of the “targeted and if outclassed” gunned AFL-CIO. sponsored paign hope operating to be ever Republicans Republican six four Given that during the 1996 field playing on an even won research in this tested candidates outside election, require it will races, could con- respective one defense.”). their their voice come were efforts that the Coalition’s clude (cid:127) memorandum the JulyA in the vast were a success-as Viewpoint on American from Coalition districts in targeted majority of in Des the Pre-Test Findings of “Key involved. 4” con- was Iowa which the Coalition Market of Moines Media “Greg Ganske Congressman cludes that sure, compelling em- the most To be Des Moines deep trouble is in dollars evidence that pirical Coalition “this is one Market,” and states fact effectively is the spent were districts could challenging the most outspent the the AFL-CIO although impact chosen to assess have been began 7 to by nearly Coalition advertising If can advertising.... your earlier, year almost a onslaught district, it should in this move numbers only were voters the tested districts Vot- other districts. in most be effective (36% to recall likely average) twice as on the union’s yet focused ers have read, seen, or heard labor having seen the com- only 25% has campaign as they were the advertising union’s result, there is still time As a mercials. (16% advertising coalition’s business buy.” awith substantial to reach them average). Gary Ferguson to Memorandum Tringali and from Brian Memorandum Committee, Steering “Key the Coalition Ferguson of American View- Gary in the Des Findings of Pre-Test Group Tarrance point and (July 4” of Iowa Moines Market Coalition, “Key Chuck Greener NAW0002, 1996), [DEV 121]. Surveys from Post-Election Findings (cid:127) included document five One Coalition WA-5, WA-9, IA-4, WA-1, OH-6, Congression- referring to 1996 headings 22, 1996), (November KY-1,” DEM,” “Toss-Up/ al races: “Lean/Tilt 121]; see also “Re- [DEV NAM0208 GOP,” GOP,” “GOP Fa- “Lean Tilt TC00610- Accomplishments” port on vored,” TC-00662-63 List.” and “Watch (document Coalition [DEV 121] 121], heading is a each Under [DEV noting sue- its members sent to candidates, to the names and next list *335 cesses of the campaign Coalition’s Allan Cigler and Burdett A. Loomis voters). among swing (Washington, Congressional D.C.: Quar- 1998), terly, 160-61. Accordingly, as to The Coalition’s issue Magleby Report at advertising campaign 8]; that aired 10 n.7 [DEV before the 4-Tab election, see also general Dep. 12]; I find that Josten at 29 Josten’s [JDT Vol. purpose (both statement that the Huard Dep. of the coalition at 58 [JDT Vol. 11] “only” respond noting was to advertising that Coalition spent roughly mil- $5 AFL-CIO, campaign of the lion Dep. Josten at on the campaign). 12], [JDT Vol. carries weight no in 2.6.2.4 The FEC likewise concluded that
light of these internal documents. purpose of the Coalition’s 1996 issue advocacy campaign 2.6.2.3 It is clear that was to The Coalition’s influence the federal election. advocacy issue FEC MUR campaign designed was No. General general Report, 20, 2001,
influence the 1996 Counsel’s April election and was accomplished through FEC MUR candidate-centered General Counsel’s Rep., April 20, 2001, advocacy issue so as to avoid at 35 [DEV FECA’s 53-Tab 6] (“The source and disclosure limitations. Inde- facts set out above establish that the pendent evidence confirms that The Coalition’s Coali- communications were undertak- tion’s advertising issue campaign sur- en purpose for the of influencing federal rounding general the 1996 ....”); (recommend- election was elections id. at 44-45 designed to influence the election. This ing that against the case the Coalition be expert testimony, which closed). has not been con- AFL-CIO, Like the although the by any troverted contrary expert testimo- FEC recommended that the case be Plaintiffs, ny by concludes that: closed, that decision does change community business responded to fact that it found that the sought Coalition [the initiative labor into unregu- general influence the 1996 election with lated and unlimited electioneering com- its issue advertising campaign. with their munications] own unlimited 2.6.3 Citizens Better Medicare communications, undisclosed again (“CBM”) Citizens for Better Medicare avoiding any of magic words. Part- organization is an funded pharma- in response ners the business were the ceutical industry spent heavily on National Independent Federation candidate-centered issue advertisements (NFIB), Business U.S. Chamber of designed to influence the general Commerce, the National Association of paid election and for with general
Wholesaler-Distributors, the National treasury corporate funds of their mem- Restaurant Association and the National bers, thereby avoiding the source limita- Association Manufacturers. Their Coalition, tions of FECA. Like The CBM group, called the “Coalition-Americans also used advocacy issue to avoid FECA’s Working for Real Change,” was active requirements. disclosure races, thirty-seven spent House an esti- 2.6.3.1 Timothy Ryan, mated million on over thirteen thou- former executive $5 CBM, commercials, sand television director of and radio testifies that CBM anis organization PhRMA, sponsored by mailed over two million letters an in- mainly support association, Republicans, dustry trade and its activities owners of small primarily business. See Paul were by major financed drug Herrnson, “Parties and Groups companies. Interest Ryan Dep. at 13 [JDT Vol. 27] (“We Congressional Elections,” Postreform funding pharma- solicited from the Politics, ed., Group Interest 5th ed. companies ceutical to underwrite our ef- prescription planned to use (“PHRMA Democrats really was
forts.”); 10-11 id. in the 2000 major theme issue as organize drug organization leading Dep. at 94-95. 2] CBM.”); 128-Tab [DEV election. Castellanos PH fund to the 2000 days prior and CEO President the 60 response, in (Letter PhRMA form election, a contribution and the U.S. Cham- “enclosing CBM Amgen, general activi- media heavily and local spent “issue grassroots of Commerce ber *336 your All information .... and at- ties of CBM those Members supporting ads” ex- in strict confidence kept reply will Annen- candidates. tacking Democratic a court of by law or required cept as [DEV 20-22 38- 2001 at Report berg 0029 CBM jurisdiction.”); competent 22], these that ad- states Tab Castellanos (tally of donations 1] 128-Tab [DEV names. mentioned Members’ vertisements in FY to CBM companies major drug 4]; Vol. [JDT at Dep. 63-66 Castellanos Despite $39,586,892.32). totaling 68-72, 79-85 [JDT at Dep. Ryan also see itself describes funding, CBM itsof source Vol. 27]; Dep. [JDT 191-97 Josten Vol. representing organization grassroots as “a ¶¶ 6, 14, 6-Tab [DEV 16 12]; Decl. Bloom seniors, disabled patients, interests 23]; Vol. 7]; Dep. [JDT at 198-204 Mitchell businesses, pharmaceuti- Americans, small (Octo- 1] 128-Tab [DEV USA-CBM many others companies research cal file 20, 2000, CBM Memorandum ber CBM: reform.” Medicare with concerned Summary”) Campaign outlining “CBM Given 1]. ... 128-Tab [DEV AreWeWho advertising Fall 2000 (noting for that pharmaceuti- that the undisputed that it is discussing “Keep it Local” theme was CBM, CBM stands industry financed cal the November strategy advertising “[a]s disclosure how example of FECA’s closer”). grew 2000 elections by running can be avoided requirements Timothy Ryan, According 2.6.3.4 issue advertisements candidate-centered strategy lead- advertising much of CBM’s like “Citizens misleading name a behind was aimed 2000 election ing up to the Better Medicare.” in AFL- candidates attacked supporting the House of point time At 2.6.3.2 Dep. at 68-72 Ryan advertising. CIO pre- a considering was Representatives at 63-66 27]; Dep. Castellanos Vol. [JDT bill, Ryan testifies benefit scription drug 4], million spent about $65 Vol. CBM [JDT of advertisements series that CBM ran in the 2000 elec- advertising on television individual specifically to that did not refer Vol. Dep 27]. at 15 cycle. Ryan [JDT tion Dep. at Congress. Ryan Members spent ... Better Medicare “Citizens Dep. at 27]; also Castellanos Vol. [JDT ads as money issue much on almost as practice changed This 4]. Vol. [JDT 103-04 accounting for 13 party,” either the election days before during the 60 spending for the 1999- ad percent of issue spe- advertising focused where CBM’s ¶ 20(b) & Raja Tbl. La Decl. cycle. Find- supra cific federal candidates. from the (reproduced VII] [RNC Vol. ings 2.6.3.3. Center). Policy Public Annenberg Bello, senior adviser to 2.6.3.3 Judith advocacy campaign 2.6.3.5 The issue supported PhRMA, that PhRMA states prior to the 2000 days run in the CBM approach prescription market-oriented these demonstrates federal election Republicans typically drug coverage, to influence designed were advertisements Dep. at type plan. Bello endorsed FECA’s evade election and the federal Castellanos, Alex 1]. Vol. 149-50 [JDT il- example also This Media, source restrictions. National consultant are able to use organizations lustrates how CBM understood testifies that campaign-centered advocacy issue to avoid get our message to gun-owning voters in FECA’s disclosure limitations and hide critical swing states —or I could hold their identities behind euphemistic organi- funds in reserve for battles during 2001 zational names. and beyond.” Dep. LaPierre Ex. 3 at 3 (NRA02575 120]) [DEV 14]; [JDT Vol. 2.6.4 The National Association Rifle see also Dep. LaPierre at 95-106 [JDT AFL-CIO, addition to the The Coali- Vol. 14] (observing that the NRA spent tion, CBM, the National Rifle Associa- Gore). million to $5 defeat A1 During (“NRA”) tion’s use of advocacy issue deposition, his Mr. LaPierre was asked around the 2000 federal election also clear- repeatedly if he “spent had what it took ly corporations establishes that use issue to defeat A1 Gore.” Id. at 95-102. Mr. advocacy directly influence federal elec- LaPierre admitted the statement tions and evade FECA’s source limitations. truthful, was id. at but sought to *337 2.6.4.1 The NRA used issue advocacy characterize it as about more than the influence the 2000 federal election. Docu- election, Presidential id. at (“Q. 101-02 mentary evidence point: demonstrates this Is it true that NRA regular ‘spent what (cid:127) The consultant, NRA’s media Angus it took to defeat A1 Gore’? you A. If McQueen, wrote an August 2000 memo include the culture of the country, yes. entitled “NRA National Election Media A1 Gore was trying to change the cul- Recommendations.” The memo notes ture of the country. prevented We him that the NRA’s objective first is to “in- doing from it. That was the battle. It fluence [the] outcome presiden- of [the] only wasn’t an election battle. All these tial election and other key congressional politicians think of this only stuff seats in 10 ground’ ‘battle states.” election terms. And it’s like-it’s like McQueen Exam., Cross Ex. they’re NRA- years out of date. The fact is 22], ACK 17913-15 McQueen [JDT Vol. this is about air. It’s about the is an advertising professional whom the airwaves. It’s about the hearts and produced NRA to testify specifically minds of America. And that’s where the about paid the NRA’s battle is program. being media fought. And they’re not See generally McQueen willing to Decl. [11 that. Yet PCS]. concede we live it (cid:127) every day. So I’m not willing to con- Vice NRA, Executive President point cede the that this was Wayne LaPierre, only about sent out a fundraising elections, because the elections were letter from the NRA to its members about the air. And the air is that what we that he stated what “spent it took fighting for, people were breathe. Gore, [in 2000] to defeat A1 We want didn’t it to be only anti-firearm amounted to millions more than we had air, second amendment which is what hand.” LaPierre Dep. Ex. 3 at 3 (NRA02575 there.”). were put trying out 120]) [DEV [JDT Vol. 14]. (cid:127) LaPierre testified: LaPierre also took “We some testifies chose to mon he do ey out of much as as he could the reserves swing to cover the critical defi states, cit that voters swing NRA had meaning at battle- the end of the 2000 year.... ground respect states with [The Gore the Presi- advertising] was and in probably dency, perceived ... what were the main to be contributing fac Congressional close tor.” races. Dep. LaPierre LaPierre 105 [JDT at Vol. Dep. at 14]; 157-58 [JDT Vol. 14]. see also 159-165, id. at 220-21. (cid:127) The fundraising letter from LaPierre also that “I stated choose spend could 2.6.4.2 The NRA created an advertising as much as the NRA possibly could, to campaign in which “infomercials” would be infomercials the Gore thought Pierre November 2000 to September
run from impact on “positive” would objectives the NRA’s Two mean impact would “Positive the election: where elections to “influence were Id. Al Gore.” against ... a vote “in- jeopardized” Republican seats as key gun issues crease awareness documen- internal only does 2.6.4.4 Not Memo- approaches.” election Presidential NRA officials testimony from tation me- the NRA’s Finks of Jay randum purpose demonstrate Melanie Ackerman-McQueen firm dia campaign advocacy was issue group’s 2000 Fall NRA, Infomercial “NRA Hill of the election, the text of to influence 5,2000, NRA-PVF June Campaign,” Focus illustrates radio advertisements two 00429-00432, [DEV at NRA-PVF Moreover, ad- these radio well. point 120]. there is no demonstrate that vertisements candidate- between meaningful difference testifies also Wayne LaPierre 2.6.4.3 and cam- advertisements centered issue infomercial “hoped [an NRA that the NRA Buckley’s that use advertisements paign Al Gore] candidate critical of Presidential following demon- As the Dep. magic words. LaPierre the election.” impact would paid ads” strates, the “issue one of if the least asked When 14]. Vol. [JDT at 177 general the NRA’s funds from for with part per- designed was advertisement *338 express virtually identical treasury was they ought vote suade viewers PAC, with the NRA’s advocacy paid ‘We’re Gore, testified: LaPierre against advocacy in the PAC express And, the terms of yeah, we’re if did that. happy omitted: simply being La- advertisement Id. 174-75. if it that.” thrilled did NRA-ACK 14192 [DEV 120]. 2.6.5.2 Keating, David The Club for When confronted with scripts these two Growth’s Executive Director admits cross-examination, during his Angus CFG’s advocacy, issue “although edu- McQueen, who created these two adver- cational, also may affect elections.” Keat- tisements, admitted that pur- one of his ing Decl. Keating [8 PCS]. comments poses designing the commercials was to that “CFG has an overarching desire to influence the results of the federal election. change public policy which far any exceeds Exam, McQueen Cross at 41 [JDT 22] Vol. desire to affect elections.” Id. It is clear (“Insofar as providing to an information from documentary indepen- evidence and informed citizenry, the a quali- answer is dent evidence that The Club for Growth Indeed, yes.”). fied Wayne Mr. LaPierre change public aims to policy by influencing testifies scripts that these two “ex- were federal elections. actly Dep. the same.” LaPierre at 269 2.6.5.3 The Club for Growth’s mission 14]; [JDT Vol. id. at (observing 270-71 statement primari- states the Club “is *339 advertisement, that in the Non-PAC Mr. ly dedicated to promoting the election of Heston’s “day reference to the of reckon- pro-growth, pro-freedom candidates ing” ais reference to the 2000 through political contributions and issue election). These two advertisements are advocacy campaigns.” CFG 000217 [DEV emblematic of the meaningless distinction 130-Tab 5]. between candidate-centered advocacy issue
run in proximity close to a federal election donations, 2.6.5.4 In soliciting a brochure and advertisements that express use words The Club for Growth noted: “Before the advocacy paid and are for with federal elections, plans the Club to invest mil- $1 corporate funds from a or union PAC. lion in advertising television in key con- Accordingly, I find that the NRA’s issue gressional districts to pro- advance our advocacy campaign paid general for with growth issues. This is a tactic the unions treasury during funds and run the 2000 have effectively used so against pro- designed election was influence growth candidates. These issue advocacy election and evade FECA’s restrictions. campaigns make all can the difference in
2.6.5 Club The Growth tight races.” for CFG 000223 [DEV 130-Tab 5]; [DEV NRW-02814 129-Tab 2] 2.6.5.1The provides Club for Growth cf. 2, 2001, (January fundraising letter from example another corporation of a using Right the general treasury National Work funds on Committee advocacy issue designed noting 1,000 had influence a federal run “more than election. (Board Nevada, [DEV CFG in Virginia, 130-Tab television 5] ads Florida minutes) [document Directors’ sealed]. and shining spotlight Nebraska on restric- FECA’s thereby evaded funds and in candidates between
differences tions. Work”). Right to on states those Adver- Issue Candidate-Centered 2.6.6 consul- testimony 2.6.5.5 In Issues About Be Run May tisements for worked who Pennington, Rocky
tant No Them Has Running Group Which that: Sublette Bill candidate Republican Interest Particular had a ads broadcast group [interest an- examples, foregoing from the Aside the outcome on effect very significant advertisement an issue indicia that other Florida’s [in race Congressional that, in purpose electioneering has an run ads district], especially Eighth issue instances, candidate-centered certain Club [T]he for Growth.... the Club organizations run advertisements Republican [competing for Growth interest no organizational have who had made Keller Ric] candidate “issue.” advertisement’s known, Club relationship well Chapin Linda an intent reflect candidate clearly Federal ads 2.6.6.1 for Growth view, my Mr. Keller.... testifies help elect Higher project Sublette “Keller Vote ad entitled Florida Women’s [t]he inad very effective a television very, also ran List ... was EMILY’s Taxes” District Con- Eighth just before Florida one, [2000 it not run and had I ... which as campaign[,] would gressional] Sublette I believe Mr. primary, prior months in the two run was have recall there would 50% and reached praises The ad election!.] general to the at that polling Our run-off. no been safety and ends gun my record on in good were that we indicated time Chapin continue Linda line: “Tell ads Growth the Club shape, until clearly intended ad is This fighting.” began. Based result. the election influence ¶ 3-1 [DEV Ex. Decl. 15 Pennington is not observations, List EMILY’s my ¶ Keating Decl. 31]; also see 8-Tab is- gun control interested particularly primary (“Within days of the thirty interested However, they are sues. Growth] Florida, Club [The election candidates pro-choice female supporting $90,000 in television approximately ran me, purpose. ad serves like discuss- advertising education radio voter id., 12]; 6-Tab [DEV Chapin Decl. Bill Sub- voting record tax ing the also (advertisement storyboard); 4Ex. lette.”). *340 (“Q. 5] Vol. [JDT 35-36 Chapin Dep. at testimony expert Independent 2.6.5.6 men- List] by EMILY’s [run ads Did the uses for Growth The Club confirms pro-choice? being commitment your tion elec- federal influence advocacy to issue thing that one No, that’s and I think A. at 52 Report and Sorauf tions. Krasno ads these was interesting about was Growth, (“The for Club 1-Tab 2] [DEV choice; they were not about they were bluntly group, Republican conservative ¶ 13 Decl. subjects.”); Beckett about other on activities its electioneering discusses its (The run advertisement 3] 6-Tab [DEV contributions, website; they include direct rec- Chapin’s “praises List Ms. EMILY’s ads.”). contributions, issue bundled all List is .... EMILY’s safety gun ord safety The Club for gun question, being pro-choice; 2.6.5.7 Without about trying to advocacy ad is Clearly, this issue used their issue. aggressively Growth only I was not Chapin. And elections. elect the 2000 Ms. to influence up ad was dur- This thought so. adver- who these one paid for for Growth The Club half October the first period ing treasury general corporate tisements with Chapin affiliates.”) campaign 2000 when the was not state (citing Monroe Cross at air, 100-01). on the order to save resources. The examination, On re-cross De- [Republican candidate cam- Ric] Keller[’s] fense counsel confirmed the following: paign complained noticed this and to a Q you Would turn page your 66 of reporter, saying that this was a clear sign deposition. I will read to you starting I explained of coordination. ... that I had you line 20. Do see that? A Yes. been advised our consultants in Wash- Q Question, your “Do contractor and ington that under current I rules was builders members have any different or were, anyone my plans allowed to tell what special interest in child molestation as long as as no one told me what plans their compared to general public?” An- were. clearly EMILY’s List knew what swer, you “No.” Did give that testimony were, my plans they knew I going was and was it truthful? A Yes. dark at that time. I can only surmise that Exam, Monroe Cross at 102 [JDT Vol. 23]. they decided to run this ad at that time Accordingly, I find that Plaintiff ABC has based on that Obviously, information. any not cast doubt on the conclusion that campaign Keller viewed this ad as one ABC ran candidate-centered issue adver- designed Chapin’s to assist Ms. candida- tisements about issues that were not of (advertisement cy.”); id. Ex. 4 story- greater concern to membership its than to board). the general public. This conclusion leads 2.6.6.2The Associated Builders and Con- me to find that the ABC advertisements Monroe, tractors’ Edward in testifying relating to Melissa Hart’s punish- views on about an ABC issue advertisement that ment for child molesters were designed to discussed federal candidate Melissa Hart’s - influence the election. past pushing actions of “strongest 2.6.6.3 David Keating, executive director possible penalties for child molesters who Growth, of The Club for testifies that dur- attempt internet,” to lure children over the ing the 2000 cycle, election The Club for admitted that pushing penalties for such $20,000 gave Growth to the American Con- particular was not a concern of ABC mem- servative Union to support an issue adver- bers compared to the general public. tisement which discussed Senate candidate 65-67, Dep. Monroe 90-91 [JDT Vol. Hillary residency Clinton’s in New York. Indeed, testifies, 23]. previ- Monroe “[a]s Keating Dep. (“Q. at 58-59 [JDT 12] Vol. answered, no, ously pushing [the Hillary or not Whether Clinton is a resi- possible strongest penalties for child mo- dent of New York really State doesn’t have lesters attempt who to lure children over anything to do with the Club for Growth’s particular Internet] is not a concern to in pro-growth interest Repub- conservative the general public of gener- contractors or officials, lican elected does it? A. It group al of contractors.” Id. at 91. ABC no.”). doesn’t seem to directly, attempts explain away pro- 2.6.6.4 testimony expert of Defense posed findings of by citing fact Monroe’s Magleby following example notes the *341 of an redirect examination where at- Plaintiffs advocacy organization running an issue ad- tempted to testimony. rehabilitate his Pro- vertisement not connected to its mission: posed Chamber, NAM, Findings of Fact of example An Contractors, Associated and of an group Builders et. interest which ¶ (“ABC’s al. only not masked membership identity through has a dis- its an red, name, tinctive ‘very strong patriotic ethos: innocuous topic but ran ads on a white and country blue God and unrelated purpose associa- to the function or tion,’ so that issues like por- group children and the was The Foundation for Re- nography important (FRG). pushed by sponsible Government that cor- indicate examples These 2.6.6.6 $300,000. was Who nearly spent
FRG funds on treasury general spend porations Gov- Responsible for “The Foundation advertisements industry. issue candidate-centered trucking The ernment?” thereby Eric federal elections Professor influence investigation, Upon University requirements. of Nevada-Reno avoid FECA’s the Hrzik of was industry trucking that found Adver- Issue 2.6.7 Candidate-Centered supporting for Reid Senator upset with Past Votes Run About May Be tisements triple have banned would that legislation Legislation Upcoming Discussing Without discuss than Rather trucks. trailer Pending Issues Not May Be Run About or tri- Reid on with difference policy Legislature Before trucks, mostly posi- ran FRG ple-trailer organizations that indicates record discussing campaign, in the late tive ads issue adver- run candidate-centered often Ensign’s positions John opponent, Reid’s on past votes about Members’ tisements taxes. care on health legisla- any discussing future without bills 8] 4—Tab 28-29 Report [DEV at Magleby a Mem- about run advertisements tion or omitted). (footnotes not that is an issue on position ber’s release, press Life A Citizens 2.6.6.5 time the Congress pending before three about January on issued kinds of aired. These is advertisement Republi- Hampshire the New weeks before another indication advertisements are that primary, announced can Presidential candidate-centered running organizations an ad- begun airing had organization advertisements, gener- paid for with issue on “Funny Diseases” entitled vertisement in- funds, designed to that are treasury al Hampshire radio stations several New election. a federal fluence following script: run of advertisements A 2.6.7.1 series Al- suffer from Americans Four million that point AFL-CIO illustrates brain disorder disease—a zheimer’s influence designed to issue advertisements impairment. mental progressive causes past vote focus on elections can 1, 1999 Asso- September According to encour on member particular of a here is what Sena- report, ciated Press particular in a vote a Member to aging about say once had McCain tor John legisla future issues pending way on memory produced devastating loss into fall Issue advertisements tion. nice about thing “The by this disease: strong indicia provide category own your to hide you get is Alzheimer’s is to commercials of these purpose these once ... McCain also eggs.” Easter election of a federal influence outcome the Leisure World referred jokingly analysis of the provide they only because as “Seizure senior citizens home for See, e.g., Mitchell past vote. brought to Member’s information This World.” (AFL-CIO advertise Hamp- Life, [6 PCS] a New For Deck you by Citizens September “Job,” ran between ment organization. pro-life shire 25, 2000, criticized candidates 1]; also 130-Tab [DEV NRLC-00017 impor prevent “to having already voted Release) (Press (claiming NRLC-00016 prevent regulation intended OSHA tant timely because advertisement im being injuries from motion repetitive will be Hampshire Senate New State (“Yet 101-02, 141-42 Ex. plemented”) legalize January a bill to voting in to block Congressman_voted suicide). adver- I that this find assisted *342 help that would safety standards pri- federal to influence the designed tisement was risk.”) PCS]; [6 protect workers mary election. ¶ (AFL-CIO id. “Help” advertisement Id. Exs. However, 23-231. these same targeted “Republican Representatives who advertisements included telephone no had against voted the Patient’s Bill call, 194, number see id. at and by the Rights passed when it the House in Octo time the aired, advertisements there was ber, (<£Yet 1999”), Ex. 138 Melissa Hart no prescription drug issue pending then has sided the insurance with companies, before Congress, id. at Indeed, 208-11. opposing the real Patients’ Bill of a few of these advertisements were run (AFL-CIO Rights.”); id. advertise against candidates who were not even in- “Sky” “Protect,” ments run in July cumbents. Josten Dep. at August criticized “twelve dif 23A, & 23D, 23E, Exs. 231 [JDT Vol. 12]. ferent Representatives who had voted Hence, point of these advertisements the end of pass prescription June drug was likely not to influence any pending legislation that guarantee failed to drug issue before the Congress, because the Medicare”), benefits under (“Sky”) Ex. 139 candidate mentioned was not even a (“Yet Congressman Kuykendall voted Member of Congress. against guaranteeing prescription seniors 2.6.7.3 examples These demonstrate that Medicare....”) benefits under (emphasis organizations run advertisements about in original), (“Protect”)85 (“Yet Ex. 140 past votes about issues no longer before Congressman Jay Dickey sided with the Congress. The purpose of types these drug industry. He guaranteed voted no to candidate-centered issue advertisements is prescription Medicare benefits that would to influence a federal election general with protect seniors from runway prices.”). [sic] treasury funds and to avoid FECA’s re- 2.6.7.2 Another example candidate- strictions. centered issue advertisements designed 2.6.8 Candidate-Centered Issue Adver- to influence federal elections is Plaintiff tisements Permit the Candidate to Often U.S. Chamber of Commerce’s advertise- Avoid Running “Negative” Advertising or ments run during the 2000 federal elec- Otherwise Assist the Candidate by Run- tion attacking various Members on the ning Advertising While Candidate is prescription drug issue that was not Low on Funds pending Congress before at the time the advertisement was aired. Two other Josten indicia that candidate-cen- Dep. 191-230 & Exs. [JDT 23-231 tered issue Vol. advocacy is designed to influ- 12]. Most of these advertisements con- ence thereby election and avoid cluded instructing viewers to tell the FECA’s (a) organizations restrictions over targeted “stop Members to supporting a helping by running negative candidate big government prescription drug plan.” advertisements86 permit so as to the can- 85. The full text of "Protect” is: Watching PHARMACIST: people walk away PHARMACIST: The without today Senior Citizens the medication takes little can’t afford their bit They day. medication. out of me every come they’re and I skipping PCS], know Mitchell Deck Ex. medication 140 [6 pay so can for their food. With the examples Two "negative” candidate- rising today, cost medication it could centered issue advertisements are: wipe anybody out any time. Congressman VOICE: Jay Dickey Yet sided Americans Security For Job Advertisement drug industry. He voted no you Enough "Are Taxed Already?” guaranteed Medicare prescription advertisement, benefits In this an announcer states protect that would seniors from runway plans squeeze that “Gore money more prices. quit [sic] Tell Dickey putting spe- out of middle gas class families at the cial working interests ahead of pump.... families. Gore's ideas are so extreme. If
554 reelection Congressional my 1994 and advertisements positive run to didate groups interest many outside campaign, running adver- a candidate (b) helping defeat, they used and me for targeted candidate the when and where
tisements These their goal. advance money to soft constraints. budget due cannot advertise- ran television organizations that testify consultants Political 2.6.8.1 did not. opponent my in markets ments often advertisements issue electioneering op- knowledge, my my example, For to issues. as opposed candidates on focus in the any media buy did not ponent testifies: Strother Raymond 40% of covered Spokane market-which province once ads were Character groups, such other my distriet-but Now, howev- committees. the candidate ran ads organizations, limit pro-term nega- “going avoid often er, candidates policies. my which criticized market that par- third themselves, rely on and tive” orga- these outside my opponent, Unlike If a for them. dirty work this to do ties to disclose required were nizations runs union labor trade association funding. This tactic of their the sources integrity-or honesty and an ad about have been some may there suggested for federal candidate lack thereof-of the advertisers between communication elec- to influence office, intent their campaign. opponent’s my unmistakable. is obvious tion ¶ 27]. 7-Tab [DEV 5 Decl. LaRocco 40]; ¶ 9-Tab [DEV 9 Decl. Strother record also dem- in the 2.6.8.3Evidence ¶ 3] 6—Tab 8 [DEV Decl. Beckett also ad- run issue organizations that onstrates tend candidates experience, (“[I]n my candidates when to assist vertisements ads negative attack ... from shy away funds, which on are low campaigns repercus- be would there because advertisements these an indication like But entities them. sions For ex- purpose. electioneering serve Cam- Congressional [Democratic DCCC during Linda run ample, an advertisement for Growth the Club Committee] paign Rep- House campaign Chapin’s on Based constraints. such not have do List, praising by EMILY’s resentatives observations, [one] candidate ads my was aired gun safety, record on Chapin’s race, fi- were which Congressional of Octo- first half in the period “during (‘hard money’), funds federal nanced with campaign was Chapin when ber than ‘issues’ about actually more were re- air, save in order not on parties by political run ‘issue ads’ supposed I ... knew was List .... EMILY’s sources understand I groups, interest only I can sur- that time. dark at going with non- part least in financed were to run ad they decided mise (‘soft money’).”). funds information.” time based ¶ 3]; see 6-Tab [DEV Decl. Larry Beckett Representative Former 2.6.8.2 ¶2.6.1.1 (AFL-CIO Findings supra also testifies: LaRocco87 Story- CMAG presidency.” away from would pass, Americans came ever 3; 15.]. IER Tab Tab Sto- pump.” [DEV CMAG boards at the truly Gored 3], 48-Tab ryboards [DEV Congress as a Member served 87. LaRocco Myanmar Cheney advertisement, representing First by an unknown run This regime military LaRocco a “brutal District of Idaho. Congressional group, stated that men, 27], women two forced served Myanmar ... He 7-Tab [DEV Decl. the build- to assist campaign. labor into slave children reelection and lost his terms ... by ... Haliburton ing pipeline an oil Id. Cheney a heartbeat just trust Dick we can't *344 memorandum discussing where media years several kept has very close watch buys placed could be help to the Durbin on who is advertising, and when and Senate campaign which could not air ad- Candidates, where. who are often al- resources). vertisements due to a lack of ready officials, elected all keep track of them, who is helping
2.6.8.4 Both negative who sitting candidate-centered on issue sidelines, aired advertisements feder- enable and who is attacking them. al candidates to run positive advertise- Candidates in tight races are especially ments and candidate-centered issue adver- grateful to the groups issue who run ads tisements run in areas candidates where on the candidate’s behalf. purchase time, lack funding to air provide ¶ Strother Deck 40]; 13 [DEV 9-Tab additional corporate indicia that and labor ¶ also Lamson Decl. 19 26]; [DEV 7-Tab union issue advertising is influ- on focused Beckett Deck 16. The uncontroverted encing federal elections while avoiding testimony of lobbyist Wright pro- Andrews FECA’s restrictions. vides: sum, 2.6.9 In I find that these exam- Sophisticated political donors-particular- ples and characteristics of electioneering ly lobbyists, directors, PAC and other issue advertisements illustrate corpo- political acting insiders of spe- behalf rations and labor routinely unions use can- cific interest groups-are not in the busi- didate-centered issue advocacy as a means ness of dispensing their money purely of influencing federal elections. on ideological or grounds. charitable 2.7 Federal Candidates and Political Rather, political these typically donors Appreciate Parties Enow and Who Runs are trying wisely invest their re- Candidate-Centered Issue Advertise- sources to maximize return. ments in Their Races Sophisticated donors do up not show one Candidate-centered issue advertise- day contribution, with a hoping for a paid ments for with corporate and labor favorable vote the Instead, next day. general union treasury designed funds and longer build term relationships. to influence the federal permit election The donor convey seeks to to the mem- corporations and labor unions inject im- ber that he or she is a friend and a mense aggregations of wealth pro- into the supporter who can be help trusted cess. Candidate-centered issue advertise- federal elected official when he she is paid
ments general from the treasuries needed. Presumably, most organizations these radically distorts the elected recognize officials that continued electoral landscape. support financial from the donor often 2.7.1 Campaign and a lob- consultants may be contingent upon the donor feel- byist testify that candidates are acutely ing that he or she has a fair received aware of third-party groups interest who hearing and degree some consider- run candidate-centered issue advertise- ation support. ments on behalf of their candidates and Often, corporate clients seek their lobby- appreciate that candidates support ists’ advice organizations. concerning how money those their Political consultant spent, is best Strother whether it testifies: contribut- ing their PAC’s hard Campaign consultants, money directly to and candidates candidates, themselves, donating soft pay very money to the close attention to political parties, advertisements or funding independent broadcast Every expenditures campaign districts. that I such as ‘issue broadcast have been past associated in the ads.’ Although, the answer for each help money spend who to those circum- debted upon various depend will
client Bump- client Senator elected. Former stances, including goals them get achieve, expen- unregulated working testifies: ers *345 money to donations soft ditures-whether suggest parties or sometimes Members campaigns-can ad or issue parties make or individuals corporations that far more influence generate sometimes run groups that interest to donations contributions. campaign direct than whose cam- ads.” Candidates “issue influ- to secure practice used
Another greatly ads from these benefit paigns for an interest Washington is ence In groups. help of these appreciate ads.” “Is- “issue run so called group favorably dis- fact, will also be Members proximity to elec- in close run ads” sue groups finance these those who posed the outcome may influence tions seek access discuss they later when Moreover, influ- may ads such election. legislation. pending seeking official who elected ence nega- when a love especially Politicians support of or to come out reelection oppo- their against ad” airs tive “issue due to legislation particular opposition feel did politicians If nents. these have to the local voters response them, helping were the issue ads that by the elect- are noticed These ads ads. sponsoring people they would call behalf, against or on whose officials ed stop, they or them to them and tell An whom, run. effective these ads are angr- press a conference would hold have far more campaign may advertising if rarely, But that the ads. ily denounce cam- than a direct a member on effect ever, happens. large soft even contribution or paign her or to his money donation ¶¶ 6-TablO]; 27-28 Bumpers [DEV Decl. purposes that is used for 12] 6-Tab Chapin [DEV also Deci. see These ads or state. her district in his or (“Federal appreciate interest candidates showing an have the effect often de- like electioneering ads those group particu- lobbyist’s official that elected campaigns, their benefit above that scribed at the consequences can have lar issue large donations they appreciate just as “issue ads” useful box. Given how ballot appreciated I campaigns. their help that clout with creating political be can my be- List on run EMILY’s the ads candidates, to have a laughable it is midst candidates general, half. corporations and system prohibits that mine appreci- election like hard-fought aof penny even a giving from labor unions way.”). help comes their any ate to funnel candidate, them but allows Indeed, groups can interest 2.7.3 adver- negative positive into millions apprise politicians of the ones who may influence tising campaigns that be- they run advertisements that many candi- outcomes and election sent example, The Coalition For by. half. influenced likely are to be dates it aired in 1996 tapes of the advertisements 1], ¶ 8, 13, 6-Tab [DEV Decl. Andrews Gates, Repub- to House Joyce assistant contrary evi- no put forth Plaintiffs Boehner. Chairman John lican Conference these con- testimony of dence to rebut the No. General Counsel’s MUR FEC lobbyist. sultants 20, 2001, 53-Tab [DEV at 30 Rep., April and candi- 2.7.2 Former officeholders Report pub- the General Counsel’s As 6]. the consultants confirm the dates view indicates, Kra- Alan the Coalition’s licly and federal Congress Members investigation in an FEC testified nowitz ad- of who ran very candidates aware tapes to “show sent the the Coalition feel in- on their behalf vertisements Republican Members of the House and was broadcast on television or radio were, indeed, that we doing something, within days the 60 preceding a general after the fact.” Id. The Coalition also election in a state congressional district provided tapes of the ads to RNC Political in which that Candidate was running for 32; Director Curt Anderson. Id. at federal office known to a Member or Can- Dep. also Josten at 266-67 [JDT 12] Vol. didate, and known to a Political Party. (“Those ads after were aired were Resps. AFL-CIO and COPE to FEC’s [sic].”). Congressman Bayner shown to RFA’s, First Nos. 20-21 [DEV 12-Tab 5]. 2.7.4 Politicians who benefit 2.7.7 The AFL-CIO admits that at *346 help provided by corporate and labor union least one candidate or Member of Con- general treasury fund spending on their gress expressed has appreciation gra- money races raise for organizations these titude for its financing of at least one appreciation. demonstrate their Con- political advertisement identified a gressman Keller, Ric open- for whose 2000 Candidate and was on broadcast televi- campaign seat the Club for Growth had sion or radio within days the 60 pre- run issue advertising, signed a Club for ceding general a election in a state or Growth fundraising July letter dated congressional district in which that Can- 2001. The letter stated: didate was running for federal office. The Club for my Growth selected race Resps. AFL-CIO and COPE to FEC’s as one of its top priorities.... 5], First RFA’s No. 22 [DEV 12-Tab Since targets the Club the most competi- 2.7.8 Some candidates political or their tive races in country, your member- requested committees or suggested that ship in the help Club will Republicans the AFL-CIO broadcast advertisements keep Congress. control of their districts in 1996. FEC MUR CFG000208-210, (em- CFG000208, General 9, 2000, Rep., Counsel’s June at 21 phasis 5]; in original) [DEV 130-Tab [DEV 52-Tab 3]. supra (de- Findings 2.6.5.5 (Pennington) Wirthlin, 2.7.9 Mellman and based on scribing how The Club for Growth’s candi- their August-September poll, state: date-centered issue helped advertisements election). Americans see very Keller win little primary difference be- tween the influence of a soft money do- Groups 2.7.5 aggressively push to be political nation and the fund- recognized they for role played help- ing political of ads on television and ing a get candidate elected to office. After radio.... Election Day, the Coalition listed “on ideas maximizing individual, the credit an the Coalition issue group, corpora- should If get activities,” tion, for its 1996 including 50,000 or labor paid union
whether to report “[m]ake a to each Mem- dollars or political more worth ads on of ber that helped [it] and actively solicit the radio or TV that a Mem- benefitted formal thanks.” Memorandum to Alan ber Congress, likely how would the of Kranowitz, Josten Bruce and Elaine Gra- Congress Member be give ham from Larry McCarthy of Cannon opinion special consideration because of McCarthy Limited, Mason Next Steps ads-would be very likely, some- Coalition, 17, 1996, dated Nov. likely, what somewhat unlikely, very TC00802-04, 121], [DEV TC00803 give unlikely special them consider- ads, ation because you
2.7.6 or don’t The AFL-CIO admits that opinion have ? made the financing of at least one advertisement that identified a Candidate 80% LIKELY TOTAL dispropor- deliver a organizations These likely. Very 37% Republican percentage tionate likely Somewhat 13% re- should day. They Base on election UNLIKELY TOTAL 10% attention. constant special and ceive unlikely 5% Somewhat limited resources our prioritize must We unlikely Very 5% organizations.... these toward opinion Don’t 9% RNC Coali- any aspect important An know 0% Don’t Refused engage done to work will tions 9-10 Report at and Wirthlin
Mellman that work organizations many other Resp. NAB 5]; see also 2-Tab [DEV arena.... within RFA’s, No. 3. 12-Tab [DEV First FEC’s meet- regular RNC will establish The to members (admitting “that access 7] meeting This organizations. ing key branch officials Executive Congress three times at least be held should might many that conceiv- out one factor by on the emphasis should year. legislation executive ably affect information important exchange of free assuming all other policies decisions Each upcoming elections. about *347 equal”). are circumstances featuring an event be meeting should equally parties are Political 2.7.10 Co-Chair, Chairman, Regional RNC that issue advoca- support grateful for least one and at Representatives Field their candi- perform for cy organizations Congress. Member of pro-file [sic] high dates. Gingrich, be Newt Examples would enti- document internal RNC An 2.7.10.1 Lott, Armey, etc. Dick Trent Plan” states: tled “Coalitions RNC0275390-RNC0275396, effort should Coalitions The RNC (emphasis add- 97] [DEV RNC0275390-91 get simple question-will by the judged ed). day? votes election us more presented slide show 2.7.10.2 An RNC to be doubt need will no Their [sic] issue advoca- group interest broadcast how committees, tri- meetings, countless in the 2000 help candidates used to cy was customary ac- provide all bunals to cycle: election myriad entities cess that in 2000 Help Democrats Outside ultimately every ac- expect, but come to done in engage we should be tivity that amounts record spent groups Liberal votes to win Highest in 2000. assisting Democrats Planned Advertising Spenders:
Issue million, NAACP-$10.5 Parenthood-$14 can many organizations There are NAR- million, million. Sierra Club-$9.5 influence routinely deliver measurable million. AL-$7.5 five but there are Republicans, behalf of them- distinguished that have of the groups Policy Center (Annenberg Public five these give Ad- Pennsylvania, The RNC should “Issue University selves. great Cy- deal attention. Election organizations 1999-2000 vertising cle”). These the: groups Rifle Association
National Republicans Help for Outside Right to Life Committee National (2/3rds million Right to Committee Work Business Roundtable-$6 National Republicans), NRA-$15/20 supporting Independent Federation National Million Coalition Christian Business
(Annenberg Policy Public Center of the recognition.” RNC0065691A [DEV 134- University of Pennsylvania, 8]; “Issue Ad- Tab see also RNC0065691 [DEV 134- vertising the 1999-2000 Election Cy- check). (copy 8] Tab In October cle”). 1999, the National Right to Life Commit- $250,000 tee received a donation from the Impact Party Spending of Third NRCC which “put was general NRLC’s Cycle for the 2000 Resps. fund.” Nat’l Rt. Life Pis. to Defs’ In 2000 it was estimated that more than First Interrogs., No. 3 [DEV 10-Tab 15]. spent million was on issue advocacy $509 representatives NRLC present “were at a television and radio advertising. Third meeting with Rep. Tom Davis when he parties accounted for almost million $347 presented the check to Right National (68%) spending. of this Life.” Id. Republican (16%), Party-$83.5 million 2.7.10.5 DNC Political Director Gail (15%). Party-$78.4 Democratic million spoke Stoltz generally about the recent (Annenberg Public Policy Center of the developments of using issue advertising for University Pennsylvania, “Issue Ad- electioneering purposes. Stoltz stated: vertising in Cy- the 1999-2000 Election my experience, “In issue ads affect elec- cle”). tions. The ads can either demoralize or “ Office, RNC Counsel’s ‘Soft’ Dollars: vote, confuse voters so that do They Republican What Mean for the Par- they can energize a voter base for or ty,” C0248809, RN C0248802-RN against or its During candidates. (emphasis [DEV RNC0248808-09 97] presidential year, election the ads defi- original). *348 nitely make a difference when a presiden- An 2.7.10.3 RNC document states that tial candidate is featured.” Stoltz Decl. party special “third groups [sic] interests ¶ 16 [DEV 9-Tab 39]. ... permitted spend are to raise and soft 2.7.10.6 parties Political and candidates money for issue advocacy purposes. Lib- have directed donors who have maxed out special eral groups spent interest record their federal contributions to give money assisting amounts Democrats 2000 .... nonprofit corporations who can then fact, of the spent million on issue $500 spend money advocacy. on issue Robert during advertisements cycle, 68% provides W. Hickmott following uncon- ($347 million) spent by partfy] was third troverted testimony: special groups interest than twice —more As both a contributor to spent the amount candidates and by political parties both parties, combined.” Updates lobbyist “Issue Fi- and as a Campaign who advises Effects,” nance Reform Concerns and clients spending, about I am C0318576, RN C0318573-RN personally fundraising aware of the RNC0318575 [DEV 98]. practices of federal candidates. Once you’ve helped a federal candidate 18, 1996, RNC,
2.7.10.4 On October contributing money hard to his or her through its component, non-federal the Re- campaign, you are sometimes asked to publican National State Elections Commit- do more for the candidate making tee, $500,000 gave to the Right National money donations hard soft Life Committee with a cover letter and/or from committees, party the national RNC the rele- Haley Chairman Barbour to NRLC vant state (assuming accept Executive Director it can stating: David O’Steen contributions), ‘Tour corporate continued efforts to educate and or an outside inform the public American deserves group [sic] that is planning doing an inde- distin- objectively issue advertisements advertise- or issue expenditure
pendent pure issue campaign. from advertisements guishable candidate’s help ment to come issue typically distinguish genuine requests may that one so types These party commit- national without con- electioneering advocacy from from staff of the candi- staff tees, campaign The record subjective factors? sidering staff, fundraising date, the candidate’s in the that question answers unequivocally of the candi- members staff or former affirmative. office, they also but congressional date’s Adver- Issue 2.8 Candidate-Centered Member a [sic] from comes sometimes Distinguish- Empirically Are tisements chief of staff his or her Congress Issue Advertisements able from “Pure” other than somewhere (calling empirical- are advertisements Pure issue office). Regardless government distinguishable from candidate-centered ly request, who makes person precise designed to influence issue advertisements always involve almost solicitations these (a) issue of bases: on a number an election rath- Congress Member an incumbent influence fed- designed to advertisements result, there challenger. As than a er identify a can- always almost eral elections person or for a multiple avenues (b) office; adver- issue didate federal resources has the financial group that federal designed to influence in tisements financially candidate assist proxim- run close effort, generally with hard elections are both her election his or (c) election; and issue money. ity to a federal and soft influence a designed to advertisements 19]. 6-Tab [DEV Decl. Hickmott and con- are run states federal election not have the record does While 2.7.11 races. with close gressional districts being ex- examples of votes any direct issue advo- Adver- changed for candidate-centered Issue 2.8.1 Candidate-Centered I find the record expenditures, cacy Identify a Can- Always Almost tisements parties candidates demonstrates Federal didate Office encourage corporations appreciate and de- advertisements I find that issue large aggrega- deploy labor unions election al- a federal signed to influence *349 process. political into the of wealth tions by candidates always specific refer to most else, I find the record nothing If issue ad- Generally speaking, pure name. corruption appearance of presents to refer to a likely are less vertisements dependence of office- stemming from by name. federal candidate run parties on advertisements holders and testimony of 2.8.1.1 uncontroverted groups. by these outside designed who have political consultants Accordingly, I that Con- 2.7.12 find confirms this advertisements genuine issue that a concluding in gress was correct any produce failed to finding. Plaintiffs with the of FECA. problem existed state designed who is- consultants rou- and labor were Corporations unions directly this to rebut sue advertisements on treasury funds tinely spending general testimony. fed- designed influence advertisements (cid:127) Bailey testi- Doug consultant Political able to use eral elections were fies: pay for the most treasury funds to general did for candi- to the work In addition we political advocacy-advertise- potent form of Deardourff, did we also Bailey, dates express that do not use words ments and is- political parties for ads to the leads advocacy. This conclusion creating we groups. When were sue are candidate-centered following question: (e.g., true issue ads for ballot initiatives name of a federal candidate. Krasno and .), creating .. and when we were true Expert Sorauf Report at 55-56 1- [DEV ads, party building it was never (“The neces- Tab 2] most obvious characteristic sary us to specific candi- shared candidate ads and candidate- reference dates in order to create oriented issue ads is their emphasis for federal office on instance, ads. For we created effective candidates. Candidate appear names opposing a serious of ads a ... [sic] virtually all spots, of these with candidates referendum in Florida which made no likely most identify themselves any reference to candidates. We were ads and candidate-oriented issue ads most conveying successful message, our (in likely to identify the opposing candidate and the referendum failed two to pejorative way). ads, some Pure issue one.... hand, the other were much less likely to Similarly, organizations can design issue mention a candidate for federal office true issue ads without mentioning ever ....”). specific candidates for federal office. In sampling 2.8.1.3 A of issue advertising my decades experience in national campaigns demonstrates that candidates politics, nearly all the ads that I have are often mentioned the advertisements seen that both mention specific candi- only as day approaches.88 election dates and are days run in the immedi- (cid:127) (“CBM”) Citizens Better Medicare ately preceding clearly the election were During the final three weeks before the designed to elections. From a influence election, 6,010 2000 federal CBM aired perspective, media consultant’s there spots that mentioned a candidate and would be no reason to run if such ads only eight spots that did not mention a your impact desire was not to an elec- candidate. Expert Report, Goldstein tion. only This is true not in the 60 A, App. [DEV Tbl. 17A 3-Tab In7]. days election, immediately prior to an election, final days before the CBM probably but also in the days 90 or 120 14,975 ran a total of advertisements. Id. beforehand. 10,876 Of these advertisements men- ¶¶ 9, (em- Bailey Decl. 6-Tab [DEV 2] candidate, 4,099 tioned a federal while added); phasis see also Strother Decl. 7 did not mention a federal candidate. Id. added) (observ- (emphasis [DEV 9-Tab 40] From January through September ing pure that the issue advertisements he 23,867 spots, CBM ran television during had made his career “did not men- none of which mentioned a candidate. any Indeed, tion candidates name. Id. usually there is no reason to mention a (cid:127) point candidate’s name unless the Chamber is to Commerce *350 election.”).
influence an 1, 2000, January Between and Election (November 6, 2000), Day 2000 2.8.1.2 expert testimony Uncontroverted likewise confirms the view that Chamber of Commerce ran a total of issue ad- 7,574 designed vertisements to influence a advertisements. Id. feder- Tbl. 17B. All al election always almost mention the of these run in advertisements were finding 88. Evidence for this completeness accuracy is based on the of the CMAG data, Expert Report accept of Kenneth M. Goldstein. I the CMAG data aas valid compiled Goldstein Findings this information from database. See 2.12.1. More- infra over, supplied by Campaign Analysis data challenge Media nowhere do Plaintiffs the data (CMAG). Group Expert Report Goldstein of when candidates' names were mentioned 7], Although question 3-Tab [DEV Plaintiffs in the advertisements. 2,665 run and were while advertisements and all the election before weeks seven a candidate. Id. mentioned mentioned federal each a these advertisements of Emily’s List only Id. that the time (noting federal candidate. a that mentioned ran advertisements (cid:127) Parenthood89 Planned name was the sev- federal candidate’s 1, 2000, and Election January Between election). 2000), prior to the (November 6, Planned en weeks Day 2000 6,523 adver- (cid:127) ran a total Security91 Parenthood Job Americans for days In the 63 Tbl. 17C. Id. tisements. 2000, 1, Election January Between election, 185 advertisements before the (November 2000), 6, Ameri- Day 2000 mention a federal run that did were 6,062 Security ran a total cans for Job 5,916 advertisements candidate, while In the 63 Tbl. 17F. advertisements. Id. a federal candi- mentioned run that were election, 5,073 days before the advertise- only time (noting Id. date. run and each mentioned ments were ran advertisements Parenthood Planned During this same Id. federal candidate. candidate’s a federal mentioned Security for Job period, time Americans prior to in the five weeks name was that mentioned only ran advertisements election). Id. federal candidates. (cid:127) AFL-CIO (cid:127) Business Round Table92 1, 2000, and Election January Between 1, 2000, and Election Between January (November 6, 2000), the AEL- Day 2000 (November 6, 2000), Busi- Day 2000 18,324 advertise- a total CIO ran 8,158 a total of Round Table ran ness days 17D. In the 63 Tbl. ments. Id. In the 63 Id. Tbl. 17G. advertisements. 10,099 advertise- the election before election, 4,571 days before the advertise- each mentioned run and ments were mentioned a were run and each ments During Id. this same federal candidate. During Id. this same federal candidate. ran no adver- the AFL-CIO period, time period, the Business Round Table time a federal mention that did not tisements that mentioned only ran advertisements Id. candidate. Id. federal candidates. (cid:127) Emily’s Project A Women Voters: (cid:127) Handgun Control93 List90 1, 2000, and Election Between January and Election January Between (November 6, 2000), Handgun Day 2000 (November 2000), Emily’s Day 2000 3,383 ran a advertise- Control total 2,680 advertisements. List ran a total days Id. 17H. In the 63 ments. Tbl. days before Id. Tbl. 17E. 3,146 election, advertisements before run that election, were 7 advertisements candidate, were run and mentioned federal each mention a did not Annenberg bying group.” Report 2001 at 23 Annenberg Report describes Planned planning politi- 38-Tab pro-family [DEV 22]. as "a Parenthood Annenberg Report advocacy group.” cal Annenberg Report describes the 92. The Busi- 22]. at 24 38—Tab [DEV organization Table as "an ness Round largest represents Report Emily’s the CEO’s of America’s cor- Annenberg describes 90. The Annenberg Report porations.” 2001 at 20 helping organization dedicated to as "an List support 38-Tab [DEV 22]. abortion women who Democratic *351 Annenberg Report rights get into office.” Handgun Annenberg Report 93. describes The 22]. 2001 at 38—Tab [DEV group supporting "advocacy Control as an gun safety.” legislation promote Annen- Report Annenberg describes Ameri- The berg Report 22]. 38-Tab [DEV 2001 at 25 Security "pro-business lob- cans for Job as a During candidate. Id. this same time sampling As the group interest adver- period, Handgun illustrates, only Control ran ad- tisements above as the election near, vertisements that mentioned federal draws advertisements that name a candidates. Id. federal candidate are much more common than issue advertisements (cid:127) do. Sierra Club94 name a federal candidate. I find that most 1, 2000, January Between and Election candidate-centered issue advertisements (November 6, 2000), Day 2000 the Sierra appear in proximity close to a federal elec- 2,270 ran Club a total of advertisements. tion. In election, the case of general Id. Tbl. 171. In the days before the studied, which has been heavily most it is election, 22 advertisements were run clear that candidate-centered issue adver- candidate, that did not mention a federal prevalent tisements are most within sixty 1,707 while advertisements were run days of a federal election. that did mention a federal candidate. 2.8.2.1 The Annenberg Policy Public Id. Center found that by the last two months (cid:127) League Conservation Voters95 election, before the almost all televised 1, 2000, January Between and Election spots issue made a against case for or a (November 6, Day 2000), candidate. Annenberg Report 2001 at 14 League of Conservation Voters ran a Annenberg [DEV 22]. 38-Tab The Re- 5,027 total of advertisements. Id. Tbl. port, Plaintiffs, study relied on con- In days election, 17J. the 63 before the cluded: 371 advertisements were run and each type The of issue ad that dominated advertisement did not mention a federal depended greatly on how close we were candidate, 1,705 while advertisements general to the election. During the two- were run that mentioned a federal candi- year cycle election 71% of distinct issue (noting date. Id. only time the candidate-centered, ads were 16% were League of Conservation Voters ran ad- legislation-centered, gen- and 13% were vertisements mentioning federal candi- However, eral-image centered. distinct date’s name was in eight prior weeks ads from before the final two months of election). to the the election were 43% candidate-cen- 2.8.1.4 Candidate-centered issue adver- tered, centered, legislation 35% and 22% always tisements almost name general-image picture oriented. That candidate. finding surpris- This is neither flipped when looking unique ads from ing nor controverted. examples As the the last two months of the election. group indicate, the interest advertisements fully unique that case 89% of ads were however, generally issue advertisements candidate-centered, just while 3.6% were naming start a federal only candidate centered, legislative gen- and 7.4% were the election draws near. eral-image issue ads. In other words Majority 2.8.2 A Candidate-Cen- candidate-centered issue ads became tered Issue prominent Advertisements are Run in much more as the election Proximity Close to a Federal approached Election .... Annenberg Report Annenberg Report
94. The describes the Sierra describes League "pro- pro-environment advocacy group.” of Conservation Voters as a Club as "a advocacy group.” conservation and education Annenberg Report 2001 at 23 38-Tab [DEV Report Annenberg 2001 at 23 [DEV 38-Tab 22]. 22], *352 ads, the election majority of many issue account how into we took When candidate-cen- approached percent just and not ads aired times these ads, percent and the spots we found an tered increased of different number decreased, ads image candidate- percent legislative were greater even months after the last two spots airing such Television centered. before televised issue cen- election almost all 87% candidate Tuesday were Super can- against spots made a case tered, legislative-centered, 9.5% breaking that By didate. image oriented. 3.6% looking further and period down
time added). (emphasis Id. September to that aired spots only to a feder- sixty days prior In the 2.8.2.2 November, there was a found we election, advertisements group al interest of candidate-cen- percentage greater rise dra- a federal candidate that mention two month of the in the last tered ads advertisements matically, whereas issue Fully eight. last than campaign candidate not mention a federal that do August ads aired issue 9b% after during the course of fairly remain constant against a candidate. made a case for ads, using A data from year.96 graph and 2.3% legislative Just 3.1% were compiled by Kenneth cycle election Though candi- 2000 image ads. general were point: up illustrates always ads made Goldstein issue date-centered airing of issue experts that the testimony of confirms The uncontroverted 2.8.2.3 set, data dispute completeness of his compiled by tiffs on data 96. The Chart is based experts have criti- Report, Appendix, Expert none Goldstein Kenneth Goldstein. 7], A, that in the the data demonstrates Goldstein cized that App. Table 16 3-Tab [DEV election, clear sixty days prior a federal group interest advertisements observed all mention the majority of issue advertisements during forty-four prior to the run weeks Although a federal candidate. using Plain- name of election CMAG data. *353 designed congressional to influence a races or advertisements districts where is at its zenith in the final federal election 1998, 2000, the outcome is in doubt. In Ex- prior Magleby weeks to an election. and I conducted numerous inter- (“Genu- Report at 4-Tab pert 8] 18 [DEV key views with in staff scores of interest generic ine issue ads are more or ‘edu- groups they to assess where in engage on their face than cational’ ads electioneering advertisements.... in electioneering They nature. are also widely groups shared view of interest election.”); period rare in the an before id. they campaign where their invest- (“In the at 33 contests we monitored in ment can make a difference and that is interest group electioneering most always competitive almost in contests. in advocacy came the final weeks of the tendency This has been reinforced campaign. In 58% of the interest the exceedingly margin close of in group electioneering advocacy came control in in Congress years. recent In- election.”); last two weeks of the Goldstein groups routinely terest do their own (“The Expert Report at 17 3-Tab [DEV 7] polls to inform them on spend where to provides empirical database CMAG evi- their electioneering advocacy money. a strong positive dence of correlation be- example, they For before sent mailings, tween [an advertisement’s reference to a the NEA Education [National Associa- proximity federal candidate and the surveys conducted “if tion] determine time of the of broadcast the advertisement they could make a difference” with their consequently to the federal and election] spending. validity identifying political its as a test for (footnotes omitted) Report Magleby at 31 television purpose advertisements with the 8]; [DEV 4-Tab see also Krasno and supporting opposing or effect of a candi- So- office.”). (footnote omitted) public Report date for The conclusions rauf at 57 [DEV (Candidate experts of these has not been contradicted 1-Tab 2] candidate-orient- by any contrary expert testimony intro- ed narrowly targeted issue ads “are to air litigation. duced Plaintiffs in this in only closely the most contested elec- tions.”). Center, 2.8.2.4 As the Annenberg ex- case,
perts in this empirical and the data provide 2.8.3.3 Political consultants also establish, candidate-centered issue advoca- testimony uncontroverted that candidate- run in cy proximity close to federal centered issue advertisements are concen- elections. competitive trated on races the weeks A Majority 2.8.3 Candidate-Cen- before a federal Political election. consul- tered Issue Advertisements Are Run in tant Strother testifies: Congressional States Districts unth mentioning addition to candidate Races Close proximity day, in time to election empirical 2.8.3.1 The data and the un- another informative factor is to look at testimony experts po- controverted where the ad was run. media When litical consultants this case demonstrate elections, consultants want to influence that candidate-centered issue advertise- competitive air their ads districts are run in congressional ments districts or Thus, battleground states. in addi- states where there are close races. itself, ad looking tion to at the to discern electioneering you might intent also look expert Magleby
2.8.3.2 Defense states that: Report competitive at the Cook ‘toss-up’ are the like- races. Those most groups particu-
Interest ... take aim at competitive places ly lar states with U.S. Senate where the advertisements in the the total ads broadcast percent the outcome impact on could have *354 (“The race.”);98 dis- Thus, political party geographical id. at 21 when a an election. advertising an in group focuses ads Senate group tribution of interest or an issue districts, competitive po- campaign on that of closely paralleled elections clear. the election is influence intent to percent ran 90.6 parties, litical contrast, per- is to goal when the By The competitive in states. their ads those one Congress to vote members of suade As in elections. true House same was pending piece another on way or during in 85.3 Table demonstrated campaign will be ad legislation, an issue ads group financed of interest percent undecided members. at the targeted days of the election within 60 broadcast ¶ 40]; 9-Tab 9 [DEV Decl. Strother with in districts congressional aired were ¶ 7-Tab 26] 6 [DEV Lamson Decl. also Similarly, politi- competitive elections. (“Parties run these generally groups in their ads percent ran parties cal 98.2 only places in ads’ ‘issue pre-election districts.”) (footnotes omitted); see those competitive.”). the races are where 5-6; 3, 20-24, Kras- Tbls. generally id. at likewise demon- Empirical data 2.8.3.4 Report, App. Tbls. 4-5 no Sorauf issue ad- candidate-centered strates 2]; Buying Time 1-Tab see also [DEV congres- in are concentrated vertisements (“The competitiveness 46] 2000 at 53 [DEV with contested districts and states sional magni- races also affects the of candidate database97 shows “The CMAG elections. advertising.”). timing tude and ads financed television group that interest chal- testimony has not been expert This candidate and were that mentioned a contrary ex- any with lenged by Plaintiffs days of an election within 60 broadcast pert evidence. in states highly concentrated were Indeed, ad- even Plaintiff NRA 2.8.3.5 competitive congressional districts advocacy cam- targets that it its issue mits Report at 20 Expert races.” Goldstein competitive races. NRA paigns toward (“As shown Table 7] 3-Tab [DEV Wayne LaPierre Executive Vice President elections, 89.2 during the 2000 senatorial “ makes thing the other testified ads ran percent group interest of such NRA does is NRA- impact on what the competitive. where the race was states NRA, efforts-and in terms of its election percent of for 77 Four states accounted NRA, say including I I’m the whole when po- groups; by the ads broadcast interest competitive to focus on organization-tends parties percent litical broadcast Dep. LaPierre at 118 Vol. [JDT races.” group Interest ads these four states. 14]; (“Q. Is it correct see also id. at important in Michi- particularly ads were could to spent NRA as much as it that the gan, groups where interest broadcast you which races were close or in detail in determined CMAG data is discussed battleground Finding were in states or Appendix my opinion and which races Newsletters, media, just A. whatever? 2.12.1. mean, general turning on the television. I you everybody-there are no secrets in-when competi- determining which races were mean, everybody get campaign, into a I tive, professional judg- relied on his Goldstein columnists, TV, mean, it's-the knows. I media sources ment as informed various radio, mean, every you the-I newsletter Report including attached the Cook which he .”); Report... pick up, whether it’s the Cook report. Expert Report expert Goldstein to his (recalling Dep. Ryan 27] at 76-77 Vol. [JDT Report is at 20 n.17 3-Tab The Cook [DEV 7]. Report find would check the Cook that he handicap La- also used Plaintiffs races. ("Q. Congress competi- were out which races of Dep. at 196 Vol. What [JDT 14] Pierre tive). your were from which sources of information message gun owning get viewing advertisement; its voters particularly true.”) swing critical states? A. That’s when that advertisement is viewed outside Now, (“Okay. we’ve talked a little bit the context of the election. your about the location of ads and that 2.8.5.1 Political Raymond Consultant were least concentrated on close Strother testifies: I battleground races states. You and us, None of without understanding the may Q.- differ on whether that-A. Right. time, context and the can you tell what a is, proportion they’re where the but con- sham ad is and a nonsham ad. You *355 Right.”); centrated on those races. A. su- can’t by pictures do that at looking ¶2.6.4.1 (national pra Findings election even looking at the ads. IWhen was by media recommendations NRA media Harvard, teaching brought I Doug proposes focusing consultant who issue ad- Bailey up my to lecture class. He vocacy congressional on ten seats in “bat- commercials, showed series of [a] and he states). ground” tle said, “Okay, which is the best commer- sum, 2.8.4 In the uncontroverted rec- cial,” and everybody voted. “The worse pure ord establishes that advocacy issue is commercial,” everybody voted. He empirically distinguishable from candidate- said, “You’re all wrong. There is no (a) advocacy centered issue on the basis of best worse commercial because none named; whether the federal candidate is you of qualified to judge these com- (b) whether the advertisement is run in you mercials because don’t know the election; proximity close ato federal context in were run or the (c) if the run in compet- advertisement is problems they were to I solve.” When itive race. As the uncontroverted testimo- look storyboards, I have no way of ny expert of Defense David Magleby fake, real, if knowing they’re cetera, et states: I because don’t know the time—I don’t A number indicia make clear that the anything know about them. ads run individuals and interest Exam, Strother Cross at 90-91. Stroth- groups are in reality electioneering ads testimony er’s that it demonstrates is diffi- influence, that are meant to and do influ- cult to purpose discern the true of an ence, electioneering elections: These ads advertisement without it in its con- viewing candidate, generally name a run close in Rather, above, text. as discussed the best election, target time to the the named way distinguish pure advocacy issue district, candidate’s are run primarily advocacy from candidate-centered issue is races, competitive and generally track through empirical dealing variables the themes in the featured candidate’s run, when and where the advertisement campaign. and whether it mentions a candi- (em- Magleby Report at 6 [DEV 8] 4-Tab date. added). phasis Magleby general outlines a example rule that candidate-centered issue 2.8.5.2 An difficulty adver- tising distinguishable pure from issue objective discerning behind an adver- advertising. presented by tisement is Defendants and campaign comes from the 1998 Senate be- Despite being empirically
2.8.5
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tween incumbent
Lauch Faircloth
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An
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2.9 BCRA’s Restriction on “Elec- tioneering advocacy and Communication” tween issue candidate discus- today keep him 99. The text of the advertisement is as follows: laws. Call him and tell win, up fight. lawyers his Because if trial rising Worried about healthcare costs? lawyers. They working Then look out for the trial families lose. C, Congress pass liability want new laws Def.App. Tab 1 at 1. advertisement This system that could overwhelm the with ex- was submitted Plaintiffs on a CD as a pensive new healthcare lawsuits. Lawsuits type "powerful of the ... of issue illustration lawyers make the trial richer. could advocacy prohibited by BCRA’s that would be make That could healthcare unaffordable 'electioneering primary definition of commu- ” Senator Lauch Faircloth for millions. Br. at 61. nications.' McConnell fighting stop lawyers the trial new [sic] must, if at all possible, “electioneering sion avoid reliance constitute an communica- 50,000 subjective impressions on the of the listen- tion” unless more individuals accomplishes this feat er. BCRA Congressional the relevant district or state primary electioneering definition of com- that the candidate for the House or Senate munication. represent are seeking to can receive the 201; § communication. BCRA FECA 2.9.1 Section 203 of BCRA extends the 304(f)(3)(C); 434(f)(3)(C). § § U.S.C. prohibition corporate on and labor union general treasury being funds used in con- By 2.9.2 adopting a definition of elec- nection with a federal election to cover tioneering communication that “electioneering communication”. BCRA large premised on empirical deter- 203; 316(b)(2); § § FECA U.S.C. Congress minants that distinguish found 441b(b)(2). § Section 201 of BCRA pure advocacy issue from candidate-cen- by adding amends section 304 of FECA advocacy, tered issue Congress adopted a following definition anof “electioneer- definition of electioneering communication ing communication”: rejected subjective reliance (i) “electioneering The term communica- impressions of the listener and focuses on broadcast, cable, any tion” means sat- objective impressive variables that do an ellite communication which- job, circumstances, in most distinguish- (I) clearly refers to a identified candi- ing between candidate-centered issue ad- office; date for Federal vertising pure advertising. issue (II) is made within- question remaining lone is whether
(aa) days a general, special, before or primary definition óf electioneering com- runoff election for the sought by office narrowly munication is capture tailored to candidate; or candidate-centered issue advocacy from (bb) days primary prefer- before pure advocacy. carefully issue After re- election, ence or a convention or caucus viewing record, the evidence I con- of a authority that has narrowly clude that it is tailored. candidate, nominate a for the office Primary 2.10 The Definition of Elec- candidate; sought by the and tioneering Narrowly Communication is (III) in the case of a communication Tailored to Radio & Television Adver- which refers to a candidate for an office tisements President, other than President or Vice Electioneering communication nar- is is targeted to the relevant electorate. rowly only defined to include communica- 201(a); 304(f)(3)(A); § § BCRA FECA cable, broadcast, by tions disseminated 434(f)(3)(A). § U.S.C. Under defini- By only satellite. the media that including
tion, in order constitute an electioneer- by problematic, were found Congress be communication, therefore, ing the commu- primary electioneering definition of (a) cable, nication must be disseminated narrowly communication is tailored. satellite, (b) broadcast, or must refer to a expert Magleby 2.10.1 Defense ob- (c) candidate, clearly identified Federal advertising serves broadcast is the must be distributed within certain time prevalent communicating most form of election, (d) an periods before and must be advocacy. candidate-centered issue Ma- targeted to the relevant electorate. Id. gleby states that The fact that the communication be must electorate,” advertising is the most visi- “targeted [broadcast to the relevant that, communicating means in the ble mode of an election- case of House and races, eering Senate the communication will not and message is believed to be the however, always we almost opinion, lic reaching a mass audi- for most effective advertising be- we moni- used the contests have broadcast In all of ence. cost-effective; groups far more interest cause it is in 1998 tored broadcast, including television infor- get their news and people used most with voters.... radio, sources; to communicate news- mation broadcast advertising especially readership tilted toward paper was Broadcast competi- readers, try in all of element and we important higher-income in 2000.... monitored races we tive and middle-class fami- working reach races, and radio were television Senate lies; simply broadcasts candidate major components also effect, potent including abili- more campaigns.... money outside additional ‘free media’ ty generate communica- also an effective Also, Radio is newspapers are a more .... by interest electioneering tions tool for medium, immediacy passive with less television, if the com- As with groups. broadcast, likely to than and are less particular use the munications do not action, far harder to and it is generate express advocacy, language human, print personal convey expenditures report groups do key issues —a impact legislative FEC, provide stations do not strategy and effectiveness. part of our they provide disclosure the same ¶ [6 Denise Mitchell Declaration of communications candi- campaign for PCS]; why (explaining id. 29 see also monitoring our sam- Academics dates. not use direct mail or tele- AFL-CIO does contests in 2000 found ple competitive public). phone general banks to reach the making use of radio groups the interest (cid:127) Pennington Rocky Political consultant electioneering efforts included the testifies that Terms, NRA, Limited Americans is crucial in electioneering [effective Commerce, NFIB, U.S. Chamber Television, an political campaigns. Voters, NEA, League Conservation medium, emotion-based most PAC, Par- March Planned Million Mom effective, Radio can also effective. *358 Right to Life enthood and the National depending specific on the market recorded, we the 105 radio ads PAC. Of example, to reach. For you’re trying magic words. only ads contained you’re Republican primary if in a and Report at 4-Tab Magleby Expert [DEV Republican want to reach males be- 8]. Rush ages tween the intimately involved in 2.10.2 Those Limbaugh probably good radio is issue advertise- making candidate-centered very Direct mail can also be buy. expert testimony. ments confirm this effective, way, in a different since it is (cid:127) Mitchell, Special for Assistant Denise more of an information-based medium. to AFL-CIO President Public Affairs reaching You’re voters at different Sweeney, confirms this conclu- John J. levels, good good and it’s to have a sion. Mitchell states: good media are for mix. above pur- also sometimes The AFL-CIO candidate and third com- both advertising for newspaper its chases campaign. munications in a usually advocacy. We issue ¶ Decl. 9 8-Tab Pennington [DEV 31]. newspapers high read- done so provides example par- an of a Pennington Congress ership among Members ticularly candidate-centered issue effective .... we are and their staffs When run on the radio: pub- and mobilize advertisement seeking to influence McQueen Decl. past.” in the than was also ran ads groups interest Other added). ¶ “Thus, (emphasis in the Re- Mr. Keller 17 [11 PCS] to elect trying the run-off. primary popularity publican illustrated Mr. Sublette against ad run One ‘NRA Live!’ service website and its NRA’s couple us a probably cost thought I daily program], NRA webcast news [a spot was a radio primary in the points have in a sense taken like the NRA groups recall, run, on conser- primarily Ias played by part previously of the role over maybe some talk radio vative testimony only ob- Id. This the media.” by Americans stations Christian becoming the Internet is serves that Mr. This ad attacked Limited Terms. important” means of commu- “increasingly issues, and other basi- on tax Sublette compare no effort to nication. It makes big government him a cally calling advertising traditional television and radio liberal, Keller as a praising Mr. while Internet communications. With real conservative. webcast, Live!”, viewers “NRA NRA’s ¶ 16. Id. go to the website and make a choice (cid:127) Angus consultant Communications program, while ad- download or watch strategic “provided McQueen, who has and radio are vertisements on television advice and services communications without throughout programming aired ap- NRA and the NRA PVF the” NRA fails to ex- any viewer choice. The among years, states proximately The Internet plain this critical distinction. conveying “for various media outlets advertising are television and radio powerful the most message, [NRA’s] forms of media completely different media,’ which ‘paid the use of broadcast two, I testimony comparing the without paid media that simply refers to support find this evidence does cable, network, satel- over broadcast conclusion. NRA’s television, the radio.” or over lite is a piece of evidence 2.10.3.2The second ¶¶ 3,10 McQueen [11 PCS]. Deck viewership sta- of “NRA Live!” submission following testi- As a result of the 2.10.3 March 1999 periods for the tistics discussion, disagree I with the mony and and March 2001 through March 2000 broadcast “[a]ds contention that NRA’s App. at 322- August 2002. NRA through comparable to those the internet are over compare no effort to 23. The NRA makes and radio in terms of over TV broadcast traditional television and numbers to these Proposed public impact.” reach and impossible ratings and therefore it is radio the NRA and NRA Findings of Fact of if to determine submission finding, the support of this PVF *359 comparable has a program NRA Internet three items of evidence. only cites NRA television to that of traditional impact NRA’s support not This evidence does Moreover, the viewer- advertising. radio conclusion. during data missing ship statistics is the piece The first of evidence 2.10.8.1 March of through to period April 2000 McQueen, the NRA’s Angus declaration 2001; period around the 2000 precisely the consultant, communications long-time result, data does a election. As the Internet has become notes that program if the NRA not even demonstrate part of how “increasingly important an during the or less being viewed more was in our disseminated information becomes cycle. election [being] in “information society,” resulting Third, provides two the NRA 2.10.3.3 rapidly, by greater a disseminated more multiple editions of sources, videotapes containing multitude of diverse variety and App. instance, NRA I. expense. full-page “NRA Live!” Broadcasts. For a absolutely nothing This evidence does ad in the New York Times would cost the Internet has the im- prove $65,000 that same a whereas 60 second radio pact broadcasting. television and radio as precisely broadcast that recites same text in a small market such as sum, In I do not find that 2.10.3.4 Peoria would only cost $75. was, now, comparable a me- Internet is and radio broadcast ad- Proposed dium to television Findings of Fact of the NRA Indeed, ¶20. the NRA’s media vertising. own and NRA support PVF of this “paid consultant media that is statement, testifies pieces the NRA to two cites network, cable, broadcast over or satellite evidence: a statement their communi- television, radio,” is the or over “most consultant, McQueen, Angus cations that a powerful” conveying medium for its mes- major 60 second radio commercial a ¶ McQueen sage. Decl. 10 If the [11 PCS]. $850, media market costs while one in a Internet medium was as effective as $75, McQueen smaller market sells for claims, why NRA then is unclear ¶ 34], App. Decl. and a declara- [NRA spent money NRA as much on candidate- tion that is unidentified stating a advertising centered broadcast issue as it group “Campaign pur- called for America” during Why did the 2000 elections. full-page July chased a advertisement just spend the on Internet funds advertis- 1998 in the New York Times which cost if ing that were as effective? The NRA ¶ $64,581.30, App. NRA 256-57 12. Sim- question. does not answer this ply print because a advertisement is more expensive in the Although
2.10.4 there seems to New York Times than a agreement important spot mail an local radio in Peoria direct is does not mean tool of campaigning, relatively there is no evidence in that the latter is more effective. nearly record that it is comparison effective as The far more useful would be expert broadcast advertising. Defendants’ between advertisement in The New Magleby campaign Times, states that mail “can be newspaper York with nationwide very Expert Report Magleby circulation, effective.” and a broadcast advertisement Rocky Pennington, [DEV 4-Tab 8]. aired on a national broadcast network. political consultant, comments direct produced any The NRA has not evidence mail usually component to demonstrate that comparison when the ¶ campaign plans. Pennington Decl. properly restated it is more effective to newspaper [DEV 8-Tab Much like 31]. print Indeed, communicate in advertising. advertising, passive direct mail “a is more Plaintiffs concede that it is not as effective. medium, immediacy with less than broad- ¶ (“When Mitchell Decl. [6 PCS] we are cast, likely generate less [is] ac- seeking to public influence and mobilize tion.” Decl. [6 Mitchell Accord- PCS]. however, opinion, always we almost ingly, I do not find direct mail to be as used advertising opposed broadcast [as problematic effective or as as broadcast newspaper advertising] because it is far issue advertising. candidate-centered cost-effective; more people most get their
2.10.5 the same I For reason do not news and information from broadcast sources; find newspaper advertising to newspaper be as effec- readership is tilted *360 tive as candidate-centered issue readers, advertise- higher-income toward try and we ments on broadcast radio and television. families; to reach and working middle-class proposes The NRA the following finding: simply potent and broadcasts have a more effect, Newspaper including ads often dwarf the ability generate broadcast ads, ads, especially Also, radio in newspa- terms of additional ‘free media’ .... candidates, medium, whereby political parties with less passive a more pers are the candidates dur- broadcast, run advertisements for are less and than immediacy when the candi- months action, ing summer and it is far likely generate funds, permitted was low on human, date per- print in convey harder to money spent to be on candidate to save key issues —a impact legislative sonal cycle. in later the election effectiveness.”). advertisements strategy and part of our 4-Tab Expert Report at 47 Magleby [DEV newspaper I find that do not Accordingly, (noting arrangements such between 8] problem to comparable a advertising poses and Chuck Debbie Stabenow Senators detailed advertisements that of broadcast parties during the political their Robb and supra. Nevertheless, even cycle). 2000 election elec- primary The definition of 2.10.6 outside the though aired advertisements narrowly tai- is tioneering communication day period can influence thirty sixty and media communication only lored voters, recognized that most can- Congress The evidence dem- problematic. that was were issue advertisements didate-centered medi- any than other that more onstrates proximity to a federal in close targeted were the ve- um, broadcast advertisements ¶¶2.8.1.3, supra Findings election. See labor corporations and through which hicle fact that candidate- (discussing the 2.8.2 funds general treasury spent unions their in advocacy issue is concentrated centered focus elections. This influence federal elections). surrounding federal the weeks nor underinclusive neither overbroad important that It to note 2.11.2 is also my Findings demonstrate. scope as advertisements nam- it is that unrebutted Primary Definition of Elec- 2.11 candidates, targeted to ing federal Narrowly tioneering Communication electorate, period aired before Advertisements Broadcast Tailored election, Political influence voters. Days Sixty Before a Appearing General Strother, testifies Raymond consultant Days Thirty Before a Pri- Election consulting for candi- experience that his Candidate, Election, a mary That Name all advertise- campaigns, dates’ Targeted to that Candidate’s and Are name mention a candidate’s ments that Electorate election, up to re- leading the weeks to broadcast adver- only applies BCRA of wheth- regardless intent and gardless of candidate, that to a tisements refer used, influence vot- advocacy is express er targeted the candidate’s are Exam, [JDT at 70 Cross ers. Strother electorate, within are broadcast (“I are issue not believe there do 32] Vol. thirty election sixty days of a general an election immediately before ads run By focusing on election. of a days primary aren’t the candidate that mentioned characteristics, defini- primary these process decision-making in the important dem- electioneering communication tion of voter.”). based belief is Strother’s tailoring. onstrates narrow pro- assimilate his that voters on view variety of different matter, cess information impor- it is As an initial 2.11.1 sources; “big parlance, in his creating, Milkis, that Dr. Plaintiffs’ tant observe (Strother Decla- Ex. 1 cajún Id. at stew.” aired advertising expert, testifies ¶ ration) sources ultimate- 4. These various primary days before more than a decision. help a voter make ly combine to “can an election days than 60 before more point during elaborated Strother the terms of debate.” serve frame cross examination: VII]. [RNC Decl. 9 Vol. Milkis Rebuttal interested, they’re although [P]eople, examples of ar- example, For there Of- casually voters. they’re interested parties and rangements between *361 they run an ad with a certain line and self-selected you’ll ten advertisements it, poll pure a claim are you go and when into focus issue advertisements that your oppo- unfairly captured by would be group, they credit the line BCRA’s primary definition of casually they electioneering how watch com- nent. That’s munication. television, primary BCRA’s definition of it’s this climate where but electioneering presents communication an they they get know where their don’t empirical ignores type test Popkin a information. Samuel wrote rationalization self-serving post ex Voter, by called, Reasoning book facto focusing objective on purely criteria: Popkin says that Americans assimilate advertisements, broadcast referring to a through thousands of differ- information candidate, targeted to that candi- opinions, ent sources to make electorate, prox- date’s and aired in close from, they where came they’re not sure imity to a federal election influence voters. a big but it’s a stew. It’s bit of informa- brother-in-law, tion here from a a bit of example, 2.11.3 For the McConnell barber, information here from the a bit provide Plaintiffs this three-judge District from a information here television ad with 21 during Court advertisements aired ad, they or a forget radio where the cycles, the 1998 and 2000 election claiming information came from. they “powerful serve as illustrations of the Exam, type amount and advocacy of issue Strother at 34-35 [JDT Cross Vol. 32], prohibited would primary BCRA’s explanation This is the reason that ‘electioneering definition of communica- Strother concludes advertisements ” 61; tions.’ McConnell Br. at PCS CD 8. run immediately prior to a candidate’s that mention the election candidate ulti- 2.11.3.1 regard allegedly With to these mately have some influence on the deci- “powerful illustrations” of BCRA’s over- sion-making process of the voter. See id. breadth, point Defendants out nine of 70; Resp. at see also of NAB to FEC’s twenty-one proffered advertisements RFA’s, First No. [DEV 12-Tab 7] by the McConnell Plaintiffs would not have (“NAB admits that a Political Advertise- BCRA; been affected eight were not might conceivably ment influence a federal run days within 60 a general election or any particular election without the use of days contest, of a primary and one was many might words as other factors de- run in the Washington, D.C. media market pending upon the circumstances of each mentioned, where the two Senators Sena- race.”); supra Findings individual 2.3.2 Carolina, tor Jesse Helms of North (“Over time, (Bailey) campaign defines a Joseph Delaware, Senator Biden of were through style, candidate running combination of Opp’n for office. Gov’t at 78 shortly and issues. Even after & n.78 (identifying PCS 8 at CD Tracks image, ad, 12-17). 7, 10, watching target audience usual- Plaintiffs do not rebut these ly doesn’t remember the ad’s statements. substantive Rather, just details. get viewers a feel 2.11.3.2 Of the advertisements that re-
for the It candidate. takes a lot of these main, highlight past four votes of the can- up campaign.”). ‘feels’to make didate, (“Stabenow PCS CD 8 at Tracks 9 Plaintiffs do not challenge Tax,” Strother’s C, Def.App. 2), Death 2Tab contrary conclusion testimony (“Job,” PCS]), Mitchell Deck Ex. 141 [6 19, 20, other consultants. Instead urge votes, four upcoming action on rely self-serving testimony (“Save,”100 their own id. Tracks Mitchell Decl. AFL-CIO, According to the “Save” [Taxpayer passed was run "[a]fter Relief Act] *362 election). Nevertheless, (“Label,” PCS]), Mitchell wards/Faircloth 113 [6 Ex. electioneering PCS]), 11, primary three criticize definition 132 [6 Ex. Decl. limits, objective Medi- crite- on term focuses on positions communication candidate plan, drug prescription trying guess and a funding precisely ria to avoid care 1, 8, one commends id. at an advertisement. For true intent of lawyers,101 trial against fight candidate’s assuming these foregoing reasons even (“Look Def. Lawyers,” For the Out id. ad- pure were issue eight advertisements 1). C, 1 at App Tab vertisements, they dem- I do find that not Simply put, eight onstrate overbreadth. I do not meager showing, this 2.11.3.3 Of pool of at least covering advertisements on a can- the four advertisements consider prima- both cycles-including two election probative. Criticiz- past votes as didate’s not serve as period general in the elections-do past votes ries a candidate on ing elec- a federal of the overbreadth immediately “powerful illustrations” time before legislation of future of “election- primary no indication definition tion with of BCRA’s other purpose no likely serves the issue Br. communications.” McConnell eering the election. the outcome of to affect than at 61. those four advertise- I find a result
As an addition- identify 2.11.4Defendants electioneering. examples of to be ments use their advertisements Plaintiffs al 39 ¶ Findings 2.6.7. supra See ad- examples genuine issue briefings as Plaintiffs the McConnell 2.11.3.4 What af- unfairly which would vertisements advertise- eight is at left with most Opp’n Gov’t provisions. BCRA’s fected pure issue ad- they claim are ments fig- not rebut this 77-94. Plaintiffs do affected that would be vertisements advertisements, In addition to these ure. it already concluded that I have As BCRA. additional advertise- I found four difficult, to dis- impossible, if very not to be exam- alleged in declarations ments intent of an the true retroactively cern advertisements ples legislative-centered advertisement, Finding supra see issue by BCRA. that would be affected ¶ 2.8.5,1 parsing engage not a similar do of these advertise- 2.11.4.1 For twelve note I would advertisements. these ments, with no provide Plaintiffs Court eight these adver- very likely the dates regarding information specific elections did influence tisements aired except they were run were a federal candidate they refer to because advertisements in 1994. These twelve in close aired advertisement in broadcast and con- by the NRA sponsored were election, target- to a federal proximity a crime bill. law and Brady gun cerned See su- electorate. to the candidate’s ed PCS]; also La- App. [12 885-88 NRA ¶ Moreover, Defen- 2.11.2. Finding pra ¶ (stating only PCS] Decl. 21 [11 Pierre Defendant-Intervenors, my dants, were run that the crime bill commercials on Plaintiffs’ as- cast doubt Findings own 1994). as to any information Without not did that these advertisements sertion dates, any to reach I am unable airing see, purpose, e.g., electioneering serve therefore do them and ¶2.8.5.2 about conclusion trial (discussing Finding supra other corn- Thirteen consider them. the Ed- around advertisements lawyer 2 to October October It was run between being in the id. considered and was the House 6], ¶ Id. This [PCS Mitchell Decl. Senate.” to influence was advertisement "intended (discussing Finding supra 2.8.5.2 event that the bill House Members advertisement). [sic].” in the Senate another vote returned for *363 NRA, mercials, sponsored by early during when it law also becomes as as effects escape you would BCRA’s because Easter recess. As know the only and referred to advocacy were run issue restrictions would select who was not a if groups President Clinton candidate like the ACLU we want to take App. days pri- for office at that time. NRA 914-16 out and ad 30 [sic] before I exclude Accordingly, mary days general PCS]. from con- or 60 before a elec- [12 broadcast, sideration these thirteen advertisements as tion in satellite or cable out- well. lets. These ads would have to reach 50,000 people or more and would have to advertisement, spon- 2.11.4.2 Another mention the name of a candidate. Steve ACLU, by the I sored exclude from con- during thinks that the ads that we ran clearly because it was designed sideration cycle the 2000 election would not qualify simply provide corporation to standing give to us standing challenge clear to cites, challenge to BCRA. ACLU as the law. example, an advertising campaign di- Anthony wants us to run these ads and Hastert, Speaker rected Dennis who 501(c) money he has that he has said represents the fourteenth district of Illi- office, I in my to do them! have a chart nois, run in March of him urging to I you but can also fax one to from New bring Employment Non-Discrimina- 3-1-02, York (ENDA) tomorrow that show all of tion Act to a full vote ¶ primary country. dates around the Murphy102 PCS]; House. Decl. 10 see [3 that, advertisements, get you [sic] When You I need to also Text of 3 PCS/ACLU pri- look at the states where there are 14-17. The advertisement was broadcast Aurora, maries and if multiple Chicago you on can a candi- Illinois find throughout target radio stations date whom we could the weekend of an issue example March 15-March ad. For 2002. Id. Since the is too soon to do an advertisement run thirty days by Tuesday, Tuesday, was within ad but March election, primary of a the commercial is the primary Texas and we could de- would have constituted an electioneering cide that Chet Edwards the fence communication under BCRA and would something about run an ad that paid violated BCRA because it says, was “Call Chet him Edwards and ask for with the general treasury support funds of a xyz.” Anthony said that he corporation. Id. (observing money has pay an ad. such Or we hoped highlight “ACLU also target the consti- could a Senator on election re- BCRA”). tutional flaws of An internal form. Remember it does not have to be TV, ACLU document demonstrates that broadcast restriction in purpose ACLU’s in running Shays-Meehan the advertise- covers radio as well. ment was to create a commercial that We would like to run these ads before 10, 2002, would violate BCRA. A March e- the bill law. becomes WHICH ONLY mail Murphy, from Laura legislative di- GIVES U.S. ABOUT TWO WEEKS TO ACLU, rector of the colleagues, her PULL THIS TOGETHER!!
explained why the ACLU’s March 2002 Phil, you I know busy have been Hastert ad was run: (which you web crisis did not tell me
Anthony about), wants the ACLU to be in a you so are probably crazed. But position challenge Shays-Meehan I hoping was that Greg could take the Murphy Laura W. phy has served as the Decl. 1 [3 PCS]. legislative ACLU’s director since 1993. Mur- ’however, ad that telling, Even more that will still finding the issue lead on specific designed ran was we the ACLU weeks where in tow important [sic] n can BCRA. It need not have way trigger make and it will a member target done so. pick we I that the issue think sense. not so that we do priority be a
should Report at 62-63 [DEV Krasno and Sorauf 501(c)(4) something we money on waste ads, 2]; Text of 1-Tab see also PCS/ about. really concerned (noting script 16-17 of advertise- ACLU *364 in print that the ACLU ran ment Resps. Ex. to Attached as Message Email issue). this Given this infor- media over De- Union to Liberties of American Civil background surrounding mation for Pro- Requests fendant’s Second Set advertisement, I exclude it from ACLU B; Documents, Ex. USA- duction of consideration. (italics 130-Tab 4] [DEV ACLU-00003
added). Krasno and So- experts Defense by Another advertisement run 2.11.4.3 ad- the ACLU’s Hastert AFL-CIO, rauf comment on “Sky,” titled criticized past vertisement: for a vote. Congress Members (“Sky”); Mitchell Ex. 139 see also id. Decl. short, remarkably success- In BCRA is ¶ any whether there was (failing to note the vast differentiating ful in between past to the upcoming legislation related and candi- pure issue ads majority of might the advertisement votes issue ads. date-oriented targeting). my conclusion been Similar Nevertheless, has demon- the ACLU above, I do not consider this advertisement about,, gay a commercial strated with electioneering. I find it to be because Speaker in House Dennis rights, aired spring before the Hastert’s district last remaining twelve adver 2.11.4.4 Of the possible to delib- primary, that it is tisements, GOP commercials are discussed four pure create a issue ad that runs erately paragraphs my in Find in detail other episode deserves opinion. afoul of BCRA. This appendix my or the ings ¶¶ (ABC empha- scrutiny, and we would special 2.6.6.2 advertisement Findings molesters), telling, from points. penalties It is for child concerning size several ¶ (Anti-abortion I.D.7.Í, com students of elections I.D.8.C perspective App. our as identifying the ACLU was Senators Kohl campaigns, mercial (“Deny” and example Feingold); Findings of a 2.11.8.2 forced to fabricate its own “Barker”). by run improperly Another advertisement ad that would be pure issue response to commer was aired huge CBM categorized by BCRA. Given to “correct by aired the AFL-CIO ads broadcast 1998 cials numbers of issue and counter the distor correct in then- the issue debate plaintiffs if are just Ryan we tions in the ads that saw.” predications about how BCRA dire remaining seven Dep. at 74-75. Of speech rights, free damage would advertisements, NRA-sponsored four easy to find numerous should have been (titled “Cali magazines” “news illustrate the same 30-minute examples real-life Here,”103 fornia,” “Mil fact, Happen “It pure ads Can’t point. very few issue “Tribute”104), March,” NRA lion Mom by affected BCRA. would have been applause] Happen [Much is baaaaaaack. "It Here” NRA 103. "California” and Can't spells very serious trouble for All of this App. greater supra, detail are discussed [Applause]. That leads man named Gore. KI.D.8.h. undone— mission that is left me to that one So, we set out winning in November.... following state- 104. "Tribute” includes year the divisive forces to defeat by Heston: ment delivered Charlton say away, I want to would freedom take 22-24, attempt parse one was run the South Reply remaining at these sixteen Foundation,10560-Plus Asso Legal eastern advertisements to determine if true Freedom, ciation, the for Individual Center purpose was to affect an election. I make Right to Work and the National Commit this statement I though recognize even tee, praising McConnell’s stance Senator likely these advertisements did influ- reform, campaign finance McConnell ence the election referring virtue of to a sponsored by one was the Na Br. candidate, in proximity federal close to a to Life and criti Right tional Committee election, and targeted to the candi- position cized Senator McCain’s on cam electorate, supra Finding date’s reform, paign finance O’Steen Cross ¶ 2.11.2, Defendants, and even though De- Exam, and one was a Chamber of fendanNIntervenors, my own Find- Commerce-sponsored commercial aired ings demonstrate that some of these ad- pointed Utah which out that a candidate likely vertisements electioneering, were position competing had not taken a on two *365 ¶ See, (discuss- e.g., supra Finding 2.6.6.2 plans, drug prescription Chamber/NAM ing ABC’s advertisement on a candidate’s Br. at 5.106 record on child legislation). molestation I have Rather,
2.11.4.5 been able to find an I simply conclude that the evi- additional four advertisements that were dence of these advertisements cited by cited Plaintiffs in being declarations as briefing Plaintiffs is not sufficient to ren- by pending legislation hap- motivated der BCRA overbroad. If Plaintiffs were pened run 60-day within the 30 or correct, that BCRA would have such an (AFL-CIO’s BCRA windows. “No Two indelible effect on ability to advertise Way,” “Spearmint,” “Spear,” and the Gun about importance issues of to their organi- Owners of pilots America’s armed adver- zation, I expected would have a more ro- tisement). purposes analysis For I showing; particularly bust when the exam- accept Plaintiffs’ characterization of these ples they submitted are from as far back commercials. as 1996 and include advertisements aired proximity close primary to both my finding
2.11.4.6 Given that very it is general difficult elections. As a objective to determine the result of all these behind considerations, the advertisement without a I thoroughgo- conclude that these re- ing analysis contextual maining the advertise- sixteen advertisements do not ¶ ment, 2.8.5, supra Finding overbreadth; I do not demonstrate BCRA’s if even fighting everyone these words for dispute argument within 106. Defendants that this my sound of voice to hear and to heed and advertisement electioneering did not have an especially you, my Mr. Gore. "From purpose based on the context in which the cold dead Applause], hands.” [Much Opp’n advertisement was run. Gov’t at 85- App. (emphasis original). NRA at 947 in the 86. Defendants note the commercial was run The NRA passage "simply states that this re- 6, 2000, only between November 1 and when practice soliciting the NRA’s ilect[s] mem- Congress was not in session. Id. at 85. The by mentioning anti-gun politicians.” bers "toss-up” race was labeled a the Cook Reply NRA at 24. Report, "tag and the advertisement’s line— Legal 'Tell Matheson to make a Southeastern decision. This issue Foundation is a 501(c)(3) organization, important is too ignore.’ played McConnell Second to the — Compl. exempt Amend. which is campaign overall theme voters should BCRA’s electioneering restrictions on com- elect someone who is decisive and who shares Rule, Electioneering munication. Final munications, Com- their values.” Id. The Chamber does not re- 65,190, 65,199-200 Fed.Reg. spond to these observations. (Oct. 2002) (to be codified at 11 C.F.R. 100.29(c)(6)). only adver- Plaintiffs were able to find conjunction eight fifty with the CIO taken Plain- by the McConnell tisements raised advertisements would be affected supra. tiffs and discussed primary BCRA out of federal elections covering cycles, at least election I three Plaintiffs have 2.11.5 The AFL-CIO that the conclude AFL-CIO Plaintiffs have tactic adopted a similar as McConnell period thirty day not shown BCRA’s regard primary elections Plaintiffs Moreover, is overbroad. the record con- examples attempt through a series of tains other evidence that demonstrates thirty day window is to show BCRA’s thirty day primary that the window is nar- overbroad. The AFL-CIO Plaintiffs rowly tailored. put forth number of advertisements they “genuine claim are issue adver- experts 2.11.5.2 Defendants’ comment relating pending legislation tisements” that the capture that BCRA would because hodgepodge primary of different dates days and radio within 30 ran on television makes it difficult to day [the factor primary of a election. Br. at AFL-CIO primary analysis, window] into the but ¶¶ 32, 34-36, Mitchell Decl. (citing 10-11 we are confident that it would have little 58-59). 37-39, 40, 50, Instead of discuss- proportion pure effect on the issue ing length my Findings, .in I have these incorrectly captured by ads BCRA for analyzed my Appendix. App. them in simple reason that so few of these ¶¶ II.A.107 *366 advertisements mention candidates at examples 2.11.5.1 These con- AFL-CIO Indeed, all. our examination of 1998 stitute 336 cookie-cutter advertisements pure this to true: no shows issue ads pool dif- selected from a least three captured by 30-day would have been number, I cycles. ferent election Of this primary period. only determine that 50 of these advertise- Expert Report Krasno and Sorauf at 61 ments would have been affected arguably [DEV 2]. 1-Tab ¶ Id. II.A.10. I have some BCRA. While experts’ 2.11.5.8 The thesis is substanti- fifty remaining doubt that all of these ad- empirical regarding ated evidence in- designed purely vertisements were period. thirty day Defendant Intervenors pending legislative fluence the debate and only party study are the conducted outcome, primary given my not a election impact of the data to determine the finding that discerning the true intent be- run during BCRA on advertisements impossible
hind nearly an advertisement is primary period. election Def. Int. understanding without a fulsome of the Reply They adver- at 59. found distinct ran, in which context the advertisement tisements, days ¶ which aired more than 60 2.8.5, supra Finding attempt see I do not before the election from the CMAG data- judgment to make that with these adver- base, 16,916 comprising Id. at 59 airings. though they likely tisements even had that advertisements, & n.201. Of these three given timing. effect content and ¶ (522 16,916) percent airings out of supra Finding 2.11.2. Given these fac- fact AFL- aired within tors and the that at best the named candidate and were thirty-nine 107. The AFL-CIO advertisements Plaintiffs also cite to the context they handful of advertisements that claim are spotted by Defendants and Defendant-Inter- pure appear issue advertisements that would regard briefing, in their and with venors sixty-day period. already within the I have the four additional advertisements that I my findings discussed these in on the McCon- reviewing found Plaintiffs’ submissions. advertisements, twenty-one nell Plaintiffs' run in that time advertisements primary. Id. issue candidate’s days the student cod- influence Examining likely designed are most n. 202. frame 59 & found the Intervenors Defendant Pen- ings, the of a federal election. the outcome been (“Par- ¶ had the advertisements majority of 31] Decl. 10 8-Tab nington [DEV in a “electioneering,” resulting deemed spend groups would not ties and interest identify- advertisements that of the finding run dollars to of thousands of hundreds airing days within 30 ing a candidate and days before an money] ads 15 [soft these election, percent 1.2 primary a 2000 trying to affect election if were not Id. advertisements.” “genuine issue were candidate-specific ads the result. These parties the other sub- none of at 59. As year before the usually are not run results study dismissing these any mitted after.”); Lamson week election or the objecting to Defendanfl-Intervenors’ ¶ (“These 'issue 7-Tab [DEV 26] Decl. 6 reached accept I the conclusions study, day of the elec- stop on the generally ads’ already I have found therein. As ¶ tion.”); 40] 9-Tab [DEV Decl. Strother issue advertisements candidate-centered (“[T]hese run issue advertisements were elections, primary to influence are used pending no elections. when there were ¶¶ 2.6.5.5, (Pennington), 2.10.2 Findings ads, specifically we For these true issue (New pri- Hampshire Presidential 2.6.6.5 right before the elec- avoided the months referencing Senator mary advertisement (a) time would be more tion because air McCain), that on the basis of I conclude (b) just expensive; and each ad would ad- relating to the AFL-CIO my Findings gumbo part of the election season become vertisements, experts Defense Krasno & just that it was would assume viewers results, and Defendant-Interve- Soraufs ad.”); another election-related Strother thirty day window analysis, BCRA’s nors’ Exam, 32]; Bai- at 70-71 Vol. [JDT Cross narrowly tailored. 2], Plaintiffs ley Decl. 6-Tab [DEV section, in this As discussed 2.11.6 consul- provided contrary political no *367 examining on have focused Plaintiffs conclusions. testimony tant to rebut these to dem- their advertisements intent behind expert testimony con- 2.11.7.2 Defense purported overbreadth. onstrate BCRA’s that it firms the consultants’ view However, been able to Plaintiffs have not run issue adver- impractical genuine support posi- this provide any evidence leading up in to an tisements the weeks self-serving testimo- tion that is not either election, aiming are to influence you unless by contrary evi- rebutted ny or evidence Dr. states: a federal election. Goldstein dence. by those One concern sometimes raised disputed of fact 2.11.7 There is a issue regulations is that opposed to the BCRA that name a about advertisements whether candidate, may in harm interest are aired that candi- restriction electorate, and broadcast in close them from adver- groups by preventing date’s candidate’s election are proximity to the at a time when tising on their issues pure ever issue advertisements. Given supposedly paying the most citizens are issue, agree I cannot disputed this politics. There is no reason attention to primary definition of Plaintiffs significantly would to believe BCRA is overbroad. electioneering communication effectively groups hinder interest public pol- getting messages out their testify consultants 2.11.7.1 Political ads icy Running genuine issue issues. genu- in utility running there is minimal an election does not increase near days in the 60 ine issue advertisement ads; fact, result, it is those effectiveness of before a federal election. As ¶ effective.”); actually ads then Huard ads’ effectiveness less Decl. 10 likely that the (“NAM has run issue ads at [10 PCS] decreases impending. times when no election was terms, however, broad Americans tend to being less effective In addition greater have interest matters run conveying messages, issue ads approaches. as an election At the same to an election are also less cost- close time, elected officials are most attuned to effective, price televi- since the of scarce pre- of their in the views constituents higher near an sion and radio air time is Thus, many period. purposes, election for year. during election than the rest of pre-election season is a critical time for Expert Report [DEV at 32-33 Goldstein Conversely, ads. after an election issue ¶ I.C.8; 7]; App. Ma- see also 3-Tab infra public public policy interest matters Expert Report 8] at 20 4-Tab gleby [DEV Then, fades, perhaps fatigue. due to few (“In contrast, more genuine issue ads are election.”); ads run after an issue soon cheap- run earlier since rates are likely to ¶ Murphy (“Finally, Decl. 12 it is [3 PCS] proximity to an election is less er important emphasize that the blackout Expert important.”); Krasno and Sorauf periods imposed by days the BCRA-60 (“Pure Report 2] at 57 1-Tab issue [DEV general days before a election and 30 be- likely respond to the ads are more primary-are periods fore a often of intense advertising calendar or an congressional legislative activity. During years, election election.”). strategy unrelated to an positions the candidates stake out on virtu- dispute experts 2.11.7.3 Plaintiffs’ ally all of the controversial issues of the experts’ position Defense and contend that day. against Much of this debate occurs necessary corpora- it is effective and backdrop pending legislative action spend general and labor unions to tions or executive branch initiatives. Some of treasury funds on broadcast advertise- Attorney the President’s or General’s bold- in the before an election that ments weeks during est initiatives are advanced election mention the name of a federal candidate years-often days general of a within 60 to the candidate’s elector- targeted and are instance, year, legisla- election. This ¶¶ [10 PCS] ate. Monroe Decl. 18-19 department of creating tion a new federal (“The proceeding defendants this under consideration Security Homeland that ads run near the time of an argued pre-election period.”); but see during election are evidence the association’s (only example of a supra Finding 2.11.4.2 actual intent is to advocate the election of *368 by pure issue advertisement created However, or another. there one candidate by that be effected BCRA ACLU would valid, other, explanations more for the are created to violate BCRA intentionally was timing advertising. of our One is that provide standing in order to ACLU with legislative regulatory initiatives or serious law). challenge proposals often are considered near the expert 2.11.7.4 Plaintiffs’ Dr. Gibson Also, time of elections. it is clear that agrees running issue advertisements public generally more members proximity in to federal elections is effec- in receptive engaged considering to and tive; however, respond he does ideas and issues as elec- government policy expert’s view that commer- Defendants’ people tions near. If that is the time when an election are more cials aired close to listen, speak. will that is the time to And occurs, expensive, genuine the fact that issue an there seems to be once election conjunction advertisements tend to air period fatigue during which interest, opposed to legislative with the calendar as making matters are of less issue 582 organizations two other cycle. App. 2.11.8.2 While election
the federal infra run examples of advertisements provide ¶ I.C.8. actually issues that were legislative about dispute and of this the basis 2.11.8 On this testi- legislature, before the pending disagree I with Plain- Findings, ray earlier pri- not demonstrate that the mony does can legislative calendar that the tiffs’ claim electioneering communi- definition of mary running of issue advertise- necessitate than the AFL- cation is overbroad. Other days final election during the ments of America and the Gun Owners CIO candidate to a federal campaign that refer (“GOA”), examples were groups no other the candidate’s elector- targeted to and are run in the 60 provided of advertisements ate. days prior days prior to an election or merely state Many deponents 2.11.8.1 pending primary directly addressing ato regu- initiatives or legislative that “serious activity. examples legislative near are considered latory proposals often re- AFL-CIO included advertisements elections,” providing without the time of “upcoming budget fight over garding an run in examples of advertisements actual September programs” education activity. Mon- response legislative to the ¶ (“No [6 PCS] Decl. 41 & Ex. 59 Mitchell ¶ PCS]; see also Huard [10 roe Decl. 18 ran group The labor also Way”).108 Two ¶ (“[I]ssue support- ads [10 PCS] Decl. 11 September 21 and commercials between may tax bill well be need- ing particular districts, 25, 1998, congressional eight If it approaches vote. ed as the bill legislation, “fast track” trade opposing or elections are happens primaries in the scheduled for a vote which was imminent, not diminish the need that does September Representatives House of then.”); right ¶52 out Mur- speak to be able Decl. & Ex. 116 [6 1998. Mitchell ¶ (commenting phy (“Barker”). PCS] Decl. [3 During the same PCS] imposed periods “the blackout month, “flight also ran a AFL-CIO periods of intense ... are often BCRA at a scheduled Senate broadcasts” aimed activity,” noting consideration of legislative the AFL- legislation vote on HMO ¶ Security Department the Homeland bill inadequate, considered to be id. CIO days within 60 of the 2002 elec- occurred (“Deny”), opposing Exs. 105-07 & tion, listing political activities conduct- Taxpayer but Act had been re- Relief ed that would not have been affected cently up by Ways marked the House ¶ BCRA). that, general Committee, This evidence is so & Exs. 108-09 Means id. point if I consider Plaintiffs’ (“Spearmint” “Spear”); even were to G. Shea Decl. valid, proba- I find that it was not ran a radio [7 PCS]. would GOA Hampshire tive. advertisement New within investigation of the AFL-CIO’s clear connection between the content of the The FEC’s any legislation concluded that advertisement advertisements and that was subject legislative then the of intensive ac- flights nine broadcast between late [i]n the *369 tion at the time of the advertisements. mid-September, June and the adver- (Jun. Report, General Counsel’s MUR 4291 criticize the tisements would incumbent 2000) 3], therein, at 5-6 52-Tab The AFI^CIO [DEV Congress named member of fre- terms, responds, stating Way” that "No Two was quently in about his or her harsh 'upcom- "broadcast in order to influence subject record on the issue was the However, programs' ing budget fight on education and advertisement. with the ex- past flight referred to related votes to make its ception of a of advertisements on topic point.” Reply (quoting at 4 n.3 wage of the minimum aired in AFL-CIO ¶ PCS]). early July, late June and was no Mitchell Decl. 41 [6 there outset, primary election for the 2.12.1 At the it days of the is clear that the Hampshire Republican studies, Senatori- underling majority New U.S. data nominee, al- supported legislation al CMAG, provided by is limi- not without its pilots Declara- lowing airline to be armed. App. I tations. 1ÍI.A. am aware that ¶ D. Pratt tion of Lawrence universal, coverage CMAG’s is not be, can apparently advertisements and I throughout, 2.11.8.3 As have stated missed, and that may some information not nearly impossible to determine retroac- present snapshot on the four-second tively objective behind an adver- issue ¶ ¶ storyboards. Id. I.A.3. tisement, 2.8.5, The most notable supra and Finding see deficiency appears the data attempt engage I do not be its consequently, analysis inability identify in an of the true intent behind different “cookie cut- advertisements, (advertisements though these even it is ter” advertisements iden- in- highly likely that these advertisements except tical for mentioning different candi- on of their dates). fluenced the election the basis Despite pointing Id. out these Finding timing, supra content and gaps, Dr. Gibson has not demonstrated ¶ Rather, mini- 2.11.2. I conclude that this shortcomings how these a majority affect showing mal from the AFL-CIO and GOA of the conclusions that can be drawn from provide concluding does not basis ¶ data. Id. I.A.4. Further- CMAG primary that the definition of electioneer- more, Plaintiffs have failed to demonstrate ing communication is overbroad. by experts the efforts taken to reme- Expert Reports dy Ef- the “cookie cutter” effect for their stud-
2.12 on BCRA’s Advertising addition, fect on Political ies were deficient. Id. In no presented evidence has been that the data produced any Plaintiffs have not studies way one or the other based on biased analyzing purported of their own BCRA’s the fact that does not cover 20 CMAG Instead, pure advertising. effect on issue percent of American households or local above, prefer as discussed Plaintiffs hypothe- cable channels. Id. Dr. Gibson’s rely picking on out advertisements likely sis that the CMAG is 'more to miss affect- pure claim are issue advertisements “genuine pure advertisements” is issue criticizing relied by ed BCRA studies conjecture, by Dr. contradicted Gold- by Congress during their deliberations testimony regarding stein’s the overinclu- produced for the liti- that Defendants have provided nature of the advertisements sive I gation. my Appendix, describe ¶ by Finally, CMR. Id. I.A.3. CMAG expert reports purporting various to dem- evidence shows that is used as the CMAG problems ad- onstrate the created issue many political science studies basis for vocacy affecting federal advertisements peer-reviewed published by which are elections, tailoring as well as the narrow journals in the top political science affecting has to avoid fed- BCRA achieved country, regular poli- is a resource non-electioneering eral advertisements. political parties. Id. I.A.5. ticians Appendix. My Appendix exam- infra studies, widespread acceptance of Given the id. ines the criticism of these circles, CMAG in academic and Overall, much, all, I not though find that that Plaintiffs were unable to and the fact by the presented of the relevant evidence bias, I demonstrate that its flaws result Defendants has merit and has been legitimate data as a accept Dr. the CMAG expert, discredited Plaintiffs Gib- son, seeking Buy- source of data for use studies whose criticism focused on the *370 political adver- understand the contours of ing Time studies. I uncontro- electioneering. accept limita- these it has certain tising, recognizing findings. verted tions. studies, attempted to dis- 2.12.4 Plaintiffs have Annenberg dis-
2.12.2 The ¶¶ 2.2.1, 2.2.2, 2.2.3, reports specifical- Buying Time credit Findings in cussed 2.8.2.1, reports of Dr. Gib- (conclusions), through expert 2.2.4, supra, ly as 2.2.6 criticisms discern, presents Dr. various not been chal- son. Gibson I can far as in to have the fact, reports an effort as mentioned of the by anyone. lenged Dr. them or find Gibson’s above, that of Court dismiss the record shows Members acceptable. more experts, and even alternative conclusions Defendants’ Congress, piñata not unlike that of Annenberg The effort is experts rely on Plaintiffs’ enough, it will party: piñata if one hits the I find no reason not and as such Reports, apart. Although some of eventually crack their conclusions as well. See accept merit, ¶ point I out that “hits” have (Annenberg Center con- these Findings 2.2.6 Dr. have at- neither Plaintiffs nor Gibson of creat- cluding “[i]nstead inter alia their own similar Buckley tempted v. Valeo to conduct number of voices ing the replicate portion a discrete advocacy groups study, or even hoped, issue allowed had studies, despite the Buying labor to of the Time parties, as the business and such underlying materials were that the “distinc- fact that a louder voice” and gain provided to them Defendants. Present- advocacy express tion between issue fiction”). contradictory results ing the Court with advocacy ais been far study from such a would have provides expert 2.12.3 Dr. Goldstein persuasive more than the recalculations derived report findings based on his own Buying Time incorrect versions data from his own version of CMAG conjectural and the often data sets election, up- had from the 2000 which he by Plaintiffs speculative proffered criticism Buying it to the providing dated since and Dr. Gibson. ¶App. Time authors. I.C. Unrebut- Buying Time 2.12.5 In terms of the findings group ted are his that: interest I not discount reports general, would advertising in 2000 was concentrated states; approached were roughly the studies because “battleground” so-called in mind. The tes- percent candidate-sponsored particular adver- with a result policy perspectives and express advocacy timony shows that tisements 2000 used research are not mutu- terminology; group interest advertise- effective scientific ¶ ments, The “clean- ally App. a candidate in exclusive. I.D.7.b. which identified that Dr. finds ing” within the of the data Gibson tended to be broadcast testimony, campaign, suspicious appears, final the election days databases of identify necessary a can- be a function for whereas those that did produced Buying for the Time spread evenly through- didate more the size were function of bias. Id. year; group reports out interest adver- and not the miscodings resolving Fixing tisements mentioned I.D.7.n. candidates required such 2000 were in “battle- the “cookie cutter” issues highly concentrated among the ex- ground Id. Dr. uncon- actions. Id. The confusion states.” Goldstein’s perts to the correct database to use troverted conclusions further demonstrate findings, see id. analyze definition of “elec- the studies’ primary BCRA’s ¶ I.D.7.d, utility Dr. narrowly decreases the Gib- tioneering communication” focus- Expert Report, but also undermines key empirical es on the determinants son’s authors separate Buying notion that the Time genuine issue discussion from the *371 manipulated findings reports. the data in order to achieve fect on the in the fact their desired results. The principal casualty regard this are the previous maintained ver- Brennan Center Buymg conclusions the Time studies make Buying sug- sions of the Time data sets regarding percentage “genuine” of is- changes part that their were not gests “captured” sue advertisements by BCRA. into the data an effort introduce bias Buying Time per- 1998 finds that seven set. genuine cent of issue advertisements aired 2.12.6 I also do not take issue with the over the course of 1998 were aired in the designers seeking studies’ to determine days final 60 of the campaign election perceptions ordinary mental view- candidate, mentioned a and Dr. Krasno subjective opinions ers. Studies based on determined that out of all of the advertise- accepted practice are the social sci- identifying ments sixty days' candidate ¶ ences. Id. I.D.7.Í. The evidence also election, percent before the 14.7 were that although university demonstrates stu- “genuine” issue advertisements. Id. necessarily representative are not dents ¶ I.D.7.r.(2). I.D.6.a, Dr. found fig- Gibson whole, im- society relying as a on student ures from the Buying Time 1998 data pressions as the basis for academic conclu- ranging percent percent. from 16 to 60 accepted scholarly practice. sions is an Id. ¶ I.D.7.r.(3). Id. Buying Time 2000 finds ¶ I.D.7.h. percent that 0.6 of the advertisements Much, all, objective 2.12.7 if not of the sixty days aired the final of the 2000 findings Buying reports in the Time campaign which identified a candidate expert. not been undermined Plaintiffs’ “genuine” were issue advertisements. Id. example, For Plaintiffs have not chal- ¶ I.D.6.b. The Buying results from both lenged findings Buying Time that Time studies are based on coders’ answers very express few advertisements utilize to the questions asking opinions for their advocacy terminology, and that interest ¶ purpose. on the commercials’ Id. I.D.4. advertisements, group identify which can- didates, are concentrated toward the end Buying 2.12.9For Time is ¶ of the election I campaign. Id. I.D.7.a. clear that a small number advertise- objective find that data insulated disputed litigation, ments in this great majority from the of criticism leveled times, aired a considerable number were (Dr. Buying reports. Time Id. advertisements, “genuine” coded as issue commenting “[ejntirely objec- Gibson fill but that the coders continued to out the (e.g., tive characteristics of the ads wheth- survey if they sheets as had found the telephone er a number is in the mentioned “electioneering” advertisements com- ad) present text of the few threats to ¶ I.D.7.r.(3). mercials. Id. This fact un- Furthermore, reliability.”). some these Gibson’s, Krasno’s, Dr. Dr. dermines supported by results are those of the unre- Buying Time about 1998’s conclusions Annenberg Report butted 2001. See id. impact genuine BCRA would have had on HI.B.l. issue advertisements over course of However, 2.12.8 I am troubled days 1998 or within the final 60 of the fact that coders in both were asked studies election. I cannot determine based on the questions regarding perceptions their own coding record which view of student purposes, advertisements’ correct, and I this matter in as such find See, perceptions these were later recoded. dispute accept and do not either side’s e.g., changes id. I.D.8.C.When such made, particular it is difficult to point. determine their ef- conclusion on this *372 than not focuses she more often from he or 2000 suffers Time Buying
2.12.10 matters as a although policy the reasons infirmity, those commercials a similar more the appear to be a candidate’s values changes conveying of means than on perceptions the authors’ personal result of charac- directly on the and not ¶ I.D.8.C,and for ¶ id. coding irregularities, I.D.7.p; Id. of the candidates. teristics finding reason, accept its I cannot that ¶ (Over time, (Bailey) supra see also 2.3.2 run that, advertisements all of the issue through a defines a candidate campaign a that the 2000 election days of within 60 image, and issues. style, combination candidate, were percent 0.6 a mentioned ad, watching an shortly after Even ¶ advertisements, I.D.6.b. id. genuine remember usually audience doesn’t target if one However, finds that Dr. Goldstein Rather, the ad’s substantive details. that all the advertisements includes the candidate. just get a feel for viewers genu- recoded from allege were Plaintiffs up make these “feels” to It takes a lot of commercials, the most electioneering ine to campaign.). a advertise- calculation of “conservative” event, I view these cal- any 2.12.12 In the 2000 days in the final 60 aired ments an academic exercise. largely culations as candidate, a identifying election also testimony in this case demon- expert percent. Id. is “genuine,” were subjective nature of the effort by not rebutted strates figure This is UI.D.8.C. impressions of expert. trying capture mental Plaintiffs or viewers, person’s how one and illustrates that argues Dr. also 2.12.11 Gibson can be anoth- issue advertisement genuine cod- majority of advertisements since the Id. electioneering commercial. er’s also coded electioneering were as ed as ¶ I.D.7.Í, Determining purpose I.D.8.C. primary matters as their having policy subjective enter- of an advertisement is focus, in fact demonstrate the studies why appears that to be BCRA’s majority prise, of advertisements that the vast genuine objective issue ad- criteria to de- captured by have used BCRA framers ¶¶ I I.D.7.p, I.D.8.e. App. vertisements. Fur- communication.” “electioneering fine Defendants’ ex- reject argument. As thermore, these ex- Lupia explains, Dr. demonstrated, fact perts clearly what help us determine ercises can may on is- that an advertisement focus past impact would have been on BCRA’s possibility preclude the sues does not behavior, necessarily tell they do not but designed to the advertisement will affect non-electioneer- us how BCRA ¶ Dr. I.D.7.p. promote a candidate: Id. future. Id. advertisements ing issue analogy illus- Lupia’s beer commercial ¶ I.D.7.r.(4). (Lupia effectively. Id. point trates this Dr. as- 2.12.13 I also address Gibson’s do many beer commercials observes that 30,108,857 genu- group-citizen sertion peo- product, but rather not focus on the have been ine issue communications would ple of activities that “engaged range in a ” BCRAApp. I.D.7.q. Dr. Gib- affected Accord- nights we can call ‘wild out.’ rating point data to 707 applied gross son “perceive ingly, it unreasonable to is not issue advertisement genuine of the 713 purpose get” the ad is to would be and Sorauf found airings Krasno beer, judge “but to its buy viewer to figure. reach this captured by BCRA to times.”) Further- primary wild focus as Dr. responded to Defendants have not Id. more, candidate-sponsored the results for calculation, Dr. part because Gibson’s even advertisements demonstrate the first time his raises it for Gibson airs an person for office running when election, report. Although Id. expert rebuttal to win advertisement in an effort group-citizen million communications is ceived a single airing of one of the three face, certainly impressive figure on its genuine 1998, 42,586 advertisements inspection closer figure reveals that the (30,108,857/707), multiplies oppressive not as as it sounds. total airings of commercials mentioning a candidate and run days within 60 First, 2.12.13.1 thirty these million com- *373 election, 206,414,342 the result group- munications are airings of three distinct * citizen (42,586 issue communications advertisements aired 707 times. There- 4847). figure, This fore, admittedly not precise, these 30 million communications actu- demonstrates that the amount ally represent group- only three messages trans- genuine (Dr. citizen issue mitted during programs whose communications aggregate Gibson’s 30 million viewership figure) likely 30 million a small constitutes house- proportion holds. As Dr. of the provided Gibson has not total amount group- citation to the citizen gross source of the issue rating captured communications used, point data he verify I cannot BCRA’s “electioneering his communication” However, figures. it is clear (represented that one definition ad- by the 206 million vertisement, represents “HMO no” above). said figure fact, communications the majority of the airings, having this exercise is merely amplification an Greensboro, been broadcast 118 times in the Krasno and analysis Sorauf and results in Raleigh-Durham, times and 211 in in the 14 percent same figure that Drs. (I Louis St. cannot determine where the Krasno and Sorauf represents determined advertisements, other two “CENT/ genuine amount of issue advocacy that Breaux” and Matter What” were “CCS/No would captured by BCRA.App. aired). I.D.7.r.(2) Id. n.201. The data ¶ I.D.7.r.(2). Again, Dr. Gibson’s 30 mil- shows that even if “HMO said no” had lion figure communications could constitute reached every Greensboro, household a greater or lesser percentage of the uni- Raleigh-Durham, and St. Louis with a verse of mentioning communications a can- television, the number of households re- didate airing days within 60 ceiving message 2,529,450. would be election, but I given am no basis for calculation, Id. Given this and the lack of making such determination. direction provided by experts in this 2.12.13.3Therefore, although I do not case, it appears that while 30 genu- million reject calculation, Dr. Gibson’s I find that ine issue communications would provide record does not me with a BCRA, affected by been the actual number sufficient assessing basis for signifi- its lower, households affected is much al- cance and utility therefore its for deter- though necessarily not insignificant, be- mining whether BCRA is overbroad is many cause of the 30 million households minimal at best. obviously received group-citizen com- 2.13 Conclusion munications numerous times. Based on the pre- extensive evidence Second,
2.12.13.2 provides Dr. Gibson no record, sented in entirely it is possible context for 30 million his communications pure to distinguish figure. advocacy issue from He does not discuss whether or advocacy not these candidate-centered airings issue without were aby received relying on the greater or lesser percentage attempting of households listener/viewer than the other 4140 to discern airings which run the “true” intent of were the adver- days within 60 1998 election tisement. empirical These determinants identified a If candidate. one form takes the the basis of primary definition’s average number of objective households that re- test: issue advertisements Majori- Thompson Committee The candidate, 3.2 are broadcast federal
mention a “those precluding television, in the recommended ty are Report aired on radio contri- electorate, making ... are aired vote ineligible candidate’s election. a federal federal office.” candidates for proximity butions close shar- advertisements may be at 4506. Report there Comm. Thompson While in- that are characteristics evidence that ing these majority found “substantial election, record an influence tended to parents, being used minors objective matter that as demonstrates others, imposed the limits to circumvent these sharing characteris- advertisements Id. contributors.” elec- outcome influence the tics Dodd stated Christopher 3.3 Senator un- corporations labor When tions. we “Normally when floor: Senate on the advertisements these pay for ions *374 contributions campaign and solicit go out funds, in they are viola- treasury general individual. We not limit it to the we do policy. federal longstanding tion not their to know whether also want III: Miscellaneous Title children or adult their minor spouse or Election Commission Federal 3.1The campaign contri- make some like to would Congress take that has recommended are contributions long As as such butions. us- contributors prevent to measures may con- then those individuals voluntary, ” as a method children minor ing their Cong. .... 147 limit their own tribute laws. finance campaign circumventing 2001) (Sen. 27 (daily ed. Rec. Mar. S2933 (recom- at 69 1992 Report Annual FEC Dodd). Christopher a mini- “establish Congress mending that testifies that he McConnell 3.4 Senator due age mum for contributors” given who have “occasionally” asks donors are that “contributions finding FEC’s money to his maximum level of in chil- by parents their given sometimes family members campaign if names”) 1]; FEC 14-Tab [DEV dren’s to the willing contribute who would (recommending at 50 Report Annual 1993 Dep. at 99- well. campaign as McConnell that adopt “presumption Congress He also states “occa- 100 [JDT 19]. making are age 16 not contributors below checks on behalf of sionally” donors send own behalf’ due on their contributions Id. at 132. are finding that “contributions children. the FEC’s parents in their chil- given sometimes that at shows least 3.5 The evidence noting “Congress dren’s names” and made into contributions investigations four potential by es- abuse should address this response in initiated by minors were contributors, age tablishing a minimum 318, 00890- articles. See Pre-MUR press ensuring provide guidelines or otherwise 4]; see also FEC MUR 43-Tab [DEV 933 making contributions parents (let- 4254, 4] 119-0016 43-Tab [DEV FEC another”) 2]; 14-Tab [DEV name of investigation father under ter from (same) at Report 1994 56 FEC Annual investiga- FEC’s stating that the the FEC 3]; Report Annual FEC 14-Tab [DEV article). newspaper tion relied 4]; (same) 14-Tab FEC [DEV 1995 at 56 newspaper cite to 14 Defendants 3.6 (same) [DEV at 55-56 Report Annual 1996 by mi- discuss articles which contributions Report at 54 5]; Annual FEC 14-Tab Miller, Loophole, Minor Alan C. nors. See 6]; (same) Re- FEC Annual 15-Tab [DEV 28,1999, Times, reprinted Feb. L.A. 7]; (same) 15-Tab [DEV at port 1998 (2002); David Rec. S2146-S2148 (same) Cong. Report Annual 1999 at 50 FEC Caper: Mastio, Gifts The Kiddie-Cash 8]; Report FEC Annual 15-Tab [DEV 9], campaign big are the next (same) from minors 15-Tab [DEV 2000 at 43 Slate, 21, 1997, loophole, May INT013275- ability support candidates of whom I 3]; INT013280 10], [DEV 134-Tab Rise in approve.”) stu- [1 Echols ES Tab gifts begs dent question: Was law bro- 3.8 There have been a number of in- ken?, 20, 1997, Today, May 12A, USA at stances where the FEC has found that 3]; FEC101-0001 [DEV 134-Tab Chris individuals have made contributions in Harvey, Young The and the Generous: their children’s names violation of cam- Md. Children Campaigns, Give to Wash. paign finance laws prohibiting the making Post, 20,1995, B01, Nov. at FEC137-0009- of contributions in the name another 3]; Knott, [DEV 134-Tab Alex Mem- person. Contributions, bers Cash In on Kid Roll 3.8.1 The FEC found that an individual Call, 5, 1995, A-l, June reprinted in violated campaign finance laws “making (2002); Cong. Landauer, Rec. Jerry S2146 (4) four $1,000 each—to contributions — Krazy Carter, Kiddies Go Over Break (4) four Federal campaign committees in Open Banks, J., Piggy July Wall St. the name of his infant son during the 1, 27, FEC137-0008 [DEV 134- years calendar 1992 and 1993.” FEC 3]; Tab John Kruger, Youths 2-17 follow 5], MUR INT 15778 [DEV 52-Tab parents’ political contributions, lead The four campaign committees either re- Hill, 27, 1999, Nov. INT013287 42- [DEV turned the funds or disclosed the contribu- *375 2], 1, 53; Malkin, Tab at Michelle Kiddie- tion as a debt owed to the contributor in case open collections fund-raising loophole, an amended quarterly report in response Times, 27, 1997, Seattle May INT013272- inquiries to by the FEC. Id. at INT 15826- 2]; Stuff, INT013274 [DEV 42-Tab Kid 29. The contributor and the FEC entered Call, 15, 1995, Roh June INT013262 [DEV into a conciliation agreement that included 2]; Donors, 42-Tab Youthful Fi- Political $4,000. a civil penalty of Id. at INT 14, nance Lobby Reporter, and June 15789-94. 2], 10; count, [DEV 42-Tab at espe- Kids 3.8.2 The FEC found cially in that a contribu- campaign gifts, The Knoxville $1,000 tor News-Sentinel, contributed in 11,1995, June names of his INT013265- daughters, 8, two 2], ages on F3; INT013266 [DEV 42-Tab November Karin 7, 1988, $1,000 Wahl-Jorgensen, day same he Some made a Folks Channel Po- in Children, litical Gifts contributions his Through own name. Plain Deal- FEC er, 3268, 28, 1995, May MUR INT 15612 [DEV INT013282-INT01328 3]. 43-Tab 2], 9A; Mastio, [DEV 42-Tab The Commission pursue David elected not to its Candidates, Students against contributor, Donate to case part Tulsa in be- World, 11, 1995, March cause he pled guilty INT013258- had to criminal 2], INT013260 charges [DEV 42-Tab of defrauding investors and had filed for bankruptcy. Id. at INT 15613. 3.7 It is clear that not all campaign by contributions minors are in fact dona- 3.8.3 The FEC found a contribu- See, parents. tions their e.g., $4,000 Decl. of tor donated in postage stamps in ¶ (“... Jessica Mitchell 9 I made a contri- 1993 to a federal campaign committee in bution Feeney’s] to campaign just [Tim the names of his year seven and eleven old Dollars.”) recently, in the amount of Five children. FEC MUR FEC119- 5]; Echols [1 ES Tab Decl. of Pamela 0008-09 [DEV 43-Tab 5]. The FEC and ¶ (“I Mitchell my never used the contributor entered into a conciliation name, daughter’s any person’s, other agreement, pursuant to which the contrib- making political donation, a $7,500 order to agreed pay utor to civil fine. Id. avoid limits that places the law my at FEC 119-0012. politics and knowledge of their about sters that a contribu- found FEC The 3.8.4 may parents their relationship accounts their the bank money from took
tor family.” FEC chil- year privacy old three threaten the old and year one his ¶ $1,000 support of contributions 794. In of Fact Findings to make three dren FEC candidates. proffers a let- contention, names the Commission their 134- [DEV 101-0046-47 family FEC attorney representing MUR ter Tab3]. states the FEC which investigated general pro- require does not believe that [my clients]
3.9 FECA age report FEC Dock- to seek the instant inquiry of committees cess of Br. at 202. privacy Gov’t unduly contributors. intrusive into iset family affairs their it “faces The FEC states 3.10 problems practical significant unique prove investigate and attempting truthfully responding very act of By the voluntarily knowingly and a child
whether Interrogatories and Docu- to the instant thus contribution particular made [my open must clients] requests, ment parent violated the child’s whether family their to conduct efforts up their Pro- Gov’t Amended limits”. contribution affairs, inculcate civic In some Fact Findings of posed to their chil- teach values virtues and to submit cases, have refused parents .... public officials scrutiny by dren to FEC MUR questioning. to FEC children ... effects invade The untoward (re- 4] 43-Tab [DEV USA CIV00932 private communications privacy and parents refused explaining that port parents and of and wife husband questioned). to be their children allow disrup- create possibly to children and that determin- maintains Commission merely family functioning tion in normal a certain or not children ing whether *376 apparently legiti- responding to by “knowing and making capable of age are inquiry. mate FEC un- subjective is a voluntary” contributions FEC119-0017, 4254, by parental more difficult FEC MUR dertaking, made to be FEC deems 4]. and what 43-Tab [DEV influence Amended “self-serving Gov’t affidavits.” LAW OF III. CONCLUSIONS ¶ 794; FEC Fact Findings of Proposed 4252-4255, Re- to discuss appropriate General I find it most Counsel’s MURs USA-CIV00925, 10, 930-31 5, first, turning my to II before port BCRA’s Title (“[I]t accept difficult to I, 43-Tab4] Title and the other remain- [DEV discussion of eight as young children as notion that of BCRA that addressed provisions ing ‘knowingly and capable of old are years opinion. in this to con- voluntarily’ making decisions Campaign However, campaigns.
tribute Ex- I. Title II: Noncandidate penditures anything the Commis- in the absence presumption as a regulations such sion’s The Prohibi- 203 and 204: Sections contribu- may not make young child Electioneering tion on Communications subjective deci- very this becomes a tions NRA, McConnell, of Com- The Chamber appear In this matter there does sion. all NAB, Plaintiffs merce, and AFL-CIO accept the assur- any choice but to be corporate challenge prohibition these were by affidavits that affirmed
ance electioneering decisions.”). labor disbursements voluntary knowing and Plaintiffs also These young- communications. “[qjuerying also claims FEC challenge both definitions of “electioneer- no further occasion to consider the consti- (the ing communication” primary definition tutionality backup definition. definition). and the fallback A. Introduction per opinion,
As discussed curiam prohibits corporations FECA 441b For Section close to one hundred years po- and labor unions from using general litical branches choice, have made the treasury funds on expen- contributions or consistent Constitution, with the that indi- ditures in connection with a vidual federal elec- voters have a right to select their § tion. U.S.C. 441b. Sections 203 and officials elections that are free 204 of prohibition BCRA extend this the direct influence of aggregated “electioneering corporate communication.” treasury BCRA wealth and-for fif- over provides for two ty years-free definitions of electioneer- from the direct influence of ing primary communication—a aggregated definition labor union treasury wealth. and a backup definition to be substituted The prohibition rationale is simple, in the persuasive, event the main definition is held First, and longstanding. such constitutionally be infirm. Given the un- restriction “ensure[s] substantial controverted aggregations record of abuse and circum- of wealth amassed vention of the longstanding prohibition special advantages go which with the cor- 441b, Section I find primary porate definition form of organization should not be communication, of electioneering and thé converted into ‘war chests’ which corresponding restrictions in could sections 203 be to incur political used debts from result, constitutional. legislators As a I find who are aided the contribu- BCRA’s restriction on corpo- tions.” ability FEC v. Right Nat’l to Work rations (“NRWC”), and labor unions spend general Comm. 197, 207, 459 U.S. treasury (1982). funds on electioneering communi- S.Ct. Second, L.Ed.2d 364 cations facially to be prohibition constitutional such a “protect[s] the individu- law, als[,] matter including its application paid who have money into a corpora- 501(c)(4) 527(e)(1) section and section tion cor- or union for purposes other than the porations that do not support candidates!!,] receive an MCFL from having that exemption. money used to support political candidates to whom they may opposed.” Id. opinion As my on the constitutionality *377 208, 103 552. In other words, S.Ct. when the primary definition does not command corporations and spend labor unions their majority, a I cognizant am majori- that the general treasury funds to influence feder- ty who have found primary definition elections, al our coordinate branches unconstitutional must tackle the constitu- stated they that must use segregated tionality of the backup definition of elec- voluntarily funds and deliberately commit- tioneering end, communication. To that I by ted individual citizens for purpose. that concur judgment in the by Judge reached opinion Leon’s question. on this Accord- Since this longstanding prohibition ingly, the final judgment of fiction, the three- has become a with abuse so overt judge District panel Court my reflects as to mock openly the intent of the law. support opinion of his as an alternative to The record persuasively that demonstrates my own finding that the primary definition corporations and unions routinely seek to of electioneering communication is consti- influence the outcome of federal elections tutional. my Given view of the constitu- general with treasury by running funds tionality of primary definition, I have broadcast advertisements that skirt funds for elec- treasury using general ions 441b in section contained
prohibition tioneering communications. words” Buckley’s “magic avoiding simply II, enacting Title In advocacy. express of Review of B. Standard problem to this responded Congress Buck- abuse: broad- both the main contend that focusing on Plaintiffs first tightly proximi- any Congression- in close aired foreclose ley advertisements and MCFL cast clearly identify that not con- that does speech election of ty to a federal al regulation result, targeted and are as a advocacy, candidate and express a federal stitute devising electorate. law because a of candidate’s II fails as matter that Title re- to a has returned II, electioneering com- Congress Title restrictions on BCRA’s unions and labor advertise- corporations apply to broadcast where gime munication separate money from express advoca- federal not contain use that do must ments designated for explicitly (“Buckley fund Br. segregated McConnell cy. seeking to when purposes regulation Congress’ election condemn federal MCFL express elections.109 federal not constitute that does speech influence words, Plaintiffs advocacy.”). In other estab- conclusively Indeed, the record not even need that the Court does posit express “magic words” that lishes BCRA of whether question reach rarely Buckley are advocacy identified compelling narrowly tailored to serve adver- electioneering any form used interest, Buck- because both governmental cam- modern in the tisements a substantive ley MCFL announce The perverse 2.3. Findings paign. law; namely, that constitutional rule of ad- is that situation of this consequence speech any may regulate not Congress advocacy express that avoid vertisements advocacy express not as qualify that does of advertisements type only are not known. term has become as that employ generally consultants clients, are also law, candidate their and as discussed a matter of As corpora- advertisements precisely the on this argument I find Plaintiffs’ infra, BCRA, unions, prior to and labor tions Buckley nor point unpersuasive. Neither Accordingly, to run. permitted were consti- a rule substantive MCFL create demonstrates, corporations the record only can whereby Congress law tutional effort, unions, minimal were labor containing words speech regulate political elections with influence able Rather, Buckley advocacy. express funds; practice treasury general advocacy express stan- used the MCFL contrary by Congress long prohibited construing otherwise as a means of dard by the judiciary. enforced portions unconstitutionally vague Buckley and I do view As reasons, FECA. particularly given these It is for Congressional future case, prohibiting MCFL as in this overwhelming record I reach the political speech, regulation of *378 prohibition facially I find constitutional narrowly BCRA is question un- of whether and labor corporations on Title II in MCFL-status, manner, will have to run broadcast neatly dovetails Title II In this elec- a federal that advertisements influence prohibitions con- funds with nonfederal dollars the same federal that political parties with tion in Title I. Whereas tained pay to use to political parties will I have Title expressed frustration that their (except in- that BCRA spe- advertisements importance their relative will diminish their 13, money see, amount of federal that e.g., RNC Br. at creases groups, cial interest special to their inter- parties can raise relative or- special these interest Title II ensures that counterparts). explicitly est except qualifying ganizations, those
593
compelling
tailored to
a
governmen-
injure
serve
parties,”
“third
and involves the
interest.
tal
Broadrick
of
fine
cases. Chamber Reply
at 4. The second facial attack is where “a
In turning
that question,
it bears
plaintiff invokes its own First Amendment
pointing
parties
out that the
argue in their
rights in way
subjects
that
a statute to
briefing about who bears the “burden” in
strict scrutiny.”
Reply at
Chamber/NAM
litigation,
this
with each side pointing the
5 (citing
Paul,
R.A.V. v. City
St.
505
finger at the
Compare
other.
Gov’t Br. at
of
377,
3,
U.S.
(“[Plaintiffs]
381 & n.
2538,
112 S.Ct.
120
131
efforts to shoulder [their]
(1992);
L.Ed.2d 305
fail.”)
Sec’y
burden all
State
with
Md.
Reply
McConnell
of
(“Defendants
v. Joseph Munson, Co.,
H.
947,
467
incorrectly
argue
U.S.
13,
965-66
throughout
2839,
& n.
104 S.Ct.
plaintiffs
their briefs that
bear
L.Ed.2d
(1984)).
the burden of demonstrating
argue
that
Plaintiffs
they
BCRA’s
be
on
long
ban
electioneering
this latter category.
communications is
broad.”)
overly
(emphasis
original).
The difficulty with
position,
Plaintiffs’
Throughout this litigation, Defendants ar
however, is that none of their submissions
gue that Plaintiffs bear a
burden
dem
describe
specific detail any advertise-
onstrating that
the law is substantially ments, referring
particular
candidates
overbroad. Defendants contend that as
races,
in any
that Plaintiffs
pro-
intend to
Plaintiffs
bring
facial challenge to these
duce or
any
air at
future,
time in the
BCRA,
sections
must
establish
that would fall within BCRA’s electioneer-
prohibition
corporate
on
and labor un
ing
provisions.
communication
such,
As
spending
general
ion
treasury funds on is difficult
argue
that Plaintiffs have
electioneering communications is substan
demonstrated affirmatively and concretely,
tially
ACLU,
overbroad. See
v.
Ashcroft
in any
detail,
kind of
the scope of their
564,
1700, 1713,
535 U.S.
122 S.Ct.
claimed First
injuries.
Amendment
(2002);
L.Ed.2d 771
v. The Free
Ashcroft
Nevertheless, none
parties
dis-
Coalition,
Speech
535 U.S.
122 S.Ct.
pute the fact that the framework for re-
1389, 1398-99,
(2002).
tation marks citation . argued case, fendants have this the debate over the “burden” is largely
Plaintiffs wait until academic. their reply briefs to present Defendants address II argument argu- Defendants’ salient Title point. primarily ments Reply McConnell demonstrating Cham- Reply at 4-5. law scrutiny Plaintiffs meets strict ber/NAM essen- test. In- tially argue deed, there are degree, two kinds of to some *379 Defendants have facial challenges under the essentially First Amend- conflated the scrutiny strict first, ment. The involves statutes that inquiries. substantial overbreadth exemp- the “media (“And challenge to (Waxman) Plaintiffs’ that 251-52 Tr. at issue, merit. lack tion” both constitutional real the us to brings new Congress’ that the burdens whether Advocacy is Not Express Electoral C. tai- narrowly are speech on imposes law Requirement a Constitutional interests; compelling public serve lored to a this is again because or, precisely, more Express Origins Advo- of the The have plaintiffs whether challenge, facial cacy Test are provisions the that new demonstrated regulat- that in the context I conclude their relation overbroad substantially elections, Congress may re- ing Furthermore, I goals.”). legitimate po- on and union corporate spending strict II are Title provisions find that words which does not contain speech litical re- scrutiny this strict under constitutional advocacy, provided electoral express party bears of which view, the question narrowly tailored are that such restrictions irrelevant. largely also is burden inter- compelling governmental to serve a I am convinced although Consequently, II, in- Plaintiffs Title condemning In est. that not demonstrated that Plaintiffs a substantive Buckley announced sist provi- communication” “electioneering law, that Con- such rule of constitutional substantially over- II are in Title sions regulating prohibited from is forever gress law the strict broad, analyze the under I not contain that does political speech any with Defen- consistent scrutiny framework if advocacy-even express explicit words briefing. in their presentation dants’ paid is speech being regulated I will analysis, undertaking this latter In general union or labor corporate for with on restrictions whether BCRA’s examine at 38 Opp’n McConnell treasury funds. narrow- are electioneering communications its leaves no (“Buckley thus doubt public compelling a to serve ly tailored constitutional advocacy test is a express scrutiny re- this strict interest. Under very lit- provide Plaintiffs requirement.”). corpo- on view, that the I find restrictions Buckley and analysis of tle textual on election- spending union rate and labor overstate and instead MCFL decisions constitutional are eering communications satisfy Buckley holding extent meaning challenge stage, at this facial purpose. political speech on restrictions BCRA’s II, be noted reviewing Title should In corresponding to serve narrowly a tailored fact dispute the parties that none of interest. compelling governmental re- electioneering communication that the opinion on this my The remainder II more regulate in Title strictions parts. divided into question is four advocacy. just express speech than for find- my first section contains reasons express Therefore, I conclude that if advocacy not constitu- ing express is forever enshrined advocacy standard I point, am On this requirement. tional Constitution, then the restrictions speak Leon and therefore joined by Judge II in Title communications electioneering pro- portion The second for the Court. matter of law as a be condemned would primary dissenting view that the my vides over- analysis of any substantial before electioneering communication definition of taking In performed. is even breadth compelling narrowly tailored serve Buckley and analyzing step back the third and interest. governmental however, that MCFL, apparent, it becomes sections, the Court and I write for fourth devised advocacy standard express concluding that my discuss reasons Buckley is not a Court Supreme argument Plaintiffs’ underbreadth
595 substantive rule constitutional law that S.Ct. Interpreting the phrase in operates as a per se restriction on future context, its Supreme the Court stated Congressional action. the “context clearly permits, if in- deed it does not require, phrase the ‘rel- Supreme the Buckley, Court consid- ative to’ candidate to provision ered a read to mean FECA that limited the ‘advocating the amount of election money individuals and defeat of certain groups 42, candidate.” Id. independently expend could “rela- S.Ct. 612. Ac- tive to” a clearly cordingly, Supreme Court, identified federal candi- used the date.110 See Buckley, 39-51, 424 U.S. at context provision to make a “first- 608(e)(1) S.Ct. 612 (discussing section of cut” at construing the vague phrase “rel- FECA). 608(e)(1) Section of FECA pro- ative to.”
vided that
person may
“[n]o
any
make
Even with
clarification,
this
however, the
expenditure ... relative
clearly
to a
identi- Supreme Court found that the vagueness
fied
during
candidate
a calendar year
inquiry was merely
and,
“refocusefd]”
which, when added to all
expendi-
other
thus, not completely
resolved.
Id. at
by
person
tures made
such
during the year
S.Ct.
Confronted with the chal-
advocating the election or
such
defeat of
lenge of interpreting
“advocating
elec-
candidate,
$1,000.”
exceeds
Id. at
tion or defeat of a candidate”
Supreme
(omission
S.Ct.
in original) (emphasis
Court was once again concerned about an
added).
Prior
directly considering the
interpretation of the wording of the statute
constitutionality
608(e)(1),
of section
that covered
speech
more
than was actual-
Supreme Court stated that
ex-
“[b]efore
ly necessary.
Supreme
Court re-
amining the interests
advanced
support
marked that:
provision’s]
[the
expenditure ceiling,
the distinction between discussion of is-
consideration must be given
appellants’
sues and candidates and advocacy of
contention
provision
that the
is unconsti-
election or defeat of
may
candidates
of-
tutionally vague.”
Id. at
between
of
application
the
to cause
restrict
potential
would
the
had
and
speech
sible
containing
608(e)(1)
issue dis-
genuine
to communications
§
censor
to self
speakers
or
stat-
violating
advocacy
the
of election
to
of
express
avoid
words
in order
cussion
‘elect,’ ‘support,’
for,’
defeat,
as ‘vote
such
ute.111
for,’
Congress,’
‘Smith
your ballot
‘cast
apprehension
its
fact,
underscore
In
” Id. at 44
‘defeat,’ ‘reject.’
against,’
was
‘vote
narrowing construction
first
its
phrases
These
quot-
52,
612.
Court
96
Supreme
n.
S.Ct.
satisfactory, the
not
words,”
“magic
v.
Thomas
the
known as
length
at
to be
passage
come
aed
315,
535,
89
516,
2.1.1,
65 S.Ct.
a communica-
Collins, 323 U.S.
because
Findings
(1945):
un-
words
430
of these
L.Ed.
one
that invokes
tion
designed
advocacy
express
and
[Wjhether
intended
as
qualifies
words
questionably
miss that
would
invitation
Nota-
of
of FECA.
fall short
the ambit
falls within
and
construction,
of intent
both
question
is a
narrowing
mark
with this
bly, even
circum-
in such
speaker,
No
effect.
section
struck down
Supreme Court
the
any-
stances, safely
assume
could
608(e)(1)
under
the
as unconstitutional
upon
general
say
the
might
thing he
44-51,
id. at
96
Amendment.
First
be understood
subject would
S.Ct.
short,
the
an invitation.
as
some
imported the
also
Supreme Court
distinction between
clear-cut
supposedly
into an-
advocacy” requirement
“express
advocacy,
laudation, general
discussion,
it
found
FECA
provision
other
in these
speaker
puts the
and solicitation
434(e) of
unconstitutionally vague. Section
mercy of
at
wholly
circumstances
certain
individuals
required
FECA
understanding of his hearers
the varied
expen-
to disclose contributions
groups
inference
of whatever
consequently
expenditures
Contributions
ditures.
and mean-
his
as to
intent
may be drawn
use of
of the
in terms
defined
were each
ing.
“for the
assets
money
other valuable
security for
offers no
distinction
Such a
nomination
influencing” the
purpose
conditions it
In these
free discussion.
office.
for federal
of candidates
election
may
uncertainty whatever
blankets
Supreme
77,
612. The
96 S.Ct.
Id. at
speaker
compels
It
be said.
pur-
phrase “for
that the
Court found
and trim.
hedge
unconstitutionally
influencing” was
pose
Thomas,
43,
(quoting
S.Ct. 612
Id. at
(“It
ambiguity of this
Id.
vague.
315).
satisfy
To
at
65 S.Ct.
323 U.S.
prob-
poses constitutional
phrase
therefore,
Supreme Court
concerns,
its
lems.”).
history to
legislative
Finding no
608(e)(1)
ap
further construed section
analysis,
statutory
help guide
communica
expenditures
ply “only
disclosure
construing the
turned
Court
terms advocate
express
tions that
“to avoid
so as
in such a manner
provision
identified
a clearly
election or defeat
vagueness.” Id.
the shoals
office.” Id.
candidate for
added).
(emphasis
S.Ct.
footnote,
Supreme
In a
S.Ct.
quotation
this
was
context in
from the
on this
Plaintiffs seize
McConnell
111. The
making
made,
Supreme Court in
express
proof that
quotation as immutable
phrase "rel-
observing that the
was
statement
stone
advocacy
chiseled in
is somehow
simple
by a
not be remedied
could
ative to”
McConnell
requirement.
constitutional
provision, but
to the context
bright
reference
adoption of this
(Buckley’s
Opp'n at
narrowing
rather,
before the
needed further
in statu-
merely an exercise
line
"was not
test
would be ameliorated.
vagueness concerns
However,
construction.”).
as is clear
tory
attempting
phrase
When
to construe the
provision
diture”
requiring disclo-
expenditures,
in relation to
the Court en-
independent
sure of
expenditures,
“line-drawing problems.”
countered
Id.
not surprising that
the Court found the
*382
To
difficulty,
resolve this
Supreme
the
term “expenditure” for purposes of sec-
Court, again, interpreted the
phrase
the
tion 441b to also require
express
the
ad-
same manner
which it
interpreted
had
vocacy
249,
construction.
Id. at
107 S.Ct.
608(e)(1).
vague portion
the
of section
Id.
(“We
616
agree
appellee
with
that
79,
96
612 (“Although
S.Ct.
phrase,
the
requires
rationale
a similar construction
purpose
‘for the
of ...
influencing’ an elec- of the more
provision
intrusive
that di-
nomination,
tion or
differs from the lan-
rectly regulates
independent
spending.
guage
608(e)(1),
§in
used
it shares the We, therefore, hold that an expenditure
potential same
encompassing both is- must
‘express
constitute
advocacy’ in or-
discussion
advocacy
sue
of a
der
subject
to be
prohibition
to the
result.”).
result,
aAs
the Supreme Court
441b.”)
§
added).
(emphasis
found that
insure
“[t]o
the reach of
434(e)
§
broad,
not impermissibly
we
2. The Express Advocacy Test is Not
‘expenditure’
construe
for purposes of that
a Substantive Rule of Constitu-
section in
way
the same
we construed the
tional Law
608(e)
terms of s
to reach only funds used
As is clear from
above,
the discussion
for communications that expressly advo-
both Buckley and
explicitly
MCFL
invoked
cate the election or defeat
clearly
of a
express
the
advocacy test
as a
only
means
identified
80,
candidate.” Id. at
96 S.Ct.
statutory
construction.
In Buckley, the
construed,
612. So
the Supreme Court
Supreme Court was confronted with two
434(e)
held that section
was narrowly tai-
different provisions of FECA that both
lored to serve
sufficiently important
gov-
presented vagueness challenges for the
ernmental
80-82,
interest.
Id. at
96 S.Ct.
result,
Court. As a
the Supreme Court
612.
“
turned to the ‘cardinal principle’ of statu-
years
MCFL,
Ten
later in
Supreme
the
tory interpretation ...
that when an Act of
again
Court
express
invoked the
advocacy
Congress
‘a
raises
serious doubt’ as to its
MCFL,
test.
248-49,
Realtors (“I relationship to a con rowed, am not (W.D.Wis.2002) “a sufficient bore 1078, 1085 work Id. at intended Buckley was interest.” governmental vinced substantial legis future inhibition significant such 96 S.Ct. raised problems address efforts lative argue Plaintiffs The McConnell con interests state competing would that Defendants “unfathomable” inevitably associat imperatives stitutional advocacy test was express suggest advocacy.”); issue express ed *383 McConnell constitutionally ordained. v. Assemblies Republican Fed’n Nat’l 424 Buckley, U.S. (quoting 1300, at 35-36 Opp’n 1325 States, F.Supp.2d 218 United 612) (“To reach the insure 80, er (“The second 96 S.Ct. at plaintiffs’ (S.D.Ala.2002) broad, we Buckley 434(e) held impermissibly that § their insistence is
ror
express
than
other
that
speech
purposes
for
‘expenditure’
that all
construe
the
beyond
reach
advocacy lies
the
electoral
we construed
way
in
same
the
section
including disclo
regulation,
constitutional
608(e)
funds used
only
to reach
§of
terms
Soc’y
also Va.
requirements.”);
sure
advo-
expressly
that
communications
for
FEC, 263 F.3d
Inc. v.
Life,
Human
clearly
of a
or defeat
the election
cate
Cir.2001) (“[W]e are
(4th
bound
379, 392
removed).
candidate.”) (emphasis
identified
strictly limit
MCFL, which
Buckley
explicitly
However,
language
quoted
the
advocacy.’
If
‘express
meaning of
the
construed
indicates,
Court
Supreme
the
come, must come
it
is to
change
to save
in an effort
language
statutory
the
re
from further
Congress
imaginative
over-
from unconstitutional
provision
the
Court.”). Rather, the
Supreme
by the
view
con-
narrowing
adopting a
By
breadth.
concerned
particularly
Buckley
was
Court
the
provision,
Su-
vague
to this
struction
stat
of a
provisions
vague
construing
434(e)
section
easily found
preme Court
reaching difficult
avoid
order
ute in
80-82,
424
at
Buckley,
U.S.
constitutional.
the
In
law.
of constitutional
questions
the
diminishing
612. Further
S.Ct.
96
608(e)(1),
Supreme
the
case of section
ar-
Plaintiffs’
the McConnell
credibility of
constru
after
was unsuccessful-even
Court
Buckley phrase
fact that the
is the
gument
vague
avoid
an effort
ing the statute
ap-
Plaintiffs
McConnell
the
quoted
failed
still
provision
the
problems,
ness
the Su-
of a section
midst
the
pears
scruti
Amendment
exacting First
satisfy
Prob-
“Vagueness
entitled
preme Court
44-45, 96 S.Ct.
at
424 U.S.
ny. Buckley,
76,
612.112
96 S.Ct.
Id. at
lems.”
Whereas,
section
in the case
”
Principles
"General
section
appear in the
the
also offer
Plaintiffs
112. The McConnell
propo-
Buckley
First
uncontroversial
invoked
were cited
argument that because
initial discus-
affords
during its
"First Amendment
that the
sition
Amendment caselaw
that
expres-
was clear
Principles,”
it
...
protection
of “General
sion
broadest
14,
substantive
creating
Buckley
a rule
612
was
S.Ct.
Buckley,
at
96
424 U.S.
sion.”
ex-
it articulated
argue
when
added).
logic
constitutional law
(emphasis
It defies
Opp'n
advocacy
McConnell
press
standard.
First
Supreme Court invoked
because
that
Buckley,
37,
(citing
at
Reply
27
at McConnell
that
proposition
caselaw for
Amendment
612)
14,
(noting S.Ct.
“advocacy of advocacy, electoral express fined itself occupy the added). would The discussion” “issue (emphasis
then
at 1328-29
Id.
claim
plaintiffs
that
that
territory
not
was
Buckley and
same
MCFL
point of
is,
all
advocacy”
advo-
express
regulate
for “issue
only
Congress can
—that
ad-
electoral
express
not
in these
that is
speech
Rather,
Supreme Court
cacy.
vocacy.
and construed
vague
a
statute
took
cases
bright
however,
Court,
recognized
so
create
as
Buckley
in such manner
The
pro-
ex-
result
itself did
statute
advocacy of
because
line
advocacy
readily distin-
electoral
means
express
any
beyond
“other
tends
vide
ex-
issue dis-
advocacy from
introduced
Buckley Court
electoral
guishing
....
advocacy
a benchmark
at 1329.
electoral
cussion.” Id.
press
boundary
the clear
speakers
provide
Are
Cited
Cases
a. Other
Plaintiffs
independent
statutory cap on
Distinguish-
Are
Not Relevant
Id.
lacked.
expenditures otherwise
able
electoral
express
43-44,
96 S.Ct.
If
hy-
heavy on
briefing, while
Plaintiffs’
electoral
only
were the
advocacy
form
submissions,
Defendants’
attacking
perbole
exists,
Court would
advocacy
analysis
on textual
incredibly light
speakers
been concerned
not have
Perhaps at-
opinions.
MCFL
Buckley and
is-
between
not tell
could
difference
away from
attention
tempting to shift
advocacy;
electoral
discussion
sue
Buckley,
discussion
of a robust
lack
express elec-
established
the Court
*385
position
their
attempt to bolster
Plaintiffs
be-
precisely
advocacy standard
toral
cases
court
of lower
citing to a series
by
advocacy
electoral
forms
cause other
express
uphold the
claim
that Plaintiffs
to distin-
difficult
may prove
but
exist
of constitu-
as a rule
advocacy standard
discussion....
from issue
guish
I ac-
Br. 51-53.
law. McConnell
tional
Assemblies, 218
Republican
Nat’l Fed’n of
dicta
is some
there
knowledge that
added).
(emphasis
at
F.Supp.2d
the ex-
suggests
these cases
in their conclusion
Plaintiffs are mistaken
re-
a constitutional
test is
advocacy
press
world,”
“bipolar
establishing a
not
that in
Nevertheless,
language
the
quirement.
necessarily de-
has
Court
Supreme
the
prece-
dicta,
binding
is not
cases is
these
constitutional
substantive
a rule of
creed
in this
discussed
dent,
the reasons
and for
points out:
Judge Vollmer
law. As
section, unpersuasive.
automatically
advocacy
Electoral
mainly
fall
by Plaintiffs
cases cited
The
but,
ex-
to the
regulation
from
immune
First,
many of
categories.
two
into
distinguished
easily be
tent it cannot
striking down
courts
involve
cases
cited
discussion, may be neces-
issue
from
attempting to broaden
regulations
FEC
advocacy from
electoral
exclude
sary to
advocacy
express
Supreme Court’s
self-censorship
to avoid
so
regulation
as
reject-
surprisingly, courts
Not
standard.
resulting
speakers
by uncertain
neither
because
FEC’s efforts
ed the
discussion.
issue
abridgement of
authority
has
the Commission
nor
advocacy
electoral
express
line of
bright
courts
statutory test. These
redefine
434(e), not
under Section
required
was
or the
Congress
correctly observed
of ex-
falling short
speech
all
because
appropriate
were
Court
Supreme
immune from
advocacy is
electoral
press
steps.
undertake
such
branches
other means
but because no
regulation,
with
consistent
is therefore
advo- BCRA
electoral
distinguishing
readily
(9th
strand of caselaw. The
Cir.1987),
second grouping
a case that has been largely
of cases involve federal courts striking
See,
discredited.
e.g., Chamber
Com
down state statutes and state regulations merce
the United States America v.
variety
had a
of constitutional de- Moore,
187,
(5th
288 F.3d
Cir.2002)
cases,
fects.
In these
the state statutes
(citing cases disagreeing
Furgatch).
at
captured
issue all
pure
too much
issue
In attempting to create
regulations,
these
advocacy
fashioning
without
an appropri-
the FEC’s efforts produced provisions
ate test
that predominantly regulated
plagued with vague terms that raised the
advocacy.
electoral
BCRA differs from same concerns that troubled the Buckley
provisions
these state
BCRA,
in that with
Court, placing
speaker
mercy
Congress, supported by
plethora
of evi-
subjective
intent of the listener to de
experience,
dence and
narrowly
created a
if a
termine
communication was
covered
tailored definition of electioneering com- FECA. See Buckley, 424
U.S.
munication that is specifically
focused
(“
short,
S.Ct.
‘In
the supposedly clear-
communications
influence federal
cut
discussion,
distinction between
lauda
elections.
tion, general advocacy, and solicitation
With
regard
the cases where courts
puts
speaker
in these circumstances
struck
regulations,
FEC
down
the Com- wholly at
mercy
of the varied under
mission,
Congress,
and not
sought
had
to standing of his hearers and consequently
express
define
advocacy broader than the
of whatever
may
inference
be
as
drawn
Supreme
permitted
Court had
in Buckley.
”)
his intent and meaning.’
(quoting Thom
See, e.g.,
Soc’y
Va.
Human Life, 263
Collins,
as v.
516, 535,
323 U.S.
65 S.Ct.
F.3d at
392 (striking down
regu-
FEC
(1945)).
reached political com- requiring statute Commerce, Carolina the Fifth cy. In Chamber of certain disclosures. make mittees at statute the state that out pointed Circuit Inc. v. Bart- Life, Right North Carolina of language adopted the “essentially issue Cir.1999). (4th lett, 712-713 168 F.3d Buckley decisions Court’s Supreme the “unconstitutional- court found The Bartlett only that meant [which and MCFL a state statute and overbroad” ly vague reach court needed that decision in ex- than FECA further that reached the Chamber’s whether to determine was] (1) requirements disclosure tending advoca- ‘express constitute advertisements incidentally engage only groups that [in articulated standard under the cy’ (2) engaging Commerce, groups advocacy express Chamber statute].” state of breath In the same advocacy. Id. in issue for Accordingly, F.3d Fourth provision, the Commerce, it struck down only as in Chamber court have first it would clear that Circuit made the commu- whether was to reach decision like the provision to save endeavored case constituted in the issue nications Buckley. Id. at did Supreme Court unex- is some advocacy. There express may we (“The question then whether states that in the case dicta plained defini- North Carolina’s similarly construe held has Court “Supreme to save committee tion of regulation permits Amendment First The court vagueness.”). being void advertisements, only if but therefore, Bartlett, found that only defeat of the election expressly advocate subject to (no statute was cita- North Carolina Id. at specific candidate.” a interpretation, not narrowing articulat- the reasons For provided). tion permanent was a advocacy test express disagree section, expressly I in this ed However, to law. fixture of constitutional a thor- dicta, without presented with such could in Bartlett language the extent any oth- some Buckley or analysis oughgoing direction, I find it to lead in that arguably Republican Nat’l Fed’n support. See er (cit- a serious textu- unaccompanied by dicta at 1329-30 Assemblies, F.Supp.2d Buckley.115 Commerce) (“While analysis al some ing Chamber of unexplained dicta contain of these cases Respon- cite Citizens Plaintiffs also express electoral arguably suggesting Political Action State Government sible universal, limi- constitutional advocacy is a Davidson, where the case v. Committee none so requirements, tation on disclosure unconstitutional Circuit severed Tenth analysis any offers textual and none holds campaign finance of a Colorado portions prop- such support could Buckley independent law defined state law. The *387 osition.”). only express include not to expenditure polit- for “expenditures Plaintiffs, advocacy, also but cited case In another unambiguously refer ical messages v. Bart- Inc. Right Life, to North Carolina Bartlett, that have as eluding only those entities distinguishing in Indeed advocacy engaging express Republican major purpose in Federation court in National (em at 712 Id. support of a candidate.” in Assemblies found: no original). Court offered plaintiffs phasis in single case cited Only a which is proposition, asserted. proposition for this clearly authority stands Life, v. Bart Right to Inc. Buckley and which is contrary to plainly In North Carolina lett, Cir.1999), (4th de cert. 705 168 F.3d any event. dicta in 1156, 1153, nied, S.Ct. 145 Assemblies, U.S. Republican Fed’n Nat’l (2000), stated that the Court L.Ed.2d 1069 omitted). (footnotes F.Supp.2d at 1330 as in- political committee Buckley “defined any specific public to office candidate Indiana disclosure statute after Indiana for such office.” Citizens Responsible Supreme Court certified ap- statute Gov’t State Political Action Comm. v. plied only organizations engaging in ex- Davidson, (10th 236 F.3d 1187-88 press advocacy). Indeed, the court in Cir.2000). The term “political message” Right Iowa grounded its decision Life in was turn defined as including mes- on the fact that the “State’s definition of sages by telephone, delivered by print or express advocacy creates uncertainty and media, electronic by any other written potentially chills public discussion of is- material applied only express sues.” Right Iowa to Life, 187 F.3d at advocacy, but also to unambiguous refer- ences to candidates. Id. 1188. The After reviewing cases, these I am con- Davidson court found applied that as vinced that none of the eases cited above plaintiffs, the law encroached on le- offer a convincing argument that express gitimate issue advocacy, which “is a viola- advocacy is a constitutional requirement. tion of the rule enunciated Buckley The vague subjective terms and its associated progeny.” Id. at 1194 (quoting provisions with the Right Comm., Vermont impelled FECA Inc. v. Life Sorrell, (2d Cir.2000)). 221 F.3d court Buckley to offer express advoca- From plain text of cy the Colorado stat- construction. BCRA, turning to it is utes, the laws were just aimed not clear that the primary definition of elec- electioneering, pure but also at issue dis- tioneering present communication does not cussion. No effort was made to draw problem. different line than had been drawn Buckley, result, as a Primary 3. The the Tenth Definition of Elec- Cir- cuit severed those constitutionally offen- tioneering Communication is Not portions. sive Davidson also contains Vague unexplained dicta that [Supreme “the Unlike the vagueness concerns which Court ] MCFL clarified that express motivated Supreme Court in Buckley words of advocacy were not simply a MCFL, primary definition of elec- helpful way to identify ‘express advocacy,’ tioneering vague. communication is not but that the inclusion of such words was Indeed, none of the Plaintiffs argued in constitutionally required.” Id. at 1187. their briefing or at argument oral that the For the above, reasons set forth I dis- primary presented definition vague- any agree with this statement, and consider it ness concerns. See McConnell Br. at 57- unpersuasive constitute dicta. 69; (Waxman) (“No Tr. at 264-65 one is The other cases Plaintiffs cite are equal don’t arguing any believe that of the 82 —I ly unpersuasive. Right See Iowa to Life plaintiffs in this argue case princi- Comm., Williams, Inc. v. 187 F.3d pal definition that four-part test, is the (8th Cir.1999) 968-970 (striking down a vague any respect. It’s imagine hard to regulation state defining express advocacy (none how it could be less vague.”)
in a similar manner C.F.R.. objected Plaintiffs ever to this character- 100.22(b) § as unconstitutional because the ization). words, In other is no there *388 focus of regulation the is “what on reason vagueness challenge to the primary defini- people able or reasonable minds would un presently tion before the Court. by derstand communication”); the Brownsburg Area Plaintiffs make a Affecting general Patrons number of ar- Change Baldwin, v. guments 1999 U.S.App. opposition LEXIS primary the defi- (7th Cir.1999) at 23325 *5-*6 (upholding first, nition: they contend that the primary 604 1264, 117 denied, S.Ct. U.S. 1996), 520 cert. more regulates because fails
definition (1997)). 2431, 138 193 L.Ed.2d advocacy, McConnell express than speech that even second, they argue 44-57; Br. at dis- Henderson However, Judge since constitutional a advocacy is not if express opin- in her question vagueness the cusses un is definition primary the requirement, IV.A, I Part Op. at ion, Henderson Br. overbroad, McConnell constitutionally the I to entertain were even note that pri the third, they argue that 57-69; that conclude I question, would vagueness communi electioneering definition mary electioneering definition primary the underinclusive, “woefully” is cations any vagueness is free from communication fourth, they 75-77; and atBr. McConnell of elec- definition primary infirmities. violates definition primary that the argue communication, forth as set tioneering Br. Amendment, McConnell the Fifth Act, dis- comprises four 201 of the section Nowhere, however, any of the do 77-81. clear, elements, designed each tinct definition primary that the argue Plaintiffs directly scope, and limited objective, among all that Given vague. is concerning re- evidence to the responsive organizations actors seasoned la- by corporations electioneering cent 77 Plaintiffs remaining the comprise that treasury general with bor unions case, argued has not one in this within falls An advertisement funds. pri plaguing problem ais vagueness to be have definition, would and therefore engage definition, decline I could mary union or labor from a money with funded See, Tri-State e.g., inquiry. vagueness in a fund, if, only segregated corporation’s States, 142 Corp. v. United Supply Hosp. four following each it satisfies if, (“The (D.D.C.2001) 93, n. 101 6 F.Supp.2d elements: acts, howev on such ruling no makes court radio, television, by A. It is broadcast has not States United er, because Newspaper adver- cable, or satellite. Cleland, 472 issue.”); v. Carter briefed billboards, mail, tisements, direct (“This (D.D.C.1979) n. 4 989 F.Supp. advertisements, banks, Internet phone parties. No by the not briefed was issue leaflets canvassing, or door-to-door it.”); Kat rendered will be decision cf. defini- primary not covered are Columbia, F.2d District tan v. tion. (“[T]his rec has (D.C.Cir.1993) Court can- “clearly identified to a It refers B. may not use a losing party that a ognized Broadcast office. federal didate” to raise new issues motion Rule 59 issues dealing with advertisements previously.”); been raised have could communications, electioneering not Wade, 255 F.3d v. States United to men- chooses the advertiser unless (issues briefed (D.C.Cir.2001) are not can- particular “abandoned”) tion or show (citing Terry are considered (D.C.Cir. didate.116 1412, 1415 Reno, F.3d v. tob: RELATE statute, connection: have relation or to a “refers language in the
116. The specific men- usu. clear direct attention Federal of- candidate for clearly identified added). tion.”) "refers Given that 304(f)(3)(A); (emphasis 201(a); fice,” § § FECA BCRA "rela- exacting word than to” much more same is 434(f)(3)(A), does not suffer § U.S.C. to,” the Plaintiffs given that none tive Buckley had with court problems that any ambiguity complained that there Although, the language. to” "relative FECA’s phrase does this wording, I find that syn- "relate” as of "refer” shares definition vagueness problems same suffer from precise word. a much more onym, "refer” Buckley court plagued when Dictionary, FECA Collegiate Merriam-Webster’s to.” "relative phrase a: to construed (defining as "1 refer Edition Tenth *389 C. It in days runs the 60 before a ‘Vote for Smith.’” Federal Election election,
general
days
or the 30
before
Commission v. Massachusetts Citizens
a primary.
Inc.,
Life,
238,
U.S.
D. The
targeted
advertisement is
to the
S.Ct.
(1986).
state
approach appears to
concerns identified by
the Buckley
draw line even
Court
brighter than the one
present with regard
established in Buckley.
to the primary
The law
defini-
makes
clear that once a
tion of electioneering
certain dollar threshold
communication.
surpassed,
is
the law’s disclosure re-
D. The Evisceration of Section 441b
quirements apply to any communication
referring to
clearly
identified candi-
1. Introduction
appears
date that
days
within 60
of an
As
section,
foregoing
discussed
election. A copy
a proposed adver-
Supreme
Court in Buckley and MCFL
tisement and a
are all
calendar
that is
construed FECA’s
indepen-
restrictions on
necessary to make a conclusive advance
dent expenditures to apply only
expen-
determination that the ad
subject
containing
ditures
words of “express advo-
regulation.
contrast,
By
the Buckley
cacy.”
Supreme
While the
Court was
approach
express
advocacy still leaves
prescient
in observing that such
con-
room for a degree of uncertainty be-
with regard
struction
to limits on an indi-
cause,
plaintiffs concede,
as
the list of
vidual’s
independent
expenditures was
phrases
words and
identified in that
bound
loopholes
create
regulatory
opinion
constituting express
advocacy
system, Buckley,
606 a discussion turning Therefore, to before the benefitted nevertheless but defeat of BCRA these sections Supreme of whether the campaign”), candidate’s tailored, briefly discuss shall I narrowly it was Buckley that in emphasized Court as advocacy test express the restrictions of uphold the erosion to a record
without 46, elector- at advocacy, distinguishing between id. express of a means beyond went The does (“[T]he discussion. provision and advocacy issue 612 al 96 S.Ct. of real dangers that Con- pose to Fact demonstrate appear of Findings presently to comparable 441b corruption Section apparent correctly observed gress con campaign large cor- with preventing identified those longer effective nowas added). keeping tributions.”) (emphasis using unions from labor and porations checks of constitutional system our to with influence treasury funds general their effective balances, Supreme Court the Indeed, a for- quote to federal elections. to the back issue ly sent official, of the state Section mer NRA The further consideration. branches was “built to BCRA prior prohibition 441b view, conclu Court, my never in Supreme emper- as the sturdy material same of the limi of a reconsideration foreclosed sively (Metaksa). 2.4.3 Findings clothing.” or’s pro expenditures, independent on tation regard to with of Fact Findings The vague was not a restriction that such vided resemble 441b of Section evisceration record. adequate an supported and was building of evidence piece mosaic each corpo restricting of Indeed, the context in whole, as a next, viewed and when on the expendi independent union labor rate and corpora- of portrait damaging present Buckley, Court, after tures, Supreme general their using unions and labor tions First open. door left explicitly federal directly influence to treasury funds Bellotti, 435 v. U.S. Boston Bank Nat'l. of that I now picture to this It is elections. 1407, L.Ed.2d 26, 98 S.Ct. n. turn. be able might well (1978) (“Congress danger aof the existence demonstrate Ad- Spending on Issue of Rise indepen corruption apparent real or of Proximity Fed- vocacy in Close to influ by corporations expenditures dent eral Elections elections.”). candidate ence MCFL, Su- supra, discussed As a record such presents case The instant prohibition construed preme Court also three-judge District Court apply- only as 441b in section expenditures then-justice wisdom demonstrates containing words expenditures ing “careful that the observation Rehnquist’s MCFL, advocacy.” U.S. “express federal elec- adjustment legislative (“We hold therefore 249,107 S.Ct. advance, step laws, in a cautious toral ‘express must constitute expenditure legal particular step, to account for subject to be order advocacy’ in and la- corporations attributes economic 441b.”). § As result prohibition considerable warrants organizations bor unions MCFL, and labor corporations (inter- NRWC, at 209 459 U.S. deference.” trea- general use permitted were omitted). marks and quotation nal citation expenditures independent sury funds on unions and labor 1996, corporations Since election, provid- awith federal connection funds to treasury their general have used expenditures independent ed that those contra- in direct elections influence “express advoca- words not contain did of Section original intent vention of corpora- words, long so In other cy.” Con- predecessors. statutory its 441b any of use did not unions and labor tions by enact- problem to this responded gress their adver- “magic words” Buckley’s BCRA. 204 of ing Sections *391 tisement, general could use their using without magic the words and thus treasury pay funds to for advertisements avoid requirements, disclosure contribution that influenced federal a election. Of ¶ limits and (Ma- source limits.” Id. 2.2.7 course, if corporation the or labor union gleby).118 The 2001 Annenberg Report, chose to magic use the in an words adver- relied on by Defendants, Plaintiffs, and tisement, it so, could still provided do it Congress, that during establishes the 1996 paid for such a communication from seg- a election cycle, an estimated $135 million to regated fund, thereby ensuring that there spent $150 million was on multiple broad- political was support the advertise- casts of about 100 advertisements, distinct ment. in the 1997-1998 cycle, election 77 organi-
As a consequence zations aired distinct Supreme advertisements MCFL, Court’s a decision cost of between million candidate-cen- $250 and $340 million,119 tered advertisements,117 issue funded with the 1999-2000 election corporate and labor union general cycle, 130 treasury groups spent over an estimated funds, dramatically has 1,100 increased $500 recent million on distinct advertise- ¶ election cycles. ¶2.2.4.120 Findings 2.2. ments. Id. “By the Plaintiffs’ ex- own early 1990s and especially pert readily interest that concedes the number of groups had a developed strategy organizations to effec- sponsoring issue advertise- tively communicate electioneering mes- ments “exploded” has over the last three sage for against or particular ¶ candidate election (La Id. cycles. Raja).121 2.2.6 demonstrate, Findings 117. As the (13%); issue adver- Coalition to Protect America's Health tisements generally Care, fall into three categories: (6%); $30 million U.S. Chamber of candidate-centered, legislation-centered, Commerce, (5%); AFL-CIO, $25.5 million general image-centered. ¶ Findings 2.2.2. (4%); $21.1 million National Rifle Associa- Candidate-centered tion, advertisements make a (4%); $20 Limits, million U.S. $20 Term against case a candidate but do so (4%). ¶ Findings million 2.2.4. using "magic without words.” Id. These are the advertisements that BCRA seeks to distin- 121.Interestingly, huge rise in issue advo- guish from other forms of issue advocacy. cacy spending during campaigns far outpaces spending on amount of PAC- 118. The why reason it was until 1996 that sponsored advertising. original Under the in- explosion this in candidate-centered issue ad- FECA, tent of corporations and labor unions occurred, vocacy political consultant Bai- that sponsor to wished electioneering adver- ley explains, post-Watergate was that cam- tisements would have had to do segre- so with paigns, important was for candidates to be gated (e.g. funds money”). "PAC 2 U.S.C. seen as attempting up political clean 441b(b)(2)(C). § During the 2000 cy- election ¶ process. Findings (observing 2.2.7 cle, 74,024 groups non-PAC interest polit- ran "due to a lack of willing- enforcement and a ical referring advertisements to a federal can- part costs, ness on the some atwin all didate, PAC groups while interest only ran these appear concerns dissipated”). to have 3,663 Findings advertisements. 2.2.5.2. Al- though parties none of the discuss this dis- report 119. The Annenberg Study pro- crepancy, although likely there are following duced cycle 1997-1998 election it, number explain factors it does not placed this estimate at $275 between million imagination take much to conclude that one $340 supra million. See note 78. primary advertising reasons PAC comparison, so low in corporation is that if a representative 120. As a sample, the or labor Annen- union can fund the most effective berg Report 2001 found that in the 2000 form of electioneering general treasury cycle, election Republican funds, and Democrat- is no try there need to and raise PAC parties ic $162 accounted for almost money comply million with PACs’ provi- disclosure (31%) of spending this on advocacy; issue sions simply to electioneering run advertise- Medicare, Citizens for Better $65 million ments that "express use words of advocacy.” advocacy in down, express handed ley was Public studies, Annenberg their From common. more was advertising of political amount concludes Policy Center mid-1980s, political (Bailey). in- Since advocacy” is Id. “issue spent money prac- today development shifted and advertising has rapidly, creasing only corporations, advertisers-with parties, tices of permits the voice, messages- convey a “louder” gain 30 seconds mere labor unions *392 be- where the “distinction advertisers consequently, commercial parallel that and express advoca- desirable advocacy in various presented issue “product tween Indeed, politi- even awith Id. viewers presenting] fiction.” cy is a ... tableaus these which the value product.” recognize their parties to cal choose variety of reasons unions Sorauf) (“Political labor corporations ¶ (Krasno and outside 2.3.3 Id. advo- their issue hop- election bring strategy, to the the same to follow seem ads ¶ Id 2.7.10. cacy. prefer grow to will citizens ing that to troop told to being without candidate Rarely Used “Magic Are Words” polls.”). Advertisements in Political Using Issue Advantages of 4. Other corporations advocacy by issue As Federal Advocacy to Influence of a means as grown has unions labor elections, of the trend Elections federal influencing has political advertisements of all forms candidate-cen- the fact that from Aside express words away from to move been pow- much advocacy is a more issue tered they advertisements are advocacy-whether electioneering convey an means erful candidates, political parties, by produced are there uncontroverted it is message, Find- unions. corporations labor “issue using for incentives strong other ¶ expert testimo- The unrebutted ings 2.3. elections. federal influence advocacy” to only percent 11.4 ny demonstrates ¶ adver- First, by running “issue 2.5. Id. can- by federal purchased advertisements run-up to the immediate tisements” the 2000 election during that aired didates unions election, corporations federal under electioneering as qualify would cycle the disclosure any of avoid able to ¶ (Gold- Id. 2.3.1 test. “magic words” when ordinarily attach requirements (ob- ¶ (Strother) stein); 2.3.2 see id. also funds to treasury general use groups these advertise- of candidate that 90% serving ¶ Id.; 2.5.1. id. elections. influence in his career together put he has ments Raja and La Milkis Experts Plaintiffs’ advocacy). More- express not used advo- the rise of issue concur equally po- testimony of over, the uncontroverted organizations issue permitted cacy has express establishes consultants litical running while identities hide true effec- longer considered advocacy is no ¶ (Milkis); 2.5.1 Id. advertisements. these Id. advertising. political tool tive (“Over ¶ three (La Raja) last 2.2.6 (Strother) (“Good never consultants media spon- groups cycles, number election rather, X; vote for Senator people tell and consumers exploded, soring ads has voters let the case and you your make are, groups these know who don’t often my own conclusions. come to their repre- them, and whom funds who less effective actually proves experience, can- Milkis sent.”). expert Plaintiffs’ As you want them what to instruct viewers The Citizens observes, example, “For didly (“In of 30 do.”); world the modern (Bailey) mil- Medicare, spent $65 Better advertisements, rarely it is second [during the ads on television lion clumsy words to use such advisable by the primarily cycle], is funded ”). election Buck- When against.’ for’ ‘vote ‘vote pharmaceutical industry.” 2.5.1; Id. the most effective form political adver- (citing also id. example of AFL-CIO run- tising and the most widely used form of ning in congressional advertisements race advertising from their general cof- under the name “Coalition to Make time, Our fers. At the same the law constitu- Heard”); Voices id. (“Frankly tionally prohibits we’ve tak- corporations and labor page en a out of their book unions [other using interest general treasury funds groups] places because some it’s much influence federal elections with adver- more effective to run an ad tisements that use express ‘Coali- words of advo- tion to Make cacy-a style Our Voices Heard’ than it of advertising rarely used and say paid by political ‘the men and described women of consultants as inef- ”) fective. (Magleby) the AFL-CIO.’ (citing unintended com- result of this de- velopment is that representative ments AFL-CIO at a longstanding prohibi- *393 tion on lunchtime discussion the use panel corporate the Pew and labor Conference). general union Press result, treasuries to As influence only feder- al corporations elections is Indeed, are and unions undermined. able to fund role of corporations most and effective form of labor political unions in adver- ejections federal tising with is general funds, actually treasury their enhanced be- cause corporations these they but are and able to corporations create labor unions are able to fund the potent most form euphemistic which, names and political advertising instances, using in many treasury serve funds. fronts as for in- jecting corporate general treasury funds The testimony political from consultants, into federal elections. Id. In addition to experts, and officeholders and candidates avoiding FECA’s disclosure requirements, convincingly bears point out. The rec- it is uncontroverted that another advan- ord demonstrates express that the advoca- tage running election advertisements as cy test is not a useful for benchmark dis- “issue advocacy” is that corporations and tinguishing between campaign advertising labor unions can use general their treasury and issue advertising, particular no funds to influence which, federal elections words are necessary to create electioneer- as Expert Defense Magleby observes, ing advertisements, and that corporations “makes a sham of these longstanding fed- and labor produce unions advertisements ¶ eral laws.” Id. 2.5.2. The uncontrovert- that directly federal influence un- elections ed testimony Expert of Defense Magleby der guise of “issue advocacy.” Id. also makes by PACs, clear that avoiding ¶ Despite 2.4. the fact that inter- MCFL organizations these can larger raise preted Section 441b reaching more ad- amounts of quickly funds more than if vocacy than the examples in Buckley’s had to raise money pay for their adver- 52, MCFL, footnote 479 U.S. at ¶ using tisements PACs. Id. 2.5.3. S.Ct. the test proven has ineffective at distinguishing genuine between issue advo- The Impact of These Develop- cacy and electioneering paid for with cor- ments porate and labor general union treasury
Accordingly, when the Supreme Indeed, Court’s funds. as the testimony presented construction of Section 441b MCFL is in this convincingly demonstrates, case no combined with the fact that very politi- particular few words of advocacy necessary are cal advertisements use express words of for effective campaign advertisements; advocacy, the result is corpora- obvious: corporations easier for and labor unions unions, tions and long prohibited labor prohibition to skirt the contained Sec- using from general treasury funds to tion sum, 441b. Congress found that elections, influence federal are able to test, run the express advocacy grafted onto from it comes compelling because ticularly Court, nowas the MCFL 441b Section professionals respected and well-known labor corporations longer preventing making in the business engaged are who treasury general spending unions See id. political advertisements. Findings elections. federal on funds Metaksa, former Chair 2.4.4. Tanya Ms. remarks opening PVF, in her stated NRA Labor Unions Corporations of Political the American Association Treasury Routinely Spend General “Is- on Session Fifth General Consultants’ De- Advertisements Funds to be- is foolish “[i]t Advocacy” sue Elec- Federal Influence signed to difference be- practical any there lieve of a tions advocacy advocacy issue tween separates issue candidate. What Testify that Consultants a. Political line advocacy is a advocacy and Issue Adver- Candidate-Centered Id. windy day.” aon sand drawn Electioneering are tisements (“When (Strother) (Metaksa); id. see also designed to influence Advertisements ads’ run ‘issue produce, design, we issue guise of under the election federal candidates specific mention telling the viewer usually end advocacy to an proximity are aired office to do some- ask, call, a candidate or tell pur- only one election, ads these *394 ¶ (Pennington). 2.4.3 Findings thing. of an the outcome pose: [sic] to effect consul- of perspective political the From terms, election.”). perhaps In concrete case, in testimony this tants, provide who in “line of example striking most the difference between practical is no there the windy day,” is two on a sand drawn the ad- those and advertisements” these “issue bring shoot, two consultants where camera is advocacy express where vertisements Id. an advertisement. shoot cameras to (“From (Strother) point of the Id. used. A is in used (Strother). The film Camera consultant, real there is no media of a view identical candidate, nearly the while by the ending an advertise- between difference a nominal fee B for in is sold Camera film X’ for Senator versus ‘Vote with ment “gets direct then party who to a third ‘Tell Senator with an advertisement ending candidate images the control over America’s for working hard continue X to my Id. In ads.” groups issue in used the (“However, (Beckett) fact ”); families.’ consul- testimony political judgment, the advocacy are need- words particular no overwhelming evidence provides tants the an ad to influence for spend gen- ed order unions and labor corporations such list of No of an outcome election. advertisements treasury funds eral (Lamson) complete....”); express that, using could words words not while (“When and interest influence federal parties political designed advocacy, are elec- just before an ads’ run ‘issue groups elections. her and a candidate tell say ‘call’
tion that
and Former
Current
b.
Officeholders
typi-
purpose
their real
something,
to do
Corpo-
Testify that
Candidates
about
voters
enlighten the
cally not to
Gen-
Unions Use
and Labor
rations
issue,
to influence
result
but
some
Pay
Ad-
Funds to
Treasury
eral
have
election,
often do
these ads
Designed
vertisements
Influence
effect.”).
provided no
Plaintiffs
Federal Elections
testimony to
consultant
contrary political
consultants, cur-
political
In addition to
these
testimony of
discredit
and candi-
officeholders
and former
uncontroverted
rent
find the
I
consultants.
advocacy test
express
testify that
par-
dates
consultants
testimony of
meaningless,
particular
has
that no
present
become
past
officeholders and
advocacy
necessary
words of
to convey candidates. The documented behavior of
electioneering
message,
corpo-
and that
corporations and labor unions also clearly
rations and labor unions
using
were
demonstrates that
advocacy
issue
is used
general treasury funds to influence federal
a tool
of electioneering by corporations
¶
elections.
Id.
2.4.2.
testimony
This
¶
and labor unions.
Id.
2.6. The Find-
particularly compelling given
po-
that the
ings, which culled the most salient exam-
BCRA,
litical
supporting
actors
to borrow ples from the substantial record submitted
White,
Byron
words from Justice
“included by
parties,
that,
demonstrate
for exam-
professionals
many seasoned
who have
AFL-CIO,
ple,
Coalition,
Citizens
deeply
been
involved in
processes
elective
Medicare,
NRA,
for Better
and and who have viewed them at
range
close
Club
Growth all
corporate
used
general
many years.”
over
Buckley,
at
U.S.
treasury funds to influence recent federal
(White, J.,
S.Ct.
concurring
¶¶
Id.
elections.
2.6.1-2.6.5. Plaintiffs dis-
part, dissenting
part);
see also Colorado miss this
merely “anecdotal,”
evidence as
I,
(Stevens,
518 U.S.
Federal Elections races, 2.6.4.1, gressional id. at the NRA record, however, The beyond goes nearly the ran two identical radio advertise- testimony experts, political consultants, ments in the paid 2000 election: one for activities, I have to CBM’s In addition advo- express used which money PAC
with Club Plaintiff The found corporate gen- also for with paid one cacy and elec- the 2000 federal influenced Growth not use ex- which did funds treasury eral treasury corporate general ¶ tions only The 2.6.4.4. Id. advocacy. press ¶ for Growth The Club Id. funds. 2.6.5. advertisements the between real difference solicitation acknowledges money openly PAC paid for with one the was that advocacy cam- “these issue materials for President” W. Bush George said “Vote tight make all difference paigns can Id. the advertisement. the end ¶ Moreover, the activi- Id. 2.6.5.4. races.” a perfect view, advertisement this my in a Florida The Club Growth ty of pointless child-of how poster example-the race demonstrates Congressional distinguish- advocacy test is express power of manner uncontroverted advocacy and issue genuine between ing treasury general it uses corporation when In addition advertisements. electioneering elec- primary to influence funds particularly evidence, Findings, ¶ 2.6.5.5. Id. tions. documents the internal resting on those ¶ 2.6.4.1, also demonstrate NRA, id. 3) AFL-CIO gen- towas use the NRA driven just how issue AFL-CIO’s to the funds, regard fell outside which treasury With eral FECA, 1996 federal during the campaign advocacy limitations amount source AFL-CIO election, that the I have found federal election. the 2000 directly influence ¶ advocacy to influence issue used 2.6.4. Id. ¶ 2.6.1. The Findings general election. The Medicare and
2) for Better Citizens surrounding the AFL- documents internal Growth Club for revealing particularly efforts CIO’s AFL-CIO’s directly contradict Find- example from the glaring Another in this submitted self-serving declaration industry’s pharmaceutical includes ings the elec- case, downplay attempts to influence efforts uncontroverted ¶ their advertise- behind considerations elections, 2.6.3, admittedly toral id. (observing that Id. 2.6.1.1 on ments. million dollars sixty-five over spending has outcomes effect on election which, indirect according advertising television AFL-CIO’s point [the] been the Raja, was almost “never Dr. La expert Plaintiffs’ advertising program”). par- broadcast of the two much either as *396 ¶ media consul- that demonstrate documents advocacy, Id. 2.6.3.4. issue spent on ties test AFL-CIO to by hired were were tants industry’s efforts pharmaceutical The advertising would resonate with Bet- how the name “Citizens cloaked behind electorate, create advertise- how to I have concluded from ter Medicare.” political message “manage the that in this ments testimony documents submitted environment,” even how to in volatile campaign advocacy issue case help a buy Illinois place a media cycle the 2000 election during mounted candidate did candidate when Senate the federal elec- influence designed to was advertising fund resources treasury funds not general corporate tion with Moreover, indepen- own. Id. other pro- on his of the historic in direct contravention testimony, evidence, ¶ including expert 2.6.3; dent id. activity. See such hibition on ¶ 1996 issue (“Much that the AFL-CIO’s ad establishes 2.6.3.4 CBM’s also id. to influ- designed was advocacy campaign up the 2000 election leading strategy ¶¶ Id. 2.6.1.2- election. the federal at- ence candidates supporting was aimed refute AFL-CIO does The 2.6.1.5. advertising.”). tacked AFL-CIO explain discrepancy gener- its between policy vent FECA’s compelling corpora- al denial about advocacy its issue and tions to use money federal from a segre- these contrary evidentiary documents. ¶ gated account. generally 2.6.2; id. Findings The elaborate points on these ¶ see also id. 2.6.2.2 (post-election analysis detail, and others in more but I conclude firm). by done polling Coalition’s from this evidence that during the 1996 The AFL-CIO and The pre- Coalition campaign election gen- AFL-CIO used sented no uncontroverted evidence that eral treasury funds to influence a federal try did not to influence the 1996 election, and therefore was able to circum- federal election with issue advertisements. requirement vent FECA’s their ef- Moreover, these organizations do not con- paid forts for with funds from a test they paid for these advertise- ¶ (ob- segregated account. See id. 2.6.1.6 ments with general treasury funds. The serving that twelve of the thirty-two effort AFL-CIO The Coalition Republican House targeted by freshman to portray as engaging themselves in issue defeated). the AFL-CIO were advocacy, opposed to electioneering, is
4) The Working Coalition-Americans belied their own internal documents. Change
For Real d. Other Examples Advertisements response AFL-CIO, to the Plaintiffs Demonstrate That Corporations Commerce, Chamber of National Associa- and Labor Unions Use Their Gen- Manufacturers, tion of and National Asso- eral Treasury Pay Funds to Ad- Wholesaler-Distributors, ciation of Designed vertisements entities, other business corpora- formed a Influence Federal Elections tion entitled the “Coalition-Americans Working for Real Change” also to influ- Aside from examples corpo- above of directly ence the 1996 federal election. Id. rations and labor unions directly using I 2.6.2. have found Coalition’s general treasury funds influence federal issue advocacy campaign around the 1996 elections, the attributes of so-called “issue designed election was to influence the fed- advertisements” in Findings demon- eral AFL-CIO, election. Id. Like the strate the electioneering purpose behind internal documents of the Coalition demon- these commercials. strate that electoral strategies, and not advocacy,” “issue were at the heart of the 1) Organizations Run Issue Advertise- ¶2.6.2.2. Coalition’s efforts in 1996. Id. ments They About Which Have No Indeed, the sought Coalition advice from Organizational Particular Interest consultants and polling firms on how to First, the Findings eompellingly demon- ability maximize their to influence federal that many strate candidate-centered issue documents, Id. elections. These internal advertisements are run about issues in combined with independent expert testi- *397 the organization sponsoring the ad- mony' and the FEC General Counsel’s re- ¶ vertisement has no interest. Id. 2.6.6. ¶¶ port, 2.6.2.3-2.6.2.4, id. strongly con- basis, On this it is clear that these adver- tradict the Coalition’s self-serving efforts tisements designed were to influence a litigation to portray their 1996 ad- federal election. example, For EMILY’S vertising campaign as something less than List, an organization pro- dedicated to electioneering in disguise. advertisements candidates, choice female corporate Coalition used ran general trea- advertise- sury funds to directly gun-control ments on influence the 1996 for federal candidate and, therefore, ¶ election to was able circum- Chapin. Linda Id. 2.6.6.1. Other exam- candi- These Congress. before pending the Associ- Findings include pies from are advertisements running an issue date-centered and Contractors Builders ated elec- influence federal to clearly designed candidate a federal about advertisement ¶ AFL- example, the molest- Id. 2.6.7. For for child tions. penalties dealt with that ¶ an advertisements such a of (admitting that run series has 2.6.6.2 CIO Id. ers. of con- Con- particular a Members particular is not votes past advertisement situation, ¶2.6.7.1. contractors). my In another As discussed Id. gress. cern of $20,000 to are noth- funneled Growth for these advertisements Findings, the Club to fund Union Conservative advertisements. campaign than the American more ing Hillary to relating practice is issue advertisement of this example an Id. Another candid- the Club candidacy which attacking vari- Clinton’s advertisements Chamber’s nothing to had do deposition ly pre- admitted Congress over Members ous con- pro-growth interest Club’s with the pending that was not drug scription issue ¶2.6.6.3. An- Id. Republicans. servative the advertisements when Congress before run advertisement example an ¶ other these Many of Id. 2.6.7.2. were aired. pseudo- industry, under trucking phone a not include did advertisements Responsible for “The Foundation nym Member, and some to contact the number of an Government,” the record praising against aired were of the advertisements care and on health a Senator opponent not even Members who were candidates ¶ (observing that 2.6.6.4 Id. taxes. advertising Id. The Chamber’s Congress. because group a target was Senator in- to designed plainly regard was in this triple banning legislation supported he Id. These election. the federal fluence trucks). Finally, group Citizens trailer AFL-CIO examples Orga- Life, Hampshire New Pro-Life corpora- demonstrate also Chamber in 2000 nization, ran advertisements trea- general used labor unions tions and jokes al- criticizing McCain John against pay for candidate-centered sury funds Alzheim- by McCain about made legedly influence designed to advertisements issue Id. home senior citizens. er’s and ¶ 2.6.7.3. election. Id. a federal ¶ group Hampshire The New 2.6.6.5. timely be- was the advertisement claimed 3) Advertisements Air Organizations Senate Hampshire New State cause the Lacks Funds A Candidate When legalize voting on a bill was close a Candi- So Advertisements Run persuaded I am Id. suicide. assisted Advertise- Running Avoid date Can any- were any of these advertisements Opponent Attacking ments electioneering advertise- than thing other use also labor unions Corporations and Rather, demon- examples these ments. for candi- pay treasury funds general spend general corporations strate (a) issue advertisements date-centered issue funds on treasury candidate-centered put funds to lack when candidates elec- influence federal advertisements (b) to on the air own advertisements ¶ tions. Id. 2.6.6.6. that the opponent so attack candidate’s 2) Advertise- “positive” Run adver- Organizations only Issue run can candidate Past About About Votes indicators
ments Id. These 2.6.8. tisements. Congress Longer Before No indication powerful Issues yet another provide advertisements” “issue these run Second, candidate-cen- organizations campaign advertisements nothing short praising or crit- advertisements tered issue *398 elections, for with paid affect designed to or discuss- past for votes icizing candidates corpora- treasury funds of general issue position ing a Member’s ¶ tions labor unions. Id. 2.6.8.4. The ultimately may be difficult to determine testimony political uncontroverted con- precision, given the reticence of these negative sultants is that character adver- organizations to admit they are campaign tisements are often run a third advertisements, the effect of these adver- because shield the candidate from tisements on federal is legion. elections repercussions that are likely Consequently, Ias in my state Findings, to result if the actually candidate ran the “Congress FECA, found as construed negative him advertisement or herself. Courts, by the to only limit independent ¶ Id. 2.6.8.1. In addition to allowing the expenditures containing express advocacy, candidate to refrain from running nega- no longer was relevant to modern advertisements, organizations tive often ¶ 2.4.4; advertisements.” Id. see also id. run such praising advertisements a candi- ¶ (unrebutted 2.4.3 testimony of political or criticizing date oppo- candidate’s (“The consultant Bailey) notion that ads nent when the candidate’s campaign does intended to influence an election can easily not have run resources to advertising on separated from those that are not based ¶ (former own. Id. its 2.6.8.2 Representa- upon presence the mere or absence of discussing tive opponent how his did not particular phrases words such as ‘vote buy media in a media market cov- for’ is at anachronism.”). best a historical district, ered 40% of but his that other Congress appropriately concluded that groups filled the void attacking Rep- corporations and labor unions were openly ¶2.6.8.3 resentative); (beneficial id. ad- violating (and the intent of its longstanding vertisements EMILY’s List ran when long-upheld) prohibition on use of cor- Chapin campaign was not on the air porate and general labor union treasury ¶ resources); (internal to save id. 2.6.1.1 funds to influence elections. memorandum of the discussing AFL-CIO In crafting primary definition of advertising buy by the help union to Illi- electioneering communication, Congress nois Senate candidate markets where recognized just how difficult the task of the candidate lacked resources to air ad- discerning speaker’s true intent can be vertising). I conclude that these adver- court or regulatory agency. Taking tisements were also clearly designed to heed from Buckley’s stringent admonition influence a federal election paid distinction between the discussion of general with the treasury of corpo- funds and advocacy issues for the election or rations and labor unions.
defeat of “may candidates often dissolve 7. Conclusion practical application” and that a law must be construed in a manner that avoids sum, it again bears emphasizing that ‘“put[ting] speaker in these circum- FECA has always permitted corporations wholly stances mercy at the of the varied and labor unions to run electioneering ad- ” understanding hearers,’ of his Buckley, vertisements, provided that those adver- 42, 43, U.S. at Congress S.Ct. tisements were paid for with money that objective, crafted an impartial, and thor- came from a segregated fund dedicated oughly simple test for distinguishing be- specifically for electioneering. As tween electioneering and advocacy. issue examples illustrate, above the utility of Congress recognized, 441b as as the prevent Section a tool to record corporate indicates, and labor case general union treasury candidate-centered funds is- influencing sue elections has been effec- advertisements influence federal elec- tively blunted. See id. 2.6.9. Congress While the tions. thereafter drew an in- primary purpose of these credibly advertisements clear bright-line test that focuses *399 corpora- though a Even communications. determinants empirical key the
on to free estab- union “remains from labor tion or advertisements pure issue distinguish fund, composed segregated separate advertisements. issue lish a candidate-centered pur- advertise- for that broadcast earmarked contributions is The result labor corporations corporation [or ... the paid by the donors pose ments to an elec- proximity unions, general in close its free to use aired is not union] labor candi- federal identify a clearly advocacy purposes tion that campaign funds for to that candidate’s date, targeted are restric- not an absolute that is w]hile [and with federal paid for electorate, to need be one.” it is a substantial speech, tion on Con- account. segregated from a funds origi- (emphasis MCFL, 479 U.S. at speech therefore, prohibiting is not gress, result, nal) even As opinion). (plurality union; it is or labor corporation any corporations permits Act though the to organizations these requiring merely electioneering com- to make unions labor influences ostensibly speech that pay funds, segregated with their munications funds segregated with elections federal “jus- 203 must section prohibition FECA. under regulated that are Id. interest.” state compelling aby tified this remaining is whether question governmen- compelling discussing In drawn is Congress has bright line 203 and enacting sections tal interests gov- compelling serve to narrowly tailored pre- longstanding on rely Defendants turn to I shall first interests. ernmental Court has Supreme cedent be- interests governmental compelling compel- discussed extensively already move and then shall II hind Title regu- government related ling interests II of BCRA Title of whether discussion general and labor union corporate lation compel- those serve narrowly tailored to of federal context funds in the treasury interests. ling governmental The Su- 133-134. Br. at Gov’t elections. prior discussions Court’s preme Narrowly Tai- II of BCRA E. Title re- needed to sustain compelling interests Compelling Gov- Serve lored union and labor corporate strictions on ernmental Interest applica- equally treasury are funds general Election- on Prohibition 1. BCRA’s of Sections in the context ble Communications; the Pri- eering Plaintiffs, exception of with BCRA. Compel- mary Serves Definition NRA, seriously question do not Interests ling Governmental energies on focus but rather position, 203 extends supra, Section As discussed are not nar- provisions that these the fact corpora- on prohibition the longstanding compelling these to serve rowly tailored making contribu- unions labor tions and in- As interests. discussed governmental general from trea- expenditures tions on that argumentation fra, I find Plaintiffs’ federal elections connection suries in extraordinary by the point be rebutted as de- electioneering communications turning to in this Before record case. BCRA primary definition. fined in however, briefly I shall arguments, these 316(b)(2); 2 § U.S.C. 203; § FECA inter- governmental compelling discuss 441b(b)(2). labor un- Corporations and § Title 203 and sections ests behind spending from prohibited now ions are II. electioneering on treasury funds general constitutionality of Ti- defending communications, permitted but compelling II, rely on tle Defendants sepa- money spend unlimited in Austin described interest governmental electioneering rate funds segregated
617
Michigan
Commerce,
v.
Austin,
Chamber
494 tions.
660,
a.
Corporations
Related to
agree
We
government
with the
and Labor Unions
purposes
these
justify
sufficient to
Supreme
The
has long
Court
indicated
regulation
at issue.
government
that the
has a
in-
compelling
NRWC,
207-08,
122. The
to the
long upheld
dubbed
Court has
corruption
similar
compelling governmental
theory
interest
rationale in the case oí labor unions. See
corruption.”
though
"Austin
415-16,
Even
Pipefitters,
2247;
the statute
Work for the at none of the U.S. Plain- S.Ct. 552. This concern over tiffs challenge the corro who Title II con- explicitly sive influence of corporate concentrated test the asserted compelling governmental “[b]y explain toon went preme Court corruption preventing relating
interests
independent ex-
corporate
that ema
corruption
requiring
appearance
or the
political
through
and eco
legal
financed
particular
penditures
nates
and labor
corporations
engage
expressly established
attributes of
nomic
committee
history
longstanding
§
Given
441b seeks
spending,
unions.
campaign
441b,
unexpected.
this is not
section
market-
behind
political
to the
threat
this
prevent
spend
fact,
NRA Plaintiffs
this
Despite
479 U.S.
Id.
place.”
assert
pleadings
in their
time
significant
fund,
segregated
to the
available
resources
interest cannot
compelling
ing
reasoned,
“popular
reflected
the Court
Br. at
204. NRA
support sections
positions
political
support
6-17,
Reply at
NRA
9-14;
Opp’n
NRA
result,
Court
Id.
aAs
committee.”
brief,
reply
by their
As clarified
12-14.
corporate
“[rjegulation
observed
type of
argues that
basically
the NRA
concern
reflected
activity
has
thus
corpora
to those
applies
only
corruption
se,
per
form
corporate
use
not about
in the
amassed
resources
“use
tions that
deploy-
for unfair
potential
but about
an unfair
to obtain
marketplace,
economic
Id.
purposes.”
wealth
ment of
*403
marketplace.”
political
in
advantage
the
con-
Nevertheless,
Supreme
the
Court
Austin, 494
(quoting
12
Reply at
NRA
up-
could not
government
the
(in
cluded that
quoting
turn
659, 110
1391
S.Ct.
U.S. at
616)).
plain-
to the
applied
257,
441b as
107 S.Ct.
hold Section
MCFL,
at
479 U.S.
admittedly
of Com
this
Chamber
based on
Austin,
Michigan
in
the
tiff MCFL
In
MCFL,
(“Groups
contended that
merce,
on
Id.
relying
rationale.
“longstanding”
applied
could not
statute
Michigan
however,
that
MCFL,
pose
not
do
such as
ideological
“nonprofit
it was
to it because
was formed
corruption. MCFL
danger of
661,
Austin,
at
494 U.S.
corporation.”
ideas,
amass
not
political
to disseminate
flatly re
Supreme
Court
S.Ct. 1391.
available are
it has
The resources
capital.
Id.
challenge.
at
as-applied,
jected this
in
econom-
of its success
not a function
case,
In
662-65,
110 S.Ct.
in the
popularity
its
marketplace, but
ic
it is
that
argument:
a similar
NRA asserts
may
MCFL
marketplace. While
political
of Com
Michigan Chamber
unlike
corporate
its
advantages from
derive some
therefore,
Austin,
broadly
in
merce
redound
form,
advantages that
those
as
justified
cannot be
Title II
speaking,
not
organization,
as a
to its benefit
NRA Re
corruption.
Austin
preventing
There-
enterprise”).
profit-making
aas
does not
that the NRA
ply
(stating
at
never
fore,
Supreme
questioned
Court
marketplace,
in
economic
do business
in-
compelling
government’s asserted
derive more
profits, nor
market
nor derive
all
corporations of
regulating
terest
of its revenues
portion
negligible
than
applied to
that as
merely held
types—it
contributions). Basically,
corporate
MCFL,
was insufficient
the rationale
using Austin
however,
the NRA
restrictions.
support
441b’s
Section
challenge
as-applied
making
means
that
have us believe
would
The NRA
to BCRA.
only
corruption is
available
this form
MCFL,
Supreme
with, in
begin
To
when
441b restrictions
uphold Section
regu-
rationale
that
Court stressed
being regulated are
corporations
unions was
and labor
corporations
lating
Reply at 12.
variety.
for-profit
NRA
to restrict “the
used
“longstanding”
MCFL, the
Austin,
matter
and for that
corpo-
of concentrated
influence
corrosive
no distinctions
made
Supreme Court
MCFL,
elections.
rate
wealth”
corporations
types
different
among
The Su-
257,
MCFL-tjpe the Accordingly, thus, MCFL. have, had no in Austin and did (“Defendants 107 n.109 litigation, in this merit might has no facts that NRA’s claim to discover opportunity 13, (D.D.C. FEC, Aug. alia, about 02cv581 contention NRA v. refute, NRA’s inter stay),123and 2002) (order joint activi- motion business on from derived profits its (“In- compel- longstanding n.208 the Opp’n at 67 ties.”); I conclude Def.-Int. Section stipulated interests behind deed, specifically governmental ling NRA as-applied applicable that its Sections equally case 441b defendants on MCFL based coverage 204 of BCRA. challenge of the outcome stayed pending would be Corruption Appearance b. Joint See challenge. facial general 2002), (filed 2at July Stay on Motion ac- Moreover, congressional I find that 2002).”). Aug. by the Court (granted under justified could in this case tion communi- electioneering rationale that it deserves believes corporation that Any treasury funds general made with cations exemp- an may seek MCFL-exemption create an labor unions corporations and any regulations-and the FEC’s tion under record corruption. The appearance relating the strictness arguments electioneer- demonstrates powerfully challenge open to a regulations-are those contemplated NRA, harm ry "[t]he whether ACLU also to the addition amount of stems from absolute within class statute briefing that it fits hints its MCFL-type pro- organization has deserving money an corporate corporations I am from the process, at 16. extraordi- ACLUBr. spend in the tection. fit or the ACLU skeptical that NRA narily corporate contributions relationship between Justice paradigm, MCFL within Id. revenues.” organization's total Brennan, aas MCFL described the author of $7,000 corporate contribu- (finding that exempt organizations. Aus- class of "small” precluded NRA year one tions (Brennan, tin, S.Ct. 1391 494 U.S. MCFL-exemption). advantage taking First, J., organization ac- concurring). each ' Moreover, openly that it admits the NRA n.2; funding, Br. ACLU cepts corporate Compare NRA *405 activities. engages in business MCFL, corporation had the 2. In NRA atBr. money on (discussing that it loses at 19 Br. corporate against accepting policy explicit an of NRA 264, magazines sale MCFL, advertising in its 107 479 U.S. at contributions. generates million $1.7 corporate con- but that The NRA its memorabilia S.Ct. claims 2, building space) leasing “negligible,” NRA Br. at its income on are rental tributions in 264, corporate MCFL, argues 616 that their at S.Ct. while the ACLU U.S. 107 479 with modest,” Br. "extremely corporations are ACLU MCFL-type donations (observing that an themselves, statements, indicate activities.”). These Fur- engage business in "cannot minimally organizations would that both MCFL, thermore, "was formed plaintiff in forgo corporate they if were burdened political purpose promoting express for qualify for status. funding MCFL so as ideas, activi- engage in business and cannot Nevertheless, amounts involved- the absolute 264, MCFL, S.Ct. 616. U.S. at 107 479 ties.” n.2, ACLU, $85,000 Br. at 2 ACLU for purpose of Second primary addition to In its NRA, $385,000 NRA Br. at 2-are for "pro- advocacy, the also NRA Amendment cash; what compared with particularly petty safety, law en- public trains firearm motes to be de minimis. has found our Circuit firearms, agencies in the use of forcement held, a case involv- in The D.C. Circuit has competitions, and advances shooting sponsors itself, may organization ing an NRA ¶ Findings 13. safety.” hunter long exemption as it is MCFL as qualify for an record con- Obviously, a fuller factual until funding corporate potential not "a conduit has been de- organizations cerning two NRA, these activity.” F.3d FEC v. challenge to Title II of NRA, veloped, as-applied (D.C.Cir.2001). court inappropriate. inqui- BCRA appropriate test for this stated that the ing paid gen- communications for with the The factual findings of the Court illus- treasury corporations eral of labor trate that funds unions and and labor unions routinely notify corporations Members of Congress endears those entities as soon as air they electioneering in communica- way elected officials that could be tions relevant to the Members’ elections. perceived by public as corrupting. ¶¶ 2.7.3, Findings 2.7.6. The record also In my judgment, the in record this case indicates that express apprecia- Members regard group interest issue advoca- tion to organizations for the airing of these cy substantially potential demonstrates the election-related advertisements. Id. appearance for the corruption given ¶¶ 2.7.2, Indeed, 2.7.8. Members of Con- practices current of labor unions and cor- gress are particularly grateful when nega- porations in connection with federal elec- tive issue advertisements are run these supra, Supreme tions. As noted Court organizations, leaving the candidates free open Bellotti left possibility that positive to run advertisements and be seen the context of candidate elections the rec- ¶ fray.” “above the Id. 2.7.2. Political ord a future case might be sufficient to testify consultants that campaigns are justify independent expen- restrictions on quite aware of who is running advertise- paid ditures general with the treasury behalf, ments on the candidate’s they when funds of corporations and labor unions. run, being are being where at 788 n. U.S. 98 S.Ct. ¶ Bellotti Likewise, run. Id. prominent 2.7.1.124 (“The overriding concern behind the lobbyist testifies that organizations these enactment of such statutes as the Federal advocacy use issue aas means to influence Corrupt Act problem Practices was the of various Members of Congress. Id. corruption representatives elected Findings The also demonstrate through the creation of debts. Members of Congress seek to corpo- importance governmental inter- rations and unions run these advertise- est in preventing this occurrence has never ¶ ments on their behalf. Id. 2.7.8. The been doubted. The case pres- before us Findings show that suggest Members comparable ”); ents no problem .... corporations or individuals make donations NCPAC, also U.S. 105 S.Ct. groups to interest with the understanding (“The (White, J., 1459 n.7 dissenting) pos- money contributed to these sibility open, was thus left and remains groups will assist the Member a cam- open, that developments unforeseen in the ¶ ¶ 2.7.10.6; paign. Id. see also id. 2.7.4. financing campaigns might make the election, After the organizations these of- need for ‘independent’ restrictions on ex- support. ten seek credit for their Id. penditures compelling.... more ¶ The time 2.7.5; see also id. 2.7.4. In a similar *406 may governmental come when the inter- manner, political parties grateful are often ests in restricting expenditures such will support for the of organizations, these id. ¶ be sufficiently compelling to satisfy not 2.7.10, parties and have sent contribu- only Congress majority ¶ but a of this Court tions to organizations, these id. 2.7.10.4. well.”). view, my
as In presents this case Finally, large majority a of Americans ¶ (80%) just such a record. Findings 2.7. the corporations are of view that hand, 124. On the other it is sometimes the the advertisement is cloaked behind a mis- attacked, case that when a candidate is the leading generally name. See Per Curiam candidate and consultants are un- his/her Opinion Findings Related to BCRA’s Disclo- running aware negative of who is the adver- sure Provisions. organization tisement running because the general its of dollars from spends millions in elec- engage that organizations other communications, campaign, elected officials treasury which benefit on tioneering officials, special when matters likely receive to feel beholden are elected specific when those officials arise. organizations from relating to these consideration corpora- these that affect arise matters stated Supreme Court Buckley, the Id. 2.7.9. organizations. tions independent expendi- to the regard therefore, evidence, picture paints that ture restrictions individuals targeting labor unions corporations of shortcomings the of apart from quite oppo- candidates particular 608(e)(1) any abuses preventing § specific have organizations nents-that expen- by large independent generated particular candi- these in getting interest ditures, advocacy independent re- The candi- office. to federal dates elected not pres- does by provision stricted aware are well parties dates and real dangers of pose ently appear unions and labor corporations these of corruption comparable those apparent run- organization is of which cognizant contribu- large campaign identified with their can- supporting ning advertisements 608(e)(1) § defending parties tions. The that these quite also clear didacy. It is prevent necessary to it is contend that of very appreciative candidates are avoiding the would-be contributors provided electioneering support additional simple limitations contribution treasuries general from the on their behalf for media paying directly expedient of All of and labor unions. corporations portions or for other advertisements corruption, appearance creates the campaign activities. candidate’s polling data in by the as is demonstrated expenditures controlled They argue that Findings.. the candidate by or coordinated with challenges this asserted also The NRA well virtu- campaign might his “gratitude” is not interest, that arguing as a value to the candidate ally the same Opp’n at 8-12. The NRA corruption. pose similar dan- and would contribution ar- point Defendants’ NRA misses controlled or Yet such gers abuse. electioneering is gument, which treated expenditures are as coordinated advocacy,” as “issue disguised broadcasts expenditures rather contributions than appearance of very significant create a 608(b)’s Act. contribu- under the Section argue Defendants never corruption. 608(e)(l)’s § than in- ceilings tion rather corruption as the NRA “gratitude” pre- limitation dependent expenditure Rather, believe. have the Court would the Act attempts vent to circumvent correctly observe Defendanb-Intervenors ex- or coordinated through prearranged plain: candidates can result “[t]he disguised amounting con- penditures corporations or unions be as beholden tributions. help through ad money to them spend 46-47, 96 S.Ct. Buckley, 424 U.S. if the same they would campaigns added). Buckley The Court (emphasis directly to the cam- a check entities wrote independent ex- that the threat wrote money through or funneled paign, did not made individuals penditures Br. at Def.-Int. 108-09. political party.” *407 pose danger a of appear” “presently appear- view, potential for the my In Therefore, Buckley corruption. possible as the com- corruption-identified ance of possibility that a open the explicitly left for 203 and pelling justification sections record would come when might time simple very to the 204 of BCRA-relates expenditures independent union indicate corporation fact or labor that when by support made individuals to candidates c. Conclusion raise an appearance corruption. would of The compelling governmental interests concluded, The Court in 1976: by identified Supreme Court in its 608(e)(1) expenditures [S]ection limits campaign jurisprudence finance apply express advocacy for of candidates made equally to Sections 203 and 204 of BCRA. totally independently of the candidate Plaintiffs, NRA, aside from the do not campaign. contributions, and his Unlike challenge these justification bases as a independent expenditures such may well the restrictions on electioneering commu- provide little assistance to the candi- Rather, nications campaign date’s contained Title II. may prove indeed counterproductive. pre- The absence of vigorously Plaintiffs pri- contend that the arrangement and coordination an ex- mary definition, prohibited by Sections penditure with the candidate or his BCRA, 203 and 204 of narrowly is not agent only undermines value of tailored to serve that compelling govern- expenditure candidate, to the but ment interest and is overbroad as a matter also danger expendi- alleviates the of constitutional law. It is this contention tures given quid pro quo will be as a to which I now turn. improper commitments from the candi- date. Rather than preventing circum- 201, 203, 2. Sections and 204 of BCRA limitations, vention of the contribution Narrowly are Tailored to Serve 608(e)(1) § severely restricts all inde- Compelling Governmental Inter- pendent advocacy despite its substantial- ests ly potential diminished for abuse.
Buckley,
U.S.
125. The NRA also that Title II cannot to reach whether this rationale constitutes justified prevent as essential to circumven- compelling governmental interest. Conse- I, Opp’n tion of Title NRA at 13-15. Because quently, argu- I decline to reach the NRA's I find that the first two rationales asserted point. ment on this sufficient, government I do not need *408 BCRA electorate. the relevant ed to a. Introduction 304(f)(3)(A); 2 201(a); § U.S.C. § FECA issue, Plaintiffs take briefing this 434(f)(3)(A). § reach of exaggerate pains great pro- electioneering communication Furthermore, BCRA’s also contains Section designed to doubt technique no vision-a expressly exempts four provision a which demonstrating over- their efforts assist from classes of communication additional distort doing, Plaintiffs’ By so breadth. backup definitions of primary both Title II. purpose of reach and the actual The four electioneering communication. the law See, (presenting Br. at 5 e.g., NRA of the definition from categories excluded universally con- relative of a close are: electioneering communication 1798). of Given Acts demned Sedition (i) in a appearing news a communication Title II contort which Plaintiffs extent to distrib- commentary, or editorial story, it is purposes, own rhetorical serve their any of broad- facilities through uted again what BCRA once necessary to state station, facilities are casting unless such II. accomplish in Title not and does does political par- by any or controlled owned 201 is section primary definition The candidate;126 committee, or ty, political pressing prob- focused on specifically (ii) constitutes a which communication using labor unions corporations lem of ex- independent or an expenditure directly influ- treasury funds to general [FECA];127 ... penditure under guise under the elections ence federal (iii) a constitutes which communication pri- dismiss advocacy. Plaintiffs issue or forum conducted candidate debate “sweeping” II as mary Title definition adopted by the pursuant regulations speech,” core “condemnation Commission, solely promotes or 43, and characterize Opp’n at McConnell by is made forum and such a debate or “staggeringly II as the restrictions Title person sponsoring or on behalf De- Br. at 59. McConnell overbroad.” forum; or or debate statements, defini- primary spite these (iv) exempted any other communication in- “electioneering communication” tion of the Commis- regulations as under such fulfill only communications cludes (consistent may promulgate -with sion (a) they four, components: very discrete paragraph) this requirements broadcast, cable, must be disseminated implementation appropriate ensure the (b) satellite, clearly to a refer they or must any except that under (c) paragraph, candidate, they must identified Federal may a communication regulation such days before a be distributed within require- if it meets the exempted pri- days before general election or 30 and is described (d) paragraph ments of this election, target- must be mary committee, candidate.”). parties exemption statutorily-created 126. The first provision pre-existing as the "media ex- almost FECA, to a to this identical referred carve-out 431(9)(B)(i), that excludes 2 U.S.C. emption.” See infra. "expenditure” news definition published broadcast stories editorials report- prevents exemption double 127. This ("[Ex- l(9)(B)(i) § the media. U.S.C. electioneering if it ing communication of an story, any news penditure does not include] expenditure or inde- already constitutes an through commentary, or distributed editorial Election- pendent expenditure under the Act. station, broadcasting any the facilities of Communications, Fed.Reg. eering magazine, periodical newspaper, or other 65,197-98 2002) (to (October be codified publication, unless facilities owned such 100.29(c)(3)). § at 11 C.F.R. party, political by any political or controlled
627 301(20)(A.)(iii) pub- supports is a motes or a [which in section candidate for that office, opposes a clear- lic communication that refers to or attacks or a candidate 101(b); § candidate for Federal office for that office.” BCRA ly identified FECA (2)(A)(iii); 431(20)(A)(iii). § § a for 301 2 (regardless of whether candidate U.S.C. essentially or local office is also mentioned or As this latter limitation State tracks identified) promotes sup- definition, and that language of fallback office, at- ports appears require a candidate for that statute the Commission opposes a stray tacks or candidate for that not to from either definition of elec- (regardless tioneering office of whether the com- communication promul- when a expressly gating exemptions.128 munication advocates vote future candidate) a against ]. for or present Plaintiffs two overbreadth chal- 201(a); 304(f)(3)(B); First, § § 2 lenges Title II. argue BCRA FECA Plaintiffs 434(f)(3)(B). exemption primary § The final that the definition U.S.C. of electioneer- provides 201 ing applies many Section the Commission communication to too authority promulgate further regu- genuine issue advertisements to be consid- latory exemptions narrowly to the definition of ered tailored. McConnell Br. at 57-69; 42^48; “electioneering Opp’n communication.” Howev- McConnell at er, 33-40; 17, ability Reply to create fur- NRA the Commission’s McConnell Br. at 24-33; 17-25; Opp’n cir- NRA at regulatory closely Reply ther carve-outs is NRA First, 22-25; 7-10; exemption Reply at any cumscribed. future ACLU AFL-CIO Second, requirements Reply consistent with the at 8-9. must be Plaintiffs contend electioneering provi- of the communication that Title II is unconstitutional because Second, applies corporations sion. communication cannot be to all and does not exempted “public special if it is a statutory contain carve-out for communication” clearly non-profit, MCFL-type corporations. “that refers to identified candi- 41-42; pro- Opp’n date for Federal office ... and that NRA McConnell Br. at BCRA, passage jurisdiction 128. Since the the Commis- that Court does not have over promulgated exemptions sion has two to the standing these four Plaintiffs on both electioneering definition of communication. ripeness grounds. These four Plaintiffs do first, exempts paid The communications any injury-in-fact, not demonstrate a neces- by candidates for state or local office where sary prerequisite standing. Lujan v. De- "merely the mention of a Federal candidate is 555, 560-61, Wildlife, 504 U.S. 112 fenders of of Sec- incidental” thus not in violation 2130, (1992) (Plaintiffs L.Ed.2d S.Ct. (A)(iii) (20) Electioneering tion FECA. establishing standing to have the burden of Communications, Fed.Reg. 198-99 bring by demonstrating their suit (to 100.29(c)(5)). be codified at 11 C.F.R. fact;” (2) (1) "injury have: suffered second, exempts paid communications "fairly which is traceable to the conduct com- any organization operating charitable under of;” (3) plained capable judicial 501(c)(3) Section Revenue Internal Moreover, redress.). pre- as Plaintiffs Code, permitted law are controversy yet sented "a that has not arisen engage 65,199-200 partisan political activity. Id. at arise,” Right may Wisconsin never Life (to be codified at 11 C.F.R. Paradise, (7th v. 138 F.3d 1187-88 Cir. 100.29(c)(6)). 1998), ripe and the their claim is not Court Four the McConnell Plaintiffs are Sec- specific jurisdiction to resolve their lacks 501(c)(3) organizations. tion McConnell Sec- electioneering challenge communica- 32, 36, ¶¶ Compl. (identifying ond Am. provision. Accordingly, tions I do not believe Institute, Inc., Family the Indiana the Nation- any jurisdiction that the Court has over Fund, Right al To Life Educational Trust Foundation, Inc., claims of four Plaintiffs in relation to these Legal Southeastern electioneering provisions 501(c)(3) communication Pro-English organiza- U.S. d/b/a tions). regulations, I in Title II. Given FEC’s find 1) Designed to 16-17; Advertisements NRA Issue Br. at see also 17-24; ACLU *410 Election Almost Influence a Federal 14-20; 2-7. Reply at ACLU Reply at Always Identify a Federal Candidate on Electioneer- Restrictions b. BCRA’s conclusively es- in this case The record Narrowly is ing Communication designed advertisements tablish that issue Tailored al- a federal election almost to influence federal candidate. specific refer to a ways II election- in Title The restrictions ¶ create consultants who Id. 2.8. Political communications, in the as defined eering present un- issue advertisements genuine definition, narrowly tailored. are primary design- testimony that when controverted permis- can swpra, Congress As discussed advertisements, “it was pure ing issue express electoral beyond regulate sibly specific ... to reference necessary never that the law only by ensuring advocacy office in order candidates for federal unconstitutionally burden issue does not ¶ (Bailey) Id. 2.8.1.1 create effective ads.” BCRA, II creating Title discussion. id. examples); also (discussing test that bright-line created a Congress (Strother) ads did not mention (pure issue criteria common to objective focuses on name). flip by The side any candidates in- directly that advertisements broadcast in coin, allude to this as the consultants By constructing elections. fluence federal advertise- testimony, their is when test, avoiding a test bright-line name, par- a candidate’s ments do mention subjectivity, Congress that rests on period preceding in an elec- ticularly problems that vagueness avoided the only tion, primary purpose the advertisement’s FECA, specifically linked but also plagued Id. usually influence the election. is 441b to findings of abuse of Section (“In experience (Bailey) my decades provisions primary in the definition. nearly all of the ads that politics, national main of abuse— By using the indicators specific mention I have seen that both advertisements, aired close broadcast days run in the imme- candidates and are election, containing a proximity to clearly election were diately preceding the candidate, targeted to a a reference elections.”); id. designed to influence Congress candidate’s to the electorate — (Strother) (“Indeed, usually there is no constitutionally created a clear rule a candidate’s name un- reason to mention distinguishes electioneering between ad- election.”). point to influence an less the issue advertise- genuine vertisements and Expert testimony concurs the views overwhelming majority in the ments ¶ consultants. Id. 2.8.1.2 cases. Sorauf) (“The (Krasno most & obvious Findings conclusively The demonstrate by shared candidate ads and characteristic advocacy empirically issue genuine is their em- candidate-oriented issue ads distinguishable from issue advertisements ads, Pure issue phasis on candidates.... a seeking to influence federal election. hand, likely less on the other were much ¶ majority of issue Findings 2.8. vast a candidate for federal of- to mention ¶ (Krasno ”) a designed Sorauf); advertisements influence 2.8.4 fice.... & identify (“A a federal election federal candi- indicia make (Magleby) number of date, sixty days prior run a general are run individuals and clear that ads election, thirty days primary reality electioneer- groups before interest influence, election, congres- ing and are run in states or that are meant to ads influence, These electioneer- sional districts with close races. I shall do elections: ”). name a candidate.... briefly ing generally in turn. ads examine each of these additional Title II of point appropriately targets This is driven home BCRA evidence, designed issue advertisements that are that adver- which demonstrates ¶ influence an election.130Id. 2.8.1.4. sixty days preceding in the tisements run overwhelmingly election mention general 2) Majority A of Candidate-Centered run outside federal candidate and those Issue Advertisements are Run in the period do not mention overwhelmingly Sixty Days Prior to a General Elec- (discuss- Id. a federal candidate. 2.8.1.3 Thirty Days tion and to a Pri- Prior *411 ing by advertisements Citizens for Better mary Election Medicare, Commerce, Planned Chamber Findings overwhelmingly also dem- List, Parenthood, AFL-CIO, EMILY’s appropriateness onstrate the of BCRA’s Security, Americans Job Business sixty thirty day benchmarks. While Table, Control, Handgun Round Sierra appearing advertisements outside these Voters). Club, League of Conservation elections, time frames can influence Con- strongly that true is- suggest These facts gress appropriately periods focused on the a candi- advocacy sue need not mention directly of time that most influence federal effective, date’s name to be and that when ¶ elections. Id. 2.11.1. The Annenberg a federal candi- advertisements mention Study, which not challenged by was Plain- close, date, they likely to be aired in tiffs, relied on was Plaintiffs’ ex- temporal proximity part to an election as perts, as well as Congress, concluded an effort to influence that election. This during the 2000 federal election “[f]ul- pattern repeatedly in is manifested other ly 94% of issue August ads aired after advocacy organizations’ campaigns, issue made a case for or against a candidate.” demonstrating objective in an and unbi- As following Id. 2.8.2.1. chart from ased manner the fact that most advertise- illustrates, findings issue advertise- designed ments to influence federal elec- ments mention a federal candidate tions refer to federal candidate.129 Id. dramatically period in the increase before By focusing on those advertisements that case, picture a federal election. candidate, specifically story: refer to a federal tells the entire ¶2.8.1.3. presented by Findings 129. No similar evidence was lion a federal candidate. pat- opposite Plaintiffs to show an trend or None of these advertisements that did not tern. mention a federal candidate would be covered 6,000 However, under BCRA. advertise- Moreover, ments that mentioned a federal candidate and appropriately BCRA leaves un- that were aired in the final three weeks of the paid corpo- touched advertisements for with potentially 2000 election would need to be general treasury rate labor union funds paid segregated funds if adver- not refer to a candidate. do For example days pri- in the 63 before the 2000 elec- tisements met the other criteria of the tion, 14,975 mary Citizens For Better Medicare ran definition to considered "electioneer- advertisements, 4,099 ing of which did not men- communication.” *412 ¶ addition, any contention that to have abandoned uncontroverted Id. 2.8.2.2. prohibit any experience testimony in this case confirms that there is basis expert Reply AFL-CIO influencing aimed at advertisements.” advertisements such issue incorrect; period are aired in the Defen- argument 3 n.2. This federal elections ¶ 2.8.2.3; concerning Id. id. put an election. forth evidence right before dants (“The (Goldstein) pro- CMAG database window and Plaintiffs thirty-day BCRA’s posi- a strong evidence of empirical nothing vides to contradict or chal- have done advertise- [an tive correlation between Findings the evidence. As the es- lenge to a federal candidate tablish, ment’s reference were the DefendanNIntervenors in time of the broadcast proximity and the actually study impact only party to federal elec- to the of the advertisement during run BCRA on advertisements validity of its as a consequently tion] primary period. Findings election ¶ television ad- identifying test for Defendant-Intervenors 2.11.5.3. The purpose with the or effect of vertisements only distinct advertisements found opposing a candidate for supporting or days aired more than 60 before office.”). The evidence establishes public database, from the general election CMAG that was correct to conclude Congress 16,916 airings. Id. these comprising Of a federal election is the sixty days before advertisements, only percent three of the and labor unions have corporations time (522 16,916) named a candi- airings out general treasuries to sought to use days within 30 date and were aired Findings elections. See influence federal primary. Id. Defendant-Inter- candidate’s ¶ 2.8Ü.4. observed that of advertise- venors airing identifying a candidate and ments similarly benchmark is thirty-day The election, days primary within 30 of a complain tailored. Plaintiffs narrowly “genuine only percent 1.2 were coded tailoring “exists as analysis no of narrow Id. Defendants’ advertisements.” prima- issue days to ads broadcast within 30 make a similar conventions, experts Krasno and Sorauf appear ries or and defendants ¶ experts during primary. These ob- Club for Growth Id. finding. Id. 2.11.5.2. ¶ ¶ “hodgepodge of different (Pennington); serve 2.6.5.5 see also id. 2.10.2 makes it difficult to factor primary dates (Pennington) (noting that radio advertise- day primary into the anal- window] [the ments Americans for Limited Terms it ysis, but we are confident would attacking opponent Mr. on taxes Keller’s pure proportion have little effect on the effective). quite and other issues was captured by incorrectly issue ads BCRA Republican Club Growth and candidate simple that so of these for the reason few Ric Keller had relationship made their well candidates at all. advertisements mention known, and the Club for Growth ran ad- Indeed, our examination of 1998 shows this particularly helpful vertisements to Mr. pure to be true: no issue ads would have including Keller one entitled “Keller Sub- captured by 30-day primary peri- been (Pen- Higher lette Taxes.” Id. 2.6.5.5 absolutely Id. Plaintiffs make no ef- od.” nington). Republican primary op- Keller’s data, and I find the challenge fort to Sublette, ponent, Bill had been the front- evidence sufficient to demonstrate that the runner until this advertising campaign by thirty-day supported by time frame is the The began. Rocky Club Growth Id. in this case. record Mr. Pennington, campaign Sublette’s con- Indeed, the closest Plaintiffs come sultant, observed that Sublette would have challenging point Defendants’ on this percent garnered 50 of the vote the AFL-CIO’s citation 336 cookie-cut- Republican primary and not have had to aired over three elec- ter advertisements primary face a run-off contest had *413 cycles, only tion 50 of which would have been for The Club for Growth advertise- by provisions. been even covered BCRA’s ments. Id. ¶ Findings 2.11.5.1. I discuss these adver- election, After the in June Con- detail, infra, in more it tisements however gressman signed Ric Keller a for Club represents is clear that this evidence fundraising stating: Growth letter political advertising activity only one The my Club Growth selected race particularly a active group, interest albeit top priorities.... as one of its Since the such, one. As this submission does not targets competitive the most races Club directly analysis address Defendants’ country, your membership in the in the which examines effect on BCRA’s issue help Republicans keep will control Club advocacy during primary cycle gen- Congress. therefore, I, find that this eral. AFL-CIO ¶¶ (underline change my finding that evidence does not original, Id. 2.7.4 italics thirty-day period supported by BCRA’s is emphasis). my judgment, added for being narrowly the record as tailored to primary election advertis- Keller-Sublette governmental achieve the interest at stake. example epitomizes the reason ing Con- prohibition on election- gress extended Moreover, provide Defendants uncontro- days within eering communications to 30 verted evidence that the effect of adver- primary elections. It also demonstrates just during primary tisements run a can be simply primary that because a election damaging during advertisements run as ultimately produce an officehold- does not general election. The record demon- er, a chance only since the winner receives ad- group strates that interest broadcast office, corrup- run the risk of for elected vertisements had a substantial effect present. Findings clearly tion is still Congressional the outcome of the 2000 ¶ (New pri- district, Hampshire Presidential particu- 2.6.6.5 Eighth race Florida’s referencing by mary run The election advertisements larly with the advertisements McCain). electorate influence the outcome prohibi- didate’s thirty-day The Senator ¶ sup- therefore primaries is tion around election. Id. 2.11.2. Nor do the federal by the record. ported showing that they overcome the evidence thirty-day figures “pure” are not advertisements do not sixty The most issue by Congress, arbitrary numbers selected the name of federal candidates. mention empir- periods time tied to appropriate but ¶ concluded Congress properly Id 2.8.1.1. Findings per- The ically data. verifiable a candi- mentioning that advertisements suasively that advertisements demonstrate an elec- run in this time frame have date influence a federal election designed to affect, even if are run for tioneering ap- the name of a candidate and mention if advertise- purpose, and these different sixty thirty days before pear paid by corporations were ments primary contest. federal election unions, concluded, consis- Congress labor electioneering com- primary definition require longstanding policy, tent with it narrowly tailored because munication is paid these advertisements be for with time, only periods on these focuses segregated specifically designated funds been that candidate- where it has shown purposes. for election advocacy is at its zenith and centered issue of these advertisements on the influence Additionally, the record establishes In- strongest. elections is at its disputed it is a issue of fact as to whether deed, expert testimony likewise concludes “genuine” even effective to run issue majority of issue advertisements run-up in the immediate advertisements appear in mention a federal candidate ¶ 2.11.7. Po- Findings a federal election. an election. Id. 2.8.2.3. period before consultants, litical current and former can- Leon, Judge equally unper- I am Unlike officeholders, didates and and Defendants’ legisla- claim Plaintiffs’ that the suaded that it ineffec- expert witnesses contend requires running of issue tive calendar run in close tive to issue advertisements during periods covered advertisements election, proximity to a federal and as See, 10- e.g., AFL-CIO Br. at BCRA. *414 result, advertisements about issues run ¶ 11; I Findings 2.11.8. do not find likely designed time frame are during that presented Plaintiffs have sufficient evi- proposition. demonstrate this dence to Id. to influence federal elections. ¶ instances, many Findings ¶¶ 2.11.8.3. respond 2.11.7.1-2.11.7.2. Plaintiffs conclusively allege legisla- Plaintiffs run necessary it is to issue advertisements activity during occurs this time frame tive that mention the name of a federal candi- providing specific examples either without date close to election because examples legislative from the calendar or public’s greater public interest in affairs advertising cam- from their own issue ¶¶ during that time frame. Id. 2.11.7.3- paigns addressing legislative these issues. I disputed, 2.11.7.4. this issue is Because ¶ examples The actual Id. 2.11.8.1. reach no conclusion on this matter. What specific advocacy pending leg- some tied to primary I do conclude is that with the present comparative- are islation Plaintiffs communication, electioneering definition of and I conclude are not sufficient to ly few objective the test does not focus on the is overbroad. Id. demonstrate BCRA objec- behind the advertisement but rather ¶ Importantly, never 2.11.8.2. Plaintiffs empiri- tive determinants that have been the fact that all issue advertise- overcome cally proven distinguish issue advertise- candidate, that refer to a federal ments ments that influence federal elections in proximity that are run close to a federal election, targeted types advertising. that are to the can- other of issue Court, 50,000 less or more presented record to the individuals the rele- Given the captures the over- congressional I conclude that BCRA vant district or state that the advertisements that whelming majority of candidate for the House or Senate are affect federal elections. designed are seeking represent can receive the com- purpose if of a primary Even broad- 201; § munication. BCRA FECA pressure a Mem- cast advertisement is 304(f)(3)(C); 434(f)(3)(C). § § 2 U.S.C. Congress pending legislation, on ber Broadcast that target advertisements sub- demonstrates that advertisements record portions stantial of the electorate who de- a federal candidate that run mentioning cide a candidate’s future are those election that proximity close to a federal election, likely most to influence an that candidate’s electorate targeted I gratitude. earn the candidate’s find that Still, on elections. impact have a serious by only to a applying candidate’s relevant only requires that these advertise- BCRA electorate, primary definition of elec- paid segregated for with funds as ments be tioneering narrowly communication is tai- general treasury funds. opposed to lored. 3) Most Candidate-Centered Advertise- 4) Legal Relating Conclusions To Ex- ments That Mention a Candidate for pert Reports Sample and Plaintiffs’ Are Run in Federal Office States Advertisements Congressional Districts With Close In my Findings Appendix and in the Elections Opinion, I have made an effort conclusively Findings The Court’s dem- thoroughly expert describe the various re- that issue ad- onstrate from the evidence ports purporting prob- to demonstrate the to influence a designed vertisements feder- by advocacy lems created issue advertise- predominantly on al election are focused elections, affecting ments as well as Findings Expert close races. 2.8.3. tailoring Congress the narrow achieved testimony, consultant as well as affecting BCRA to avoid federal non-elec- data, empirical all demonstrate this fact. tioneering advertisements. I have also de- pri- focusing Id. The obvious reason for lay great voted a deal of effort and care to marily corporations on close races is that prof- out the criticisms of these studies and labor unions endeavor to receive the expert, and the re- fered Plaintiffs’ spent value out of each dollar on most sponses to that criticism Defendants’ in- advertising order to maximize their I have the rec- experts. done so because fluence on elections. Even Plaintiff NRA that a number of the ord demonstrates focusing admitted to its advertisements *415 ¶ reports, Time and the Buying such as the competitive Id. races. 2.8.3.5. studies, Annenberg Center were relied ap- my judgment, tailoring In BCRA to upon by Congress in its consideration of ply only “competitive races” would cre- parties presented the BCRA and the have that line-drawing ate difficulties would aimed at Court with a wealth of material a law Howev- make such unconstitutional. bolstering discrediting them. addi- er, primary electioneering definition of tion, attempted to demon- Plaintiffs have narrowly in that communication is tailored by discussing strate BCRA’s overbreadth only it focuses on broadcast advertise- that claim a series of advertisements targeted ments that are to the relevant pri- unfairly captured be under the would of each candidate. This means electorate mary electioneering definition of communi- that, in the of House and Senate case problem approach with this races, cation. The the communication will not consti- to sit as the viewer “electioneering communication” un- that asks the Court tute them or find Dr. Gibson’s alterna- were dismiss these advertisements that and find Buckley As I acceptable. tive conclusions more advertisements. pure issue statutory a test that against my Findings, in the effort is not warned mentioned Court and listener’s inter- the viewer if piñata party: relied on that one hits unlike message. I have pretation of eventually crack piñata enough, it will therefore, declined, engage ¶ in this exer- some of apart. Although Id. 2.12.4. discuss, I re- Findings myAs cise. merit, point I out that these “hits” have submission, including all viewed Plaintiffs’ nor Dr. Gibson have at- neither Plaintiffs advertisements, conclude of their cited conduct their own similar tempted to demonstrate BCRA’s they do not that study, replicate portion even a discrete ¶¶ Findings 2.11.3— overbreadth. studies, despite Time Buying 2.11.5. underlying that materials were fact in experts, as indicated Turning provided by to the to them Defendants. Present- much, though not I find my Findings, ing contrary the Court with results from all, presented evidence of the relevant far more study such a would have been merit and has not Defendants has Buy- persuasive than the recalculations expert, Dr. by Plaintiffs’ been discredited conjectural and the often ing Time data Gibson, focused on the whose criticism speculative proffered criticism ¶ 2.12. At the studies. Id. Buying Time Plaintiffs and Dr. Gibson. outset, pointing out it is worth much, all, if Importantly, not of the ob- Dr. Ex- reached in Goldstein’s conclusions in re- jective findings Buying Time on the follow- pert Report are unrebutted by Plain- ports have not been undermined in group advertising ing points: interest expert. example, tiffs’ For Plaintiffs have in so-called “battle- 2000 was concentrated challenged Buying conclusions states; percent of can- ground” roughly very few advertisements utilize Time in 2000 didate-sponsored advertisements express advocacy terminology, and that in- advocacy terminology; inter- express used group identify advertisements which terest advertisements, identified group est candidates are concentrated toward the broad- tended candidate ¶ campaign. end of the election Id. 2.12.7. days the final 60 of the election cast within objective I find that this data is insulated those that did not campaign, whereas great majority from the of criticism leveled spread were more ev- identify a candidate (Dr. Buying reports. at the Time Id. year; enly throughout and interest objec- commenting “[ejntirely Gibson that mentioned can- group advertisements (e.g., tive characteristics of the ads wheth- concentrated highly didates in 2000 were telephone er a number is mentioned Id. 2.12.3. Dr. “battleground states.” ad) present text of the few threats uncontroverted conclusions Goldstein’s Furthermore, these reliability.”). some of primary further that BCRA’s demonstrate supported by results are those of the unre- electioneering communica- definition of Annenberg Reports. butted Id. key empiri- narrowly tions focuses on the separate genuine cal determinants that is- discuss, I ac- my Findings As have not *416 electioneering. sue from discussion the con- cepted either side’s discussion of Buying 1998 related to the clusion Time attempted to Plaintiffs have discredit genuine issue advertise- percentage reports primarily Buying Time by that would be affected BCRA. ments reports of Dr. through expert Gibson. ¶¶ Buying Id. 2.12.5-2.12.9. Time 1998 presents Dr. various criticisms Gibson percent genuine that seven issue reports in an effort to have the Court finds ¶ expert Id. 2.12.12. The testi- the course of exercise. aired over advertisements days of the mony subjec- in the final 60 in this case demonstrates the were aired mentioned a candi- campaign trying cap- tive nature of the effort of election date, viewers, that out impressions and Dr. Krasno determined ture mental identifying advertisements person’s genuine of all of the illustrates how one issue 1998 elec- sixty days before the candidate advertisement can be another’s election- ¶ tion, issue percent “genuine” 14.7 were eering commercial. Id. 2.8.5. This is ¶ 2.12.8. Dr. Gibson advertisements. Id. objective why BCRA’s framers have used Buying Time presented figures from the “electioneering criteria to define communi- percent from 16 to 60 ranging 1998 data Furthermore, Lupia cation.” as Dr. ex- given percent. Id. I have found help plains, these exercises can us deter- impossible it is to determine which record impact what would mine BCRA’s have coding is cor- expert’s view of the student behavior, past been on but do not rect, I matter and as such find this necessarily tell us how BCRA will affect accept either side’s dispute and do not non-electioneering issue advertisements in likely on the effect BCRA conclusion example, For NRA the future. Id. Buying on the Time would have based magazine” claims that its 30-minute “news 1998 data. “California,” genuine issue advoca- titled cy unfairly but it would be affected I not regard Buying Time do that, image BCRA because it showed an of the of all of the issue accept finding its days periodical, pic- of the which featured a group’s advertisements run within 60 candidate, that mentioned a ture of A1 2000 election Vice President Gore on the ¶ percent genuine were advertisements. App. 0.6 cover for a few I.D.8.h. seconds. ¶ I conclusion Id. 2.12.10. reached this The advertisement was aired within 60 Dr. finds that primarily because Goldstein election, days of the 2000 and therefore if one includes all of the advertisements “electioneering would fall into BCRA’s allege that Plaintiffs were recoded definition. I would note communication” commercials, the genuine electioneering NRA that it is clear that the views Vice adver most “conservative” calculation of presence President Gore’s the advertise- days aired in the final 60 of the tisements part ment as a coincidence and not vital candidate, identifying election also ¶ such, commercial. I.D.8.h. As Id. Id.131 “genuine,” percent. which were is 17 expect would that with the enactment one is not rebutted Plaintiffs or figure This BCRA, change the NRA would its be- expert. havior. The NRA could leave adver- only air it more unchanged I tisement explain my Findings, As I also view election, or more days academic than 60 before an largely these calculations as promote Lupia's argues a candidate. Id. Dr. beer 131. Dr. Gibson also that since majority point of advertisements coded as election- analogy illustrates this ef- commercial eering having policy Furthermore, were also coded as mat- fectively. the results for Id. focus, primary fact ters as their the studies in candidate-sponsored advertisements demon- majority of adver- demonstrate that the vast running that even when a candidate strate captured by genuine BCRA are is- tisements in an effort to office airs an advertisement Findings sue advertisements. As the demon- election, more often than not win he or she strate, reject argument. Findings I policy those commercials on matters focuses ¶2.12.11. experts clearly Defendants’ personal characteristics of the and not on advertisement demonstrated that the fact an Id.; (Bai- supra 2.3.2 candidates. see also preclude may focus issues does ley). designed possibility that the advertisement is *417 BCRA; argu- escape strong covered under primary, before days than 30 could also The NRA ments can be made that the number coverage. BCRA’s cover with a different periodical the evidence show a should be reduced. Given whenever advertisement and air the this case that broadcast advertisements the ad- Or, could leave group liked. proximity in close to a federal elec- aired run it within the unchanged, vertisement candidate, tion, the name of a that mention for the commercial day pay window targeted and that are to the candidate’s example, This is one PAC funds. from its elec- directly electorate influence federal point trying it illustrates but tions, Congress I find that was correct to number of advertisements determine objective determining an for establish test subjected unfairly to BCRA that will be electioneering. In other what constitutes past behavior does not account based words, accept even if I were to that behavior based on adaptation percent figure as a valid metric for deter- reality. the new overbreadth, any I find that mining genuine issue adver- The fact that some impact substantially of BCRA is such and were identified candidate tisements by counterbalanced the record this case days in the of an election aired within objective empirical determinants and the mean that the candidate’s past does not related to these advertisements. For essential, opposed as presence was an reasons, I Dr. these do not find Goldstein’s commercial, incidental, aspect of the percent conservative estimate of 17 remain con- percentage that such a will primary deem definition of elec- BCRA’s However, even if such conclusions stant. tioneering substantially communication drawn, it least appears could be overbroad. figure presented to the Court is contested Plaintiffs, above, noted did not con- percent of advertisements that 17 like empirical study duct their own been affected BCRA that would have Buying study, provided Time but instead issue advertisements. “genuine” were examples with of advertisements Court of the reasons that figure This is one they cap- claim would have BCRA primary definition of Judge Leon finds they tured had it been in effect when were to be sub- electioneering communication provided aired. The Plaintiffs McConnell I agree cannot stantially overbroad. containing a CD-ROM advertisements First, I Judge Leon. find these debates they provide “powerful claim illustrations percentages genuine over issue “actual” type advocacy of the amount and of issue why Supreme advocacy illustrative prohibited pri- that would be BCRA’s regulations found that Buckley Court mary ‘electioneering definition of commu- subjective intent of the relating to the ”132 ¶ However, nications.’ Id. 2.11.3. Trying listener to be flawed. to discern nine of these advertisements would not fall electioneering whether an advertisement is electioneering under definition of BCRA’s advocacy very open difficult and issue communication because either were Second, Finding to debate. 2.8.5. targeted at a relevant electorate or this number is the outermost number of of a “genuine” days issue advertisements that would were not aired within 30 or 60 opinion, on these advertisements. If the As noted numerous times in this restrictions "prohibit” BCRA would not these advertise- days advertisements are run more than 30 run, ments. advertisements can be un- These primary days general before a or 60 before a altered, segregated paid if funds. election, imposes BCRA no restrictions on addition, if the advertisements are not run in these commercials. electorate, places the candidate’s BCRA no *418 ¶ Id. 2.11.3.1. Congressman Jay Dickey Yet VOICE: general election. primary He drug industry. fo- sided with the voted remaining advertisements Four of guaranteed prescription no to Medicare no past votes with on a candidate’s cus protect benefits that would seniors from legisla- future any pending reference runaway prices. Dickey quit put- ¶ Tell reject I the notion Id. 2.11.3.2. tion. ting special working interests ahead of examples of that these advertisements families. ¶ Id. advocacy. 2.11.3.3. It issue genuine Watching people PHARMACIST: walk an imagine purpose what difficult a away without the medication takes lit- have other than to
advertisement would every day. tle bit out of me of a the election or defeat candi- promote days an ¶ it is aired within 60 date when argument Id. 2.6.7.1. The that this ad- primary, clearly a days or 30 vertisement, election it, and those like was aired to candidate, in that candi- a runs issue, identifies an and not to attack a promote district, Therefore, and focuses on the candidate, date’s electoral credulity. strains self-selected, re- past voting presum- record without candidate’s out of these legislation. ably self-serving future most advertisements ferring pending Take, provided the three- example, the AFL-CIO’s “Pro- McConnell Plaintiffs genuine judge panel, eight at most are tect” advertisement: that would be affect- issue advertisements The Senior Citizens to- PHARMACIST: ¶ Id. 2.11.3.4. ed BCRA.133 They medication. day can’t afford their addition, they’re skipping I ad- identify come know In Defendants for their they pay appear medication so can Plaintiffs’ vertisements rising briefings, genu- cost of medication which Plaintiffs claim are food. With ¶ Id. 2.11.4. any ine advertisements. today, wipe anybody could out issue it. advertisements, I have addition these 39 time. prominent lawyer, trial and that advertise- I state "at most” due to the fact supporting opposing Senator provided background for al- ments both Defendants presented by lawyer trial creden- Edwards focused on his most all of the advertisements point phrase that the "trial law- genuine issue com- tials to the Plaintiffs to the Court as Edwards, yer” synonymous with it Examining was John mercials. the advertisements any- to view the advertisement as knowledge in which were is difficult of the context However, thing electioneering. Id. my other than aired raises serious doubt in mind that supra, ascertaining a adver- noted purpose true of some of these communica- purpose subjective opposed to tisement's true is often promote tions was to issues as exercise, Indeed, Congress elected not to the uncontroverted ex- one candidates. primary of "elec- testimony assessing in BCRA’s definition pert states that in the true include such, very impor- tioneering unless communication.” As purpose of an advertisement indicating objective factor that a in the context there is an tant to view the advertisement run, "genuine” is in fact proposed rather advertisement the election in which it was commercial, cold, electioneering accept will I part factual record. Find- than as ¶ (Strother). in the interests of example, one ad- Plaintiffs’ characterizations ings 2.8.5 For analysis. objective by the McConnell a conservative and vertisement submitted figure also includes "call” incumbent conservative above Plaintiffs exhorts viewers to "Save,” past a candidate’s "today tell him which criticizes Senator Lauch Faircloth lawyers]. urges viewers to call the Member of keep up fight [against vote but his trial win, Congress when the lawyers working and "tell him to vote no if trial families Because ¶ intending, plan up again,” per- Gingrich comes From a detached lose.” Id. 2.8.5.2. AFL-CIO, according "to influence appears to the spective, to be ad- this advertisement however, the bill House Members in the event vocating lawyer policy; an anti-trial [House]." for another vote in the Faircloth's returned when one is informed that Senator Edwards, Findings 2.11.3.2. opponent was now-Senator John *419 al- by additional advertisements would be affected BCRA.134 Id. found four ¶ examples to be 2.11.4.6. in leged declarations advertisements that legislative-centered Four other advertisements were cited id., BCRA, by as well as
would be affected by being Plaintiffs in declarations as moti- of cookie-cutter advertise- large a number by pending legislation happened vated Open- to in the AFL-CIO’s ments alluded 60-day to run within the 30 or BCRA Brief, claims would be ing group which the ¶ (“No Way,” windows. Id. 2.11.4.5 Two unfairly by 30-day pri- affected BCRA’s “Spearmint,” “Spear,” and the Gun Own- ¶ window, I mary id. 2.11.5. address the pilots ers of America’s armed advertise- in turn. groupings of advertisements ment). purposes analysis For of this I accept Plaintiffs’ characterization of these advertisements scattered supra But commercials. see note 133. Plaintiffs’ include 12 throughout briefs Finally, the AFL-CIO mentions that group only which the NRA advertisements legislation-focused number of its advertise- in having as been aired sometime identifies by ments would be affected 30- BCRA’s sponsored by and 13 commercials day Looking “flights” window. at the that aired in March of group same submissions, in advertisements detailed its only but mentioned President Clinton who appears majority the vast then a candidate for Id. was not office. “cookiecutter” advertisements that made ¶ bases, I 2.11.4.1. these exclude these On up flights these would not have been af- NRA commercials from consideration. I ¶ 2.11.5.1; by fected Findings BCRA. also exclude the advertisement ACLU’s ¶App. also II.A. ofOut 336 cookie-cutter example “genuine of a issue advertise- AFL-CIO, by advertisements cited to ment” it is clear that it engi- since was 50 would have regulated by been BCRA. provide group standing neered to ¶ ¶ 2.11.5.1; Finding App. see also II.A. challenge only example BCRA and is the part The rest were of the same lobbying past of a “electioneering communication” efforts, but were not within days aired ¶ by group. made Id. I 2.11.4.2. re- of a primary. Finding named-candidate’s another, ject “Sky,” the AFL-CIO’s since ¶ ¶ 2.11.5.1; App. see also II.A. it, like the four in the McConnell Plaintiffs’ 21 advertisement submission described Plaintiff-produced su- These advertisements pra, Congress’s criticized a Member of provide very insight little into what effect past vote without any pending reference to BCRA would have had on adver- ¶ legislation. past, future Id. in tising likely 2.11.4.3. or the effect it is Therefore, out of these 39 advertisements the future. Of the 400 self- briefings Plaintiffs used proffered to illus- selected advertisements BCRA, trate the unfairness of 12 at most Plaintiffs as illustrations of the over- genuine BCRA, are issue presumably advertisements breadth of the best contractors;” Again qualifier I general group use “at most” due to contractors 2.6.6.2, ¶ presence Findings of advertisements whose context and the NRA’s "Tribute” question makes me "winning notion that where Charlton Heston discusses genuine year issue advertisements and not elec- November” and states "as we set out this tioneering supra commercials. See note to defeat the divisive forces would take figure away, say This conservative fighting includes: the Associ- freedom I want these ated everyone Builders and my Contractor’s advertisement words for within the sound of molesters, penalties subject on especially for child voice to heed hear and to ” group acknowledges you, my "is issue Mr. Gore. 'From dead [an of] cold hands.’ particular general public Findings (emphasis original). concern to the 2.11.4.4 available, percent problematic: found to be broadcast adver- less than 20 examples (79/400) tisements, candidate, affected referring have been to a would BCRA, fo- if the five advertisements even electorate, the candidate’s run in targeting in the absence of cusing past votes proximity close to federal election. Cor- genuine are considered pending legislation porations and labor unions that desire to Furthermore, advocacy. Plaintiffs issue spend general treasury funds on advertise- *420 compare the volume of attempt do fitting ments these characteristics can do comparative with a these advertisements so; they simply pay must with for them airings of advertisements total number in- funding purpose by committed for that I am Consequently, of advertisements. agree message dividuals who with the idea as to what these adver- left with no corporation. the union or in the overall represent terms of tisements Congress properly gen- determined that aired distinct advertisements quantity of advocacy can be em- uine issue discerned 1996, (1994, cycles over the election four advocacy. In pirically electioneering from 2000) 1998, prof- in which Plaintiffs’ II, it crafting Title arrived at a definition aired. These fered advertisements were electioneering communication that examples little to convince me do findings. very matched its It is difficult to overbreadth, anything, sug- and if BCRA’s Congress’s conclusion that argue with opposite conclusion. gest the mentioning advertisements broadcast 5) Tai- Relating to Narrow Conclusion candidate, proximity run in close
loring
election, and
targeting
the candidate’s
signifi-
candidate’s electorate do not have a
on
my judgment,
In
BCRA’s restriction
In my
cant influence on federal elections.
electioneering
narrowly
communication is
compelling
Congress
compel
achieve the related
was correct to
judgment,
tailored to
In
Title
devising
interests.
governmental
corporations
pay
and labor unions to
II,
followed the clear instruction
Congress
segregated
advertisements with
these
in
Supreme
Buckley-that
Court
from
purpose
to the
of elec-
funds committed
upon political speech could not
limitations
tioneering
federal elections.
subjective intent of the listen-
hinge on the
43,
Buckley, 424
ers.
U.S.
96 S.Ct.
Does Not Ren-
c. Section
BCRA
20k of
Collins,
Thomas v.
323 U.S.
(quoting
II Fatally
der Title
Overbroad
(1945)).
Notably,
language
in the Snowe-
MCFL,
Provision is silent
the wake of
the Commission even-
Jeffords
as to whether
corporations
type
or not
in tually
identified
promulgated regulations exempting
pa-
MCFL would be included within the
MCFL,
corporations fitting the criteria of
MCFL,
exception.
rameters of its
In
Qualified Nonprofit
Corporations
,
Supreme
found
prohibition
Court
that the
(“QNCs”),
prohibition
from the
on inde-
441b on making independent
Section
pendent expenditures (expenditures con-
expenditures containing
express
words of
taining
express advocacy).
words of
advocacy was
applied
unconstitutional as
114.10(d)(1) (“A
§
qualified
C.F.R.
non-
nonprofit,
to a certain
corpora-
nonstock
profit corporation may
independent
make
MCFL,
241,
tion.
The Wellstone
stitutional
its
state and would
corporations
plicitly
day,
mention the status
an
leave for another
the context of
of an
cor-
fitting the characteristics
MCFL
as-applied challenge, a determination of
poration. During
passage
final
regulations apply
whether the FEC’s
too
Senate,
indi-
BCRA the
Senator McCain
narrowly
corporations
and exclude
“£j]ust
corpo-
as an MCFL-type
cated that
qualify
QNC-status.
my
should
ration,
Supreme
ruling,
under the
Court’s
permissible
judgment,
Congress
was
prohibition
the current
on
exempt
is
from
exempt nonprofit corporations
not to
as a
corporate
expendi-
the use of
funds for
specific class from BCRA’s restrictions on
containing ‘express advocacy,’
tures
so too
general-treasury funding
of election-
MCFL-type corporation exempt
eering
goes
communications.
It
without
prohibition
in the Snowe-Jeffords
concede,
saying, and even Defendants
treasury
amendment on
use of its
(and
MCFL establishes that FECA’s
now
pay for ‘electioneering
funds to
communi- BCRA’s)
corpo-
restrictions on the use of
”
Cong.
(daily
cations.’
Rec. S2141
ed.
treasury
rate
constitutionally
funds cannot
2002) (statement
Mar.
of Sen. John
applied
nonprofit corpora-
to certain
McCain).137
However,
tions. Def.-Int. Opp’n at 65.
given the
I
regulations,
any
FEC’s
feel
Picking up
Senator
McCain’s state-
argument relating
exemption
to an MCFL
ment, the
recently promulgat-
FEC-in the
premature. Any corporation
that be-
regulations implementing
ed
BCRA-has
*423
lieves it should fall
may
within MCFL
seek
exemption
QNCs
created an
to make
exemption
regulations.138
under the FEC’s
electioneering
communications.
C.F.R.
Moreover,
(“A
any
if
corporation
§
thinks that
qualified
114.10
nonprofit corpora-
regulations
tion
the Commission’s
are too nar-
may
electioneering
make
communica-
MCFL,
tions,
100.29,
defining
row in
an
may
as defined in 11
chal-
C.F.R.
violating
prohibitions
lenge
appropri-
without
them on that
at the
against
basis
corporate expenditures
ate
contained in 11
time. As the Defendant-Intervenors
114.”).
part
phrase
C.F.R.
Although
express-, nicely
inquiry:
question
not
“The
ly provided for in the
provisions
Wellstone Amend- whether
the new
added to
137. corporation's] treasury
reference Senator McCain makes to
the use of [a
funds to
communications,
Snowe-Jeffords’ Provision is to the entire
pay
electioneering
prohibition
corporate
and labor union
provision
main
of this amendment
that re-
general treasury
being
funds
used for elec-
by
passage
mains unaltered
of the Well-
communications,
tioneering
which was also
amendment.”)
(internal
stone
citation and
throughout
as
known
"Snowe-Jeffords”
omitted) (second
quotation marks
brackets in
Thus,
legislative history.
Senator McCain is
original).
referring
as it
"Snowe-Jeffords”
has
opinion
been discussed in
exemp-
as an
reviewing
138. Future
courts will not be writ-
501(c)(4)
tion for
section
and section
ing
regu-
on a blank slate. The Commission's
527(e)(1) organizations. Electioneering Com-
QNC
scope
exemption
lations on the
munications,
("Senator
Fed.Reg.
at 65204
litigated multiple
supra
have been
times. See
specifically
McCain
part
referred
that
note 135.
prohibits
the Snowe-Jeffords amendment that
constitutionally
corporations
be
that exists when
may
labor
FECA
BCRA
independent
expenditures
unions make
corporations
the same set of
applied to
(and,
course, unions,
potential
that have the
to create
groups,
other
Bellotti,
individuals)
debts.
U.S.
788 n.
existing pro-
which FECA’s
that
primary
definition of BCRA
creates
like the NRA or ACLU
organizations
that
objective
that
test
identifies broadcast ad-
treatment
in order to
that desire MCFL
vertisements that
influence
federal elec-
exempted
present
under
need to
be
BCRA
only
tion. BCRA focuses
on those broad-
such a claim in the future as was done
cast advertisements that mention a federal
Ac-
plaintiffs
Austin and MCFL.
which,
candidate,
demonstrated,
key
is a
cordingly,
I
find that
the Wellstone
advertising
determinant of issue
that
II
Amendment does not render Title
sub-
essentially designed to
influence
stantially overbroad.139
addition,
In
only applies
election.
BCRA
which,
to broadcast advertisements
while
Relating to Compelling
d. Conclusion
candidate,
mentioning
targeted
Interests and Nar-
Governmental
Moreover,
that
candidate’s electorate.
Tailoring
row
only applies
BCRA
to these advertise-
objective, empirical
Based on the
evi-
they appear
ments when
within the thirty
dence,
narrowly
I conclude that BCRA is
days
primary
of a candidate’s
election or
compelling govern-
tailored to address the
sixty days
general
of the date of a
election.
mental interests
stake
this case. As
applies
Nor is
overbroad because it
BCRA
Findings provide, Congress
concluded
non-profit
corporations.
certain
It is
corporations
were
labor unions
Supreme
obvious that the
Court’s decision
using
general treasury
funds to influ-
means that
MCFL
BCRA cannot consti-
years
ence federal elections
violation of
tutionally
applied
nonprofit
to certain
statutory prohibition.
Title II of BCRA corporations
regula-
and the Commission’s
Congress
addresses the concern of
provide
Finally,
tions
for this fact.
BCRA
corporations
using
and labor unions were
prohibit corporations
does not
and labor
aggregations
their substantial
of wealth to
making
unions from
advertisements meet-
dominate the
environment.
Rather,
ing the afore mentioned criteria.
vein,
protects
Title II
the individuals
only
corporations
BCRA
requires
*424
paid money
corporation
who have
into a
pay
labor unions
for these advertisements
purposes
support
union for
other than the
with
from those com-
funding
comes
having
money
of candidate from
used
corpo-
mitted to the
ideals of the
union;
support political
namely
candidates to whom ration and
through
labor
they may
opposed. Finally,
be
Title II
present
PACs where disclosure is
potential
corruption
also addresses the
aligned
where contributors are
with the
er,
Judge
exemption
litigated
Leon finds Title II BCRA
uncon-
MCFL
on a case-
MCFL,
271,
only
applies
by-case
stitutional
insofar as it
to MCFL-
basis.
U.S. at
See
479
However,
C.J.,
corporations.
agree
(Rehnquist,
concurring
I cannot
bor union.
may conceivably
speech
tail as much
view,
narrowly tailored
Title II is
my
rule chosen
goals. While the
serve its
compelling governmental
to serve these
goals, City
must “fit” the asserted
definition of elec-
primary
interests.
Inc.,
Network,
Discovery
[v.
Cincinnati
purposefully
tioneering
communication
1505,
410, 428,
113 S.Ct.
507 U.S.
that draws a
objective test
creates a new
(1993)],
also, by
it must
L.Ed.2d 99
advocacy and
issue
bright
line between
tailoring require
the narrow
virtue of
At
this facial chal-
advocacy.
electoral
below,
appro
strike an
ment discussed
narrowly
I find that
it
lenge stage,
achieving those
priate balance between
compelling governmental
tailored to serve
protecting
constitutional
goals
respectfully dissent
and therefore
interests
primary purpose of
rights. Because the
by Judge
conclusions reached
from the
simply to
analysis is
underinclusiveness
point.
on this
Judge
Henderson and
Leon
proffered state interest
“ensure that the
Austin,
law”,
actually underlies
Underbreadth Chal-
F. Plaintiffs’
(Brennan, J„
677,
powerful means of conveying the NRA’s
1, 46,
615,
(1937)).
57 S.Ct.
648
in
case.
reached
that
alter the conclusion
communications
electioneering
spend on
Austin,
that
Supreme
the
Court found
In
Supreme
of a
dictates
the
by following
exemption of media
Austin,
Michigan statute’s
at
the
U.S.
decision.
Court
restric-
J.,
expenditure
from its
(Brennan,
corporations
concur-
678, 110
S.Ct.
unconstitu-
not render the statute
tion did
(statute
because
not underinclusive
ring)
666-67,
Austin,
494 U.S.
precedent).
tional.
Supreme
Court
adheres
excep-
that the “media
(noting
Supreme
the
S.Ct.
prior
the
decisions
Given
excluded
Michigan
in the
statute
challenge
tion”
Court, Plaintiffs’ underbreadth
expenditure any “ex-
the definition of
from
fails.
ground
station,
broadcasting
news-
by a
penditure
Relating
Challenge
Plaintiffs’
G.
periodical or
magazine, or other
paper,
Stories, Com-
Exemption for News
story, commen-
any
news
publication
from a
Editorials
mentaries or
support
opposi-
of or
editorial in
tary, or
Broadcast Station
office ...
a candidate for elective
tion to
argue that
Plaintiffs142
Finally, the NRA
publication
or broad-
regular
the
course
II of BCRA for
in Title
exemption
the
(citation
observing
and footnote
casting”)
commentaries,
stories,
or editorials-
news
was similar
Michigan exemption
that the
Equal
exemptiori’-violates the
“media
the
omitted).
exemption in
both
to the
FECA
Amend-
and the First
Protection Clause
the
Supreme
The
Court concluded
Br.
NRA
in that it is underinclusive.
ment
impose
exemption was bound to
media
BCRA,
discussed,
like
supra,
at 42.143 As
of cor-
expression
on the
fewer restrictions
FECA,
communications
exempts certain
that are in the media business
porations
the facilities of
through
distributed
by a
justified
to be
and therefore needed
regulation.
broadcasting
station
Supreme
The
compelling
purpose.
state
304(f)(3)(B); 2
201(a);
§
§
FECA
BCRA
held:
Court
(“a
434(f)(3)(B)
§
communication
U.S.C.
enjoy the
Although
corporations
all
commentary, or
story,
appearing in a news
inherent
state-conferred benefits
same
facilities
through
editorial distributed
form,
corpora-
corporate
in the
media
station, unless such
any broadcasting
from other cor-
significantly
tions differ
by any
controlled
facilities are owned or
are de-
porations in that their resources
committee, or can-
party,
collection of information
voted to the
definition of
in the
didate” is not included
public.
We
and its dissemination to
communication).
electioneering
consistently recognized
unique
view,
press plays
“informing
my
Supreme
Court foreclos-
role that
criti-
public, offering
educating
its deci-
ed
issue with
consideration of this
cism,
for discus-
providing
forum
sion Austin and the evidence
Bellotti, 435
sion and debate.”
U.S.
sufficient
put
NRA has
forward is not
prohibit speech.
NRA is free to run
this claim.
142. The Paul
also raise
Plaintiffs
communications, provided they
argument
electioneering
The Paul
is discussed
Plaintiffs
per
opinion.
curiam
paid
segregated funds. As Defen-
for with
observe,
correctly
amount
"The
dants
argument that
disagree
I
with the NRA's
only by
spend
can
on such ads is limited
NRA
exemption
the media
demonstrates
willingness of its millions of individual
is,
essence,
regulation of television
BCRA in
separate
to the NRA’s
members to contribute
BCRA, in
programming.
Br.-at 47.
See NRA
fund,
spent $17
segregated
which in
my judgment,
regulations that
akin to
Gov’t
to influence federal elections.”
million
compa-
burden the
of TV
editorial discretion
Opp'n
therefore find the NRA's
at 104.
I
by requiring
carry
pro-
certain
nies
them
argument
unpersuasive.
on this score
gramming
Again, BCRA does not
content.
781,
Austin, 667-68, U.S. S.Ct. to the media exemption entirely lacking,
The argues NRA decision there is no engage reason to in a further point Austin on this was somehow a argument. “close discussion- of their equal call” questions Austin, whether protection Austin “was argument was settled in correctly decided.” NRA Br. at 48. The and for the same reasons announced in argues decision, NRA emergence “the of the I find that the NRA’s under- absorption internet and the of the broad- argument inclusiveness is also without cast by conglomer- networks non-media Simply put, merit. Austin is controlling. Moreover, Electric, points as the NRA predated out in its a move which the Austin brief, acquired NBC was in 1985 General Court’s decision. NRA Br. at 44 n.31. testimony in self-serving Plaintiffs’ spite II Regarding Title
H. Conclusion instances, which, is be- many this case Plain- rejected I have considered and docu- prior written statements bed the three- made to arguments tiffs’ other challenge, facial mentary evidence. In this conclude that the District Court judge assembled, and of the record on the basis electioneering communica- on restrictions history of longstanding on the basis definition, primary in the tion, defined corporate regulation of congressional making facially constitutional. elec- union involvement with labor extremely cognizant of how decision, I am tions, Congress’s decision I find a con- uphold a decision is for rare it spend- corporate labor union prohibit speech. on Never- restriction tent-based communications with electioneering ing *430 in Title theless, provisions these finding in meets is one that treasury funds general primarily I am motivated II constitutional scrutiny. of the standard strict in this case and assembled by the record II, recog- Congress Title By enacting of regulation history government the having importance of paramount nized the in con- unions the and labor corporations electioneering that controls legislation elections. text of federal corpora- preventing communication using general and labor unions from tions story. case, facts tell the In this federal elec- treasury funds to influence that demonstrates convincingly record The reviewing the law under strict tions. After general unions use and labor corporations review, primary I scrutiny found influence federal elec- funds to treasury communication electioneering definition years federal in direct violation tions importance of constitutional. Given Congress not convinced policy. I am demonstrated Congress-as this issue to corpo- act to channel the powerless is to en- enacting backup definition presence in federal union and labor rate electioneering communications sure that where disclosure through PACs elections even in the event regulated would be where contributors present and is is unconstitu- primary definition found political message of aligned with alternative, Judge join, in tional-! express union. The or labor corporation regarding the constitution- opinion Leon’s view, test, my is not a constitu- advocacy backup of election- ality of the definition required is an what requirement; tional Nevertheless, as eering communication. rule that constitution- objective, bright-line strongly I believe plain, makes my opinion advocacy issue distinguishes between ally fully consis- primary that the definition to influence a fed- advocacy intended Constitution, and but for tent with the eral election. judge’s other on this three- position of the Court, not reach the District would judge of election- primary With the definition backup definition. communication, Congress fashioned eering Section major all of the charac- a test that includes advertising designed to of issue
teristics
of Title II
only remaining provision
ad-
a federal election: broadcast
influence
my opinion
been
that has not
addressed
vertisements,
proximity to a
aired in close
opinion,
per curiam
is Section
or the
election, referring to a federal can-
in Judge
stated
For the
of BCRA.
reasons
didate,
to that candidate’s
I
213 is
targeted
opinion, agree
Section
Leon’s
re-
judgment, these
the record is
Congress’s
unconstitutional. While
electorate.
related to the close
with evidence
plete
influence federal elections
advertisements
and candidates in
cases,
parties
nexus between
majority
de-
overwhelming
process,
fundraising
ety
there is no evi-
of constitutional challenges to
I
Title of
par-
dence to demonstrate that a political
BCRA, premised
First, Fifth,
on the
ty’s expenditures after nominating its can- Tenth Amendments of the Constitution.
always
didate are
coordinated. See 148 After reviewing
case,
the record in this
Cong.
(daily
Rec. S2144
ed. Mar.
caselaw,
governing
and the
parties’
2002) (statement
McCain)
of Sen. John
lengthy
I
briefing,
find that
ar-
Plaintiffs’
(“We
believe
once a
has
candidate
guments lack merit and that Title I of
been nominated a
cannot coordinate
BCRA is constitutional.146
independent
with candidate and be
in the
campaign.”).
same election
I
Colorado
decades,
For well over two
the Commis-
notion,
disproves this
and Defendants have
sion has sought
regulate
the use of
put
no
forward
additional evidence to dem- nonfederal
funds
permitting the nation-
any special
that there are
corrup-
onstrate
al, state,
and local
party commit-
problems
tion
with having political parties
tees to
expenses
allocate
on “nonfederal”
independent expenditures
make
on behalf
activities between their federal and non-
I,
of their candidates. Colorado
518 U.S.
federal accounts. The vast
record
this
(“The
eral
as a Means of Financ-
subject
viduals were likewise
to an overall
ing Federal Elections
$25,000
annual limitation of
in total contri-
441a(a)(3).147
§
butions.
U.S.C.
These
length
As discussed at
per
cu-
limitations have been consistently upheld
opinion,
riam
Title I
by
was enacted
Congress
Supreme
combat
growing problem
Court. Buckley, 424 U.S.
23-38,
national committees of the
612; NRWC,
96 S.Ct.
459 U.S. at
parties
raising funds outside of
207-10,
657
expenditures
‘pre- 210-11,
dinated
as contributions
gress
tide of cor
the
to stem
po-
restrictions
bution
associated
problems
the
address
corruption
of
in-
appearance
the
ruption
funds
nonfederal
using
parties
litical
candidate
private
Mis-
of
regime
in a
See Shrink
exists
elections.
that
fluence federal
404,
897
Rent Con
Against
120 S.Ct.
Citizens
financing.
at
See
U.S.
528
souri
hold-
(“Buckley’s
Berke
J., concurring)
Housing v.
Fair
(Breyer,
trol/Coalition for
”),
branches
political
the
(“Citizens
454
to leave
Rent Control
Against
ing
ley
seems
regulating
enact laws
authority
434,
L.Ed.2d
290, 296-97, 102
70
broad
S.Ct.
U.S.
‘soft
form of
take the
that
single
contributions
(1981) (“Buckley identified
492
justifications
”)'.
primary
The
money.’
that limits on
the rule
exception to
narrow
unprece-
original nor
neither
Title I are
First
contrary to the
activity were
dented.
to the
exception relates
The
Amendment.
large con
influence of
undue
of
perception
Sufficiently
(a)
The Same
I Serves
Title
”);
....
to a candidate
tributors
Califor
Identified
Interests
Important
FEC, (“California Med.
v.
Med. Ass’n.
nia
Progeny
Buckley
its
182, 194-195,
Ass’n.”)
101 S.Ct.
U.S.
453
the same
fulfill
enacted
Title I was
(1981)
that
(noting
2712,
L.Ed.2d 567
69
the
corruption
“preventing
interests
limits
contribution
held
Buckley
the Buck-
corruption”
appearance of
inter
important governmental
“served the
FECA’s
support
had found
ley Court
ap
corruption or
preventing
ests
The Buck-
on contributions.152
limitations
pro
corruption of
of
pearance
contribution
FECA’s
held that
ley Court
if such contributions
might result
cess
sufficiently impor-
limitations served
Bellotti,
restrained”);
also
were not
corrup-
of
prevention
of “the
tant interests
(“The
26,
1407
n.
98 S.Ct.
at 788
435 U.S.
corruption
of
appearance
tion and
behind
enactment
concern
overriding
coercive
imagined
the real or
spawned by
Corrupt
Federal
as the
such
of statutes
contributions
financial
large
of
influence
corrup
problem
Act was the
of
Practices
ac-
and on
positions
candidates’
on
through the
representatives
of
tion
elected
424
Buckley,
to office.”
elected
tions if
impor
political debts.
of
creation
added).
(emphasis
25,
contribution
per
of cor-
com-
appearance
vice,
limit
worked on
corruption
$2500
imagined
after
mittee,
procedure,
the real or
they evolved
spawned
ruption
financial
with Nix-
large
contri-
consultation November
coercive influence
raisers,
positions and
down the $2
to break
candidates’
on fund
butions on
Id. at
to office.”
contribu-
if elected
into numerous smaller
actions
million
*439
added). Simply
in vari-
(emphasis
of committees
to hundreds
tions
96 S.Ct.
the
the
corruption with
then hold
equates
which could
Buckley
ous states
put,
to elect-
access
reelection
where
President’s
fundraising process
money for the
in
provided
producers
is
the
permit
candidates
campaign,
so as
ed officials
require-
large
reporting
contributions.153
exchange
independent
meet
for
23,
March
On
without disclosure.
ments
by the evi-
point is underscored
This
dairy organi-
1971,
meeting with
after a
opinion to
Buckley
inon
the
relied
dence
Nixon
President
representatives,
zation
of
Court’s discussion
Supreme
support the
of the
the decision
to overrule
decided
preventing
in
interest
government’s
the
and to increase
of
Secretary Agriculture
n.
96 S.Ct.
at 27
corruption. See id.
meetings
In the
supports.
price
of
the Court
evidence
(citing
in-
the
immediately followed
calls that
Buckley that relates
in
Appeals opinion
pre-
discussion
White House
ternal
who contribute
to donors
provided
access
days
two
public announcement
ceded the
Buckley
the
That
money).
large sums of
by
later,
meeting
in a
held
culminating
the
record from
to the
Court referred
of
at the direction
Kalmbach
Herbert
repeat-
opinion deserves
Appeals
of
Court
Ehrlichman,
dairymen were
the
John
in
that
it demonstrates
ing here because
immi-
likelihood of
informed
limi-
contribution
upholding the individual
that
the desire
increase and of
nent
FECA,
“corruption”
the
tations in
million pledge.
their $2
reaffirm
was the ac-
Buckley Court
concerned the
material,
present purposes,
is not
It
large
con-
cess to
candidates
in the
to review the extended discussion
Appeals
As the Court
tributors receive.
issue
the controverted
Report
Final
on
found:
was
decision
whether the President’s
the
perception
in
large
Looming
be, condi-
represented to
fact,
in
or was
the revela-
was
public
Congressmen
or “linked” to
upon
tioned
reaffir-
contribu-
concerning
tion
the extensive
pledge.
mation of
to Nixon
dairy organizations
tions by
(emphasis
at 839 n. 36
Buckley, 519 F.2d
meeting
raisers,
a
gain
fund
order to
in
omitted) (cited
added) (internal
in
citations
sup-
price
on
with White House officials
612).
27 n.
S.Ct.
$2,000,000 Buckley, 424 U.S. at
ports.
industry pledged
The
affirmed
Buckley,
in
Court
to The Circuit
pledge
a
campaign,
to the
known
Court,
it was
found that
officials,
Supreme
by
Pres-
with
"WhiteHouse
various
issue
disputed
unnecessary to review
by
directly
ident
informed
Nixon
Op.
generally Leon
put
corrupting.
teaching
Buckley’s
on constitution-
153. Given
restrictions,
that the
Buckley
progeny all instruct
and its
I can-
analysis
al
of contribution
point
fundraising process is
focal
theory
Judge
agree
Leon's
my dis-
analysis, as
restriction
analysis on
focus its
contribution
reviewing court should
section illustrates.
in this
cussion
a contribution
whether the use for which
of whether President Nixon’s
decision
The record
Congress
before
replete
was
price supports
actually changed by
was
with specific examples
improper
at-
$2,000,000
Instead,
contribution.
the Su-
tempts
governmental
to obtain
favor
preme Court found it sufficient that
large
return for
campaign contributions.
dairy
were given
farmers
to the
access
Buckley, 519 F.2d at
(emphasis
839 n. 37
President
his officials
exchange
added) (internal
omitted) (cited
citations
contribution.
corruption,
sizable
The
Buckley,
612);
sary
“calling
as a
something that
appearance of impropriety requires that
get
would
us in the door and make our
”
heard,
the
point
opportunity
abuse
view
inherent in the
response
“in
for
of
pressure
process
a competitive
raising large monetary
disad-
contri-
for fear of
of
vantage
might
eliminated.”)
added).
result.”
butions be
(emphasis
evidence
Appeals
requires
in the Court of
bribery
Court
support
evidence of
opinion relating
giving ambassadorships
in
a
point
contribution restriction. The
was
exchange
large
donations discusses the
only made to demonstrate that "while the
conviction of one fundraiser
18 U.S.C.
under
appointment
large
of
[to
contributors
ambas-
§
having promised
600 for
Ambas-
current
novel,” id.,
sadorships] is not
the activity sur-
prestigious post
sador a more
for a
return
rounding ambassadorships and the 1972 elec-
$100,000
split
contribution to be
between
tion "made the 1972 election a watershed for
designated by
Senate candidates
the White
public
system,”
confidence in the electoral
id.
campaign. Buckley,
House and the 1972
840;
at
see
(declining
also id. at 839 n. 36
Notably,
F.2d
840 n. 38.
at
the
did
conviction
rely
large
on evidence that a
was
contribution
not
involve federal candidate or officeholder
decision-making
connected to the
of the fed-
premise
therefore does not stand for the
official).
eral
that,
evidence,
citing
Supreme
the
appearance
the
against
safeguarding
est
understand-
Buckley Court’s
the
Given
opportu-
that the
requires
impropriety
surprising
it is not
corruption,
ing of
process
in the
inherent
nity for abuse
evidence
require
not
did
explicitly
be
contributions
monetary
raising large
candi-
officeholders
bribery of federal
eliminated.”).
limita-
the contribution
support
dates to
in discuss-
Hence,
clear that
very
it was
27,
Prevention of the
(1973))
of L.Ed.2d
added).
(emphasis
Corruption”
Picking up on this discussion from Buck-
ley,
Missouri,
in Shrink
Supreme
the
Additionally,
Buckley
Court ob-
Court observed:
only preferential
served
was
While neither law nor
given
access
morals
large
through
equate
contributors
all
political contributions,
fundraising process
corrupt-
more,
was
without
ing.
Supreme
bribes,
The
spoke
Court also
we
recognized
in Buckley of the
public
perception
perception
corruption
associated with
of
“inherent in a
a regime
large
of
regime
individual contributions
large
individual financial con-
undermined faith
the government
in
in the
tributions” to
public
candidates for
of-
public
large.
fice,
This concern was another
[Buckley,
Of almost
concern as the
swer to
danger
the overbreadth claim raised in
of actual quid pro quo arrangements
Buckley
case.
Id. at
96 S.Ct.
impact
appearance
corrup-
This
perfect
made
sense. Leave
stemming
tion
public awareness
the perception of impropriety unan-
the opportunities
swered,
abuse inherent
cynical
and the
assumption that
regime
individual
large
large
call
donors
the tune could jeopard-
financial
contributions_Congress
could legiti-
ize
willingness
of voters to
part
take
mately conclude that
the avoidance of
governance.
democratic
Democracy
appearance
improper
influence “is
“only
works
if the people have faith in
also critical ...
if
sys-
confidence
those who govern, and that
faith is
representative
tem of
Government is not
bound to be shattered when high offi-
to be eroded to a disastrous extent.”
cials
appointees
and their
engage in ac-
Buckley,
volves quid pro than a quo more corruption throughout tion of opinion his as arrangement ... improper well as as influ- something akin bribery. to See id. at Part by ence or conduct a donor that results in a ("there I.B.2 is no evidence in the record of legislator compliant who is too with the do- pro quid quo actual corruption”) (citing evi- nor”, (internal Op. Leon at quota- I.A.3 Part dence buying that there is no evidence of vote omitted), tion marks and Judge citations record). in the stating Leon-while the corrup- definition of individual, contribu- financial large Generating gime of Valley Mississippi v.
States recognized 294, tions, Supreme Court 562, 520, the 81 S.Ct. Co., 364 U.S. of individual that a circumvention (1961). Buckley L.Ed.2d aas serves also limitations contribution 390, 120 at Missouri, 528 U.S. Shrink restric- contribution justifying for basis II, recently, Colorado More 897. S.Ct. enactment, a do- Prior to BCRA’s tions. “corrup- that observed Supreme the Court $1,000 candi- give a limited to was nor pro only quid not understood tion [was] committee or her authorized his influ- date and as undue also but agreements, quo office. for Federal election any judgment, officeholder’s on an ence limit- donor was same § Colo- 441a. The influence.” of such U.S.C. appearance the $20,000 politi- 121 S.Ct. the II, aggregate at to an ed 533 U.S. rado and maintained established committees cal framework, it does Buckley the Within any calen- party in political by a national realize imagination too much not take Supreme Court Buckley, the In year. dar corruption associated appearance total $25,000 limitation FECA’s upheld donations nonfederal with make could an individual “Buck- that that contributions committees, given particularly finding In dangers year. any calendar during ley demonstrates suspi- constitutional, held and the Court corrupt provision contributions large, corrupt pro- upon are contributions large modest restraint quite cion that that “this implausible.” nor novel activity prevent neither serves tected 391, 120 Missouri, at U.S. limita- $1,000 Shrink contribution evasion dem- Buckley the evidence In con- S.Ct. might otherwise person who by a tion well-financed “corporations, onstrated to a money amounts of massive tribute had rich individuals groups, interest ... use through candidate particular was] [which ... contributions large made polit- candidate’s to the huge contributions why voters to show sufficient than more U.S. Buckley, 424 party.” ical identify big donation a tend would added). (emphasis S.Ct. 612 391, 120 S.Ct. Id. purpose.” corrupt $25,000 total contribu- upholding 838-40 F.2d at 897; Buckley, 519 see also limitation, “anti-circumven- under this tion revealed trend (discussing “the Supreme Court did theory, tion” 69.9 polls” that demonstrated bal- separate any constitutional engage gov- “the found individuals percent of words, Supreme ancing. In other big few run much pretty ernment $25,000 discussed whether never Court themselves”). looking out interests to match “closely drawn” was limitation therefore, Court, understood Buckley Instead, interest.” “sufficiently important pub- corruption” as “appearance *443 up- Court Supreme paragraph, in one call the “large donors that perception lic that it premise restriction held the in a donor exists inherently that tune” basic corollary of the than a “no more was large permits that system financed election limitation” individual contribution contributions. to already determined had Supreme Court 38, (in) Theory 96 as a Valid Id. at S.Ct. be Circumvention constitutional. Corruption Buckley, “anti-circumvention” Since Supreme by the upheld has been rationale corruption associated Aside from theory for well-accepted and is a Court to officehold- access preferential with the in area congressional action justifying through receive large ers that contributors II, 533 Colorado campaign finance. public and the process, fundraising that “all 456, (noting 121 2351 S.Ct. at in a re- U.S. inherent perception corruption
665
[Supreme]
agree
members of the
Defendant-Intervenors,
Court
words of
Con-
circumvention
theory
gress
valid
could preemptively act “to close
Ass’n.,
corruption”);
Med.
loopholes
453
prevent
and to
evasion of the
California
197-199,
at
101
2712 (plurality
U.S.
S.Ct.
contribution restrictions and limits estab-
opinion)
limitations
(upholding
FECA,
on contribu-
lished in
upheld
in Buckley
nonparty
tions
multicandidate
even in the absence of past abuses.”
committees under an anti-circumvention Def.-Int. Br. at 53.
noWith
evidence of
rationale).
provision
If the
in
evasion,
FECA limit- present
Supreme
Court
ing the total amount of contributions a Colorado II found that “[d]espite years of
could make
donor
was found constitutional
enforcement
limits,
of the challenged
sub-
by
Buckley
Court on the basis that it
stantial evidence demonstrates how candi-
designed
keep
dates,
donors,
was
the individual donor
parties
test the limits
intact,
restrictions
it
provi-
follows that the
law,
of the current
beyond
shows
sions in Title I-which
similarly
de-
serious doubt how contribution limits
signed
prevent
evasion of the individual
if
would
eroded
inducement to circum-
contribution
limits
FECA-are constitu- vent
them were
enhanced
declaring
tional.
parties’ coordinated spending
open.”
wide
II,
Colorado
U.S.
121 S.Ct.
II,
In Colorado
the Supreme Court
added).156
(emphasis
powerfully reaffirmed its commitment to
theory.
anti-circumvention
Colorado
The anti-circumvention rationale articu-
II,
456-65,
U.S.
[*]
[*]
[*]
[*]
[*]
^
which Defendants
again included
Court ob-
Supreme
The
litigation.
this
represents
sum,
Buckley decision
In
limiting
a restriction
bribery
are
that without
that
laws
served
understanding
expendi-
more subtle
parties’
coordinated
capture
enough to
financial
large
influences
would be
tures,
limitations
pervasive
contribution
on a donor-financed
can have
contributions
121 S.Ct.
Id. at
ineffective.
rendered
has
Court
Supreme
system.
election
(“If
spending
dollar
suddenly every
pro-
fundraising
that the
long understood
with the candidate
could
coordinated
corruption
cess, itself,
the source
would al-
circumvent
the inducement
in ex-
given
donations
large
when
intensify.”).
certainly
most
federal of-
influence
access to
change for
finding
support
The evidence
enacting
In
and candidates.
ficeholders
here,
briefly
repeating
because
bears
BCRA,
on this
Congress focused
I
Title of
II found
in Colorado
Supreme Court
re-
developed
had
problem
same
party, as
made to the
donations
funds.
fundraising
nonfederal
gard
candidate,
directly
opposed
given
influence
Party
the same
(iv)
pose
Political
Com-
can
coercive
Restrictions
Necessary
targeted to
Fundraising are
were
FECA
mittee
the restrictions
Sufficiently Im-
II,
Supreme
These
Effectuate
address.
Colorado
Interests
portant
“the
shows
record
Court observed
law substantial
present
under
that even
observes,
rise of soft
“the
As one scholar
into
matchmak
parties
turn
donations
disparity between
money, the enormous
receptions
special meetings
do-
ers whose
PAC
limits on individual
FECA’s
*445
give the donors the chance to
their
get
to the Wirth campaign but who wanted to
points across to the candidates.” Colorado do more
they
that
could raise money for
II,
461,
at
U.S.
The national political party
raising
committees
committees allow the national com-
request and encourage Members of Con- mittees to
par-
collect whatever amount a
gress to solicit nonfederal money donations
gives
ticular donor
in excess
the federal
contributors,
personal
and the
in-
funds
permitted
the candidate is
accept.
presented
158. The RNC
suggesting
testimony
RNC's Finance Director states that it
electing
its candidates is only one means
is rare for federal officials
make
initial
achieving
its core
principles.
personal
telephonic
major
solicitations
¶¶
Findings
It
claims it also
1.49.1.
1.49,
donors for the RNC because
RNC
has a
strives to
by pro-
achieve its core principles
policy against
practices.
Findings
such
moting
agenda
an issue
princi-
that reflects its
practices
¶ 1.54.
Whether such
are rare or
ples
governing
in accordance with its
not, Depart-
whether or not the Finance
¶
principles.
Id.
Its own internal
1.49.1.
policy,
ment has
such
the record is clear
documents
primary
show that its
purpose "is
solicitations,
that such
subsequent,
initial and
elect
public
its candidates to
office.” Id.
do occur.
Id. It is also clear that the Finance
Therefore,
testimony
electing
candi-
Director's statement does not extend to the
dates is not
purpose
RNC’s primary
NRSC or the NRCC. See id.
1.51.
rebutted and
upon.
cannot
relied
they have raised
the amounts
bers
by such
raised
funds
nonfederal
All
Id.
¶ 1.56.4.
Id.
committees.
respective
party.
togo
committees
joint
that:
Simpson testifies
Senator
Former
Id.
money to the
give soft
donors
“[w]hen
of reasons
a number
Members
least
there is sometimes
parties,
Dale
Senator
First,
former
oblige.
will
money
understanding that
implicit
bene-
testifies, helping
Bumpers
*448
a certain candidate.
to benefit
be used
party
it aids the
because
Member
fits the
they as-
that if
Likewise,
know
Members
keeping
of
its function
“perform[ing]
in
it hard
fundraising, be
party with
the
sist
of
statements,
votes
politics and
tabs on
will
assist
party
later
money, the
or soft
groups.”
members
party
opposition
¶
Id. 1.56.1.
campaign.”
their
offi-
¶
DSCC
DNC
Former
1.55.
Id.
Simpson’s observation
Senator
Former
raising
that
observes
Hickmott
cial Robert
understanding concern-
the donors’
about
helps
party also
political
for one’s
money
sup-
donations
party
of the
use
ing the
to maintain
efforts
party’s
the
A
in the record.
evidence
by other
ported
which serves
Congress,
control
obtain
an
with
an RNC contributor
Second,
letter
interests.
Id.
own
the Member’s
“Con-
that
states
contribution
enclosed
that while there
demonstrates
the record
most
[sic]
deserve
Mclnnis
Scott
gressman
that the
commitment
abe
formal
may not
¶
Id.
1.51.
credit.”
recruitment
the
national
spent by the
money
amount
that donors
lobbyist
a
testifies
Similarly,
be-
Members’
on their
committees
party
particu-
that
sure
making
interested
money are
amount
to the
half
connected
“credit”
receive
Congress
lar Members
is,
former Senator
raise,
there
they
for their contributions:
words,
working
“at least a
Boren’s
David
are
donations
officials
among
party
Although
[nonfederal]
understanding
party
to
being
made
technically
[nonfeder-
candidates that
and Senate
likely
committees,
will
are
savvy
candidate]
donors
by the
money [raised
al]
cam-
elected officials
carefully
Senators’
which
individual
choose
benefit
¶ 1.56.3, 1.56.4.
contributions.
Id.;
id.
for their
also
can take credit
paigns.”
or senior
Chairman
If a Committee
point,
this latter
regard
Leader-
House or Senate
member
in Colo-
already observed
Court
Supreme
contribu-
large
for a
and asks
calls
ship
system
bookkeeping”
II,
“informal
rado
national House
party’s
his or her
tion to
known as
the DSCC
within
developed
was
committee, and the
campaign
or Senate
designed
was
“tallying system,”
so,
key
to do
client is able
lobbyist’s
collecting
with
members
different
credit
credited
who is
official
elected
II, 538
Colorado
DSCC.
for the
donations
contribution,
possi-
bringing
(observing that
459,
The fact that federal officeholders are so hind the donation.... if Even some intimately involved the solicitation of members not events, did attend these nonfederal suggests funds that they are they all still knew which gave donors cognizant of the identities major of the large donations, as the party publicizes party national donors, committee which in who gives what. turn allows open them to their doors to ¶ these donors. fact, Id. 1.71-1.72. In Similarly, Id. Senator McCain observes evidence that demonstrates it is difficult that “[(legislators parties of both often for Members of Congress not to know the know who large soft money contribu- Republican Party. utor He states that almost all who Defendant-Intervenors were his nonfederal donations to the RNC and, were involved in the efforts to BCRA enact go intended to to state and local election Feingold, like Senator have made efforts to ¶ Findings activities. 1.56.2.1. This testimo- distance themselves from nonfederal fundrais- ny does not testimony rebut the of others that ing or had little interest in such information. such donations given are often for use in ¶ Moreover, Id. 1.71.1. these Members do ¶ 1.56.2, campaigns, federal id. prac- his speak claim to on behalf all of their giving tice of party national com- colleagues. Id. mittees to assist state local election activi- Senator McConnell attests typically he that ty appears exception to be an general to the does not history know donation Furthermore, nothing rule. pre- BCRA individuals with whom he meets. record Mclnerney vents Mr. donating nonfeder- demonstrates he is that aware donation funds parties al to state and local for use in history of major some of the donors to his state and local elections. campaign, sought and has nonfederal dona- Congress 161. Other Members of testily that tions from at least one donor had who donat- they personally unaware of who donates ed the maximum federal to his funds cam- however, parties; to the these paign. Members are Id. fundraising, in national ly involved are, those particularly to their tors part submitted money,” as documents soft as well have solicited who legislators that evidence record, powerful lobbyists provide often “[djonors or their and that provide money donations Senator nonfederal particular large inform a Id. Former Sena- influence federal donation.” access large a donors made such would Supreme testifies he candidly like tor Simon Just lawmakers.162 large to a telephone call I find Buckley, likely panel return issued Court Id. calls. making other access examples before specific contributor this evidence-of aof consequence Accordingly, either as contributors-probative large given as a result system, or election donor-based compelling. officeholders candidates of federal testify prominent lobbyists Numerous funds of nonfederal amounts
raising large to Members access in order to have candidates federal parties, the national lob must combine clients Congress, large makes who know officeholders nonfederal sizeable bying efforts with party commit- national to the donations Failure to Id. 1.75.1. money donations. special ac- leads to tees, inevitably which Rozen, so, lobbyist Robert according to do to influence donors these cess for ability be treated “to hinder a client’s will lawmakers. he Washington,” by seriously in Pro- Donations Funds Large access” means, and to have player “to be Nonfederal *450 Access to Federal vide Contributors “relationships [with that explains Office- He Id. holders be are established Congress] Members money, relation give a lot of people cause addition, clearly estab- record
In deepened because and are are built ships money contrib- large nonfederal lishes that gets money, and more to of more special access with provided utors are getting to the threshold par you across in a manner on officeholders want, you have estab because you donors discussed large individual access ¶ ¶¶ The 1.75-1.80.1, 1.74.1. relationship.” This Id. 1.81. Buckley. Id. lished opportu- this case testify donors with lobbyists these provides access who other activity, Murray, who concur, Daniel legislative to influence including nities “hafye] made large funds, donations are be major reason is a that nonfederal *451 political to the parties do so because it has is often directly correlated to the provides special them with access to law- amount money of that he or she and his or makers which allows them to leg- influence her infuse political clients into the system.” ¶ islation.163 Id. 1.75.2. Senator Rudman ¶ added). Id. (emphasis 1.75.1.3 fact, In blunt: Andrews notes that many lobbyists have Special give interests who large amounts taken to hosting themselves, fundraisers of soft money political to parties in provide which do them with an opportunity to fact objectives. achieve their interact They do with in lawmakers a setting of get special access. Sitting their choosing and concludes that Senators “[t]hose who House are most Members have limited heavily involved amounts giving in time, of raising campaign they but money finance make time in are available frequently, and not their surprisingly, schedules to lobby- representa- meet with ists with the most tives of clout.” Id. lobbyist The business and unions and wealthy whom Plaintiffs tout claiming as gave he can individuals who large sums to their achieve special parties. access his clients re- These are not idle chit-chats gardless of their contribution history, can about philosophy democracy. provide that part access in po- because of these meetings, special interests, these 163. Some Defendant-Intervenors in this Congress case speak do not claim to their testify they personally that provide do not colleagues colleagues’ or contradict their tes- special large access to donors of timony nonfederal that provided access major such to ¶ Findings funds. Id.; ¶ 1.75.2.1. These Members donors. see also id. 1.75.2. (“CED”) found Development for Economic press lobbyists, accompanied
often that said surveyed those percent either that who officials—Senators elected an advan- them give interest donations special “political from money raised ¶¶ Id. 1.70.1- directly shaping legislation.” or tage in who benefit question in ¶ to the contributions their 1.70.1.1. indirectly adopt their position
Senator’s large donate who Wealthy individuals —to Sena- to them. interest aon matter that share funds also sums of nonfederal to by their benefactors pressed tors af- access unique with provided they were legisla- to amend legislation, introduce to contributions large made ter and to vote tion, legislation, to block individ- 1.75.5. One Id. parties. political one way. No a certain in legislation $500,000 he that after made ual testifies do money you should so gave says: “We invited he to the DNC was contribution say needs to one help us.” No this to President Clin- where of events a number par- all understood perfectly it—it is attendance, a small including inwas ton meeting. every such in ticipants and Vice President Clinton dinner Id. op- that was billed Gore President corporate nonfederal President.” advice to the “give
Representatives portunity for- lobbyists’ speak opportunity echo money donors Id. He used the that nonfederal testimony and to Members’ finance campaign mer reform favor of Id. leadership 1.75.3. beget access. donations to take a the President urge tes- United Airlines Emeritus of Chairman testi- Id. Another donor in the effort. role pro- donations large nonfederal that tifies pro- $50,000 political donations fies with benefits: vide donors opportunity him and his wife vided influence Wash- access and includ- people, namely, 10 to 12 a dinner of attend money check soft Though a ington. Clinton, two to lasted ing President party, to a made out might be a con- “primarily and involved three hours leaders know and business labor to the importance about issues versation to the of- open the doors checks those Id. program.” and the President’s nation Mem- important individual and fices of states wealthy contributor who One the Administra- Congress and bers of parties give he does opportunity tion, donors giving admits special access to secure order union’s corporation’s argue for opportunities. such offered he has been *452 statute, regula- particular a position on Id. tion, action. governmental other compelling record establishes The contains internal documents The Id. record money do- large nonfederal fashion ¶¶ 1.75.3, Id. this view. support which office- to federal provided are access nors corporate internal memoran- 1.78.1. One exchange for and candidates holders and the re- “contributions dum states parties Political large contributions. their participated we have lated activities access to facilitating this play a role ability to increased key to our have been influence. by right policy heard our views get Facilitate Party Committees National The words, basis; in other timely a makers on Their Federal Access Officeholders addi- Id. 1.75.3. In a investment.” smart Donors Large Nonfederal tion, sample of 300 a random a poll congres- and their parties political Both major employed by executives corporate access to dangled have sional committees Tar- by the corporations conducted U.S. as an inducement Congress the Committee Members Group rance on behalf collect larger donors; contributions from major ¶ these donor events. Id. 1.75.5. these donations often take the form of The events speeches, “include question and ¶¶ nonfederal funds. Id. 1.76-1.77.10. In sessions, answer and group policy discus- fact, political parties have institutional- sions, but there also time to talk to process ized this by creating clubs for Members individually about substantive is- different ranges donations; as dona- sues.” Id. One witness that, testifies escalate, tions so do the opportunities to given “when the opportunity, some donors special attend events with Members of try pigeonhole or corner Members ... Congress as well as the intimacy of these to discuss their issues at these events.” events. Id. For example, the NRCC’s Id. One donor to the RNC’s Team a Congressional Forum “designed was club that requires $100,000 a donation ev- give [$15,000 its members PAC or individ- ery years $25,000 four donations in $20,000 ual contributors or corporate con- each year, intervening wrote to the RNC tributors] an intimate setting to develop him, Chairman telling “I do feel I have stronger working relationships with the benefitted from Team 100 in the Republican new audience Congressional majority.” ¶ it Id. has afforded 1.77.2. The me with party Group NRSC’s 21 re- leaders.” ¶ quired Id.; an annual $100,000 donation of see also id. 1.77.1 (describing the provided members small dinners with Sen- Team 100 program). Lobbyist Robert ators and “VIP benefits.” The Id. DCCC Rozen describes the provided access $100,000 also had donor club called the other party events: Board,” “National Finance provided which [S]oft money contributions built around private donors “two dinners with Leader sporting events such Super as the Bowl Gephardt, Lowey, Chairwoman House or the Kentucky Derby, you where Democratic Leadership and Ranking spend might a week Member, with the and] two retreats with Leader Members! ” are even more useful. At the events Gephardt and Chairwoman Lowey .... ¶ that contributors Id. 1.77.5. entitled to attend state parties a result of contributions, also used special enticement of some access to federal candidates induce contributors larg- subtly will or not-so-subtly er donations. Id. 1.77.6. The best legislative ex- discuss a issue that they have ample of this is a CDP brochure advertis- an interest in. Contributors also use ing the CDP’s Trustees program, the events to establish relationships and required $100,000 donation to the CDP. then take advantage of the access Id. The CDP “recognizes its extraordinary later calling the Member about a legisla- supporters with extraordinary opportuni- tive issue or coming back and seeing the ties,” provides “Trustees” with “[ex- Member in or her his office. Obviously clusive briefings, receptions meetings from the perspective, Member’s with officials such as U.S. Senator Dianne hard to turn down request for a meet- Feinstein, U.S. Senator Barbara Boxer *453 ing you after just spent a weekend with ... and other figures.” national Id. a contributor just whose company gave a Large contributions have therefore be- large your to political contribution party. come price the of to admission attend ¶ Id. 1.77.9. A Fortune 100 company’s events where relationships can be formed internal department justified with lobbying Members of Congress its legislative and issues request can be for a discussed. million $1.4 nonfederal Individual funds wealthy testify (from donors budget that “[p]olicy for FY dis- general its trea- cussion with federal officials occurs sury) part at” noting: to access facilitate also parties The number in the [sic] significant to a due their do- of outside Congress for of parties Members the scheduled events of Beverly According to Ms. opportuni- of nor events. donors, number
their “policy” Division’s relationships with Finance Shea, the RNC develop to ... ties to officeholders has officials “force” federal not administration is to and elected pass parties donors, may it As the that but with greater.1 meet been never money soft for scheduler to a Member’s vigorously along requests more compete member,164 of quality and dollars, a Team 100 the number is say “this and with both Id. interacting in.” fit them if you could you events see could file Members and be ¶ rank appears and to leadership This statement 1.76.1. Between increased. greatly demon- the record Nothing has been accurate. (DNC, DSCC, literally main committees six have meetings been that strates NRSC) NRCC, there are RNC, DCCC, Howev- Congress. of on Members forced [Washington, out of in and events both RNC offi- that er, ample evidence there the week. day of every almost D.C.] of Members with meetings request cials donors, ¶ which large behalf of Congress Id. 1.78.1. gener- bluntly donor’s or state intimate parties by the touted These events few exam- party. A political osity to discuss issues and meet opportunities as ¶ Divi- RNC Finance how the Id. 1.77.8. Congress. ples illustrate Members with McConnell, The Chairman operates. as head policy Senator sion’s example, For following letter note NRSC, handwrote wrote solicitation the RNC Republican Senate Dole: Robert Majority that Leader noted Senate which contribution) ($5,000 PAC annual Council Dear Bob ($25,000 Foundation the Chairman’s and Pfizer, asked has [_], CEO “excellent provide gift) corporate annual loyal extremely He is you on Wed. 11/1. executives corporate for both opportunities longwind- He also not generous. and to meet representatives Washington and business and to his He’ll tend ed. leading with issues current discuss and proposed They time. have extra up eat sought The RNC Senators.” Republican § 986 solu- ] Revenue Code a [Internal Annual part as its $250,000 donations William] [Republican Senator that tion breakfast Gala, such donors offered and Congressman [Republican Roth Majority Leader the Senate with I’m sure considering. Archer are Bill] House, a “[l]un- well as Speaker of if appreciate I’d issue. is the Senate House and Republican cheon with [him], Haley. [signed] you’d see House Republican Leadership and meeting ¶ appeal for Another Id. 1.76. your Chairmen Committee Senate access between the connection makes Furthermore, Id. choice.” let- An RNC apparent. more money even as to requests accept donor parties asks Hagel, Senator to a staffer ter sent at their like seated they would Member a donor with Hagel meet Senator Id. dinners. table runs including: “[h]e “key” reasons four donors record shows 1.77.7. business,” and $80,000,000 high tech [sic] specific Mem- seated request $100,000 to the just contributed “[h]e particu- sit on who Members bers with offi- RNC appears that also Id. It RNC.” requests these committees, lar “requests” are so confident cials Id. met. been *454 intervening year. $25,000 each donations requir- donor club an RNC Team ¶ Findings 158. $100,000 every years, and four ing a donation meetings for large with donors will be Donors Contribute Large Nonfederal granted are offered to donors in Money Donations to the National Party making advance of requests such to the Committees For the Purpose Obtaining Member or the Member’s staff. A letter Access to Federal Officeholders from the RNC’s Team 100 director thanks It is clear that donors understand the a donor for “facilitating Dow [Chemical]’s system. The record is replete with exam- generous contribution Republican to the ples give donors who donations for the Party” and tells the donor: “Give me a call purpose of obtaining access to federal law- ... and we can figure out when good is a makers thereby government influence bring your time to Dow [Chemical] leader- ¶¶ policy. Id. Perhaps 1.74-1.74.5. Roger ship into town to see [RNC Chairman] Tamraz —made famous his testimony Haley [Barbour], [Senate Majority Leader during Thompson Committee Hear- Robert] Dole [Speaker & of the House] ings it up best when he was —summed Newt [Gingrich].” Id. if asked he made contributions to the DNC practice This is not limited to the RNC. because he believed it might get him ac- The former head of the DNC testifies: responded: cess and “Senator, I’m going ” Party government partici- officials even farther. It’s only reason .... pate in raising large contributions from ¶ Id. 1.74.3. Mr. Tamraz is not alone. interests that have matters pending be- political One wealthy fundraiser observes fore agencies, Executive the Congress, that “many soft money donations are not government agencies. other Party given personal or philosophical reasons. officials, who are not themselves elected They are given by donors with a lot of
officials, offer large money donors money who believe they need to invest in opportunities to meet with gov- senior federal officeholders protect who can ernment officials. Donors use op- these specific advance through interests policy portunities House congres- —White action or inaction.” Id. He notes that sional meetings press their views on —to some nonfederal money give donors matters pending before government. “$250,000, $500,000, more, year after Id. year,” and that for this kind of investment
On “you some return,” occasions the need connection be- to see a just any like tween access and donations has other been made investment. Id. Other witnesses ex- even more obvious. Call perienced with sheets donations also de- record from the DNC and the CDP include scribe these donations “investment” such instructions as “Ask her to “the 80k or cost of give doing business.” Id. One more this year lunch with” President CEO that achieving comments access is Clinton, and ask “if they might important corporate be able to givers $25,000 do for a small mtg with “[f]ederal the Presi- officeholders actually appear to ¶ dent.” Id. 1.77.10. have sold themselves party cheap- and the They ly. could have gotten even more sum, the record reflects that money, potential because impor- parties facilitate access candi- tance of their decisions to the affected dates and officeholders exchange for businesses.” Id. large nonfederal funds donations. It also reflects major that some donors admit These donors have also discovered that they contribute funds, nonfederal not to nonfederal donations more effective at help gain but to building, access obtaining access federal lawmakers than to federal candidates and officeholders. federal contributions. Id. 1.78. As for- *455 your likely get to are more contributions and current official DSCC and
mer DNC Mem- into the you get or returned call “If observes: Hickmott Robert lobbyist money hard than office smaller ber’s of Con- Members know to get to you want contributions. it is Congress, of Members newor gress, that, in abundantly clear such, it is to As $15,000 Id. a check write to more effiSient donors majority major of large a general, to opportunity get to and the DSCC party political funds to nonfederal of it events than various at the them meet money gain to this contribute committees to $1,000 checks fifteen write to would be candi- and officeholders to federal access Senators, and Senators or different fifteen philosophy political support not a to dates is echoed This sentiment Id. candidates.” The fact activities. building” “party con- major party lobbyists by various give to funds donors major nonfederal that *456 ¶ The record also contains evidence that id 1.79. The Washington Post had list- political parties exploit contributors’ ed the company as top donor to the losing fears of they access if back one Republican party. Id. A handwritten no- political party and that party loses control tation on a photocopy of the says article Congress. of One CEO describes the situ- “Dems upset .... White stays House ation way: this trouble,” Dem we are in and an internal you’re giving [I]f a lot of soft to money memorandum refers to discussions with side, one the other side knows. For the White House indicating that Lilly Eli many economically-oriented donors, “can back get into this by giving there is risk in side, to giving only one $50[,000]100,000 to the DNCsays because the other side may read pleased would be with this.” Id. through reports FEC and have staff or a Another good example of practice this friendly lobbyist call and indicate that giving political to both parties is that in someone with interests before a certain 2000, a Fortune 100 company agreed to committee has had their contributions to $25,000 contribute to the NRSC at the the other side They’ll noticed. get a request Allen, of George the then-Republi- message that basically asks: “Are you can-candidate in the 2000 Senatorial race you sure want to be giving only to one in Virginia against incumbent Senator you side? Don’t want to have on friends Chuck Robb. An employee noted that the both sides of the your If aisle?” inter- company had donated to Senator Robb’s subject ests are anger to from the other Leadership PAC and that a similar contri- aisle, side of the you need to fear that bution to the NRSC was necessary to bal- you may suffer a penalty you if don’t ance out company’s support for the give. all, First of it’s hard get to atten- candidates. Id. tion for if your issue you’re not giving. The Tarrance Group/CED Then, poll busi- you’ve once decided to play the ness leaders found percent that 74 money game, you re- to worry about spondents “say pressure imbalanced, placed being on especially if there’s business leaders bipartisan to make large political control or influence Wash- donations. ington, main usually fact, corporate there In reasons is. during 1990’s, political America makes contributions, it became more acceptable more someone, to call executives said is fear saying retribution and you saw he gave buy ¶ person, access to so he lawmakers.” Id. 1.70.1.
should give also you person’s poll Another conducted in major 1997 of opponent. Referring to congressional fi- someone’s donors found that per- activity nancial arena cent of those agreed surveyed that “of- used clearly limits, to be off and now it’s ficeholders regularly pressure donors for increasingly ¶ common. contributions.” Id. 1.70.3.166 Lobbyist ¶ ¶ 1.80; Robert provides Rozen (facts Id. also context for this id. 1.70-1.70.4 fear: regarding pressure placed do-
nors). An internal Eli Lilly and Company corporations some cases and trade document shows these concerns action. associations do want to give in obtaining special legislators access to paign system influ- finance was either “broken ence them incompatible are neither nor mutu- replaced,” needs to be problems or "has ally exclusive. changed.” needs to be Id. 1.70.3. Three- quarters respondents supported a "ban on poll 166. The also percent showed that 76 large money' 'soft donations.” Id. major surveyed donors believed the cam- effectively block access can limits, tions but money the hard over amounts “It is put it: As CEO one lawmakers. greater give pressured they feel dona- money soft large me that money obvious to making soft up end amounts *457 can influence access, they that buy do tions pres- are under They as well. donations corrupting they are that policy, and sometimes sure, subtle sometimes to donors. officeholders to federal at levels to give direct, Members from to donations these unlimited Additionally, For limits. money hard than higher risk greater a far pose political parties to position ain Members example, some candi- to money contributions hard than do in- to an important legislation (cid:127)influence if not the appearance, least the of at dates why company a wonder naturally dustry on fed- influence special interest reality, of in participating industry that in ¶ 1.83.6; gener- see Findings policy.” eral fundraising events. demon- poll results (testimony and ally id. ¶ Boren notes Senator Former
Id. 1.70.2.
find the
donors
wealthy individual
strating
they
that
feel
donors
political
that
corrupt
either
system as
finance
campaign
¶
Id. 1.70.4.
down[s].”
“shake[ ]
of
victims
corrup-
of
appearance
creating the
For-
a
from
memorandum
internal
One
tion).
sum,
demonstrates
evidence
“our tradi-
that
company notes
tune
money
of nonfederal
donors
major
that
contribute
to
continue
competitors
tional
to the
contributions
give these
primarily
predict-
money,”
soft
of
amounts
large
fed-
to
access
gain
to
committees
national
mon-
soft
our
to “maintain
failure
ed that
record
Notably,
officeholders.
eral
cy-
this election
during
ey participation
major nonfederal
that
demonstrates
also
scrutiny those
heightened
given the
cle—
and local
state
to the
give
money donors
the current
in
will receive
contributions
of-
of federal
benefit
for the
committees
new
our
may give
competitive climate —
and candidates.
ficeholders
advantage
competitors
traditional
Cognizant
Are
Federal Candidates
¶
in
(emphasis
Id.
1.78.1
Washington”.
Money Do-
Having
at
Nonfederal
519 F.2d
Buckley,
Benefits
also
original);
Parties
to State
Contribute
nors
illegal cor-
(“The
disclosures
n. 37
in 1972 included
that
understand
porate contributions
candidates
Federal
they were
to the
made
testimony of executives
from donations
benefit
can
was
dis-
that this
perception
The evidence
parties.
motivated
state
pressure
to
that candidates
response
‘in
...
necessary
demonstrates
cussed infra
disadvantage
parties
to the state
competitive
contributions
fear of
solicit
”)
for-
campaigns.
statement
(quoting
result.’
might
assist
infra
Airlines,
evi-
probative
most
However,
perhaps
American
chairman
mer
omitted)
(internal
candidates
importance federal
citations
Spater)
George
dence
writ-
27 n.
letter
(cited
Buckley, 424 U.S.
contributions
place
such
to one
612).
Mitch McConnell
ten
Senator
S.Ct.
writes:
contributors. He
his
clearly indi-
above
detailed
The evidence
legal
have contributed
you
Since
par-
large donations
cates
Senate
the McConnell
donations,
maximum
open
ties, especially nonfederal
Committee,
you to know
I wanted
offices.
lawmakers’
doors to federal
Victory
contribute
you can still
also true:
reverse is
that the
shows
record
was
program
This
....
program
dona-
large nonfederal
provide
failure
Find-
RNC. See
from the
assistance
designed
programs
Victory programs are
¶¶
conjunction
ings
parties
1.43.2.
Republican
by the state
by the state
implemented
with the RNC
an important part of President George
three-judge panel that federal bribery or
impressive
W. Bush’s
victory
Ken- gratuity laws have been violated in ex-
tucky
year,
last
and it will be critical to
change
funds,
for nonfederal
see Findings
my race and
year.
others next
¶ 1.64, that is not what Buckley requires as
Id.
1.60. Senator McConnell
also hand-
basis for support of a contribution re-
wrote:
important
“This is
me.
Hope
striction. As Buckley observed, bribery
you
Id;
(letter
can help.”
see also id.
laws “deal with only the most blatant and
Congressman
Wayne
explain-
Allard
specific attempts of those with money to
ing to a contributor that although maxing
government
influence
action.” Buckley, 424
*458
out to his campaign, the contributor could
U.S. at
These additional facts confirm that non-
in
process
inherent
of raising large
federal donations
political
to the state
par- monetary
contributions.”
Id. at
ties affect federal elections and are valued S.Ct. 612. Former Senator Rudman
by federal candidates.
It
is therefore
speaks to
point:
this
clear that such donations to
political
state
I understand that
those who opposed
parties can result in access to federal offi-
passage of
Bipartisan
Campaign
cials while also providing a route to cir-
Act,
Reform
and those who now chal-
cumvent FECA’s limitations.
its
lenge
Court,
in
constitutionality
dare
Political Donations Achieve Political Re-
elected officials
point
to
to specific [in-
sults
stances of vote buying].
I think this
As
earlier,
discussed at length
in the
point
misses the
altogether.
[The ac-
context of supporting contribution restric-
and
cess
influence accorded large do-
tions, Buckley and its progeny do not re-
nors]
is inherently, endemically, and
quire evidence
large
that
contributions to
hopelessly corrupting. You can’t swim
candidates were conditioned
upon certain
in the ocean
wet;
without getting
you
decision by a federal officeholder or candi-
can’t
part
this system
without get-
date. Buckley,
(cited
sidered
escalates
policymaker
drivers
truck
tributor
of their
coverage
shift
contribution,”
recom-
Act
Relations
the size
Labor
the National
potential
air-
reduce
includes
Act,
that “[t]o
which
mends
Railway
Congress
This was
I recommend
corruption,
railroads.
lines,
pilots
Express,
contributions
money
Federal
hard
cap
place
clearly
benefit
reports
banned,
limits
published
raise the
or,
according
money
if soft
the last
1.69.
million
Id.
contributions.”
money
$1.4
contributed
on hard
had
Members
to incumbent
cycle
2-year
no
contains
Therefore,
the record
while
in soft
million
almost $1
Congress
bribery laws
that federal
evidence
op-
I
parties.
to the
money
required
broken-something
been
Caucus,
Democratic
in the
posed
re-
contribution
Buckley
support
legisla-
good
if it was
even
arguing
record
in the case-the
at issue
strictions
without
approved
tion,
not be
it should
showing
examples
contain certain
does
*459
cave in
not
should
hearing, we
holding
results
legislative
achieves
access
that
senior
my
of
One
interests.
special
to
arrange-
such
potential for
creates
said,
tired of
T’m
up and
got
colleagues
¶¶ 1.63,
Even
1.68.
Findings
ments.
inter-
special
talking
always
about
Paul
evidence,
provided
access
without
to who
attention
pay
to
ests;
got
we’ve
by
candidates
federal officeholders
to
never
I will
our bread.’
buttering
than
is more
committees
party
political
example of
a clear
This was
forget that.
decision
justify Congress’s
sufficient
on the
way, not
their
getting
donors
I.
Title
enact
just be-
but
legislation,
of the
merits
Appear-
Data Demonstrates
Polling
I
big contributors.
been
they had
cause
Large Do-
Relating to
Corruption
ance of
that
question
any
there
not think
do
Parties
Political
to the
nations
passed.
this is
reason
demonstrates
in the record
Evidence
II,
¶
1.66;
Colorado
see also
Findings
the exis-
response to
public,
that
(2001)
12,
greater percentage, percent, Report believe Constit- uents Are Concerned About Large that Members are more Contri- likely to listen to butions Political Parties large Which Demon- party contributors because of their strates an Appearance Corruption contributions, percent and 68 think that big political parties contributors have data, addition to the polling Members blocked decisions govern- the federal Congress expressed concern that ment that improve could people’s large everyday contributions to parties *460 lives. Id. appearance create the poll also of corruption reflects that the in the ¶ eyes of their public perceives constituents. that their Id. 1.83.3. given are views Among them former Simpson, is Senator less attention than those of large contribu- who testifies that during “[b]oth and after Eighty-one percent tors. polled those my Senate, service in the I have seen that believe that views of corpora- the those citizens both parties cynical are as about tions, unions, interest groups or individuals government they have ever been be- $50,000 who donate political more ato cause of the corrupting effects of unlimited party would likely special receive consider- money soft donations.” Id. Representative ation from Members of Congress, while Asa Hutchinson wrote to the RNC Chair- only 24 percent believe a Member is “like- man that he support could not the RNC’s ly give opinion to the from someone like proposed campaign finance bill because he special them consideration.” Id. had to balance the RNC’s concerns Professor Shapiro’s Robert review of with a my concern of constituents which public opinion polls conducted since 1990 is that their in politics influence being is confirms the Mellman and Wirthlin conclu- diminished the abuses of money soft large sion that .... If nonfederal our is contributions unable to enact meaningful campaign are viewed as finance corrupting by public. the reform ¶ while we’re Congress, in control of Id. 1.83.2. then public He concludes that I believe this failure to act will result troubled opposes is and large unregulated cynicism more and create a growing lack nonfederal political par- contributions to of confidence our efforts. ties, that “a substantial proportion of the public Id. perceived has corruption in the po- system,
litical and that we are losing Members of Congress have also ex- ground.” Id. pressed concern over the appearance of skeptical average American makes intersection in the inherent corruption Such is fair. process that the action legislative and
large contributions le- about questions the contributors. doubts raise to concern on issues not are politicians if Even testifies: gitimacy. McCain Senator example, For minimal has been there corrupt corruption] [of appearance [TJhere’s —and is claim—there prove to contribu- evidence million dollar there’s when corrup- appearance certainly of dollars millions Merck from tion held, you that fundraiser tion .... last your pre- progress no parties there that then help matters not It does a ter- There’s program. drug in cam- scription race the arms contribute terri- There’s a there. appearance money parties rible using soft By paigns. Drug the Generic when appearance ble Candidates in elections. raise ante through 78 votes Bill, passes interest parties feel vulnerable brought to be Senate, not allowed ads so issue sponsor groups huge shortly after a the House up in Campaign money ever. than raise more con- dollar multimillion with fundraiser to a fights side as each costs increase drug pharmaceutical tributions cam- Thus, foraging .... draw legis- to the opposed who companies perspec- money contributes paign lation. system. corrupts money tive addition, Feingold Senator Id. 1.83.4. ¶ 1.83.7. Id. $200,000contribution “a remarked has Mem- testimony demonstrates This House marked after the days given [was] political scientists Congress bers of OK, it is by MBNA. bankruptcy bill up a disaffection public’s aware of were not Maybe it is illegal. Conceded. nonfed- system, finance campaign ap- has the certainly corrupt, but even to BCRA’s prior particular, money in eral I think me and corruption pearance enactment. Id. people.” many Conclusion up picked are often these Examples like I, clearly was Congress Title In enacting sample by the evidenced press, as by the *461 “coer- between parallels of the aware Id. by Defendants. provided articles press donations of unlimited influence” cive (Senator Simpson ¶ 1.83.5; id. see also by FECA’s addressed candidates federal the effect on expert Primo and Plaintiffs’ limitations, the “coercive and contribution public’s perception reports on press of money donations of nonfederal 519 influence” Buckley, F.2d corruption); of cf. party committees political national percep- in the to the large (“Looming 839 n. I. Title supports was Congressmen asserts government and public tion of the Report at See, Thompson the extensive Committee concerning e.g., the revelation (“No deny dairy organizations one can report) (minority contributions raisers, gain order substantial fund who contribute Nixon individuals officials likely House White meeting with to candidates money of sums price supports.”). And officials. to elected more access brings greater access us think of most Raja La comments: expert
Plaintiffs’
concern
It was
greater
influence.
of
central claim
ignore the
cannot
[0]ne
money, access
between
linkages
over
electoral
the cash-based
reformers
Richard
allegations
influence—amid
po-
fosters mistrust
environment
cam-
presidential
Nixon’s 1968
Observing the amounts
system.
litical
contributions
individual
accepted
paigns
campaigns
spent
money
raised
thousands,
millions,
hundreds
even
BCRA,
of Prior to
federal candidates and
spurred
dollars —that
Congress to enact
officials assisted their
political
national
original
campaign finance laws. While party
committees
raising enormous
those laws have
over the
evolved
20 years
funds
only
well outside FECA’s
time,
goals
since
have remained
limitations,
amount
but
also outside
prevent
wealthy private
same:
in- FECA’s source limitations.
large
from exercising disproportionate
terests
nonfederal money
primari-
donations were
influence over the government,
to deter
ly given for one purpose:
they provided
corruption,
voters.”);
and to inform
access to federal officeholders in order to
(“Sim-
also
id.
42-43 (majority report)
exert influence over
legislative
federal
ac-
ply put,
years
Congress passed
after
tivity. Buckley progeny
its
hold that
election reform laws intended to insulate
Congress has
authority
broad
to combat
the President from
unseemly
po-
corruption
associated with this situa-
tentially corrupting involvement with cam-
tion. The corruption associated with non-
paign money,
spent
President Clinton
donations to
party com-
enormous amounts of time during the 1996
mittees,
appearance
and the
corruption
cycle
election
raising money.
In the ten
in the
public,
mind of the
pres-
therefore
prior
election,
months
to the 1996
Presi-
ents a
justification
compelling
for Con-
dent Clinton attended more than 230 fund-
gress’s enactment of Title I.
events,
raising
$119,000,000.
which raised
The President
pace
maintained such a
(2) Evidence From the Record in this
year
election,
over a
before the
often at-
Relating
Case
to Circumvention
tending fundraisers
days
five and six
each
week. According to Presidential campaign
Before turning to the evidence of cir-
Morris,
Dick
advisor
President Clinton cumvention in the record, it
repeat-
bears
say
would
“I
slept
haven’t
in three days;
ing that
the record
the Supreme
before
I
every time
turn
around
want me to
Court
Colorado II contained no actual
be at a
think,
fundraiser
...
I cannot
I
evidence of
parties
unlim-
making
cannot do anything. Every
my
minute of
ited
expenditures,
coordinated
just
but
spent
time is
at these fundraisers.” This hypothesis of what could occur if the
pursuit
frenzied
campaign
contributions
“floodgates”
practice
to this
opened.
were
raises obvious and disturbing questions.
II,
Colorado
leads me issue that the RNC’s acknowledges who Raja: La Raymond expert Plaintiffs’ achieving aimed are advocacy efforts rules, par- money soft By exploiting candi- more getting objective of primary ceil- sidestep federal effectively ties ¶ 1.19, Many elected, 1.13. id. dates allocating them from prevent ings that a candi- on focus these advertisements con- in the closest efficiently resources (with- past actions characteristics date’s the federal around navigate To tests. event), legislative to a future out reference parties money the on soft restrictions Congres- that noted as one such with their ties close developed raise taxes voted to had candidate sional re- these affiliates because parties state and government, local and state while build- party for exemptions special ceive your think you “If the line: concluded activity. ing [_]. ... Call enough taxes family pays notes, ¶ Raja LaAs 1.69. Findings Id. taxes”. raising your stop her to Tell nonfed- have used parties political national by polit- ¶ run advertisements 1.14. Other themselves, through their eral funds records past compare the parties ical to affect counterparts, party state and loaded in a stark competing candidates spirit, if elections, in contravention ¶ advertise- 1.15. One such Id. fashion. letter, FECÁ. not “the candidate was that one ment stated use nonfed- parties political The national did not Congress who only member de- electioneering purposes, eral funds molester child when a parents to tell want permit- funds are that such fact spite the that but neighborhood” into their moved they that be used the rationale ted under protect our laws that “supports the other ¶ Id. 1.41. activities. building” “party jail criminals keep violent children political parties that shows The evidence such Id. Another terms.” full for their funds the nonfederal deal great spend a one candi- viewers that told advertisement advocacy, id. issue raise that program “is a welfare supported date testimony political 1.23-1.25, from self- pride and responsibility, restoring as docu- experts, as well party officials against worth,” the other “voted but that record, very few of show ments in recipients welfare moving able-bodied are aimed these advertisements origi- (emphasis Id. work.” welfare to affect designed are rather building, but nal). advertisements that such notion The federal elections. and not promote issues intended are Spend Party credulity. Committees strains campaigns political The National Advocacy” on “Issue Funds Nonfederal submitted shows evidence empirical In- Designed to Are That Advertisements party advertisements political Elections Federal fluence candidate-centered. overwhelmingly ad- party-sponsored “is- experts testify percent Ninety-two own The RNC’s the 2000 election during of elec- aired context advocacy outside vertisements sue rare,” sponsoring identify parties did tioneering by name, voters to encourage party by issue advertisements *463 party-sponsored that party. Id. support the cam- with support register do to and are intended cycle, ¶ ¶ election During the Id. 1.19- 1.17. candidates. federal paigns of political by spent million by supported are $25.6 assertions 1.19.1. These advertisements, million $24.6 on parties advertise- of these examples the numerous to a referred that see, commercials record, e.g., went ments submitted candidate; 44,485 federal out of the adver- openly committee solicited funds for an purchased 42,599 by parties, tisements issue advocacy campaign by describing it ¶ identified a federal candidate. Id. 1.18. as an effort “to that [Republi- ensure party only maintains, can] expands but Furthermore, it is clear political that the ¶ majorities in our Congress.” Id. 1.21. parties run their largely advertisements reality, This inevitably leads to the “con- races, competitive where the record shows clusion that party money soft and election- they have a significant impact can on the eering in guise issue advocacy ha[s] ¶¶ outcome of the election. Id. 1.16-1.16.1. rendered the regime largely FECA inef- parties The political run also advertise- ¶ fectual.” Id. 1.9. ments to assist their candidates’ cam- Party National paigns they when Spend are on Committees low funds. Id. Com- ¶ paratively 1.20. Little example, For spent Money RNC on $20 Nonfederal ” “Party Building Activities, million so-called “issue Most advocacy” to as- Have Which Some Impact sist the Dole on campaign March Federal between Elections August 1996 when the campaign had al- money. most run out of Id. The advertise- Plaintiffs provided have examples of ments run the RNC at this time includ- political where national parties have used ¶ 1.20.1, ed Story,” “The id. and “Pledge,” nonfederal, or a mix of nonfederal and 1.20.2, id. which exemplify the two themes money, what call “party- campaign: the RNC’s up build then- building” activities. Activities such as Dole Senator and attack then-President ¶¶ efforts, redistricting 1.34-1.34.3, state id ¶ Clinton, id. 1.20. The record shows that training candidates, seminars for party of- “quantitative RNC had done quali- ficials, staff, activists campaign id. tative research strongly [which] sug- ¶ 1.36, state and government local affairs gested] [ ‘The to be Stor/Jneeds ¶ activities, 1.37, outreach, id. minority
run,” but was concerned
“[m]aking
¶ 1.38,
paid
id.
are all
for with a mix of
pass
this spot
the issue advocacy
may
test
federal and nonfederal funds which demon-
take
doing.”
some
Id. 1.20.1. Neverthe-
that they
strates
effect on federal
less, the advertisement
run
paid
was
¶
elections,
Furthermore,
id. 1.40.
fig-
part
for in
with nonfederal funds.
Id.
provided by
ures
the RNC show that these
record convincingly
This
demonstrates
activities
very
percent-
constituted a
small
political
advertisements,
party
age
of their nonfederal and combined
which much of the nonfederal funds col-
spending for
cycle.
the 2000
Id. This find-
lected
political
national
party com-
ing computes with that of
expert
Plaintiffs’
spent,
mittees
influence federal
Raymond
elections
Raja,
La
only
who finds that
“8.5
and have little to do
“party
build- percent of
party
money
national
soft
ex-
1.10,
ing.”
Id.
1.22.
political par-
penditures went to
‘grass-
‘mobilization’or
”
ties are well aware of this as demonstrated
roots’
activities during the 2000 election
by the fact
one national
cycle. Id. 1.25.170
Indeed,
salaries,
many
benefits,
of the characteristics of
such
supplies,
and travel
political party advertisements mirror those of
expenses;
expert
Raja
Plaintiffs’
La
however.
group-sponsored
interest
candidate-centered
notes that
"par-
these
do not
efforts
constitute
advocacy,
my
issue
detailed in
discussion of
¶¶ 1.35,
ty building”
Findings
activities.
II, supra.
Title
Furthermore,
expenses
1.26.4.
paid
these
demonstrating
for with a mix of funds
170. The national
parties spend more
they too have an
on federal
effect
elections.
money
nonfederal
on administrative
ex-
¶Id. 1.35.
penses,
operating
expenses
constitute
*464
individual
the
to evade
doing so
are
dates
spend
also
parties
political
national
The
(“Al-
See id.
limitations.
to state
contribution
on contributions
money
nonfederal
directly
¶
given
be
money
1.39.
cannot
though
Id.
soft
campaigns.
candidate
and local
that
candidates, everyone knows
found
Mann
Thomas
federal
expert
to
Defendants’
through
“the
cycle,
money
push
election
the
easy
to
fairly
it is
during
that
mil-
only
can-
specific
$19
contributed
to benefit
system
parties
tortured
national
our
candidates,
Simpson).
and local
One
didates.”)
state
directly to
(quoting Senator
lion
money spending
soft
of their
to
appeared
4%
than
explains
“[t]here
less
that
donor
activity
total financial
their
contributing
1.6% of
between
little difference
during
that
testifies
The RNC
Id.
2000.”
a dona-
making
directly to a candidate
ap-
it donated
campaign,
election
the 2000
my
Through
party....
[state]
to the
tion
in nonfederal
million
proximately $7.3
I was
parties,
political
to the
contributions
Id.
candidates.
local
funds to state
Clin-
money to further
give more
able to
represents
that
show
documents
FEC
give
to
was able
candidacy than I
ton’s
percentage
small
very
¶ 1.59.
Id.
campaign.”
his
directly to
the RNC
funds
$163,521,510 nonfederal
to the record
findings correlate
These
cycle. Id.
2000 election
during
spent
Supreme Court
that was before
despite Plaintiffs’
that
evident
Again, it is
II,
for the same
which stands
Colorado
majority of nonfederal
the vast
examples,
po
the national
for donors
principle, that
“party build-
being used for
are
funds
to
act as conduits
parties
litical
ing” activities.
S.Ct.
supra
candidates.
Are
Donations
Money
Often
Nonfederal
then-RNC Chair
words of
In the
Federal Candidates
Made on Behalf of
aof
purpose
“the
Barbour:
Haley
man
Individual
FECA’s
to Circumvent
Order
its candidates
to elect
party is
political
Limitations
office_”
¶
This
Findings
1.49.1.
public
the national
donations
Nonfederal
regard
true
especially
sentiment
committees,
they
fact
despite the
party
com
campaign
congressional
national
building”
“party
used for
to be
supposed
Raja
La
ob
expert
As Plaintiffs’
mittees.
made
solicited
are often
purposes,
traditionally limit
serves, these committees
used to
they will be
that
intent
with the
candi
assisting their
activities
their
campaign. Id.
candidate’s
a federal
assist
Therefore,
¶
Id. 1.26.6.
campaigns.
dates’
Simpson observes
1.56. Senator
major nonfederal
record reflects that
be-
[djonors
really
do not
differentiate
pro
parties to
political
donors use
money
money; they often
and soft
hard
tween
Colorado
“obligated officeholders.”
duce
an
gain favor with
to assist
contribute
452, 121
II,
S.Ct. 2351.
533 U.S. at
give
donors
politician. When
individual
Play
Committees
Party
Local
State
there
parties,
some-
money to
soft
the National
Helping
Integral Role
an
understanding
implicit
at least
times
Spend
Party Committees
Nonfederal
to benefit
money will be used
Federal Elections
Funds
Likewise, Members
candidate.
certain
party with
also demonstrates
The record
if
assist
know
money,
parties
or soft
have used
it hard
fundraising, be
national
“branches,”
their cam-
Plain-
as
later assist
political party
will
state
Raja
La
terms
Raymond
paign.
expert
tiffs
circumven-
them,
of their FECA
part
¶
Findings demonstrate
Id.
1.56.1.
Indeed, the
1.42.
Findings
scheme.
tion
funds
give nonfederal
who
that donors
briefing:
in its
as much
admitted
RNC
support federal candi-
parties
*465
Republican Party
single,
$1,110,987
is a
uni-
organizations,
in individual con-
tary organization
comprises
tributions,
vari-
$389,552
in federal trans-
RNC,
parts
ous interrelated
state
fers
Republican
organizations. The
—the
parties,
and local
165 mem-
RNC’s
political
spent
state
party
over one-third of
bers,
identifying
candidates
themselves
its revenues on “issue advocacy.” Id.
Indeed,
“Republicans,”
and so forth.
¶ 1.26.4.1.
parties
voting
state
select the 165
Moreover, representatives of all
ma-
RNC,
party
members of the
and the
jor
congressional
national
committees tes-
through its convention and other mecha-
tify
transfer nonfederal funds to
nisms nominates candidates.
political parties
state
purchase
order to
added).
Opp’n
(emphasis
RNC
at 23
As
advertisements aimed at influencing feder-
Raja concludes,
La
the closeness between
¶
al elections.
Id. 1.26.6. They also state
political parties
the state and national
is a
that although the state political parties
result of the attractiveness of using the may reject the
party
national
committee’s
political parties’
state
more favorable fed-
requests that transferred money be wired
money allocation ratios to
eral/nonfederal
specific
pay
specific
consultants to
for
fund federal
electioneering
practices.
advertisements,
they generally comply
¶
Findings
1.42. Large sums of nonfeder-
addition,
request.
with the
advertise-
al funds have been transferred to the state
supported
ments
congressional
with
com-
political parties over the past decade.
Id.
mittee
produced
funds are not
or recorded
¶ 1.26.3. During
cycle,
the 2000 election
until the
party
national
pro-
committees
over half
money
of the nonfederal
raised
¶
vide
approval.
final
Id.
1.26.7. Docu-
the national
committees was
mentary
supports
evidence
testimony,
political
transferred
parties,
state
and shows that
political parties
the state
¶¶ 1.26.3,
reaching
sum
million. Id.
$266
are merely
process.
conduits in this
Id.
1.4.3. Rather than being
“party-
used for
¶
(communications
1.26.7.2
from the NRCC
activities,
building”
as the rationale for
to the CRP providing information about
provides,
nonfederal
large propor-
funds
money that was wired to CRP’s account
tion of these funds were used to finance
with instructions to wire
money
to a
issue advertisements intended to influence
firm,
media consulting
and similar docu-
¶¶ 1.26.4;
federal elections.
Id.
see also
CDP),
ments from the DCCC to the
¶
id.
expert
Raja
1.26. Plaintiffs’
La
finds
¶
(NRSC
1.26.7.1
suggesting
memorandum
expenses
that when administrative
are ex-
advertisement,
an idea for an attack
and a
calculus,
cluded from the
state
copy of an advertisement
implementing
parties invest most nonfederal funds trans-
paid
the idea
for by
Republican
State
ferred from
political parties
the national
Nevada).
Central Committee of
These
races,
on federal
and concludes that more
statements and
compute
documents
are used
media rath-
nonfederal funds
for
expert
Raja’s
Plaintiffs’
La
observation
er than party building.
Id. Similarly for-
would
particularly surprising
“[i]t
Brock,
mer Senator William
who
is also
congressional
campaign committees to
RNC,
former Chairman of the
testifies
venture
scope
outside their traditional
that nonfederal funds are used
ex-
almost
helping
par-
candidates and invest in state
clusively
help
elect federal candidates
¶
ty organizations.”
¶
Id.
1.26.6. The rec-
and not
“party building.”
Id.
1.11.
ord also demonstrates that
A
the DNC and
1998 financial statement from the Re-
operate
RNC
in the
publican Party of
same fashion.
Id.
New Mexico shows that
$1,524,634
1.26.7.3,
it received
1.26.7.2. By purchasing
revenues of
in non-
these
Republican
transfers
from other
through
advertisements
the state
*466
from
million contribution
that
the
take
ed
parties
$2
political
national
parties, the
Nixon’s
President
dairy industry to
federal-to-nonfed-
the
the better
advantage
up
under which the state
into
was divided
smaller
campaign
ratios
spending
eral
¶ 1.26.2, 1.27.
operate.
Id.
of state-level
parties
among
political
amounts
hundreds
in
to avoid disclosure
order
committees
par-
addition,
political
national
In
both
at 839 n.
Buckley, 519 F.2d
requirements.
cam-
execute detailed
prepare
ties
(cited
27 n.
Buckley,
424 U.S.
affiliates
their state
strategies with
paign
612). Therefore,
technique of
the
that
include state
S.Ct.
campaigns
election
¶
to benefit a federal
money used
shifting
1.43. The
Id.
elections.
and federal
level to
political par-
from the national
and state
national
candidate
Democratic
Campaigns”
a federal
to avoid
level
order
implement “Coordinated
state
ties
coordi-
appropri-
resources and
Congress
to allocate
aim
is not new.
which
restriction
benefit of Democratic
plans for
to the nonfed-
nate
the threat
ately recognized
the entire ticket.
down
up and
candidates
national com-
prohibition
funds
at the
eral
¶
Party devel-
Republican
The
Id. 1.43.1.
level,
political
and local
if the state
mittee
plans with its
similar
implements
ops and
prevented
committees were
party
“Victory
called
affiliates
party
state
that
on activities
nonfederal funds
using
¶¶
plans
These
1.43.2-1.43.2.3.
Plans.” Id.
elections.
directly influence federal
coop-
affiliation
close
demonstrate
Are Provid-
Money Donations
Nonfederal
po-
national and
state
eration between
Party
ed to State
Committees
Behalf of
politi-
has led one state
that
parties
litical
In Order
Federal Candidates
Benefit
to conclude that her state
party
cal
official
Candidate
the Federal
party
political
national
party and
political
Furthermore,
na-
candidates and
¶
Id. 1.43.1.
“integrally related.”
were
party committees inform donors who
tional
Therefore,
very
prior
apparent
it is
amount of
the maximum
feder-
given
political
national
enactment
to BCRA’s
campaigns/committees
to their
al funds
using
were
state
party committees
they can still
federal candidates
help
in their
circumvention
branches to assist
political parties.
donating funds to state
by
FECA,
process
integrat-
were
¶¶ 1.59,1.60.
example
An
of this
Findings
parties into the na-
political
ing the state
Wayne Alard’s letter re-
Congressman
structure. Given this
political
tional
supra
II
discussed
in Colorado
lied on
scenario,
appropriate
made an
Congress
CEO de-
more to further Clinton’s candi- political parties national and federal candi- I dacy give directly than was able to who solicit them. Id. dates/officeholders campaign. his ¶ 1.62. *467 ¶ wealthy Findings 1.59. One contributor The record detailed above demonstrates provides testimony: similar major political that both parties collect Federal candidates have me often asked funds, nonfederal and direct nonfederal parties, to donate to state rather than contributions to their party state “branch- committees, joint they when feel es,” in money order to use that to influence help that’s where need some extra federal elections. The national campaigns. in their given signifi- I’ve parties also money transfer nonfederal cant in parties amounts to the state through parties the state for the same Dakota South and North Dakota be- purpose. The evidence shows the amounts all representing cause the Senators spent “party on building” support and in friends, good those states are I state and local candidates ais small frac- know that difficult large it’s to raise tion of total amount of nonfederal sums those states. The has DSCC by funds political par- raised the national requested provide also that I assistance ties. Not including administrative ex- parties. to state penses, majority of these funds are ¶ Id. 1.60. As former DNC and DSCC used for so-called advocacy” “issue de- explains, official Robert Hickmott “[o]nce signed to affect federal elections. After you’ve helped a federal by candidate con- record, reviewing myself I find tributing money hard to his or her cam- agreement expert Raja: with Plaintiffs La paign, you are sometimes asked to do parties
more for the candidate making dona- highly respon- are functional rather than tions of hard money soft to ... and/or money sible. Rather than use soft party relevant state % .Id. 1.59. up organizations, shore weaker or re- addition, one CEO comments that party moving ward state members for past, donors who had reached their party closer to national ideology, the federal limit would ask if a candidates organizations money national use soft nonfederal contribution would assist money' pursue like hard the short- —to campaign and were told: “Don’t bother. goal winning term elections. money just The soft any doesn’t do me ¶ Id. 1.26.5. However, good.” Party Political Do- Suggest Committees cycles,
in recent election Members and nors Advocacy Orga- Contribute to Issue national committees have asked soft nizations money donors money to write soft parties checks to state and national prior sole- The record also demonstrates ly BCRA, campaigns. political parties order to assist federal and candidates money Most soft donors don’t ask and would solicit and donate funds to tax-ex- why money empt don’t care going organizations, which would then fund particular state party, activities in order to influence federal elec- they may which political party no connection. tions on behalf of the “stop Big ¶ Labor effort to group’s Former Id. 1.85. candidate-donor. in November.” Congress Hickmott control seizing official Robert and DSCC DNC ¶ Ric Similarly, Congressman Id. 1.85.5. testifies fundraising letter signed a Keller candidate helped a federal you’ve [o]nce Growth, potential which assured money to or her Club for hard his contributing used money would be that their sometimes asked you are donors campaign, by making of Con- keep control “help Republicans for the candidate more do group an outside ... also demonstrates [to] donations Id. The record gress.” independent ex- doing an planning informs donors that the DSCC DNC help advertisement or issue penditure are most tax-exempt organizations re- As a campaign.... candidate’s activities that affect grassroots effective for a sult, multiple avenues are there Id 1.85.1. Some elections. the financial that has group person as ballot organized organizations these a federal candidate *468 to assist resources clubs that political committees measure effort, in his or her election financially which, efforts engage in voter mobilization money. hard and soft both federal candi- at elections with aimed when ¶ 1.59. Findings ballot, elections. federal on the affect dates ¶¶ 1.85.6,1.85.8. each id. addition, the record reflects In committee has Party national Republican addition, record in the evidence to Right National to the funds donated candi- that federal officeholders shows Committee, Phil which Senator Life their own have created themselves dates Chairman, explained Gramm, as NRSC in to assist tax-exempt organizations pro-life voters “help to activate done was According to Public activities. election states, where would key in some or- Citizen, Congress have Members of 63 ¶ Oth- the election.” Id. 1.85.2. pivotal to 527 Section organized under ganizations sizable in the record show documents er Code, and another Revenue the Internal made party donations been Congressional in a stake 38 “have with common nonprofit groups to Id. organization.” Black [] Caucus elec- proximity to federal in close views are used organizations These 527 1.85.7. party’s to mobilize to be used tions career, as well promote the Member’s ¶¶ 1.85.2,1.85.3. Id voters. candi- strong state and local encourage as are used to affect That such donations spur partisan get-out-the vote dates and elections is also demonstrated ¶ large Id. 1.85.7.1. One DNC efforts. party national committees the fact that the early in 2002 he testifies that contributor sol- candidates or officeholders and federal $50,000 Demo- Daschle donated The tax-exempt groups. icit donations for crats, ran adver- organization, a which Committee Right Work National Tom support of Senator tisements (“NRTWC”) that “certain admits Members attacks response made Daschle Offi- Executive Branch Congress] or [of made the him. The contributor against generally encouraged financial cials have the at- felt that [he] “because donation and, Right to Work cause support for Daschle and hurting Senator tacks were support for the of NRTWC specifically, cam- re-election Tim Johnson’s Senator issues, lobby- advocating through these ¶ Id. The DNC as well.” 1.85.7.2. paign advertising.” Id. ing as well issue large to Section ¶ has made contributions A in the record from Con- 1.85.4. letter Id. by candidates. groups organized recipient Pete Sessions asks gressman ¶ large also make Corporations 1.85.7.3. personnel regarding meet with NRTWC purposes donations to federal officeholder and can- tions for directly related to fed- organizations. didate 527 Id. 1.85.7.3. Moreover, eral elections. state and local committees, party nonprofit addition to obviously was Congress concerned about advocacy organizations, are used practice when it enacted Title I. For national part committees as of their example, legislative history reflects dis- circumvention scheme. Congress was cor- Vasquez’s cussion of Judith contribution to conclude, therefore, rect to tax-exempt organization. Vasquez prohibi- Ms. that a $100,000 DNC, wanted contribute to the tion on nonfederal funds at the national Vasquez however because Ms. was not a committee level would be ineffective at citizen, United States the donation was ending circumvention of FECA’s contribu- “problematic.” Thompson Committee Re- tion limitations. Accordingly, given the port Therefore, (majority report). comprehensive developed record in this Vasquez Ms. money was told to donate the case, presents impressive evidence ’96,” tax-exempt to ‘Vote Now “a GOTV that nonfederal easy funds secure evasion organization that focused on traditional limitations, the individual contribution I Democratic constituencies.” Id. ‘Vasquez Congress justified find that was in enact- $100,000 ultimately donated to Vote ’96.” ing Section Title I under an anti-circum- Id. at (minority report). legisla- theory corruption. vention history tive also includes an NRSC docu- Manual,” ment Building entitled “Coalition *469 (b) Title I Closely Is Drawn 1994, in issued the text of in- which was congressional cluded in the record. Id. at (i) 323(a) Section Closely is Drawn (minority report) (discussing doc- (Coali- ument); see also id. at 5987-6015 view, 323(a) In my Section closely is Manual). Building tion The Manual states to match sufficiently important drawn in particular say that “[w]hat we about governmental interests discussed above. ourselves is suspect, say but what others When a court reviews a contribution limi- (empha- about us is credible.” Id. at 5990 tation enacted a coordinate original). sis in branch, the court’s review is more deferen-
It
political parties
is clear that
if
and can-
tial than
the restriction at issue were an
didates have
tax-exempt organiza-
used
In
expenditure.
reviewing contribution re-
in
tions to assist them their efforts to
strictions,
win
Supreme
Court has deferred
federal elections.
Id.
1.86. Given this
congressional expertise
as to both the
fact,
prohibits
and the fact that BCRA
prophylactic
par-
need for
measures or the
state and national
parties from ticularities
those measures.
using nonfederal
affect
funds to
federal NRWC,
210,
more attractive to the
if
corruption
lactic measures where
nothing
by Congress
had been done
feared.”);
NCPAC,
evil
see also
470 U.S.
address this obvious circumvention route.
(observing
at
The massive in record this case thus Opp’n Breyer Def.-Int. at 24. As clearly Justice po- demonstrates the national concurring opinion litical wrote in his committees raise funds outside Shrink Buckley’s source and amount limita- Missouri: Plaintiffs cite the Br. at 45. also RNC sig- a law
In
circumstances-where
such
a
example of
as an
amendment
competing
Hagel
constitu-
nificantly implicates
complex
approach
Con-
narrowly
tailored
interests
more
protected
tionally
closely
adopted.
scrutinized
McConnell
has
have
should
ways-the
gress
Court
interests,
on those
impact
amendment
Hagel
n.14. The
the statute’s
Br. at 38
simple
a
employing
$60,000
from
limit on
imposed
but refrained
a
would
unconsti-
effectively presumes
test that
and nonfed-
of federal
aggregate donations
Rather,
in-
it has balanced
tutionality.
one donor to nation-
any
from
eral funds
meant
practice that has
inAnd
terests.
I do not find Plain-
party committee.
al
any
burdens
the statute
asking whether
persuasive.
argument
tiffs’
in a
out
manner
interest
one such
challengers to FECA’s
Buckley, In
salutary ef-
the statute’s
proportion argued
limitations
contribution
(perhaps, but
others
upon the
fects
“unrealistically low.”
$1,000 limitation was
of a
of the existence
necessarily, because
S.Ct.
Buckley, 424 U.S.
alterna-
less restrictive
superior,
clearly
rejecting
argument,
Su-
flatly
tive).
signifi-
has
legislature
Where
D.C. Circuit’s
adopted the
preme Court
as,
expertise,
institutional
cantly greater
“
it is satisfied that
‘[i]f
statement
regu-
in the field of election
example,
necessary, a
limit
contributions
some
practice
defers to
lation, the Court
whether,
probe,
scalpel to
has no
court
least
judgments
empirical legislative
—at
$2,000
not serve as
ceiling
say,
might
does not risk such
that deference
where
”
Buckley,
$1,000.’
Id. (quoting
well as
as, say, permitting
evils
constitutional
842) (observing that “Con-
519 F.2d at
insulate themselves
incumbents
fine
engage in such
tun-
failure to
gress’
ap-
challenge. This
effective electoral
scaling the
limitations
ing” by
contribution
Buckley
taken
is that
proach
fact
between con-
“differences
based on the
....
contributions
campaigns was
Presidential
gressional and
Missouri,
528 U.S.
Shrink
restrictions”).
to the contribution
not fatal
*470
J.,
(empha-
concurring)
(Breyer,
S.Ct. 897
manner, Congress has
In much the same
added).
three-
my view that this
sis
Given
of
that contributions
judgment
a
made
should
deference
give
Court
District
judge
party
political
to national
nonfederal funds
con-
area of
the
CongreSb’sjudgment
to
of
circumvention
permits easy
committees
restrictions,
no
finding
that
tribution
limitations
raises
contribution
FECA’s
amelio-
alternative would
less restrictive
corruption, and that the
appearance of
sought to ad-
Congress
problems
rate
a
addressing
problem
this
is
only means of
323(a),
provi-
I
find
with Section
dress
party
nationalpolitical
at the
complete ban
closely
sion
drawn.
Buckley instructed that
level. Much
323(a) is
that Section
argue
Plaintiffs
scalpel
probe
not use a
courts should
on the
it does
focus
because
overbroad
might
means
be
if a
restrictive
less
party
of the national
amount or source
available,
three-judge District Court
bans do-
funding
instead
committees’
Congress’s judgment
defer to
should
regardless
nonfederal funds
nations of all
would not
nonfederal funds
any cap on
(“To
at 38
McConnell Br.
of the amount.
sought
it
to be ex-
abuses
ameliorate the
or
is the
source
extent
amount
Indeed,
nonfederal
cap
tinguished.
funds which
[nonfederal]
of donations of
constitutionally sus-
likely be
funds would
apparent corruption,
gives rise to actual
circumven-
potential
pect because
tailoring at
no relevant
Title I contains
appearance
exist and the
tion would
all.”)
still
original);
McConnell
(emphasis
$60,000 in dona-
surrounding
21-22;
corruption
27;
Reply at
Opp’n at
McConnell
political party
tions to the national
commit-
that Plaintiffs make is that
the “use” of
present.
tees would still be
nonfederal funds is what creates the actual
apparent corruption.
McConnell Br. at
short, Congress
In
would not have
assumption by
38. The
Plaintiffs is fatal
accomplished
goal
cap
its
with such
argument.
to their
political party
because
national
committees would still' be able to use
above,
As demonstrated
corruption
percentages
inject
non-
allocation
associated with nonfederal funds is much
federal
funds
into federal
elections. greater than the “uses” for which the mon-
Congress
ap-
concluded that
the FEC’s
ey
put.
is
Merely preventing the national
proach for
was
longer
allocation
no
ac- political party
spending
committees from
ceptable
political party
the national
nonfederal
funds on certain activities
my
committee level.
judgment, Con-
nothing
would do
corruption
address the
gress
judg-
is entitled to make that
associated with
political
the national
party
Moreover,
ment.171
all
nonfederal
soliciting
committees
and collecting non-
funds,
source,
regardless
pose
of the
federal funds. The law targeted
at the
potential
corruption.
same
collection and solicitation of nonfederal
corporate
While
and labor union dona-
funds,
precisely
which are
types
may
tions
nonfederal funds
more
activities that Congress
posed
found
use,
egregious in
given longstand-
greatest
Moreover,
threat
corruption.
ing
policy against
federal
their use
simply preventing
political
the national
elections,
simply corpo-
it is not
party
using
committees from
money”
“soft
rate
union
labor
donations
pay
for the kinds of “issue” advertise-
pose
problem.
Contribution limita-
directed,
ments at which Title II is
would
being
tions are
directly circumvented
little, if anything,
prevent,
do
in Buck-
corporations
individuals as well as
words,
ley ’s
impact
appearance
“the
and labor unions.
argument
Plaintiffs’
corruption
stemming
public
aware-
that BCRA could have been tailored
opportunities
ness of the
for abuse inher-
particular
better
had it
focused on
ent in a regime
large
individual financial
unavailing.
sources is therefore
contributions.”
Buckley,
U.S. at
above,
As amply
Plaintiffs also contend that
S.Ct. 612.
demonstrated
Section
323(a)
simply
because the
party
overbroad because it bans the
is the
receipt
import,
solicitor of the funds is of no
given
and disbursement of nonfederal
purpose
funds “no matter the
for which
committees
*471
“agents
the
being given
spent.”
spending
funds are
for
on behalf of those
39;
Opp’n
produce obligated
McConnell Br. at
McConnell
at who seek to
officehold-
28;
22;
II,
Reply
452,
see also
at
McConnell
RNC ers.” Colorado
533
at
121
U.S.
Opp’n at 30-31. The critical assumption
Regardless
S.Ct. 2351.
ultimate use
323(a)
70,
argue
Buckley
171. Plaintiffs also
that Section
see also id. at
S.Ct.
96
612. The
particularly
respect
Court, therefore,
overbroad with
to "minor
exempt
refused to
minor
parties”
Party
like the Libertarian
which re-
parties, one of which was the Libertarian
virtually
large
ceives
no donations of
amounts
40,
612,
Party, see id. at 34 n.
96 S.Ct.
corporations.
or donations from
McConnell
Accordingly,
the contribution
I
limitations.
38;
Opp'n
Br. at McConnell
at 28-29. Buck-
do not find that BCRA is overbroad because it
ley
argument.
Buckley,
forecloses this
candidates,
applies
party
to minor
and I also
Supreme
"minor-party
Court observed that
presented
find that Plaintiffs have not
suffi-
may
candidates
win elective office or
Buckley
cient evidence to re-evaluate
's con-
impact
substantial
on the outcome of an elec-
regarding
parties.
clusion
minor
35,
612;
Buckley,
tion.”
of nonfederal
431(8)(A)(i),
registration
or for voter
§
and rais-
solicitation
ly concluded that
drives,
“get out
vote”
sig-
posed
funds
such
ing of nonfederal
431(8)(B)(xii).
opportunity
But
only
§
corruption that
nificant threat
greater
these
posed by
was a
problem
corruption
for
addressing
means of
fpr
is, at
contributions
opportunities
committee
the national
at
complete ban
best,
Unregulated “soft
attenuated.
level.
not be used
may
money” contributions
that “the
vein,
argue
Plaintiffs
In this
except
campaign,
federal
influence
already conclud
has
itself
Supreme Court
limited, party-build-
used in
when
corruption
opportunity
ed
designated
specifically
in
ing activities
money contribu
soft
unregulated
posed by
431(8)(B).
§
statute.
activities such
for certain
party
tions to a
616,
I,
at
Supreme
precedent,
legisla-
Court
emerged
presidential
for the
nomination of
history,
tive
and the record before this
the other
that candidate and his
party,
powerfully
Court
demonstrate the need for
party’s
typically
national committee
work
prohibition
the nonfederal funds
result,
closely together.
large
As a
dona-
political party
national
committee level.
party
organization
tions to
are effec-
Supreme
As the
Court observed Colora-
II,
tively
just
specific
donations not
candi-
expect
do
a realist would
“[w]hat
give
party-in-government’s
occur has occurred. Donors
to the
dates but
to the
point applies equally
amply
corrupt-
173. This
to Plaintiffs'
record
demonstrates that the
suggestion
narrowly
ap-
ing potential
that a more
tailored
of nonfederal funds donations
proach
simply prohibit
simply
particular
would have been to
was not
confined to a
corporations
apparent
labor unions and
from contrib-
the actual
cor-
source but with
uting
politi-
ruption posed by
nonfederal funds to the national
of nonfederal
the solicitation
Opp'n
cal
committees. See McConnell
funds
federal officeholders and candidates
prohibition
problems
27. Such
would not address
and the
created
the national
corruption Congress
apparent
the actual or
to evade federal contribu-
committees’ efforts
*473
323(a).
sought to address with
tion
Section
The
limitations.
se-
layoffs and
massive
will be
money
protect
to
of BCRA
that
use
leadership, who
political
important
core
by
in
reduction
government,
vere
power
their
expand
RNC,
many
reduction of
and
speech
races
congressional
spending
existence.”).
election”)-
Indeed, office-
‘nominal’
parties to a
state
presidential
successful
who are
and candidates
holders
observed,
ef-
overall
Buckley
“[t]he
As
in Con-
stature
enhanced
gain
fundraisers
ceilings is
contribution
[FECA’s]
fect of
prow-
fundraising
of their
a result
gress as
political
candidates and
merely
require
to
¶
(statement of Senator
1.66
Findings
ess.
greater
from a
funds
to raise
committees
words,
Boren).
often the
is
In other
compel people
persons and to
number
“soft
are the best
who
those
case that
amounts
contribute
otherwise
who would
influen-
are the most
money” fundraisers
expend
statutory limits to
greater than
officials.
government
tial
expression,
political
on direct
such funds
political party
national
that
Given
total
to reduce the
amount
rather than
federal officeholders
committees
promote po-
available to
money potentially
intertwined,”
“inextricably
are
candidates
Buckley,
U.S.
expression.”
litical
¶
¶
1.46,
1.62;
nation-
also
Findings
applies to
21-22,
The same
money.” CDP/CRP *476 by requiring pay many ner them to for in see also Br. at 40 original); McConnell these “Federal election activities” with fed- (Section 323(b) “activity that re- regulates eral and nonfederal funds. Plaintiffs’ nev- and only lates to state and local elections challenge constitutionality er having candidates.”); not benefit does percentages to use allocation when paying (Federal Opp’n at 21 election CDP/CRP 301(20)(A) If, for Section activities. “encompasses virtually all activity concede, apparently Plaintiffs’ it is consis- clear- activity”). Plaintiffs’ statements are regulate tent the Constitution to how “Federal, ly inaccurate. The definition of instance, activity paid this is in for the first activity” corresponding and the election any then it is difficult for Plaintiffs to offer 323(b) in restrictions on it Section compelling argument First Amendment im- closely sufficiently drawn to match the Congress require that is unable to these portant interests discussed above.175 paid solely activities to with federal .be 323(b) true, doubt, It is no that Section funds, particularly given the ar- interests activity impact affects that has an on both in foregoing ticulated section. Plain- However, this, federal and state elections. complaint they tiffs’ real that are unable itself, instantly pose in and of does not to continue to use the allocation ratios to First Amendment difficulties because the 301(20)(A) pay for Section activities as corruption to nonfederal in- related funds they have done since the late 1970s. How- process in the fundraising heres where ever, case, given I the record con- major provided in nonfederal donations are Congress modify clude that is entitled to exchange for access to federal officehold- the allocation ratios as it done has statuto- process ers candidates-a facilitated 323(b). reiterate, rily Section To political party apparatus at all levels. Supreme instructs that courts Court The record the state demonstrates legislative should not “second a guess de- political parties equal partners were prophylactic termination as to the need for complicit in helping the national corruption measures where the is the evil parties spend raise and nonfederal funds NRWC, 210, feared.” 459 U.S. at purposes. Recogniz- for federal election 552; Sys., Turner Broad. Inc. v. S.Ct. however, every ing, activity that not cf. FCC, 622, 665, 512 U.S. S.Ct. political party engages which a state (“courts (1994) elections, L.Ed.2d 497 must accord Congress sensibly affects federal predictive deference to the limited the reach of BCRA to “Federal substantial activities,” judgments Congress”). election which are those activi- Throughout briefing, prof- Republican; Dogcatch- Plaintiffs "Vote John Smith for First, examples they at 27. fer various of what claim are er on November 6." RNC Br. activit[ies],“ printing mailing flyer “Federal election would not be activity it not individualized. then use demonstrate BCRA’s unconstitu- GOTV because however, Also, tionality. Many examples, "generic campaign activity" of these it is not example, specific a slate candidate. are not covered under BCRA. For because it mentions suggests Republican Party Additionally, only the RNC that the because it mentions a state candidate, pay by Section of Ohio could not use nonfederal funds to is not covered 301(20)(A)(iii). printing mailing flyer of a that reads Findings and GOTV efforts.” Flannery of the istration Thomas Judge ¶¶ (officials 1.28, observing for the Dis- District Court 1.32 States United the FEC to required effect significant trict of Columbia efforts have “[t]hese standardizing regulations candidates”); implement election of federal v. Common Cause system. (CDP allocation 1.28.1, impact touting also id. 1.32 (D.D.C.1987). FEC, F.Supp. reg- elections with voter it has on federal possi- “it is Flannery observed Judge istration, get-out-the- vote-by-mail, may conclude that the Commission ble to a contrib- in a letter it sent vote efforts effectuate the allocation will method of no utor). Furthermore, clear that ef- it is spent that all monies goal Congressional encourage particular forts to [vol- on those political committees by state will assist partisans polls, to the party’s materials, registration, voter unteer candidates on the bal- party’s all of that *477 activities,] money’ ‘hard under be GOTV state, lot, alike. Voter local and federal 1987, it was determined Id. In the FECA.” get a designed efforts are mobilization was sufficient. regime allocation that the political party’s faithful to particular however, passage, At the time of BCRA’s particular election. polls for a the allocation that Congress determined Moreover, pro- Levin Amendment non- preventing at ineffective system was Congress further evidence that influencing federal elec- vides federal funds from the interests of sought tions. to accommodate drafting political party committees state concluded, on the basis Congress 323(b). majority that a Section Given it, relat- problems that the before evidence at the same time states hold their elections already funds existed ed to nonfederal elections, Congress recognized as federal that, party political level the state (ii) 301(20)(A)(i)and activities political party that Section a national prospectively, entirely inef- ban would be dramatic effect on state money” “soft would have more without some the national level fective at activities. and local elections than on other at the regulations state corresponding result, important Congress As a found briefly level. I shall political party local sup- parties the state and local permit of “Fed- turn of the determinants to each with nonfed- plement funding their federal activity.” eral election pursuant raised to the Levin eral funds pay Amendment to for these activities. As 301(20)(A)(i) (ii) (1) Activi- Section activity refer to a long as the does not ties of- clearly identified candidate for federal 301(20)(A)(i)and regard With to Section fice, the funds are not used for certain (ii) activities, Findings compellingly communications, and the funds broadcast activi- registration demonstrate that voter by the or local directly are raised state ties, identification, activities, voter GOTV party according require- to the political generic campaign activity conducted (in state law increments ments of connection an election where a feder- less) $10,000 party political the state al will candidate is on the ballot pay can Levin funds to committees use influence on elections. As dis- federal (ii) 301(20)(A)(i) and activities. Section cussed includes the tes- supra, the record paying for activities with Levin When timony representatives of all four funds, percentages the FEC’s allocation party congressional of the national com- apply expenditure. to the mittees that transfer “federal and result, the Levin Amendment es- As a party nonfederal to the state com- funds sys- identification, allocation reg- sentially acts as a modified mittees for voter voter 323(b)(B)(iv), (C); § § FECA Congress tem. determined Section 301(20)(A)(i) (ii) (C). activity 441i(b)(2)(B)(iv), often §§ would U.S.C. I am not elections, significant have a effect state persuaded by arguments Plaintiffs’ that most hold elections at the given states provisions these are not closely drawn. government. By as the same time 40; Br. McConnell Br. at SO- CDP/CRP parties and local permitting state SO.176 As stated DefendanNInterve- funds,” spend Congress raise and “Levin nors, parties state local “[w]ere free to parties allowed state and local $10,000 transfer contributions among subject continue to raise funds not to themselves, multiply contributors could way jeopardize in a that would not FECA amount permissible of their contribution to money the rest restric- nonfederal particular party simply by funneling ad- hardly argued in Title I. It can tions money through party ditional soft other $10,000 to a donation state By committees.” Def.-Int. Br. at 63 n.228. poses corrup- committee a threat of way example, attempting a donor tion when the federal limit on individual gain influence with a candidate one con- $10,000, parties to state giving also $10,000 gressional district could make ten 102; 315(a)(1); § § BCRA FECA U.S.C. parties, contributions to ten local on the 441a(a)(l)(D), par- § the limit to national understanding $100,000 the entire $25,000, 307(a)(2); § ties is BCRA FECA *478 would be transferred the one party to that 315(a)(1); 441a(a)(l)(B), § § U.S.C. engaged was “Federal election activi- cap total on individual contributions is ties” in that candidate’s district. Def.-Int. $95,000 per two-year cycle, of election course, Opp’n at 34. Of state local $37,500may to candi- which be contributed political parties jointly remain free to raise 307(b); § dates. BCRA FECA or transfer as much nonfederal funds as 441a(a)(3). 315(a)(3); § § In U.S.C. oth- they pay desire to for activities that are words, though er even the Levin Amend- activity,” not considered “Federal election permits into money ment some nonfederal subject only to state restrictions. political party system, it does so in a way loophole that will not create a new Amendment, Congress With the Levin in- and also serves to accommodate state determined that state and local regarding terests their elections. permitted party committees should be spend limited amounts of nonfederal funds Congress’s pre- Because it was desire to on certain “Federal election activities.” loophole emerging, vent a new when Enacting provision this further demon- Amendment, it enacted the Levin Con- Congress significant strates that made gress prohibited among joint transfers money effort to tailor the nonfederal re- political par- fundraising state and local respect party ties with to “Levin funds.” BCRA strictions at the state level. Given persuaded by doomsday political parties I am also not that the state will fundraise in scenario described the CRP and CDP re- exactly the same fashion under the BCRA garding Furthermore, the effect BCRA will have on their regime they did under FECA. ¶¶ (also fundraising. Findings 1.98-1.99.1 Raymond Raja expert own La be- Plaintiffs’ describing fundraising spending that BCRA will not affect some state lieves generally). Their estimations of BCRA’s im- all, fundraising parties' efforts at and while pact fundraising on their efforts are not based affected, may thing others we can "[o]ne any analysis, formal but instead on an parties figure will be sure of is that out past application fundraising BCRA to ef- ground important rules and will find an explained imprecise forts is in an man- campaign role for themselves within the new many questions ner that leaves as as it an- regime”. finance Id. swers. Id. 1.98. It is unrealistic to think anything with “closely point is inconsistent only be must provision that my opinion- restrictions own drawn,” Congress’s that I have discussed I find (ii) 301(20)(A)(i) and activities Buckley’s example, my view of defini- on Section my are constitutional.177 view of what corruption tion of advocacy-I pure issue do constitutes (A)(iii) 301(20) (2) Activity Section Judge Leon’s discus- join portions those 301(20)(A)(iii)-apub- Turning Section sion.178 opposes supports or
lic communication
candidate-I like-
federal
clearly
identified
301(20)(A)(iv)
(3)
Activity
Section
un-
constitutional
provision
find this
wise
Finally,
regard
with
Section
Judge
In
Amendment.
First
der
301(20)(A)(iv) activity-requiring state and
explains why Congress’
opinion, he
Leon’s
pay
federal funds to
parties
local
to use
party
and local
to restrict state
decision
spends
employee
who
salary
funding
Section
organizations
percent of his or her com-
more than 25
301(20)(A)(iii)
funds
with federal
activities
time in a month
connection
pensated
sufficiently
match a
drawn to
closely
is
election-I find that none
with a Federal
analy-
I
with his
agree
important interest.
specific
articulated a
the Plaintiffs have
323(b)
him that
Section
sis and concur
provision
down.
striking
reason for
restricting
the state
constitutional
words,
any
provide
Plaintiffs do not
other
spending
local
committees
why
provision
specific argument as
301(20)(A)(iii) activities.
funds on Section
paucity
is unconstitutional. Given
I am
additionally point out that
I would
(Defen-
briefing
provision
on this
specific
by Judge Leon’s
persuaded
particularly
spent any time ad-
dants have also not
fact
Section
discussion of
I
specific provision), would
dressing this
301(20)(A)(iii)
on a contri-
a restriction
*479
301(20)(A)(iv)
un-
facially
(as
not hold Section
To
expenditure).
to an
opposed
bution
opinion
Leon’s
on constitutional.
Judge
the extent that
so,
premature
by
rights
against
constitu-
persuaded
counseled
doing
am also not
In
I
provi
arguments
some of the
"adversarial
adjudication
Plaintiffs’
that
tional
because the
(20)(A)(i)
(ii) are
sions in Section
by
parties
posture
and contours
assumed
vague;
“get-out-the-vote activi
particularly
387,
clarity,
dispute,”
of their
id.
lacked
First,
See,
I am
ty.”
e.g.,
Br. at 33.
CDP/CRP
ripeness
other cases that had found
unlike
persuaded
person
that a reasonable
would
Moreover,
the fact
similar circumstances.
difficulty understanding what is meant
nothing
done
...
to
the FEC "has said or
”
terms,
provi
by these
the fact that these
solicit,’
the term
indicate how it construes
strength
apply
only
sions
to
actors
guidance
substantial
left the court "without
Second,
my
FEC has
ens
conviction.
this case or even to frame the constitu-
decide
regulations
promulgated implementing
relat
Finally,
at 387.
tional issues at stake.” Id.
activity.” Prohibited
ed to "Federal election
briefing
spent
Plaintiffs have not
much time
and Excessive Contributions: Non-Federal
issue,
chary
this
and I am therefore
to strike
49,064,
Fed.Reg.
Money,
Funds or Soft
waiting
provisions down without
to see
these
49,083
29, 2002).
(July
my judgment,
regulations
the FEC’s
ameliorate Plaintiffs'
if
regulations may mollify any
these
constitu
interim,
vagueness
In the
an Advi-
concerns.
to these terms.
tional uncertainties related
prevent any
sory Opinion process stands
FEC,
375,
See Martin Tractor Co. v.
627 F.2d
might
be incurred
potential chill
(D.C.Cir.1980),
nom.
384-387
cert. denied sub
Plaintiffs.
FEC,
Nat’l
Alliance
Politics v.
Chamber
360,
449 U.S.
101 S.Ct.
(4)
(ii)
activity)”;
election
any section 527
Conclusion
(other
organization,
§
see 26 U.S.C.
323(b)
closely
I find that Section
is
party
than a state or local
or the autho-
sufficiently important
match the
drawn to
campaign
rized
committee of a candidate
interests at stake in this
governmental
office).
101;
§
for state or local
BCRA
appropriately con-
Congress
case.
was
441i(d).
323(d)(1);
§
§§
FECA
2 U.S.C.
cerned,
tellingly
the record in this case
as
indicates,
prohibition
on nonfederal
above,
As
clearly
discussed
the record
at the national level would be entire-
funds
BCRA,
prior
indicates
re-
ly
corresponding
ineffective without
parties
tax-exempt
used
organizations as a
com-
party
strictions on
state and local
evading
means of
requirements.
FECA’s
323(b)
closely
mittees. Section
is a
drawn Congress
appropriately
was
concerned
problem that
answer to that
continues
that without
party
restrictions on
solicita-
permit
parties
and local
to raise as
State
tion and
direction of federal and
much
nonfederal funds as
are able
money
tax-exempt
nonfederal
interest
raise,
law,
spent
consistent with state
to be
groups, party committees would continue
solely
activity
affects state elec-
party organizations
to use satellite
dis-
tions.
guised
tax-exempt groups
to continue to
help
par-
circumvent FECA and also
(iii)
323(c)
Section
ties circumvent the new contribution re-
provision
specifically
This
is not
chal- quirements in
per-
BCRA. Seen from this
such, I
lenged by any Plaintiff. As
do not
323(d)
reasonable,
spective,
Section
is
pass
constitutionality.
on its
prophylactic measure to which this three-
judge District Court owes deference.
323(d)
(iv)
Closely
Drawn
Section
NRWC,
U.S.
tions to those her “simply contributing law to his or question that ballot measure is no There church, if non- engaged church has engage in activi- organizations often GOTV (or partisan encouraging assist- activities In- ty in and around elections. Br. its to vote.” ing) members CDP/CRP deed, fact. should understand this CDP statement is incorrect. Sec- at 46. This 19, 1999, E. Judge Garland On October 323(d) only prohibits by party actions tion *481 Burrell, the Eastern of Cali- Jr. of District party officials “on behalf of’ commit- summary judgment ordered fornia 323(d); 101; § § FECA tee. BCRA against Commission CDP because 441i(d). party personal A official’s U.S.C. $719,000 in CDP had contributed nonfed- a or her own to money donation of his Decep- “Taxpayers Against eral to funds church, other donations or solicitations like 165,” tax-exempt California tion-No On individually on by party officials made political opposed to a state committee behalf, simply not covered CDP, their own v. No. spending referendum. FEC 323(d). 1999) (order (E.D.Cal. under Section S-97-0891 Oct. 323(d) applies party to the com- election I activity,
Section do not find it necessary soliciting directing mittees and federal and to narrowly provision. construe the tax-exempt orga- nonfederal funds these political As discussed at length, parties nizations. The evidence this case and dangle access federal candidates bait Congress the record before demonstrates to lure large money nonfederal donors. congressional concern with the role of tax- response problem, to this obvious Con- exempt organizations circumventing gress 323(e), enacted Section which prohib- contribution FECA’s restrictions. its federal candidates and officeholders ¶¶ earlier, Findings 1.85-1.86.As discussed soliciting, from receiving, directing, trans- the record this case establishes that ferring, or spending any nonfederal funds BCRA, prior parties and candidates in connection with a federal election. would solicit and donate funds to tax-ex- 101; § 323(e)(1)(A); § BCRA FECA empt organizations which would then be 441i(e)(l)(A). § U.S.C. per- The statute used to influence federal elections on be- mits federal candidates or officeholders to half of the or candidate donor. The raise nonfederal funds with connection legal advantage tax-exempt employing election, state and provided local source, organization is that it avoids the amount, disclosure, those funds do not exceed system and allocation the federal con- Therefore, regime. FECA Con- tribution limitations and are from sources gress recognized continuing permit permitted under law. BCRA parties to solicit and direct federal funds to 101; 323(e)(1)(B)® § (ii); § FECA tax-exempt these organizations logically 441i(e)(l)(B)(i) (ii). § U.S.C. Notably, posed problem. a circumvention Notably a federal “may officeholder or candidate BCRA, permit Congress does attend, speak, or guest be a featured at a party committees to solicit and direct fed- State, district, fundraising event for a PACs, eral funds to regulated which are local committee of a party.” under FECA and required to make disclo- 101; 323(e)(3); § § BCRA FECA 2 U.S.C. accept only sures and to federal funds. 441b(e)(3). Also, § federal candidates and Tax-exempt organizations can po- establish may money officeholders solicit on behalf litical committees under the Act to which 501(c) any tax-exempt organiza- Section political parties can direct funds or solicit “principal tion whose purpose” is not donations to the PAC. 301(20)(A) (ii) (i) activity, long so as the indicates, foregoing As the discussion I solicitation not specify does how the funds ' Congress find that prophylactically acted spent. 101; § will be BCRA FECA and on the of a compelling basis record to 441i(e)(4)(A). 323(e)(4)(A); § § 2 U.S.C. tax-exempt ensure organizations Concomitantly, per- a federal is candidate would not undermine the Title I’s restric- mitted money tax-exempt to raise for a such, tions on nonfederal funds. As 501(c) Section organization that does en- me, on the basis of the record I before 301(20)(A)(i)and(ii) gage in Section activi- 323(d) determine that closely Section is ty, subject to the condition that he or she facially drawn and constitutional. $20,000 may up per solicit person per year 101; only. § individuals BCRA (v) 323(e) Closely Section Drawn 323(e)(4)(B)® (ii); § FECA U.S.C. I Judge concur with Henderson’s conclu- 441i(e)(4)(B)(i) (ii). § 323(e) sion that Section is constitutional closely BCRA Amendment, per- drawn because it under the First albeit on *482 slightly mits grounds. different federal candidates and my Given con- officeholders clusion regarding the definition of Federal to continue to engage fully participate retaining certain while closely organizations, but circum- for process,
in the
prevent the kinds
monetary
help
their activities
limits that
minimize the
scribes
developed with their so-
problems
corruption.”
Opp’n at 39.
risk of
Gov’t
funds. For exam-
nonfederal
licitation of
response
Plaintiffs’ offer no real
to this
BCRA,
officeholder
a federal
ple, under
filings.
$2,000 from an individual
up to
may raise
observed in
Judge
As
Henderson has
election,
may
but
not
in a state
for use
323(e)
opinion,
in her
regard to Section
corporation
for
money
raise
from
plaintiffs
that the
emphasizing
bears
“[i]t
However,
undermining
to avoid
purpose.
challenge
provision
this
do
activity,
permits
BCRA
traditional
they
other non-
vigor
same
as
do BCRA’s
ap-
and officeholders
federal candidates
Op.
Henderson
federal fund restrictions.”
party
speak at state and local
pear and
spent
at 323. Given that Plaintiffs
¶¶ 1.97,
Findings
1.96. Ac-
events. Cf.
engaging
little time
a discussion of these
simply wrong
Plaintiffs are
cordingly,
record
issues and the fact that the
before
BCRA,
that, under
“aside from
claim
three-judge
amply sup-
District
Court
fundraising
attending
at and
speaking
ports
congressional
regu-
decision to
events,
and candi-
federal officeholders
manner, I
late
candidates in this
prohibited alto-
otherwise be
dates will
scrutiny
raising money directly
Buckley’s
applica-
for
find that under
gether
from
restrictions,
state and local candidates.” McConnell ble to contribution
Section
Rather,
permits
Br. at
BCRA
fed- 323(e)
23-24.
and, therefore, con-
closely
drawn
eral
and candidates to raise
officeholders
sistent with the First Amendment.
candidates, pro-
nonfederal funds for state
they
(vi)
323(f)
vided that
are within the federal
Drawn
Closely
Section
amount limitations.
source and
in Judge
For
the reasons set
forth
In my judgment, Defendants have ade-
I
find
opinion,
similarly
Leon’s
Section
323(e)
quately explained why
per-
Section
323(f) closely drawn to match the suffi-
mits federal officeholders and candidates
ciently important governmental
interests
to make certain solicitations
tax-ex-
discussed above.
empt organizations
why political par-
ties and
officials under Section
(c) Conclusion
323(d)
prohibited
making
are
I
my judgment,
closely
Title
is a
(ar-
same solicitation. See
Br. at 46
RNC
targeted
drawn
restriction
contribution
provisions
guing
subjecting
“[t]hese
influence of nonfed-
reducing the corrosive
political parties
permit-
to flat bans while
As
eral funds on federal elections.
Justice
ting federal candidates and officeholders to
Byron
remarked
in Citizens
White
engage in the same activities reveal an
Against
“Every form of
Rent Control:
tailoring
utter lack of
in the
treat-
Act’s
compulsory bar-
regulation-from taxes to
parties.”).
ment of
The reason for the
ability
gaining-has some effect on
political party
difference is that unlike
offi-
corporations to
engage
individuals and
cials,
subject
candidates are
limits
expressive activity. We must
therefore
times,
solicitation at all
not whether or not
expressive
focus on the extent to which
acting
party.
on behalf of the
As
activity
is restricted
associational
suggest,
Defendants
“it
reasonable
was
Against
law at
Citizens
Rent
[the
issue].”
Congress to allow
to make
candidates
so-
Control,
the relevant I find Plaintiffs’ con- The record in this case establishes the points tentions these to be without mer- unique political parties situation of in the it. political process. expert As Plaintiffs’ La Assuming Raja concludes, equal Plaintiffs’ protec- groups, “[m]ost interest arguments tion are even viable after my contrast parties], [to seek to build 180. As Professors Rotunda and they likely Nowak dis- upheld antees are also to be cuss: equal protection under analysis, already represent been found to generally unnecessary It is analyze laws promotion government values which which burden the exercise of First Amend- override the individual interest in exercis- rights by persons ment a class of under the ing specific right.... If the Court exam- equal protection guarantee, because the ines the classification under the First guarantees substantive of the Amendment Amendment and finds that the classification strongest protection serve against as the any right, does not violate rights. First Amendment limitation of these Laws which clas- unlikely sify persons Court is rights in their invalidate that clas- exercise of these equal protection will have sification principles. to meet strict tests under for constitu- Nowak, tionality equal without need 3 Ronald to resort to the D. Rotunda and John E. protection clause. Should the laws Treatise on survive Constitutional Law-Substance & (3d specific guar- ed.1999). substantive review under § Procedure 18.40
710
441a(h). Finally,
§
315(h); 2
§
U.S.C.
ofway
as a
officeholders
with
relationships
to
parties
political
permits national
BCRA
process
legislative
to
access
improving
amount)
(in
to
any
money
federal
transfer
position....
Political
their
lobbying
and
being sub-
without
party committees
other
for electoral
resources
... allocate
parties
to
apply
limits that
contribution
ject to the
money
contribute
meaning they
strategies,
2
by nonparty committees.
transfers
such
potentially
in a
iswho
candidate
ato
time,
441a(a)(4).
the same
¶
§
At
1.16.2;
U.S.C.
see also
Findings
election.”
close
up as
set
organizations
interest
special
¶
special relation-
(discussing the
1.46
id.
comply
have to
will
corporations,
nonprofit
and their
parties
political
ship between
electioneering communication
Furthermore,
candidates/officeholders).
with
BCRA
supra.
II.
in Title
provisions
interest
agrees
official
RNC
to the
approach
symmetrical
a
presents
parties.
replace political
never
can
groups
finance
campaign
testifies,
plaguing
problems
¶
McCain
As Senator
Id.
1.89.
party fundrais-
political
national
system:
history
politi-
of
function
entire
“[t]he
orga-
interest
funds and
nonfederal
ing
get
to
their
of
system is
in our
parties
cal
funds to
treasury
using general
nizations
elected,
particularly
that is
candidates
law sim-
election. The
a
influence
campaign has ended
primary
after
true
these
of
unique
nature
ply recognizes
has been
candidate
select-
party’s
and the
process and
political
in the
fact,
organizations
recognizes
FECA
Id. 1.48.
ed.”
ways.
in different
accommodates them
political
a
it defines
when
difference
Cf.
Ass’n,
at
453
committee,
Med.
U.S.
association,
or
“an
party as
California
(“The differing restrictions
2712
101 S.Ct.
a
nominates
candidate
which
organization
unincorporated
individuals
placed on
office
any Federal
whose
to
for election
hand,
un-
associations,
and on
on the one
the election ballot as
appears
name
other, reflect
committee,
corporations, on the
association,
ions
such
candidate
these enti-
Congress that
431(16).
judgment by
Inter-
2
organization.” U.S.C
pur-
differing structures
ties
simply not connected
are
groups
est
may require
therefore
and that
poses,
See Colo-
in the same manner.
candidates
order
regulation
forms of
different
2351
II,
S.Ct.
U.S.
rado
pro-
integrity of the electoral
protect the
(“[tjhere
question
no
about
closeness
I
cess.”).
Title
I find that
Accordingly,
parties”).
of candidates
Amendment
the Fifth
not violate
does
that BCRA
the case
It
is therefore
protection.
equal
guarantees
spe-
differently than
parties
political
treats
Fifth Amendment
corollary
example,
For
As
organizations.
cial interest
Ti-
also contend
arguments, Plaintiffs
to receive
permitted
parties
not
does
undeririclusive because
tle I is
from individuals
greater
contributions
re-
the same
groups
interest
subject
Compare
interest
groups.
than are
applicable
money
315(a)(1)(B); 2
on nonfederal
307(a);
§
strictions
§
FECA
BCRA
committees. McConnell
441a(a)(l)(B)
political party
§
U.S.C.
U.S.C.
57-58,
41-43;
As
Br. at
441a(l)(C).
are Br.
RNC
political parties
§
The
held,
regula-
has
“a
Appeals
ex-
Court
greater
to make
coordinated
permitted
simply
underinclusive
fatally
tion is
candidates
support
of federal
penditures
regulation,
an alternative
because
special
organizations.
interest
than
speech
speech or
441a(d). Moreover,
restrict more
would
§
national
U.S.C.
effective.
be more
people, could
national
more
parties and the
Senate
require
does not
First Amendment
The
contribu-
may
greater
make
committees
speech
as
curtail much
special
government
in-
than
tions to
candidates
Senate
goals.”
its
conceivably serve
may
307(c);
§
BCRA
FECA
groups.
terest
SEC,
(D.C.Cir.
Blount v.
61 F.3d
position
on the
policies
wisdom of
1995) (emphasis
original).
pri-
As
promote
“the
one source of campaign funding
mary purpose
another.”).
analy-
underinclusiveness
problem
that Congress
*485
simply
sis is
proffered
to ‘ensure that the
sought to solve related to the fundraising
actually
law,’
state interest
underlies the
abuses and access given to large nonfeder-
Austin,
677,
In New York v. United the Su- issue in these cases as one of ascertaining preme Court articulated this distinction power limits delegated to the the context of a bringing suit: State Federal Government under the affirmative provisions of the
In some Constitution or inquired cases Court has one of discerning the whether an Act core of Congress sovereignty is autho retained by the rized one of States under the powers Tenth delegated Amend- ment.”). Supreme Congress in I not, Article of the Court Constitution has however, See, e.g., States, addressed Perez v. United whether this distinc- 146, tion 1357, practical no U.S. S.Ct. difference L.Ed.2d 686 when a (1971); private party challenges a Maryland, McCulloch v. law of Congress 17 U.S. (1819). indirectly asserts the Wheat. 4 L.Ed. Tenth Amend- ment other cases a basis for finding the Court has the law sought to uncon- Indeed, stitutional. given determine Lopez TVA, an Act Congress whether province appear invades the would sovereignty state this distinction is relevant when reserved someone Tenth other than Amendment. See, State or the e.g., Garcia State’s v. San are bringing Antonio Metro officials challenge. politan Authority, Transit *487 469 U.S. 1005,
105
(1985);
S.Ct.
If it is the in the down law striking Court preme that argument Con- Tenth Amendment context, Lopez, like BCRA, transgress- Clause was Commerce enacting gress, legisla- that argument re- is authority of state where province ing the Amendment, problem unrelated then on a focused Tenth ture served U.S. Lopez, do not have Plaintiffs commerce. that interstate TVA holds (“The aof challenge.185 possession such a bring 115 S.Ct. standing that arguing are in no sense if, Plaintiffs school zone in a gun However local authority to through might, affirmative activity lacks the Congress an economic Lopez I, presumably elsewhere, substantially then affect enact Title repetition parties private commerce.”). recognizes cases How- line of sort of interstate any such chal- standing to assert I, do Title ever, nature of given the context Com- in the least lenge at really con- Clause, Plaintiffs Elections merce Clause. simply Congress was not tending that elections, im- but was federal regulating argument Con- make an order elections. state legislating permissibly power under its acted outside gress has (“By impos- See, Br. at e.g., McConnell I Title of enacting Clause the Elections activities, these limits on ing to contend BCRA, Plaintiffs are forced laws of effectively overrides the BCRA ability of intruding on Congress ”). injury States.... numerous elections. regulate own States to an individual is not held context (“For the first See, at 9 Br. e.g., McConnell only held injury is rather but plaintiff, history of short cam- relatively time in the *488 elections State, the organizes who the en- Congress has regulation, paign finance oper- Title I law. Since state pursuant re- systematically that legislation acted restriction, inju- the as a contribution ates in only activity not stricts on case rests in this the ry to Plaintiffs and local elec- elections, in state also but specifically funds with interference an into a core intrusion tions. This massive indi- by their regulated regulated sovereignty-the ability area state of of Amend- a Tenth Premising States. vidual elections-vio- own regulate their States the Elections on argument based ment federalism.”) (em- of principles lates basic BCRA, therefore Clause, of in the context added). in these the Plaintiffs phasis To argument present Plaintiffs compels therefore, vio- cases, BCRA consolidated rights of on the rests specifically that focus of sovereignty and lates state States, chosen who have individual their to the injury arguments are their funds.186 regulate these or not regulate States. Norton, 219 City v. standing. Roseville observe, D.C. in that the Circuit I 185. would ("This 130, (D.D.C.2002) F.Supp.2d 148 the issue recently discussed case the Lomont apply precedent. Circuit bound to Court is standing the Tenth private party under the Seventh recognizes that implicitly Lomont O'Neill, v. Amendment in a footnote. Lomont finding reasoning Gillespie case [a in Circuit’s 9, (D.C.Cir.2002). While 13 n. 285 3 F.3d standing the Tenth under party private issue, this not rule on D.C. Circuit did ‘s squared TVA cannot Amendment] Supreme Court certainly that hinted holding.”). TVA and overrule should be the tribunal Accordingly, to the not the courts. lower therefore, context, Plaintiffs In another claiming into that fit extent Plaintiffs standing to assert might private have cases, that Lomont category I find the latter authority under its Congress exceeded that finding panel three-judge against However, this cautions con- in the Clause. the Elections
715
At oral argument, CDP
117,
Plaintiffs’ coun-
Id. at
260;
91 S.Ct.
see also id. at 117
difficulty
1,
sel had
explaining
(“No
this
n.
nuanced
question
S.Ct.
has been
difference
relation to
raised
legal posi-
concerning the standing of
par-
tions.
ties or
jurisdiction
See Tr. at 29-30.
Court.”).
RNC Plaintiffs’
of this
Mitchell,
Accordingly,
counsel proffered that under Oregon v.
there was no
Mitchell,
question
plaintiffs
that
Plaintiffs had
that case
standing because
were able
argue
that Congress
the Supreme
exceeded
Court decided that case
power
its
under the Elections Clause
based on
be-
“Congress’s overreach.” Tr. at
plaintiffs
cause the
in that action were
Mitchell,
43. In Oregon v.
con-
Court
either the States themselves or the United
sidered,
alia,
inter
amendments to the
States, who had each invoked
original
Voting Rights Act that would
given
jurisdiction of the Supreme Court of the
year-olds
right
to vote. The Court
United States.
question
The
in this case is
upheld the
applied
amendments as
to fed-
whether
private
party can assert
elections,
eral
but struck them down as
right on behalf of the State. As no States
applied to state and local elections. Ore-
are among the
plaintiffs
case,
to this
gon Mitchell,
v.
112, 118,
400 U.S.
91 S.Ct.
and as
none
the Plaintiffs bring suit as
260,
(1970)
27 L.Ed.2d
(opinion
representatives
States,
I find that
J.).
Black,
Black,
Justice
in striking down
Plaintiffs’ Tenth Amendment challenge to
that portion of the Act
applied
to state
I
nonjusticiable.
Title is
elections, stated that “[n]o function is more
of third-party
issue
standing
par-
essential to the separate
independent
ticularly
case,
weighty
this
where for
existence of the States
govern-
and their
example, the State of Kentucky
joined
has
ments
power
than the
to determine within
an amicus brief in support
BCRA,
the limits of the
qualifica-
Constitution the
while
McConnell,
Plaintiff Mitch
rep-
who
tions of
state,
their own
voters
county,
resents Kentucky
Senate,
in the
ais
lead
and municipal offices and the nature of
Plaintiff challenging
Moreover,
BCRA.
their own machinery
filling
local public
represents
question
situation
125,
offices.”
Id.
ing or mea- enact authority to Congress’ broad jurisdiction it has no law when of federal integrity protect sures definition, a court is, very do so purpose accomplishes its I Title elections. vires.”). act ultra rights unduly transgressing without pro- in the engage individuals E. Conclusion chal- may be future there cess. While entirety Title I in its my judgment In regulations of the test some lenges which forward put The evidence constitutional. case, challenge at this facial in this at issue justification ample provides record in the attack. constitutional Title I survives stage, re- contribution enacting the Congress The record in the case. issue strictions at III: Miscellaneous III. Title contri- entire that FECA’s demonstrates completely gut- has bee'n structure bution 307, 316, 304, 305, Sections to test willing actors by political ted Henderson’s with Judge I concur with has in a manner limits law of the 305, the condi- to: BCRA Section regard ato system campaign finance returned charged; unit the lowest broadcast tion on aspects of troubling equaling regime increased regarding Section BCRA response, Plaintiffs regime. the 1972 limitations; BCRA Sec- contribution too far.” simply goes “BCRA argue that provisions special However, tions reading Br. at 46. CDP/CRP campaigns against financing dealing with case, I am in this briefing Plaintiffs’ (also known wealthy opponents accept any restric- would if Plaintiffs sure Provisions”). “Millionaire In- funds. on nonfederal tions whatsoever he’s I believe Because don’t COUNSEL: is silent at 2 n. 1. The footnote tion. Id. capacity as a bringing ca- action in his brought in his official Pryor suit whether of Alabama. state. pacity representative State representing However, entire record right. clear from the don't it is I All JUDGE HENDERSON: bring Pryor this suit did not case that complaint. in the remember Second capacity. See McConnell his official of Ala- State I don’t think the COUNSEL: *490 ¶ Judge argument, oral 18. At Compl. Am. this case. party bama is a question with Defen- the raised Henderson Well, state the JUDGE HENDERSON: Attorney counsel whether dant-Intervenors’ isn’t, State of representing the not but he’s ca- brought Pryor suit in his official General Alabama. colloquy The of Alabama. pacity on behalf so, no. don't believe COUNSEL: I was: right. All JUDGE HENDERSON: Alabama HENDERSON: Isn’t JUDGE objec- registered no Plaintiffs atTr. 124-25. General, plaintiff Attorney Pryor, Bill therefore, and, only this tion to discussion the McConnell? Pryor is Mr. be drawn is that conclusion to Yes, he is. COUNSEL: capacity on bringing in his official suit he, to Why isn’t JUDGE HENDERSON: Alabama. of the State of behalf needed, why standing is that that the extent fill that? doesn't he Section 318: Prohibition of Contribu- Given the evidence presented in this by tions Minors case, I need not decide the appropriate review, standard of for even if exacting FECA, Section 318 adds Section 324 to scrutiny applied were present situa- providing that: tion, Defendants have present faked to An individual who is years old or sufficient evidence to par- establish that shall not younger make a contribution to ents’ use of minors to circumvent cam- or a candidate contribution or donation paign finance laws serves an important to a committee of party. governmental interest.188 Although it is 318; § BCRA 324; § FECA 2 U.S.C. clear that the FEC and Congress have § 441k. Section challenged 318 is by the been concerned for many years with the McConnell Plaintiffs. potential for campaign finance abuses The Government maintains that through the use of contributions,189 minors’ provision subject is to Buckley’s “closely ¶¶ 3.1, 3.2, Findings present- evidence scrutiny drawn” standard. Gov’t Br. at ed is insufficient to support government 199. According Government, to the Sec- action that abridges constitutional free- tion 318 important serves the governmen- doms.
tal interest of preventing circumvention of Campaign finance prohibit anyone laws contribution limits and is closely drawn to from making “a contribution in the name avoid unnecessary infringement of consti- of person another or knowingly per- rights. tutional Id. at 200-08. Plaintiffs mit[ting] his name to be used to effect disagree, arguing provision that since the contribution,” such a or “knowingly ac- works complete as a ban on contributions cepting] a contribution by per- made one by minors to candidates and son in the name of person.” another committees, subject it is to strict scrutiny. U.S.C. 441f. by Donations made minor McConnell Pis.’ Br. at 92. main- Plaintiffs children are specifically addressed in FEC tain that if even exacting scrutiny is the regulations. 110.1(i)(2) See 11 C.F.R. standard, appropriate preventing circum- (2002 ed.).190 However, revised enforcing vention is not a cognizable government provisions these respect to contribu- interest in the campaign context, finance by tions minors has been difficult due to were, that even if it Defendants have the fact that FECA require does not re- failed to show that Section 318 is ¶ tailored porting age. a donor’s Id. 3.9. The to serve that interest. Id. at 93. evidence shows also that when the FEC necessarily precludes (ii) funds, This reason discus- goods, or services contribut- provision sion of whether narrowly is ed are owned or exclusively by controlled important governmental tailored meet an child, the minor such by as in-come earned interest. child, proceeds of a trust for which beneficiary, child savings or a 189. The record also demonstrates that not all opened account exclusively maintained political campaigns contributions to made name; in the child’s minors are parents done in circum- (iii) The contribution not made See, campaign vention finance e.g., laws. proceeds gift, of a purpose of which was Findings 3.7. provide contributed, funds to be or is not regulations provide *491 The that contribu- any way in by other controlled another indi- by tions minors that do not violate FECA's vidual. provisions other permitted long so as 110.1(i)(2) (2002 11 C.F.R. ed.). revised (i)The decision to contribute is know- made ingly child; voluntarily by and the minor More- with the Constitution. ty consistent by young given donations discovered
has
restrictions
over,
in-
that BCRA’s
their
I conclude
suspicions,
raised
children
of
out
refusal
as set
by the
stymied
electioneering communication
were
vestigations
interviews, constitutional
constitu-
201, 203,
204 are
to allow
parents
in Sections
legal
concerns,
parental
of BCRA
privacy
find Section
I also
tional.
¶ 3.10.
Id.
influence.
counsel
determine
I further
constitutional.
504 are unconstitu-
difficulties,
the Sections
these
Perhaps due
Henderson’s
Judge
the Court
with
provide
I concur
able
tional.
was
Government
the FEC
re-
standing
where
with
instances
Plaintiffs’
only four
discussion
parents
by
made
were
lowest
on the
condition
found contributions
to BCRA’s
gard
in
minor children
of their
name
in the
increased
charged, BCRA’s
unit
broadcast
laws.
campaign finance
existing
violation
limitations,
“Mil-
and BCRA’s
contribution
investiga-
¶
of these
Some
Id.
3.8-3.8.4.
Provisions.”
lionaire’s
by newspaper
prompted
been
tions have
great faith
who has
anyone
For
made
contributions
discussing
articles
democracy,
country’s
this
purity of
names.
children’s
young
in their
parents
case is
in this
amassed
factual record
Therefore,
the rec-
although
3.5, 3.6.
Id.
cam-
pre-BCRA
The
depress.
bound
of circumvention
threat
that the
ord shows
wealthy individ-
saw
regime
paign finance
exists,
statements
including
in this manner
rou-
unions
uals,
labor
appeals
corporations, and
fundraising
from lawmakers
donations,
surpassing
fam-
far
from
tinely providing
for contributions
appeals
include
3.4,
¶¶3.3,
party
minimal
members,
limitations,
national
id.
ily
legal
does not establish
elections.
presented
federal
evidence
committees
influence
finance laws
campaign
instances,
compelled
circumvention
system
this
In some
required
supports the
minors
parents of
amounts
give massive
entities to
corporate
If the Government
interest.
governmental
to the national
funds
of nonfederal
estab-
robust record
a more
proffered
had
par with
stay on
merely to
committees
likely
corruption exists
such
lishing that
concern,
greater
competitors. Of
their
establishing
succeeded
would have
poured mas-
unions
corporations
labor
that all
analysis, given
element of
funds
treasury
general
sive amounts
agree
Supreme Court
members
de-
communications
electioneering
into
theory of
is a valid
“that circumvention
elections, de-
federal
influence
signed II,
Colorado
U.S.
corruption.”
against
policy
spite longstanding
failure
Government’s
Having spent much time reviewing the of our democratic society. case, submitted record in this one thing is very clear: evidence of the wholesale eva- APPENDIX
sion of FECA is not “anecdotal” or “beside point.” Rather, it is evidence of a Expert Reports I. on BCRA’s Effect on regulatory regime in disarray. Without Political Advertisements BCRA, major provisions of the Feder- Defendants provided a number of Election Campaign al Act designed to re- expert reports to address the issue of duce corrupting influence of large whether BCRA is overbroad in terms of of money sums channeled into the the types of advertisements it affects. process are decimated. The clock will be See, e.g., Jonathan S. Krasno Daniel & E. turned back years to close to 100 of incre- Seitz, Buying Time: Television Advertis- mental and balanced campaign finance ing in the 1998 Congressional Elections regulation. (2000) (“BT ”) 47]; [DEV Craig B. Congress, which has concentrated on en- Holman & Luke P. McLoughlin, Buying acting a law that true Buckley Time 2000: Television Advertising in the abuses, address these should not be left (2001) (“BT 2000 Federal Elections ”) impotent to correct these glaring prob- 46]; [DEV Goldstein Amended Expert lems. In reading much legislative (Oct. 2, 2002) (“Goldstein Report Expert surrounding debate passage, BCRA’s I am Report”) 7]; [DEV 3-Tab Jonathan S. by the struck concern Congress to abide Sorauf, Krasno & Frank J. Evaluating the by Buckley’s teachings. my judgment, Bipartisan Campaign (BCRA) Reform Act fact that Congress cognizant was so (“Krasno [DEV 1-Tab 2] & Sorauf Expert Buckley give should this three-judge panel Report”). These studies have been sub- pause great before reaching out to strike ject criticisms, to various which have been down provisions wholesale of BCRA. In to, responded and I set forth these argu- declaring much BCRA’s core tenets fa- ments below. cially unconstitutional, it is my belief that panel’s approach strayed has from the A. The CMAG Data Set conservative, measured, and customary ap- 1. All of
proach to these studies adjudicating on challenges facial relied data Campaign demanded Analysis dictates of Media Group our (“CMAG”), constitutional tradition. Simply put, reason, the Court the basis of assembled, the record considers it useful to discuss underly- Constitution does not act impermissi- as an ing data source which point becomes a ble barrier changes to the sought by our criticism expert, Plaintiffs’ Dr. James coordinate branches to improve the demo- Gibson, L. before discussing the studies’ process. cratic Gibson, themselves. Dr. expert Plaintiffs’ witness, produced “An Analysis of the With it, the record firmly before Buying Reports,” Supreme Time criticizing Court will review this three- Buying both judge panel’s Time legal studies. L. conclusions de James Gib- novo. II, son, Expert Colorado Report, 583 U.S. An at 458 n. Analysis of the Cf. S.Ct. The constitutional 1998 and 2000 rights Buying (Sept. Time Reports participate 2002) (“Gibson those who in the election of Expert Report”) [1 federal officeholders are unquestionably of PCS].
720 75 markets advertising in the cable ad- local television tracks 2. CMAG Report [1 at 8 Expert Gibson markets, covers. media top 75 vertising 24 [2 at Report PCS]; Rebuttal Gibson of U.S. percent 80 than more containing data sets CMAG 2000 1998 and The PCS]. 47]; BT [DEV at 6-7 1998 BT residents. broadcast advertisements did not cover Re- 18; Expert Gibson at 46] [DEV 2000 markets, media 140 smallest the nation’s Dep. PCS]; also Goldstein see [1 at 7 port captured the 75 than more rural are (describing 8] Vol. (Vol.l) [JDT 47-49 at (Vol.2) at 9-10 Dep. Goldstein by CMAG. data). 75 These its compiles how CMAG For those 8]. Vol. [JDT at 16 Ex. 9 & dispersed. geographically are markets covered, shows not the evidence markets 5- Report [DEV at 23 Rebuttal Goldstein captured by CMAG. advertisements all Expert Report 4]; also Goldstein Tab validity in a participated Dr. Goldstein (listing the 7] 3-Tab 1-2 [DEV App. G at comparing the by data the CMAG study of CMAG). by monitored markets of invoices sampling with a CMAG data largest me- York was New 1998-1999 Id. Ex. stations. television eight from house- 6,812,540television with dia market that for seven show The results all percent of 6.854 representing holds the adver- more of stations, percent or L. Dr. James households. television correlat- invoices on their listed tisements Reports of Expert to the Rebuttal Gibson’s Id. at 16-17 data. CMAG with the ed S. and Jonathan M. Goldstein Kenneth however, station, (Tbl.2). For one 2002) (Oct. 7, J. Sorauf Frank Krasno and accounted advertisements percent 2 at 1 Report”) [2 Ex. (“Gibson Rebuttal not be invoices could station’s estimates Nielson (listing 1998-1999 PCS] Dr. Gold- Id. data. in the CMAG found size). in order markets of media be the result could that this surmises stein largest seventy-fifth was the Shreveport by the sta- keeping record inadequate 370,990 market, television media Id. at 17 omissions. as CMAG as tion well all televi- households, percent of or 0.373 Gibson, first time his for the n. 3. Dr. mar- each at 2. For Id. sion households. major this to be report, finds rebuttal major broad- the four ket, monitors CMAG the, Gibson data. shortcoming of CMAG Fox), NBC, CBS, (ABC, cast networks de- He PCS]. at 5-6 Report [2 Rebuttal networks. 42 national cable as well advertisements these missed duces at 2-3 App. G Report Expert Goldstein ads,” 1,764 “likely missed that CMAG in- sets CMAG data 7]. 3-Tab [DEV air- eight stations’ of these percent 5.04 First, every types of data. clude two figures estimates using these ings, aired, pro- CMAG political advertisement in fact were 48,864 airings “that portion audio transcript of the vides cap- ... were not [nationwide] broadcast storyboard con- the advertisement Id. methodology.” the CMAG tured every fourth capture of a still sisting of to the percent figure the 5.04 (applying the adver- portion of the video second captured of advertisements total number Report at 6 Expert Goldstein tisement. assumes, CMAG). without Dr. Gibson 7], Second, provides CMAG 3-Tab [DEV has support, CMAG any factual advertisement, of an airing each data on of advertise- percentage same missed the time, station, show and length, including markets. media in all covered ments Id. cost. estimated Moreover, acknowl- although Dr. Gibson any of know “we do not has some edges data set CMAG 3. The missing air- ... (Vol.l) of these Ex. 52 & characteristics Dep. “gaps.” Goldstein without hypothesizes, nonetheless ings,” he monitor does not The CMAG 9 at 16. *494 any factual support, research or that the cable advertising are significantly different advertisements missed are most likely than the broadcast captured ads those that “did not ‘political CMAG.”). have a clear Dr. Gibson did not suggest that purpose’ that could discerned by the inability “CMAG’s capture local cable analysts.” 6; CMAG Id. at but see Gold- spots introduced any systematic bias into (Vol.2) (stat- Dep. stein at [JDT 12 8]Vol. the data.” Goldstein Rebuttal Report at ing that provided commercials to CMAG [DEV 24 5-Tab 4]. Most importantly, Competitive Media Reporting there is no evidence that Dr. Goldstein’s (“CMR”)191 inclusive,” is “overly including efforts to identify appropriate the electoral Cross, “ads for the Red [and] ads for district for advertisements in general electric companies”). Another shortcom- for “cookie cutter” in par- advertisements ing of the CMAG is although data it ticular flawed were or failed to correct provides percent of the advertise- these CMAG deficiencies. Goldstein Re- audio, only ments’ provides snapshots at Report buttal at 25-27 4]; [DEV 5-Tab four second intervals of the advertise- see also Expert Goldstein Report App. E such, ments’ video. As twenty-five per- at 3 [DEV 7] 3-Tab (detailing process cent of the advertisement storyboards for of pairing “cookie cutter” advertisements the 1998 data set do display not the name with the appropriate district); electoral of group sponsoring the advertisement. Dep. (detail- Seitz at 80-84 [JDT Vol. 28] (Vol.2) Goldstein Dep. at 21 8]; [JDT Vol. ing how Buying Time 1998 authors Expert Report Gibson at 8 An- [1 PCS]. dealt with the issue, “cookie cutter” includ- perceived other shortcoming of is CMAG ing consulting political contacts, experts, it tracks markets not electoral dis- newspaper articles, and geographic airing tricts, distinguish unable to between advertisements). One of Defen- different versions of advertisements that experts dants’ characterized filling are identical with exception of the can- this missing of data as “a straightforward (also didate or officeholder’s name known though admittedly sys- tedious-exercise to advertisements). cutter” “cookie Gib- tematically compare the added data in the Expert Report son PCS]; at 7 [1 Gibson Buying Time database-against /Goldstein Report Rebuttal PCS]; at 7 [2 Goldstein available records.” Lupia Expert Report (Vol.2) Dep. at 113 [JDT Vol. 8]. at 30 [DEV 5-Tab 5]. According to Dr. Goldstein, “snapshot” style terms CMAG’s underinclusive- ness, expert, Gibson, Plaintiffs’ CMAG storyboards Dr. “pres- compromise does not ents no “ability evidence analyze reason believe accurately the con- ads, ... including tent of especially advertisements pro- from the because CMAG markets not covered would vides change complete transcription [the] of the audio results [of studies based on portion the ad along data].” with the video Report (Oct. Rebuttal captures.” Arthur Lupia Dr. Goldstein Rebuttal at Report 14, 2002) (“Lupia 4], Expert Report”) 24-25 [DEV at 28 Furthermore, 5-Tab Dr. 5]; [DEV 5-Tab states, also Goldstein Rebut- Goldstein “there no reason tal Report (“More- at 24 [DEV 5-Tab 4] believe that there any systematic [sic] over, Professor Gibson does not any offer associated with bias the CMAG terminolo- reason to believe that the ads run local gy only capturing one every video frame gets 191. CMAG Competitive [its] data from but advertising now tracks top in the Reporting, Media company that tracked ad- (Vol.l) Dep. markets. Goldstein at 47 vertising top in the markets in 1998 and not Dr. does Gibson Id. at 39-40. ing.” for the 25 25. As Id. four seconds.” rebuttal his these statements contest not which did storyboards percent a better suggest and does report, sponsor, advertisement’s indicate the study. See type this of data source able to were authors Time Buying PCS]; Report [1 at 6-9 Expert Gibson by referring to remedy problem [2 PCS]. Report 3-7 Rebuttal (which Gibson accurately *495 coding original “CMAG’s over ad in of the well sponsor the provides Policy Cen- Annenberg Public B. The cases), examining the content of percent 95 Reports ter cases, by phoning and, ad, in a few the of Policy Center Public Annenberg 1. The at 47] 1998 [DEV BT stations.” television Center”) by “was established (“Annenberg 8. An- philanthropist Walter and publisher ex- expert Goldstein 5. Defendants’ community of create in 1994 to nenberg by on is relied data plains that CMAG Pennsyl- of University within scholars interest- parties and “[candidates is- policy public address would vania na- across the monitoring elections ined 2 [DEV at Annenberg Report 1997 sues.” Democratic (including both tion 21], 38-Tab Committees, not to Executive Republican decade of the last “For much 2. in this plaintiffs of the several mention tracking the has been Annenberg Center Report at Rebuttal Goldstein litigation).” advocacy adver- issue of broadcast growth Dr. Goldstein states 4]. 5-Tab [DEV 23-24 1 2001 at Report Annenberg tising.” the basis served as has data that CMAG Tab-22], Annenberg The Center 38 [DEV articles, “which his of for a number eye, these issue naked that to “the notes top-rank peer- of in the published been indistinguishable often advocacy ads are Id. at journals.” political science reviewed But candidates. run by from ads that “[d]ur- states also Dr. Goldstein different. they are key respects, number of arti- process for these ing peer-review candidates, advocacy groups issue Unlike academic cles, reviewers of none disclosure limits or contribution face no about concerns Gibson’s shared Professor ac- they be held can Nor requirements. reliability of the CMAG validity or day.” by the voters election countable reviews conduct- databases,” include which 38 Report [DEV 1997 3 Annenberg prestigious most “the three ed two Tab-21], disci- political science] journals [the (quoting 21 Gibson report- & n. Annenberg Report at 39 pline.” Id. PCS]). Further- organiza- Report [1 two-dozen Expert that more than ed during un- more, parties, *496 Since Dr. dates. Id. Goldstein did not participate in the writing of either Buying Time studies 5. As also supra, discussed the Annen- or play a role in “selecting the berg conclusions Report 2001 finds that during the that the authors of these reports 1999-2000 chose to cycle election groups 130 aired draw 1,100 database,” from the advertisements, distinct Goldstein at Rebut- an esti- Report tal mated at cost of 3-4 4], [DEV over million. $500 Annen- 5-Tab his berg Report report 1 2001 at [DEV constitutes a separate 38-Tab 22]. assessment The report found percent that 60 of the of dis- data Furthermore, collected. the tinct radio and television issue advertise- database he works from differs from that (689 1,139) ments out of aired from Janu- provided to the Buying Time 2000 au- ary 1999 November were thors, as it has corrected omissions and broadcast for the first time during the errors discovered after Buying Time 2000 final two months of the cycle. election Id. was completed. Id. at 4-5. Dr. Gold- at addition, 12. percent 73 of all the stein’s study produces nine principal con- distinct advertisements mentioned a candi- clusions. Other problems than his with the date. Id. at 14. In terms of television CMAG database which underlies advertisements, the closer the advertise- study, supra KI.A, see App. Dr. Gibson ment was aired to day, election the more most, leaves all, but not of the conclusions likely it contained a candidate mention. in Dr. Goldstein’s Expert Report unchal- Id. at 15. Between March 8 and August lenged. See Gibson Rebuttal Report [2 31, 2000, candidates were mentioned 72 PCS]. Dr. Goldstein’s conclusions and Dr. percent of the television issue advertise- Gibson’s criticisms are discussed infra. ments aired. Id. After August, 95 percent 1. Scope Political Advertising. television The commercials broadcast of following mentioned a conclusions are rebutted, candidate. Id. report The ex- found that during cept 2000 the extent cycle, election that they rely on CMAG percent 89 of unique advertisements were data. supra, App. I.A. In the 2000 “candidate-centered,” meaning they made (from election cycle January 1, 2000 “a case against for or a candidate” without through day), election groups interest ac- using express advocacy. 13,14. Id. at counted percent for 16 of all political tele-
6. The Annenberg reports Center vision were advertisements at an estimated cost relied byon Members of Congress, cited to of million.192 $93 Goldstein Expert Report 192. Dr. Goldstein notes figures "[t]hese ... serving percent 80 of population the nation’s underestimate expenditures television be- attempt make no to measure the in- cause CMAG only estimates cover markets creased cost of advertising during peak
724 (the adver remaining 7] 3-Tab n.ll [DEV per- 27 accounted parties Political
at 8. expenditures). coordinated were tisements at an commercials cent of “bat in certain advertising group Interest million, candi- while cost $162 estimated however, “rivaled states,193 tleground” per- remaining 52 accounted dates Id.; see also parties.” candidates an estimated at advertisements cent of in Mis example, (Tbl.2). For 12 id. at Compared Id. million. cost $338 elec days of souri, the last during in interest increase campaign, three- almost ran groups tion, “interest dramatic, the most was spending group a candi identifying many ads” quarters million approximately $11 “rising from at Id. candidates. the actual as did date 2000.” million $93 an estimated elections, group interest In House (Tbls.lA-B) at 9; also id. Id. candidate and identifying advertisements spend- in candidate the increase (showing cam days last 60 in the running million (from approximately $136.6 ing of total percent “for paign accounted million) politi- and in $338.4 approximately 2000 elec during broadcasts ad House (from approximately spending cal provided parties while cycle,” million)). tion ma- to $162.3 million $25.6 in these advertisements percent in 2000 advertising group interest jority Id. percent. 60.6 races, candidates PACs, out- and fell sponsored was “not percent 99.8 finds that Dr. Goldstein at 8. Accord- Id. regulation.” side FECA adver *497 television party-financed political of interest figures, Dr. Goldstein’s ing candidate, a depicted mentioned or tising on million roughly spent $2 group PACs ads “even percent 1.8 of only while in federal advertisements 3,688 political party of the name mentioned non- group interest 2000, while races candidate promoted the many fewer million $90 constituted expenditures PAC affiliation.” or her his of 10 virtue at Id. 129,647 commercials. spent on Id.194 (Tbl.lB). Interest Universe The BCRA 3. Groups of Interest Role 2. The of con- following The Electioneering: Group Television Political Parties Political unrebutted, the ex- except to are clusions Presidential 2000
Advertising for See data. they rely CMAG that tent conclusions following The Campaign: ¶ that finds Dr. Goldstein App. I.A. supra, that extent to the rebutted, except commercials broadcast groups interest App. 35 supra, See data. rely on CMAG they of the days 60 during the last on television cam presidential of the terms HI.A. In a candidate. mentioned that election per 41 2000 purchased parties political paign, 3- 13 [DEV at Report Expert Goldstein at aimed advertisements television cent of advertise- electioneering These 7]. Tab candi race, while presidential the 2000 at an esti- 59,632 times aired ments were the com of percent for 38 dates accounted million. approximately $40.5 cost of per mated eight groups mercials, interest (Tbl.3).195 14-15 14; also id. at at 11 Id.& Report at Expert cent. Goldstein "tag include does not assessment This 194. the de- campaigns when of seasons identi- advertisements in most included pushes lines” advertising time for television mand in- can sponsor that commercial’s fying the Report Expert up spot prices.” Goldstein Goldstein party’s name. clude 7]. 3-Tab [DEV 7]. 3-Tab [DEV at 13 n.14 Expert Report states what determined Goldstein 193.Dr. percent only reflects This result on a "based "battleground states” constituted CMAG, according covered households media various review professional infor- comprehensive "[n]o Goldstein to Dr. Expert sources,” Goldstein as CNN.com. such of the balance for the available mation 7]. 3-Tab Report 12 [DEV at 12 n. top ten of groups these accounted for 5. Temporal Distribution Interest percent expenditures. these Id. Group-Financed Television Advertise- ments Which Mention Candidate: The following conclusions are unrebutted, ex- 4. The “Magic Words” Test: The fol- cept to the extent they rely on lowing findings rebutted, are not except to ¶ CMAG data. See supra, App. I.A. Dr. the extent rely on CMAG data. Goldstein determines that the “CMAG da- supra, See App. I.A. The so-called “mag- provides tabase empirical evidence of a ic words” test derives from Buckley’s le- strong positive correlation between [adver- gal standard for determining whether an tisements’ reference candidate advertisement is designed persuade citi- the proximity in time broadcast to zens to vote for against particular the election] and consequently of their va- candidate. Such advertisements were lidity as a test for identifying political tele- “express termed advocacy” by the Su- vision advertisements with the purpose or preme Court, and defined as containing effect of supporting or opposing a candi- “elect,” such words “defeat” or “sup- date for public office.” Goldstein Expert port.” supra at 211. Dr. Goldstein Report at [DEV 3-Tab 7]. He finds notes that all candidate-sponsored adver- interest group advertisements tisements paid must for with federal “mention depict a candidate tend to be funds and are to be considered electioneer- broadcast within 60 days election,” ing, regardless of whether they meet the while those which do not “tend to be express advocacy Therefore, test. if the spread more evenly over year.” Id. use express advocacy terminology is “an Specifically, his calculations show per- way ad, accurate classify then adver- cent of group interest advertisements clearly tisements and obviously created mentioning a candidate for federal office and aired to influence elections would be *498 aired within days 60 election, of the while expected to employ magic such words.” percent 18 of those that did not a mention Expert Goldstein Report 16 [DEV at 3- candidate were aired during that time. Tab finds, 7]. Dr. Goldstein however, that (also Id. finding percent 85 of advertise- 11.4 percent 433,811 of the advertisements ments mentioning presidential a candidate by aired candidates met express advo- percent and 76 of commercials mentioning cacy test. Id. Conversely, percent 88.6 of a House candidate within days aired 60 of candidate advertisements in 2000 “were election). addition, Dr. Goldstein technically by undetected Buckley finds the distribution of those advertise- magic words test.” Id. This result demon- ments mentioning candidates for federal strates to Dr. Goldstein “that magic words office be “closely correlated to the dis- are not an way effective of distinguishing tribution of electioneering communications political between ads that have the main by broadcast political candidates and par- purpose of persuading citizens to vote for ties.” Id. For example, percent 76 of in- or against particular a candidate and ads group terest advertisements mentioning a that have purpose of seeking support House candidate were broadcast within 60 for or urging some action particular on a days election, of the compared as to 79 policy or legislative issue.” Id. percent of such advertisements run airing
markets or for ads on local cable sta- [DEV 3-Tab 7]. Expert tions.” Goldstein Report at 14 n.15 726 districts, congressional competitive some pur- of those percent
candidates, and 94 ran more advertisements groups interest For Sen- Id. parties. political chased Id. parties. their or the candidates than group of interest elections, percent 74 ate Goldstein, Therefore, Dr. concludes 22. at candi- mentioned that advertisements evi- strong provides database the “CMAG elec- days of the 60 run within were date covered ads group the interest that dence candidate of percent 67 tion, as were elec- competitive at targeted are by BCRA party-sponsored political of percent closely parallel contests toral id. at 17-18; also see Id. commercials. distribution.” geographic ads their 4). (Tbl 24. Id. at * Interest Distribution Geographic 6. Interest of Perceptions Coders’ Which Dr. Advertisements Group-Sponsored Advertisements: Group Television Aired with- each interest are code students Candidate had Goldstein Mention advertisement following television group The Election: an Days could They campaign. in the aired unrebutted, to the except conclusions as either purpose commercials’ code data. rely on CMAG that extent “ for candi- opposition support or ‘generate finds Dr. Goldstein I.A. App. supra, urge or information date,’ ‘provide or to men- advertisements group interest ” option given action,’ also “were broadcast and were candidate tioned ” Expert Goldstein of ‘unsure/unclear.’ “were 2000 election of the days within 7], Dr. 3-Tab [DEV & n.20 at 24 Report congres- in states concentrated highly percep- coders’ “[t]he finds Goldstein races.” competitive districts sional that BCRA’s defini- evidence provide tions 3- [DEV at 20 Report Expert Goldstein ac- Electioneering Communication tion races, percent 89.2 Senate For 7]. Tab ads captures those curately competitive ran commercials these candidates supporting or effect purpose interest Michigan where races, including Id. at office.” public for election 60,- of the percent percent “22 97.7 found accounted coders groups ad- television sponsored Politi- group Id. interest in the race.” broadcast ads total a candidate that mentioned focused, running vertisements similarly were parties cal days of within 60 broadcast and were competitive ads in percent 90.6 supporting “electioneering,” election (Michigan, 21. Four states Id. states. Id; also id. a candidate. opposing Florida) attract- Washington, and Virginia, *499 this (Tbl.7). finds Dr. Goldstein at 25 by broadcast percent of ads “77 ed given persuasive particularly result races]; at Senate [aimed groups interest one-third coded students fact percent parties broadcast advertisements group television interest all 20; at Id. four these states.” ads in campaign of the course run over 5). (Table races House at 21 also id. Id. at issue advertisements. genuine to be 85.3 pattern, same demonstrated 45,001 deemed advertisements Of the 26. “electioneering” group interest percent of by advertisements” issue “genuine to be politi- advertisements, percent and 98.2 been coders, would percent 3.1 run “electioneering” advertisements were by BCRA cal covered and identi- Id. at election days of the districts. competitive within broadcast Dr. Gold- at 27.196 6). Id. a candidate. (Table fied In at 21; id. 22-23 see also Congres- single during a years in non-election "percent- that this contends Dr. Goldstein 196. Ex- Term, Goldstein 1999.” Genuine such as proportion all sional age overstates BCRA, 7]. it does by because 3-Tab Report [DEV at 27 n.22 covered pert Issue Ads ads run unregulated account the take into stein acknowledges Buying Time BCRA policy “have matters as their pri- 2000, and an article he co-authored focus,” with mary thereby destroying the dis- Krasno, Dr. Jonathan fewer than six ad- tinction he draws between electioneering vertisements were said to be unfairly cap- genuine issue advocacy. Gibson Re- tured BCRA. Id. 26 n. at In those Report buttal PCS]; 20 [2 see also infra publications, other “certain of App. these six I.D.8.e. ads-particularly those as to which there 8. The Broadcasting Effectiveness of was disagreement among the student co- Issue Ads Close an Election: Dr. Gold- ders-were ultimately treated as election- stein’s final conclusion is that if an interest fact, eering. [Dr. Goldstein’s] own group is genuinely interested in promoting judgment is that five of these six ads were issue, the least desirable time to air clearly intended to support oppose the such an advertisement inis the final 60 election of a However, candidate .... in days of an electoral campaign. Goldstein report, [Dr. Goldstein] chose[ to] take Expert Report at 7], 32 [DEV 3-Tab This the most approach conservative and count finding runs counter to Plaintiffs’ argu- all six as Genuine Issue Ads.” Id. Howev- ment that BCRA “may harm interest er, Dr. Goldstein now acknowledges that a groups preventing them from advertis- “most conservative” estimate would in- ing on their issues at a time when citizens clude 6 more advertisements listed in foot- are supposedly paying the most attention note 8 of his Rebuttal Report. Goldstein politics.” Id. Dr. Goldstein first com- (Vol.2) Dep. [JDT Vol. 8]. Adding ments that “while there evidence that these six advertisements results interest in politics and elections rises as finding percent that 17 of the advertise- Election Day approaches, there is abso- run during ments days last 60 no lutely support evidence to position 2000 campaign identifying candidates were that interest in public policy issues rises genuine issue 169; advertisements. Id. at as well during that time.” (emphasis Id. see also App. HI.D.8.C (discussing infra in original). Second, he notes that “com- these detail).197 advertisements in more munication theory has concluded that ad- Dr. Gibson finds fault with the fact that vertising likely (at be most effective this conclusion relies aon methodology he informing or persuading) when viewers are problematic. finds He insists the conclu- exposed to one-sided flows of information sion is flawed by focusing “on the highly in isolation from other advertising.” Id. subjective coding” of the student coders to (citing McGuire, William Myth determine the purpose of the issue adver- Impact: Massive Media Savagings and (i.e. tisements promote a candidate or to Salvagings, 1 Public Communication and urge issue). action on an Gibson Rebuttal (1986); Behavior 173 Zaller, John The Na- Report at PCS]; 20 [2 see also Holman ture and Origins of Opinion (1992)). Mass Dep. at 73 [JDT Vol. (noting 10] that the Dr. Goldstein notes that since the last two *500 question asks subjective for a assessment). months of an election is campaign when As discussed in connection with the most political infra advertisements are aired Buying studies, Time Dr. (64.2 Gibson also be- percent of political all advertisements lieves that the data shows a large that run in 2000 were run in the campaign’s majority of the advertisements barred final 60 days), “an individual interest 197. This revelation casts doubts on some of therefore not recounted here. Dr. Goldstein’s other conclusions which are “that cites), concluded have Dr. Goldstein is policy issue public aon message
group’s steps. two involves someone persuade to that during if aired lost” to become likely the of attention the get First, must one that posits also Goldstein Dr. Id. period. persuade. attempting to is one person during ... harden attachments “partisan of strength the Second, must overcome one campaign” aof months last two persua- at attempt if the existing attitudes other- persuade to difficult “more makes in attitude result is to communication sive of of merits viewers open-minded wise with “those that Id. change.” Given Id. at policy stance.” group’s an interest attention pay tend to attitudes strong Ori- Zaller, Nature (citing John 32-33 with those while communications (1992)). Finally, Opinion Mass gins to ignore tend attitudes weak to an close issue advertisements running are easily reached most [t]hose them.... at effective being less election, besides easily most those changed; easily least less is messages, “also conveying to reach.” most difficult those changed are of scarce price cost-effective, since tend attitudes” with “weak those Id. Since near higher time is air radio television extreme “the most during pay attention of the rest during the than an election up leading circumstances,” period argues his Goldstein Dr. at 33. Id. year.” in which the window provides the election from his the data bolstered theory is difficult these to communication not advertisements group study. Interest individuals. persuaded reach, easily but over spread are a candidate mentioning rejects also Dr. Gibson at 27. Id. and are year calendar the course an close to advertising that issue argument months last two within concentrated partisan because unproductive is election of such percent 17.7 In campaign. approach. as elections harden allegiances the final aired in were advertisements reasoning line of this He states Id. slightly campaign, the election days that “candi- strange conclusion to the leads would “which percent 16.4 than more advertising as abandon should dis- dates equally been ads had if the run have hardened since these 33; approaches election at year.” Id. throughout tributed Dr. Id. convert.” difficult 9). contrast, attitudes (Table at also id. hap- does not “that points out Gibson through June April months during the can- approaches, since, the election pen, advertise- issue such percent per- greater an even to reach try didates expected aired, against “as were ments little voters, who marginal centage of evenly spread ads were if the percent relatively pliable politics, and interest Dr. Id. Goldstein year.” throughout Id. re- issue views.” likely “a is concentration believes pass heat turning on the groups sult of Time Studies Buying D. adjourned Congress before bills defeat for Justice Therefore, Gold- Brennan Center Dr. Id. the summer.” (“Bren- School University Law theo- his York confirms the data New stein finds Center”) exam- two studies produced anof election nan months two final that the ry cam- advertising election television ining time the worst probably “is campaign 47]; BT WOO [DEV BT 1998 public paigns. to educate group an interest “pri- 46], Center The Brennan However, Dr. [DEV Id. issue.” particular its great also does firm marily law Gib- this conclusion. critical Gibson sci- social variety of in a of research Ac- deal PCS]. Report [2 Rebuttal son *501 campaign finance that includes issues ence psycholo- Gibson, political to Dr. cording elec- other justice and criminal along with (whose work McGuire gists, like William 729 toral issues and poverty issues.” proceed Holman would to the phase, second accord- Dep. [JDT Yol. 10]. The Brennan ing proposal, to the would “depend on the Center was involved in the crafting of judgment of whether the data provide[d] a provided BCRA and analysis of issues be- sufficiently powerful boost to the reform ing debated Congress to legislators, the movement.” Id. at In April or May of media public. and the Id. at 11. The 2000, Dr. Kenneth Goldstein of the Univer- put Center also together a letter signed by sity Wisconsin, had who worked on the scholars, First Amendment concluding data set for Buying Time petitioned that the McCain-Feingold bill was consti- the Pew for Center another grant. Gold- tutional. Id. at 19 & Ex. 3. Representa- (Vol.l) stein Dep. at 29 [JDT Vol. 8]. His tives of the Brennan Center testified in request stated he was “happy to work favor of the bill, McCain-Feingold id. at with others policy in the community to 22, and during Senate debate on the legis- make sure study that our is designed and lation, cited Buying Senators Time data in ways executed help move the re- and Brennan Center analyses. Holman form ball (Vol.l) forward.” Dep. Goldstein 10], Dep. Ex. 3 at [JDT Vol. at 37 & Ex. 6 at 5 [JDT Vol. 8]. 2. The Pew Charitable Trust funded Seitz, 3. Mr. co-author of Buying both Buying Time studies. BT Time states that there were a num- 47]; [DEV BT 2000 [DEV 46]. The Bren- ber purposes behind the study, but that nan Center’s funding proposal Buying for “the primary purpose was to contribute to Time 1998 states that the study had an the body of knowledge about campaign academic purpose, but would also be used finance reform and specifically issue advo- “to a fuel continuous and multi-faceted cacy ... and to fill what we viewed to be campaign propel reform forward.” Hol- an empirical void in the literature about Dep. man Ex. 4 at 2 [JDT Vol. 10]. The issue advocacy”. Dep. Seitz [JDT proposal painted study part as of a Vol. 28]. “An independent but related strategy to overcome the “obstacles to re- purpose ... was indeed provide infor- form,” and noted that step first mation to ... proponents of campaign fi- achieving the goal was “to develop a reli- nance reform to help them fashion new able source of information on the nature of and better arguments reform, but ar- the problem.” Id. at 7. The Brennan Cen- guments that would be based on research ter proposed two-phased research plan verifiable, that was checkable, transparent, for Buying Time 1998. Dep. Krasno Ex. 4 reproducible.” Id. Holman, Mr. 14], princi- at 1 [JDT Vol. The first phase, pro- pal co-author of Buying posed to $200,000, cost Time did entailed acquiring approach CMAG, project data purpose “adapting] it so that it might producing easily used, results that would support and us[ing] it to campaign develop strategy reform had seen responding to never grant posed threat proposal by issue advocacy.” submitted to Id. at the Pew 3. The second phase, Charitable Trust. require estimated Holman Dep. at 25-26 $800,000 complete, 10]; [JDT Vol. would (“I “focus on con- see also id. at 29-30 vening a group formidable was mostly of scholars excited about the political sci- activists to create ence policy aspect of study] [the recommendations .... It was not reports, as well ... clear publicizing] at any point and never explained to these activities on Capitol Hill and me exactly be- what sort of policy direction yond.” Id. at 3. Whether not the in.”). study go would
730 findings main study’s The States. United as- provided Goldstein Kenneth Dr. 4. ' include: for coding data processing sistance advertise- (cid:127) of candidate percent Re- Four Goldstein studies. Time Buying
the advocacy” terms. “express used ments part 4]. As 5-Tab [DEV at 6 Report buttal at 9. 47] [DEV BT1998 data two CMAG’s effort, merged he of advertise- (cid:127) issue of proportion The comprehensive single, “a to produce sets as rises candidate mentioning a ments university stu- had He also Id. set.” data In approaches. election of the the date for Arizona University of (at the dents of 1998, percent August July and of University the Time Buying a candi- mentioned advertisements 2000) issue “as- Time Buying for Wisconsin percentage the By September, date. tone, ad- content, issues the ... sess[ ] for remain- percent and reached po- a ads mentioned dressed, whether at 82 remained campaign der a toll-free provided or candidate litical of 97 peak a reaching higher, or percent col- to call, addition etc.... number Id. half of first October. in the percent con- information specific lecting certain 4.15). 87,103 (Figure at reviewed, storyboard cerning each advertise- (cid:127) of issue percent Forty-one opinion, your ‘In coders: asked study also or information provided ments infor- provide ad to purpose days within 60 appeared urged action or a bill on action urge or about mation of those adver- election, only two but oppo- or ” support generate issue, or referred tisements, percent, or seven Gold- candidate?’ particular a sition Id. at 109. candidate. a 7], 3-Tab 7 [DEV Report at Expert stein findings key Time 2000’s Buying information b. provided Advertisements included: cycle the 2000 election were issue bill a or action urged or (cid:127) studies, political advertise- of all percent both ads” in Seven issue “genuine labeled advocacy express contained gener- ments communications those whereas at 73. Can- 46] [DEV BT 2000 terms. particular a opposition support ated advocacy terminol- express used didates issue “sham referred were candidate 15, ads, at id. of their percent ogy in 10 see, BT e.g., Time Buying ads” and interest parties while “electioneering 87, and at 47] [DEV approximately terms used such groups see, e.g., Time Buying issue ad” time, 73. id. at percent two Buying Each 30. 46] [DEV BT 2000 (those ac- urging (cid:127) ads” issue “Genuine million data of 40 consists Time database bill) legislative policy public tion on Id. points. through- dispersed evenly “rather were ¶ I.A, Gib- App. Dr. supra, noted 5. As group-sponsored while year, out underlying data the CMAG criticizes son promote ads electioneering [which asked Lupia was Dr. Arthur reports. both candidate] of a or defeat election Dr. evaluate Center Brennan ap- overwhelming sudden make provided Report and Expert Gibson’s elections.” before immediately pearance general- findings. See his detailing report Id. at 56. Report. Expert Lupia ly had if BCRA (cid:127) study found that Findings Buying Time gen- three campaign, to the 2000 applied times) (which aired ads a number uine issue drew Time Buying a. Act’s defini- within fallen the nature would regard conclusions communication.” “electioneering tion in the advertising and effect *503 Id. at 73. Put way, another of the ad- Time 1998 is advocacy an document. vertisements run within days of the Krasno Report Rebuttal 2at [DEV 5- 2000 election also depicted a can- Tab3]. He that admits he believed that didate, percent 99.4 constituted election- groups parties sponsor- were advertisements, eering percent while 0.6 ing “thinly-veiled campaign ads masquer- were genuine issue advertisements. Id. ading as issue advocacy.” However, Id. 8-2). at 72 (Figure Dr. Krasno suggests that fact “[t]he expected we (and certain results ex- those 7. Criticism Buying Time 1998 pectations realized) were largely loads a. expert, Plaintiffs’ Dr. James L. Gib- issue emotionally, but point. misses the son, while leveling various criticism at both Scholars rarely embark upon research Buying studies, Time dispute does not without expectations some as to its results. that express advocacy words “are rarely But more scholars, than most we had a used in political or that advertising, group compelling reason to insure that our re- sponsored ads that mention candidates sults could withstand allegations of bias.” tended to be concentrated before elec- Id. Dr. Krasno also notes that Daniel tion.” Expert Goldstein Report at 38-39 Seitz’s responsibilities with regard to Buy- 7]; [DEV 3-Tab Lupia also Expert ing Time 1998 did not include data analy- Report 5]; at 9 [DEV 5-Tab Gibson Ex- sis. Id. at 3. Dr. Lupia comments that a pert Report at [111 (“Entirely PCS] ob- “person’s political or ideological beliefs jective characteristics the ads pres- ... need not prevent them from being an ef- ent few threats reliability.”). Neither scientist,” fective and that Dr. Gibson’s does he challenge the conclusions that ad- allegation that “Buying Time cannot be sponsored vertisements by political parties product of scientific inquiry because its and interest groups comprise a significant authors have an ideological commitment” and increasing portion advertis- Lupia erroneous. Id. Dr. also states ing broadcast Lupia races. Ex- that he knows of no “conventional canons pert Report at 9 [DEV 5-Tab 5]. of scientific objectivity,” and that Dr. Gib- b. Dr. Gibson states “Buying fails produce son one. Lastly, Id. Dr. Time 1998 should not be accepted as the Lupia observes that Dr. Gibson’s claim product of scientific but inquiry, is instead that the policy perspective of the Buying policy advocacy written by people with a Time 1998 authors “may have undermined strong ideological commitment to a partic- the integrity” of study, pure “is specu- position ular on campaign finance reform.” lation,” and Dr. “presents Gibson’s report Gibson Expert Report at 3 & n.3 [1 PCS] no direct evidence on this point.” Id. (citing the research proposal and co-author 11. Dr. rejects Goldstein the charge that Daniel deposition Seitz’s testimony); see he or anyone supervision under his “per- supra also App. I.D.2. Dr. sug- Gibson verted” the databases, results gests strong “[t]he policy and ideolog- that his approach project to the was based ical commitments of the investigators are anything other spirit than “the of scien- not compatible with the conventional can- tific inquiry, and objectivity.” Goldstein nons of scientific objectivity have may Rebuttal Report at 8 [DEV 4]. 5-Tab He undermined the integrity of the data col- also claims his “interest creating a lection analysis.” Expert Gibson Re- scientifically valid and reliable database port. at 3 n.3 [1 applies PCS]. He this was based on just more than abstract no- criticism to Buying Time 2000 as well. Id. professionalism tions of and objectivity, as at 45. Dr. Krasno confirms that Buying important I always were. intend- produced.” findings place should fact, one used-CMAG use-and,
ed to PCS]; see at 5 Report [1 Expert Gibson other schol- variety of *504 a wide in databases 23-26; Dep. [JDT at 52 Seitz at also id. to do with nothing having studies arly Buying Time that the (stating 28] Vol. at 8-9. Id. reform.” campaign finance evolution did not “track authors Time Buying that states Dr. c. Gibson or corrections changes” all the of pro- peer-review part of not was set). levels Dr. Gibson to the data made meaning it publication, its prior cess Time 2000. Buying at charges same way any in whatsoever not vetted “was [1 PCS]. at Report 47-48 Expert Gibson consequently publication, to its prior ais “replication that agrees Krasno Dr. of the explication of process normal science,” states that of but precept core correction, and error methodology, project by case insist- “overstates Dr. Gibson prior conclusions review substantive Krasno Rebut- replication.” on ‘exact’ ing place.” Gibson not take did publication According 3]. at 6 5-Tab Report [DEV tal Dr. Gibson PCS]. 4 [1 at Report Expert Krasno, “of the replication perfect to Dr. limits the “seriously that maintains help, is others, their even with results Report.” place in the can one confidence King, Gary (quoting Id. impossible.” often the same criticism makes Id. Dr. Gibson Political Sci- Replication, 28 Replication, Dr. Id. at 45. Time 2000. Buying (1995)). not was able Dr. Gibson ence result this fact was the that Krasno states order Dr. Krasno to consult politi- by the dictated time constraints files used command original “the discover study, calendar, the funders cal Buying Time numbers in produce “subsequent that and notes policymakers, repli- 1998,” Krasno maintains Dr. by Professor myself and publications at Id. 1998 results. Time Buying cate peer review withstood Goldstein have (“[I]t n. 10 6; id. at 8 n. see also &6-7 Krasno, Rebuttal S. process.” Jonathan worked that Professor Gibson appears & n.3 at 3-4 L. James Gibson to Professor of the data version slightly awith different & Kenneth Krasno (citing to Jonathan Buying Time that to create than used set Television Goldstein, About “The Facts at 18 n.3 1998.”); Expert Report Lupia McCain-Feingold and the Advertising using the incor- Despite 5]. 5-Tab [DEV (2002)). Dr. Bill,” Science 35 Political set, Dr. Krasno notes where data rect lack of of the significance Lupia finds examples of the dis- provides Dr. Gibson Lupia ... at best.” “doubtful peer-review findings his those crepancies between He 5]. 5-Tab [DEV at 13 Report Expert are Buying differences Time appar- no “displays Dr. notes that Gibson (re- at 7-8 insignificant. Id. statistically ex- of whether scholars knowledge ent at 24 Expert Report [1 ferring to Gibson on to comment opportunities had perts Report PCS]); Expert see also Goldstein re- Buying Time aspects critical (stating that the 7] 3-Tab [DEV at 18 n.10 ports.” Id. so “are results Dr. Gibson’s variances triviality”); own data suggest “[n]o maintains as to Dr. small d. Gibson (nor be, 5] 5-Tab Report at 43 appears) Lupia Expert [DEV can base has been discrepancies specific (stating “the demonstrated generate will produced Expert Report Time and the Gibson [.Buying small” found numbers sciences, changes that such de- no “provides evidence In the we social 1998].... major Buying Time’s any of analysis affect replicable mand that statistical claims”). that the Dr. contends Goldstein replicable, report .... This replicate the could not Dr. Gibson reason tremendously any confidence undermines results of Buying Time 2000 was because Gibson Expert Report at 5 [1 PCS]. Dr. he using was the wrong data set. Gold- Lupia observes that nowhere report his stein Report Rebuttal 19-20 [DEV does Dr. Gibson identify mistakes in the 4].198 5-Tab Using the “federal.sav” data application of statistical procedure. Lupia ings of the Buying Time set and correlate others Goldstein was “able produced the Brennan “within fraction of a how to categorize certain events that has replicate [2000] Center, key find- study,” Dr. Expert Report at tique as a Dr. Lupia characterizes Dr. Gibson’s cri- “difference in 18-19 [DEV point-of-view 5-Tab 5]. *505 percentage point.” at 20. Id. Dr. Gold- nothing to do statistical techniques stein comments that Dr. Gibson all had the se.” per Id. at information to “replicate the Buying Time f. Dr. Gibson suggests that CMAG’s studies the most is, direct fashion-that shortcomings, detailed supra HLA, App. (or by re-coding all sample) even of the affect the level of credence one may give captured advertisements and comparing the Buying reports; Time however, he the of coding results his exercise with the advances hypotheses no demonstrating results of mine. Because Dr. Gibson nev- why any of CMAG’s shortcomings affect er attempted to test the implic- conclusions the results of Buying Time. Gibson Expert it in the by database replicating the coding Report at 7-9 [1 PCS] (noting that exercise, there most of his assertions about the are “many limitations to data,” the CMAG reliability and of the validity conclusions not but suggesting impact the drawn the limita- from the databases are necessarily tions have on the speculative.” of 19; Buying Id. results at Time also Lupia studies); Expert Report (“It at Gibson Report Rebuttal [DEV 5-Tab at 5-7 [2 5] is also PCS] worth noting (stating he has that the no Plaintiffs basis for verifying their experts passed that the up the opportunity accurate, CMAG data base is that resolve their by there replicating way concerns is no the of knowing the characteris- itself.”). data collection procedure Dr. Lu- tics of the missing airings, but concluding pia comments just that because “a particu- the “apparent! ]” errors caution lar scientist fails in attempt her to repli- against relying on the CMAG data for cate a study does not show that study the drawing conclusions on the politi- nature of is replicable not .... The claim that ‘the cal communications); see also Goldstein report replicable’ not proved is not in Rebuttal at Report 23 [DEV 5-Tab 4] the report.” Lupia [Gibson] Expert Re- (stating that Dr. Gibson “does not even port at 17 [DEV (emphasis 5-Tab 5] attempt explain how these alleged limi- original); see also id. at tations undermine the validity of the con-
e. Dr. Gibson charges that the clusions Buying set forth in ”); Buying Time Time report “is Med with questiona- Krasno Report Rebuttal at 5 [DEV 5-Tab ble techniques statistical applications.” 3].
198. The result of this confusion is that instead ("Gibson tober 2002: 1998 Supple- Data experts of the arguing set, from the same data Report”) Furthermore, mental [2 PCS]. since produces each conclusions from a different analysis the of the studies occurred in the set of numbers. The of divergence source the litigation, context of experts two sides' upon data appears relied to be result of could not confer and resulting resolve the of provided number data sets to the Plain- regarding confusion the data sets. fact This tiffs experts Defendants' pro- and the late has made duel parties' between the ex- duction of additional sets. data perts See Gibson confusing, more help- and therefore less Supplement to Expert Report Rebuttal Oc- ful to the Court. at 10. Id. proportion.” considerable tasks between division g. The they were fact that due to This Dr. Time 1998 Buying
authors judgments, subjective make asked re- question into calls also Goldstein whether unknown training it is without Dr. according to Gibson. study of the sults such to make competent they were study’s since posits Dr. Gibson (“[Ced- 18; id. but see at Id. judgments. analysis secondary engaged authors simply is often advertisements ing these Dr. Goldstein provided the data training and difficult, of one’s irrespective and pecu- nuances “understanding Dep. Holman see also experience.”); likely “most was base” of the data liarities sub- (acknowledging 10] Vol. [JDT [1 Report at Expert Gibson limit[ed].” purpose determining nature jective the database the size of PCS]. Given advertisement). Dr. Gibson of a finds infirmities,” Dr. Gibson data “various students undergraduate also notes results “extremely worrisome University University or the State Arizona de- heavily ] so Time Buying [of representative are “not au- of Wisconsin of an skills limited upon the pendent *506 viewer,’ the in ‘average of the sample analyst.” novice is a who Seitz] [Mr. thor ap- were the students training, absence explains supra, Krasno, noted Dr. Id. dis- unstructured exercise free to parently data engage did Seitz Mr. that [W]ithout ads.... the coding cretion fear “Professor Gibson’s making analysis, discussion coding, and practice training, Buying findings to contributed he that the the results on coding rules based Re- Krasno unfounded.” ... Time that not believe ... do coding I 3], practice Dr. 5-Tab [DEV at 3 Report buttal make can coders student undergraduate analysis “secondary out Lupia points subjective highly on assessments in accurate common others” is by collected data Ex- Gibson ads.” of these characteristics and has discipline, science Dr. Krasno [1 PCS]. Report at pert himself. Gibson by Dr. undertaken been stating that responds, 5- [DEV at 19-20 Report Expert Lupia would program training Dr. by likely a authored it is articles (citing two 5] Tab Dr. Gold- complaints that “country-level electoral caused have use Gibson impose attempting a I were archive” a “historical stein from data” Given 1954). coders. on the our standards study conducted formal [foregoing alternatives, I felt stud- both raised that was h. Criticism since especially preferable, training] was con- coding of advertisements relied on ies in- (reasonably hoping for we were Ex- Gibson university students. ducted impression formed) ordinary viewer’s PCS]; supra also see [1 at 9 Report pert cod- of the pre-testing Limited the ads. role). the coders’ (explaining App. I.D.4 training was showed ing instrument following troubling finds Gibson Dr. appar- were coders unnecessary because the students “how questions: unanswered answer understand ently able to had expertise recruited, what were explanation. further without questions project, employed being prior 5- n.4 [DEV at 5 Report Rebuttal Krasno exposed been had the students whether Gib- Dr. *507 li. practice This has wide acceptance in tematic bias into survey.” the Id. The lack social science and is the source of many of also training made it easier to “simulate important and socially valuable discover- ... experience the of a typical viewer 36; ies.” Id. at see also Holman Dep. at watching the ads at home.” Id. In terms 241-42 [JDT Vol. (noting 10] “it’s common representativeness of the coders, of the practice to use survey students as respon- Dr. Goldstein comments that “the use of work”). dents especially in undergraduate subjects in studies measur- i. Dr. Gibson challenges the reliability, ing subjective perceptions of external sti- or accuracy, of the coded data. Gibson muli is and accepted well-established social PCS], Expert Report at 11 [1 Dr. Gibson procedure.” science Id. at 33. The stu- appears not to be concerned about the dents who coded the 1998 data were un- coding objective characteristics of the dergraduate honors students at Arizona advertisements. Id. (“Entirely objective State University, while six undergraduate characteristics of the ads (e.g., whether students in enrolled Dr. upper- Goldstein’s telephone number is in mentioned the text level Group Interest course at the Univer- ad) of the present few threats to reliabili- sity of Wisconsin the coded 2000 data. Id. (footnote omitted). ty.”) main His concern to According Goldstein, Dr. the coders is over the coding “subjective and judg- were not informed that the Brennan Cen- mental” characteristics. at 12. ter Id. He would be using their data study to the provides Question 6 as an example: effects of campaign legislation, finance he does not your believe he expressed “ever opinion to is purpose the them any policy preference as this ad provide to the to desir- information about or ability or undesirability of urge campaign issue, fi- action on a bill or or is it to nance legislation, in either generate the classroom support or opposition for or during process.” the coding particular Id. at 34. candidate? report treats expert in his
Dr. Goldstein in advertisement of the the broadcast action urge information 1. Provide Gib- advertisement.199 issue genuine aas 19) # Question (If so, to skip PCS]; [1 14 & n.13 Report at Expert son for support/opposition 2. Generate 29] Vol. Dep. at Shays [JDT see also candidate be advertisement he finds (noting 3. Unsure/unclear run, but “it should that “powerful” 47]) (em- [DEV BT 1998 (citing at Id. an to influence clearly designed was appears question This original). phasis Dep. [JDT at election”); McLoughlin 11 ex- Question 2000 as Time Buying that view is personal (stating his 20] Vol. 2000 version Time Buying cept that ad”). issue “genuine ais the advertisement candidate” “particular bold not does task, of this nature subjective Given skip Questions. coder to ask the does procedures “certain that Dr. Gibson states App. F [DEV Report Expert Goldstein reliability of so that essential it is not *508 5] 5-Tab to ban of whether policy issue the ad is on conclusion Gibson, main the by Dr. might rea- One abortions.... partial birth partici- survey where on a based is which of the purpose that one sonably conclude de- how about were asked pants the National support to elicit ad was identities). *509 ing rule, the variable might be reli- (or date what the coder thought was a ably But coded. this does not mean that candidate) ad, was observed in the valid, the data are political figures since Question then 6 was coded as election- appearing in ads could well be doing (in eering part because the coders knew other something than electioneering. presence that the of a candidate was not (emphasis Id. in original). Lupia Dr. Question if coded 6 was coded as provid- counters that Dr. Gibson’s argument information), mis- ing and then the student represents what the coders were asked to made the determination of whether the Lupia do. Expert Report at [DEV 39 5- candidate was ‘the favored candidate’ 5]. Tab He argues question that the 7) (Question seeks or the ‘favored candidate’s the perceptions coders’ of the purpose 8). of opponent’ (Question Thus, the entire advertisements, the the advertise- relationship empirical and logical — —be-
738 questions regarding
instructions showing another while through visible Questions [sic] 6 and Questions tween in- the without Question 6 coders set utility little set of data the renders and 8 Lu- questions.” subsequent or structions about questions important answering 5]. 5-Tab 44 [DEV at Report pia Expert airings. ads these Buying the on Question 6 that I observe PCS]; [1 Report Expert Gibson ques- last is the coding sheets Time 1998 his (characterizing at 55-56 id. but with survey, of the page the first tion evidence “indirect argument own fol- on the appearing and 8 Questions to responds Krasno Dr. conjecture”). Expert See, e.g., Gibson lowing page. percent 97.7 finding that Gibson’s Dr. coding sheets The PCS]. 7 [1 Ex. Report electioneering be to found advertisements not indicate do by Dr. Gibson provided ob- candidates mentioned commercials out) (i.e. their crossed changed coders can- helping goal “[g]iven serving Question 6 for advertisements coding of to discov- surprising didates, it would af- electioneering advocacy to from issue identify do not electioneering ads that er fol- on the and 8 Questions 7 seeing ter Report Rebuttal Krasno candidates.” page. lowing 3]; see also Gold- 5-Tab [DEV n.13 aspects 5-Tab at 27 Report challenge other [DEV Plaintiffs Rebuttal m. stein imagine to They “it is difficult that Time (stating Buying 6 of Question 4] oppose promote intended candidate” “particular ad the note that words can- that mention did not that Dr. Krasno candidate type, in bold printed also He didate”) original). in (emphasis wanted he done because was states theory that Gibson’s that Dr. states when thinking of candidates” “to be coders connected “cognitively were items two Dep. at Krasno question. answering men- candidate fact that ignores .... explains Dr. Krasno 14]. Vol. 123 [JDT purpose are coded tions after “make meant type was bold that a number score coders did ad, special atten- paid that the coders certain appar- actual mentioned ads that candidates appearance tion to neutral reasonably candidates ent ques- ads, answered so these advocacy.” Kras- issue genuine ways as candidates, not with respect tion with 5- [DEV 10 n.13 Report at Rebuttal no Id. at 122-23. something else.” respect Lupia Dr. original). (emphasis 3] Tab Buy- used corresponding question “wild theory to be Dr. Gibson’s finds bold include did not Time 2000 ing ba- apparent no scientific It has guess. type. claim matters because sis, which appar- “it is states n. Dr. Gibson very detailed state- includes question Time Buying single that no to me ent in coders’ sequence an exact ment about to the due part is in This exists. Data Set Moreover, amI processes.... cognitive (and may still was Dr. fact Goldstein scientific the current familiar quite changes in be) making continuously responses psychology of on the literature air- ads assigned individual codes fol- claim and this opinion questions [1 at 11 Report Expert ings.” Gibson Expert Lupia from it.” *510 nowhere lows (“[T]he set data PCS]; at 5 id. see also 5]; also see [DEV at 45 5-Tab Report being manipulated continuously 5- [DEV at 28 Report Rebuttal Goldstein ”). suggests Dr. Gibson changed... 4], Dr. Gib- comments He also Tab those “under- were altered only codes theory his easily tested could have son conclusions,” intro- preferred mining with of coders “one set by showing ducing “asymmetrical bias ... in the data over the whole data set expected is not Id. set.” Dr. Gibson makes the same alle- undermine conclusions.” Id. According to gation regard to the Buying Goldstein, Time Dr. Dr. Gibson “typically does (“[T]his data set. Id. set, at 50 data not specify whether ... alleged errors data, like the 1998 is continuously being were random systematic,” con- changed.”). Dr. explains Krasno that the great cludes “the majority of the er- short time frame of the study “inevitably rors that Dr. are, Gibson most, alleges meant that small changes to the data set the result of random ‘noise’ which would would continue even after the release of not have systematically biased the study’s Buying 1998.” Time Krasno Rebuttal Re- results or undermined its validity.” Id. at port at 4 [DEV 5-Tab 3]. He claims that 38. Dr. Goldstein states produc- that the changes such are quite typical, and that tion of several versions of the Buying “[v]irtually every provider large data Time explained databases is by the fact sets, from the National Election Studies to that “social researchers, science like all Department, Commerce prepares prudent ver- people, periodically back up their sions of their data and continues to fix work when using computers.” Goldstein problems subsequent Id. releases.” The Rebuttal Report at 9 [DEV 5-Tab 4]. Dr. changes, maintains, Dr. Krasno reflect provides Goldstein two explanations for gradual “the filling in of missing data and the variances in data between the two data the discovery of internal contradictions. First, sets. some differences may be the There is no at all in evidence Dr. Gibson’s result of “routine ‘cleaning’ of the data report any of the changes in the suc- sets.” Id. at Dr. Goldstein says that cessive versions of the data that he exam- it is “standard social science practice to ined had more than a impact trivial on his clean a data set correcting apparent results or on those reported in Buying errors after the codes have been entered Id; Time 1998.” but Goldstein Dep. into the Id. database.” (citing Herbert F. (email Ex. 17 authored by Holman stating Weisberg, Jon A. Krosnick & D. Bruce that the “missing data category is Bowen, uncom- An Introduction to Survey Re- fortably large database”). the 1998 search, Dr. Polling, (3d and Data Analysis Goldstein also notes that ed.1996)). each Buying Corrections were made to “wild Time database consists of 40 million is, data codes that entries for which no corre- points, and that “errors are inevitable in sponding code existed in our codebook.” any database of this size.” Goldstein Re- Id. at 11. Dr. Goldstein and his assistants 4], buttal Report 37 [DEV 5-Tab He also “corrected logically inconsistent an- claims that Dr. Gibson’s suggestion that swers ... also [and] filled in missing data these errors invalidate the database fails for some ads aon number of objective to make the distinction between questions, random such mention, as candidate (or error and non-random error “systemat- both the 1998 and 2000 databases.” Id. bias). ic” Id. Dr. Goldstein claims that it More substantial differences can be attrib- is “universally recognized that random er- uted to the fact that Dr. Goldstein “contin- ror does not undermine validity of a ued updating and revising copy [his] own data set error, because random by defini- of part database as of [his] continuing tion, directions,” occurs all and that such scholarly work.” Id. at 11-12. Subse- errors expected “are to cancel each quent other discoveries of miscodes of mostly out.” Id. Therefore while random errors contextual errors and 100 missing adver- “may make coding particular of a data tisements from the CMAG data set were inaccurate, point aggregate effect added to Dr. Goldstein’s version of the *511 this analysis of his regard criticism re- Lupia 12. Dr. at Id. database. Lupia asks: matter. con- and databases multiple the viewed or less more and not storyboards why transparent changes are the that cludes how not told We are examined. Dr. were that to conclude no reason he finds and Were were selected. cases these anything. to hide attempted has Goldstein random, they giv- were at they selected 5-Tab 22 [DEV at Report Expert Lupia (as in is true by counsel Gibson en to Dr. concern Dr. Gibson’s that Lupia agrees 5]. ...), or attempt replication analogous “[l]arge aca- however, one; legitimate is a proce- other by some they chosen were rea- legitimate change for databases demic report Indeed, the [Gibson] ... dure? the relative of existence sons, mere so the hy- the rejecting no basis provides report in the [Gibson] cited changes small is an claim ‘asymmetry’ the pothesis project’s the negate no basis provide ain being selected of the cases artifact the Lupia, To 23. Id. at credibility.” gen- this [sic] toward way is biased and how “why is important question result. particular this erating made,” Dr. Gibson’s changes were 5-Tab 41 [DEV Expert Report Lupia are, Lupia’s illegitimacy of suggestions 5]. cred- questionable varying “of opinion, discusses report, Dr. Gibson In his p. Id.
ibility.” sheet. coding 22 on the Question actual stu- “the examined Dr. Gibson o. reads: Question the 1998 sheeting for 25 coding dent primary is judgement, your 22. them to compared ... storyboards personal charac- ad on focus of set.” Gib- 1998 data of the version ‘final’ policy or on candidate of either teristics Focusing PCS]. 15 [1 Report at Expert son matters? original found that he Question on characteristics Personal 1. as eight advertisements codings student Policy matters been had advertisements” issue “genuine 3. Both electioneering advertisements. changed were aired advertisements eight These Neither Id. times, changing significantly 2,400 over PCS]. [1 at 31-32 Report Expert Gibson is Dr. Gibson survey. Id. results percent that 98.1 observes Dr. Gibson changes were that the fact days of
troubled aired within the advertisements single In not asymmetrical: “entirely policy to focus on were found election change awas storyboards these “many were ads matters, instance means having as originally ad coded candi- promoting on an as Question made coded ‘pur- its as opposition support or focused ‘primarily’ being candidate also but dates ” no documen- 22.” Id. “[s]ince asks: Question He Id. matters pose.’ policy were selected con- ads result individual finds this Dr. Gibson how tation 32-33. Id. at 32. expect. Goldstein might Professor trary to one reconsideration what finds left questions one is produced, analyzes been both apparently then has He and reliable. changes could valid 22 to be more all these why Question wondering App. supra, reproduced Id. Dr. Krasno’s Question effect.” have the same op- ¶ coders I.D.7.Í, provide the adver- does changes explanation pro- advertisement finding that App. tion of infra, detailed tisements candidates, forcing issues Dr. both motes I.D.7.r.(3). Lupia Dr. states judgment dichotomous “to make a coders the same subject Report Gibson’s
741 ” about ‘purpose.’ the ad’s Id. at ty 33-34. of the ads said be examples of illegiti- Dr. Gibson “Question also that observes 6 mate electioneering (by virtue of promot- does not ask the coder to discern the candidates) ing in fact were judged by ‘primary’ purpose of ad [it asks coders their own coders to have ‘policy matters’ ” provide opinion their on the advertise- as their ‘primary focus.’ Id. at 35. Dr. ‘purpose’]. Indeed, ment’s question Krasno disputes Dr. Gibson’s conclusion provides guidance no whatsoever as to how Question that 6 is deeply flawed, noting to code mixed-content ads.” Id. at 34. that “coders rated 99 percent of candidate Gibson, For Dr. Question structure of (and ads percent ads) 93 of party gener- as 22 superior Question that of 6 because ating support or opposition for a candi- it provides options of “both” and “nei- date.” Krasno Rebuttal Report at 10 ther,” not “forcing a choice between differ- [DEV 5-Tab (citing 3] BT [DEV 47] parts ent of the manifest content of the ad 41). This conclusion is bolstered in Dr. ... by allowing a coding of ‘mixed’ con- Krasno’s opinion by the fact the coders tent.” Id. Furthermore, Question he finds were not asked determine sponsor 22’s request for the “pri- advertisements’ of the advertisement and that the disclaim- mary purpose,” opposed as Question 6’s ers on the storyboards provided to the request for the commercials’ “purpose,” coders were often difficult to read. Id. at “provides at least guidance some for how 10 n. 14. Dr. Krasno contends that an to make the judgment required.” Id. Dr. electioneering advertisement does not have Gibson “Question concludes that 22 is to focus primarily on personal characteris- structured such a way as provide tics aof candidate. He notes “politi- that more reliable Question information than cal scientists routinely take view 6.” Id. Dr. Gibson also observes politicians frequently adopt and advertise advertisements coded supporting as op- positions policy in order to appeal to vot- posing candidates have “quite a number of ers. Id. at 11 (citing an example as Antho- characteristics of what the Buy- authors of ny Downs, An Economic Theory Democ- ing Time 1998 refer to ‘genuine as issue ” racy (1957)); see also Goldstein Rebuttal ads.’ Id. at 35. He finds that: Report at 29 n.16 [DEV (citing 4] 5-Tab percent 95.6 sup- advertisements four articles for proposition “poli-
porting or opposing urged candidates cy issues electioneering is widely ads the viewer to take action; some 74.3 noted the percent literature”); science of these were coded as providing Seitz Dep. at [JDT Vol. telephone 28]. toll-free Dr. Kras- number and only no stated that the: percent 2.9 were coded as providing no telephone number best illustration of point [is the fact percent 45.7 that] were percent coded as coders rated 11 addressing candi- health issues; care date[-sponsored] percent 30.1 ad- as ads focused on the taxes; dressed personal 27.8 percent addressed characteristics of the candi- Security. Social dates, percent as policy-related, and the remaining percent Id. at as 34-35. neither Based on these findings, Dr. both. If “1) assumes, one Gibson concludes that: both common coding in Question sense 2) indicate, 6 is and FECA deeply flawed; When candi- Question Question 6 and dates are (i.e., wholly motivated by clash de- coding differ), attributes election, sire to win coding of then the problem Question 22 should be with using q22 considered more as Dr. Gibson would use 3) reliable; valid and According to becomes obvious: it miscategorizes at coding, the vast and overwhelming majori- least two thirds of candidate ads as not *513 6, Lu- Question to superior 22 is
Question the provide Question 6 does that pia notes the is same This electioneering. being of option “unsure/un- a third coder with Buying of editions both that criticism “of- Report Expert the Gibson clear” and test, that words magic the at level Time to answers on how evidence no direct fers ads of group the one for work not it does we had changed have would questions the already are category and purpose whose and ‘neither’ responses ‘both’ the allowed language their of regardless known, response or the ‘unsure/un- Question 6 style. Lu- 50. Id. at 22.” Question clear’ in an that comments Lupia Dr. at 11. Id. that the criticism to response pia posits (the purpose primary advertisement’s to guidance provide to 6 failed Question 6) pri- its Question posed in question instructions providing coders that the Question (the posed question mary focus that charges up to study open the would To illus- same. be the 22) to do not co- the biased themselves instructions the many beer that he notes point his trate 49. Id. at responses. ders’ product, on the not focus do commercials observes, first for the Dr. Gibson q. of a range “engaged people rather but “[massing that report, rebuttal in his time nights ‘wild call can that we activities air- of ads discussion entire from the ” at 47 [DEV Report, Expert Lupia out.’ any is reports submitted expert in the ings 5], not be unreasonable It would 5-Tab consume who people the consideration is to the ad purpose that “perceive 24at Report Rebuttal Gibson ads.” these beer, “but buy the the viewer get” Rating the “Gross He uses PCS]. [2 Id. times.” wild as focus primary its judge data- Buying Time in the variable Points” that, contrary Lupia argues Dr. at on of BCRA impact assess bases can assumption, individuals Dr. Gibson’s ads.” these consume people who “the campaign for distinction same make ratings sum rating points “Gross tois purpose advertisements, their ie. that local news if the time: particular X, but candidate vote for person get viewers percent by ten watched Lupia also Y. Id. issue is on focus program during the run televisions, ad “pri- qualifier that the the idea challenges at Id. points.” rating gross ten represents He the coders. matters mary” clarifies 6). 47] [DEV BT (quoting Dr. Gibson study co-authored cites Expert s and Sorauf with Krasno Starting social iden- on survey question on a based “gen- were that there finding Report’s “pri- word mention that did not tity during airings issue advertisement” uine re- initial concluded mary,” but campaign the 1998 sixty days of the last primary social revealed given sponses candidate, Dr. Gibson depicted Report at Lupia Expert identities. 707 of points for rating gross found L. Gibson James (quoting 5] 5-Tab [DEV He found: airings. Gouws, Identities Social Amanda & represent commu- airings these 707 within Linkages Intolerance: Political number staggering awith nications Public, American Mass African South Thus, were 30,108,857. (2000)). household— 278-92 Political Science Journal Dr. accepted by ads (just the ads these practice” states, “standard This, Lupia ‘gen- Goldstein Professor Krasno no provides “report Dr. Gibson mil- ads’) over 30 prohibited, uine issue scholarly reference tangible evidence communica- group-citizen lion with stan- 6 is inconsistent Question (and figure affected would tions Id. at practice.” dard scientific as- conservative quite is based determination Dr. Gibson’s terms of sumption that each only household has a the 1998 election genuine were issue ad- single television). person viewing vertisements, id. 154-55. Id. Dr. Gibson (2) does make a similar object Plaintiffs to the use of this argument in relation to Buying Time 2000. denominator. Dr. Gibson finds: *514 For further point discussion on this see using a denominator all of issue ads Findings 2.12.13. broadcast in 1998 for these calculations is arbitrary
r. Buying Time and 1998’s makes little Seven Percent sense. Figure useWhy January 1,1998, as the starting date the pool total (i.e., of issue ads Buying Time 1998’s claim only that sev- denominator)? the Why not include ads percent “genuine en of issue ads” in the from December or even the entire 1998 campaign would constitute election- cycle election beginning in November eering communications under BCRA is 1996? Why not limit the denominator to disputed. ads shown in the last half of 1998? The (1) According to Krasno, Dr. Jonathan ... selected ... denominator ... has no author of Buying Time question the theoretical meaning. sought he to answer was “what BCRA’s Expert Gibson Report PCS]; at 38 [1 see impact on pure issue ads?” Krasno Re- (“I also id. at 41 can justification no see Report buttal at 12 [DEV 5-Tab 3]. Dr. for making the equal denominator to all Krasno aimed to determine if BCRA’s 1998.”). issue ads aired in Furthermore, attempts framers’ impact minimize the he argues given that his conclusion that pure of BCRA on issue ads through timing people more are concentrating and identification of candidates worked. issues as near, elections draw discussed Id. Buying Time 1998 found that seven supra App. HI.C.8, Buying Time 1998’s percent pure of all issue advertisements denominator, by using all issue advertise- aired in 1998 identified federal candidate ments run during the course of year, appeared within sixty days of the cam- “the assumption makes that ads any- aired paign. Id. at 13. This figure was deter- time throughout year are equally mined by dividing the number of airings of valuable as ads aired in proximity to genuine issue advertisements mentioning a election.” Gibson Report Rebuttal at 27 candidate within days 60 of the [2 PCS]. He election concludes that the by the “damage total number of genuine of prohibiting an ad issue within days 60 Id.; advertisements run in of an election Dep. also Seitz cannot by at be ameliorated 115-16 allowing [JDT Vol. 28]. that The Brennan ad to Center be broadcast at stands some seven other percent point throughout figure, although year.” period Id. at of 27-28. time in 2001 it questioned had Dr. Krasno explains its that the accuracy. denominator Dep. Holman at only 142-43 reflects [JDT Vol. advertisements run 10]. in 1998 During period time, of because “we no Brennan had data from 1997 or the ran Center analyses additional last weeks of deter- 1996 to include in the de- mined that seven percent “unique of nominator.” issue Krasno Report Rebuttal at ads- or in words, other ... special 14 [DEV He 3]. *515 at 15 Report Rebuttal Krasno year.” the bet- suggests cline.”). also Dr. Gibson using the of The effect 3]. 5-Tab [DEV arbi- is not denominator, one that and ter that the 1998 denominator 2000; Buying Time in Time Buying trary, is that used by the only not is affected percentage advertisements of issue airings namely, all advertisements issue genuine amount campaign days of the sixty last the during election, also but the days of Ex- within 60 run Gibson a candidate. depict also advertise- electioneering number the The formula [1 PCS]. at 39 Report pert at 16 n. time. Id. during that run ments to as- If one were question: the answers Dr. Gib- applied Dr. Krasno 26. When mentioning advertisements all issue sume Buying Time the denominator elec- son’s days of an last 60 in the a candidate genuine percent of 14.7 he found 1998 data pur- electioneering an had campaign tion unfairly would advertisements time would issue of the percentage pose, what Id.; Krasno & So- also captured.200 Id. at 38- be erroneous? assumption 2]; 1-Tab [DEV at 60 n.143 Report 1998 rauf contrast, the Time Buying By 39. the calculation: (providing 3 App. at per- id. question: “What the answers
formula issue genuine of three distinct airings 713 throughout run total ads centage mentioning candidate name advertisements201 a candidate mentioned year that election days of an 60 aired and within information providing coded and were figure to be 6.1 the correct Gibson, calculates than now using data set a different 200. Dr. Report at 19 & Krasno, Buying by taking percent. Time Rebuttal Krasno found Dr. using 3]; & So- see also Krasno App. "flawed numerator 5-Tab [DEV 1998's calculating 2], figures for own Center’s 1-Tab Dr. Report [DEV Brennan at 60 Expert rauf (airings 60 within proper denominator the numerator problems with Gibson’s election]), group 16.5 days % [of I.D.7.r.(3). infra, App. discussed (as defined 'genuine issue ads' were ads ” Center).... Expert Re- Gibson the Brennan advertisements, "HMO said these One of PCS], reject this goes on to He port at 42 [1 (118 times 455 times a total of was No” aired accept num- "does figure because he Greensboro, Raleigh-Durham, 126 times by using the finds that also Id. He erator.” Louis). & So- Krasno in St. 211 times "final” version was he data set believed 3, 20 1-Tab Report App. at Expert [DEV rauf aired percent issue advertisements 25.7 infor- 2], find additional We unable to were were during mentioned candidate advertisements, two the other mation about were days the election within broadcast Who” "CENT/Breaux." Matter "CCS/No at 37. Id. advertisements. "genuine” issue 1,110,290 television St. Louis had Id. figure is that this incorrect Krasno states Dr. 834,260, households, Raleigh-Durham had incorrect, result- the data set used is because 584,900. Rebut- Gibson had and Greensboro large,” times too "four ing in a numerator Sorauf, Report PCS]. 2 [2 tal Ex. he study with that based on his numerator; constitutes the the denomina- tor is 4847 airings of issue advertise- (3) Plaintiffs’ and Defendants’ experts ments mentioning candidate within 60 disagree also as to what the appropriate election). days of the Dr. Krasno also numerator should be. Dr. rejected Gibson notes that Dr. calculations, Gibson’s find- the Buying Time 1998 numerator because
ing 44.4 percent more of genuine issue based on the data he provided was he unfairly advertisements captured by concluded that eight advertisements aired be, by BCRA to Dr. Gibson’s own report, 2,405 times the last days a result of his changes to the numerator campaign were originally pro- coded as as well as to the 16; denominator. Id. at moting issue or urging action (genuine see also Expert Gibson Report at 40 [1 advertisements) issue but were overruled PCS]. Dr. Gibson notes that the discrep- by Dr. Goldstein and recoded as election- ancy between his figures and that of Buy- eering advertisements. Gibson Expert ing Time 1998 “is due in part to the use of Report at 42 [1 PCS]. When Dr. Gibson denominators,” different but does not indi- added in these advertisements he found cate the extent to change which the that “nearly to the two-thirds of group ads denominator, as opposed aired within days changes his of the 1998 elec- numerator, tion were coded explains by the students as discrepancy. ‘genu- ” ine issue ads.’ Id. at Expert Gibson Report at Dr. [1 Gibson PCS]. Dr. *516 his Rebuttal Report Lupia revises this figure observes that both denominators based on provided information during answer the questions that are different but course of the litigation, which indicated finds both to be reasonable. “If I were that over quarter a of the advertisements asked to assess the proposed regulation’s he added to the numerator did mention restrictiveness, the report’s [Gibson] frac- candidates, resulting in a figure of 50.5 tion provide could information about the percent. Gibson Rebuttal Report at [223 impact during particular a period, time PCS]; see also Krasno Rebuttal Report at while Buying Time 1998’s fraction could 17-18 [DEV 5-Tab (describing 3] er- provide better a measure of regula- the ror). Dr. Gibson concludes that “this 50.5 tion’s impact on issue advocacy more gen- figure % represents the statistical floor erally.” Lupia Expert Report at 25 [DEV ... the 64 % figure my cited in report ... Lupia 5-Tab 5]. states that Dr. Gibson’s provides the ceiling.” Gibson Rebuttal denominator is no arbitrary less than that Report at 24 Gibson, [2 PCS]. Dr. in his of Buying Time 1998. Id. at 26. Holman Supplement Report, states that Dr. Kras- comments that the Buying Time 1998 de- produced no had additional data files justifiable nominator is “a way” of deter- which included an earlier version of the mining impact the of BCRA on genuine upon data set which he had relied. Gib- advertisements, issue although he did not son Supplement to Expert Rebuttal Re- use the same one Buying Time 2000. port (“Gib- of October 2002: Data Dep. Holman at 140 [JDT 10]. Vol. For Supplemental son Report”) at 1 [2 PCS]. Holman, the Buying Time 1998 calculation The data showed that one the eight of ad- is “not incorrect. a It’s way different of vertisements Dr. alleged Gibson had been assigning a number to phenom- a measure (from recoded “genuine to issue” “election- Id; enon.” but see id. at 153-54 (stating eering”) had originally pro- been coded as that the of text Buying Time 1998 relat- moting the election or of a defeat candi- ing to percent the seven figure is “[m]is- date, and that another missing was data leading” and in “ambiguous” that it did as to the nature the of commercial. at Id. not identify clearly referred). to what it 4. As result excluding of the of airings call,” the but “close is a ing advertisement calcu- commercials, Dr. Gibson two
these in only six times appeared fact that percent, to 60 fell “ceiling” his that lates on effect “no has real coding its means Id. unchanged. remained “floor” his Id. impact.” of BCRA’s any calculations inclusion rejects Krasno Dr. 5-6. at ¶¶ I.D.7.Í, I.D.8.C 3; supra App. also at eight adver- these of airings of any advertisement). Kras- Dr. (discussing Krasno numerator. in the tisements that a small “notion that no believes Supple- Gibson’s Professor Response perpetuated be must mistakes 2002) (“Krasno handful (Nov. Rebuttal mental ludi- made is both once were that notion because objects to the He Response”). departure extraordinary and an effort crous a deliberate recoding “reflects data compiling practice usual reported from the results some manipulate would argument re- Dr. Gibson’s 1998,” stating that sets. Time Buying any explana- if he as offered credible data set more “make coding aimed really these@ commercials at why Id. tion for possible.” as accurate sensible at Response Dr, Krasno the decision issue ads.” pure explains Krasno was the advertisements five recode Id. codings. contradictory on based the fraction (4) weighs Lupia Dr. so survey was constructed 2. The the Gibson debate, contending advertise- found coder when con- “are reasonable reports Time Buying informa- “provide was to purpose ment’s how about question ceptualizations words, (in was other urge action” tion groups affect will regulations proposed advertisement) Question issue genuine act groups future if present the next skip supposed was 6, the coder If, howev- past. in the they did exactly 2; Supple- Gibson Id. questions. regulations’ evaluate er, we want *517 For five PCS]. 7 [2 Ex. Report mental the consider should impact we likely future advertisements, coders student these the adapt to will groups that possibility informa- provided advertisement the found Lupia ways.” in different regulations new an- action, on went but urged tion Both 5]. 5-Tab at 26 Report [DEV Expert Re- Krasno questions. 12 next the swer will BCRA impact the predict sides seek addition, states Dr. Krasno In2. sponse at Lupia behavior. their if no one alters have in a scored were these ads “all that that affected to “the extent that concludes variable, ‘fav- another on process parallel alter [to to choose able groups Republi- can,’ a Democratic favoring as denomina- in the behavior], both estimates con- potential Again, the candidate. can the extent may exaggerate tion debate should 6 and favcan question between flict will regulation new aspect of the set as the data attention attracted express abilities groups’ restrict ar- Krasno Dr. Id. prepared.” being was To extent future.... in the themselves storyboards of the a review that gues adapt will groups that such agree that we advertisements, as as other well these five high- of the credibility ways, in various and when as where factors such contextual likely future of the estimates percentage they that aired, it clear makes were they in- on regulations proposed of the impact Id. “electioneering.” coded should be severely undermined.” groups terest final advertisement As 2-4. at at 27. Id. Rus- Kohl and Herb concerning Senators Time Buying 8. Criticism of birth partial positions Feingold’s sell criticisms Dr. Gibson’s Many of a. whether abortion, admits Dr. Krasno those similar 2000 are Buying Time or electioneer- genuine issue or not it is made of Buying Time 1998 and are ad- used by the authors of Buying Time supra, App. dressed I.D.7. 2000.” Goldstein Report Rebuttal at 4 4], [DEV The problem 5-Tab stems from b. Dr. Gibson states that the Buying Dr. Gibson’s use of database; the wrong Time 2000 data base “has numerous errors he does not analyze the Buying Time 2000 and it,” inconsistencies and comments database, but rather “a later iteration these changes preclude him from re- [Dr. Goldstein’s] own version of the data- plicating the findings of Buying Time base containing [his] own up- after-the-fact Expert 46, Gibson Report at 47-48 dates re-codes, including [1 PCS].202 additional He is troubled the fact that ads later received from CMAG.... Dr. Goldstein changed [N]one “pur- coded of this re-coding ever made pose” way of 62 its advertisements, out of 338 into id. Buying Time report.” questions at Id. at motivation behind the 14-15. Dr. Goldstein changes, also exception takes asks what standards Dr. to the charge that he deliberately Goldstein employed changed in making the data in 53; changes, id. at order decrease the also id. number at 47 n. pure 64 (concluding advertisements, issue from a review of calling email cor- respondence “baseless.” Id. at 4. In addition, between Buying Time Dr. Gold- stein researchers notes that he “were reevaluated committed to the coding of 30 drawing a particular advertisements in set of the 2000 substantive database conclusions in his post-Buying from the data. When Time the con- 2000 academic clusions research were not forthcoming, having nothing to do data with cam- paign was scrutinized further and finance or the Buying alterations Time studies base.”). made were in the data instances, “[i]n 26 of these Dr. Gold- [ changed ] stein states that “most of the the coding 62 ‘changes’ from electioneering to genuine [Gibson] identifies 14-15, database are issue.” Id. at App. A (listing changes all, not but original rather stu- advertisements changed or added to the coding dent of additional story- CMAG database each). changes made to boards that had not previously been coded Dr. Goldstein claims that for the Buying all, part were database, database Time 2000 he “did not change 202. Dr. Goldstein testifies he does not the three only advertisements were aired nine *518 original have the times, coding student for this Buying but reported the Time authors study, explaining that "political his science airings 331 data different base that Dr. department ... mistakenly big deleted a Gibson "original, determines is the student files, chunk of including Question out our 1,082 access data- coded of version” 11 shows (Vol.2) base.” Dep. Goldstein at airings.. [JDT 129 at 61-62. Id. He declares that he 8], Vol. "has in figures. confidence none these” of Id. at 62. Dr. Goldstein that claims if Gibson Dr. example, database, 203. For "federal.sav,” Dr. had challenges Gibson used the correct the Buying finding Time 2000 he that would "[o]f all the been identify able to three the group-sponsored issue depicted ads that comprise advertisements which airings. 331 election, days candidate within 60 of the Report 99.4 Goldstein Rebuttal at [DEV 21 5-Tab were% found to be electioneering (finding (172 4] issue ads. #627 advertisements air- numbers, In absolute only genuine (81 three ings), (78 issue # 1389 airings), and #2862 (which ads aired a total 331 airings)). times the also used He database the identi- of elections) 2000 would fy have been by as "all ads groups run interest that men- defined electioneering communications ....” Gibson tioned a candidate and days aired within 60 Expert Report at 61 (quoting election,” [1 PCS] BT 2000 and using that the as denomi- (emphasis [DEV 46] 73 original)). at Dr. nator percentage at the Buy- arrived same as Gibson according that finds to the ing database 53,840). Time (dividing by Id. 331
748 re- distinguishable, meaningfully “not responses coders’ student the any of re-coding [the by inconsistency process.” solved cleaning in the data 11 Question electioneering.” Id. as (Vol.2) commercial] at Dep. 16; Goldstein also Id. spon- was changed advertisement final cell (detailing 8] Vol. 57-59, [JDT 147-50 Voters Women Island by the Rhode Palm sored West from the call conference phone was 1367). The advertisement (numbered of assessment for his asking Airport Beach adver- issue “genuine coded as originally subse- were which advertisements three Dr. by Goldstein changed but to tisement” issue genuine from changed quently disagreed Time authors Buying on after based advertisements electioneering believes Dr. Goldstein coding. Id. assessments). Lupia Dr. with Goldstein’s Dr. clearly election- “is the advertisement that to connect fails Dr. Gibson that comments App. supra, noted Id. As eering.” changes actual with bias concerns his recently discovered ¶ I.D.8.C,Dr. Goldstein the effects or demonstrate the database Ad- versions corresponding that six 58 Report at Expert Lupia directly. coded originally were # 1269 vertisement such, Lupia finds As 5]. 5-Tab [DEV by the advertisements” issue “genuine commit- were investigators charge that by Buying changed later to be students outcome particular reaching a ted “electioneering” authors certainty, Time and, with best, premature “at (Vol.2) at Dep. Goldstein Id. commercials. report”. the [Gibson] proven not ad- six these When 8]. Vol. [JDT 158-59 three that find does Dr. c. Goldstein analysis, to the added are vertisements Time Buying in the advertisements con- most “the terms Dr. Goldstein which Question re-coded “were database estimate,” finds one standard servative ‘providing a candidate’ ‘promoting from ” the advertisements percent an issue.’ action on urging information which election days within aired 3- [DEV Report at Expert Goldstein issue “genuine were a candidate identified “cookie of a version was a One 7]. Tab 169. Defendants’ Id. at advertisements.” (num- run CBM advertisement cutter” that all disagree experts personally “extremely simi- 1269), was bered ad- “genuine issue commercials these CBM-sponsored of other to a number lar” Dep. 82-83 Holman vertisements.” (Goldstein thought) advertisements Adver- (stating he considers 10] Vol. [JDT Id. “electioneering.” coded as all been had “poster child be his # 1367 to tisement to Dr. Goldstein’s brought fact was This Expert advocacy”); Goldstein issue sham and, authors Time Buying attention (noting 7] 3-Tab [DEV 26 n.21 Report at “meaningfully it was concluding all commercials he considers ads, CBM the other distinguishable #2107 Advertisement exception Id. electioneering.” it as ... recoded [he] op- support or clearly intended “were Al- Pro-Life the National was The second *519 candidate”). aof the election pose 2107) (numbered advertisement liance essentially the raises Dr. Gibson d. Kohl Senators Wisconsin mentioned Buy- 11 in Question about concerns same Buying Time Again, Feingold. and practical- as he does ing Time the adver- Dr. Goldstein told authors Time Buying Question 6 in ly identical to anoth- “virtually identical” was tisement ¶ I.D.7.Í. Gib- App. supra discussed mention- Virginia run advertisement er Many PCS]. [1 at 54-55 Report Expert Id. at son Robb. Charles ing then-Senator para- posted in arguments the rebuttal of of storyboards reviewed Dr. Goldstein at this aimed I.D.7.Í, supra, graph them found advertisements two charge as well. supra App. I.D.7.Í. charge as well. In addition, Dr. Goldstein addition, argues Dr. Goldstein responds data by stating that “most electioneer- from the 2000 election shows that ing coders ads seek to influence votes portray- “were [not] systematically biased toward ing the favored candidate as espousing coding ads mentioning candidates as elec- reasonable policy positions on hot-button tioneering opposed to issue ads.” ..., Gold- issues like taxes and the opponent as Report stein Rebuttal at 29 [DEV having 5-Tab unreasonable or even dangerous 4]. Dr. Goldstein states that percent “79.8 positions on the same issues.” Goldstein the group-sponsored ads classified as Report 4], Rebuttal at 80 [DEV 5-Tab electioneering were coded as having run data from the 2000 election shows that days election, within 60 of the compared to percent “53.3 of candidate-sponsored ads only percent 18.7 of non-electioneering focused on policy issues rather than per- ads.” Id. at 28. As one expect “would ... sonal characteristics; an per- additional 35 that ads designed promote oppose cent focused on policy both personal candidate air would relatively close to Only issues. percent 10.8 just focused on Day,” Election objective data, personal Dr. issues.” Furthermore, Id. Goldstein’s opinion, corroborates the cod- percent 47.4 using advertisements Question ing in 11 and demonstrates express advocacy terminology were coded Dr. Gibson’s theory is incorrect. Id. at as having policy focus, percent 34.5 fo- 28-29. cused both on policy personal issues, percent 16.5 only focused personal
e. Dr. Gibson also makes the argument issues. Id. at 30-31. Dr. con- Goldstein that Buying Question 27, Time 2000’s cludes that Dr. Gibson’s theory is “dis- identical to Buying Time Question 1998’s proved by the fact that both candidate ads superior Question 11, for much the ads, and express advocacy which everyone posits same reasons he for the superiority agrees are electioneering, themselves focus Buying Time Question 1998’s 22 over primarily on policy issues.” at Id. the same study’s Question 6. Gibson Ex- Report pert PCS]; at 56-61 [1 f. also attempts Dr. Gibson to demonstrate ¶App. I.D.7.p. He also Ques- claims that “the extent to which changes a relatively tion 27 is more reliable “because it does small number of highly subjective codings not seem to have been subject post- to the can affect the reported results and the coding manipulations Question inflicted on conclusions reached.” Expert Gibson Re- 11.” Gibson Report Rebuttal port [2 at 62 [1 PCS]. He does so looking PCS]. The found percent coders 78.8 of the at 30 produced advertisements by counsel group-sponsored poli- advertisements had assumes that each “could fairly ” cy matters focus, as their primary and 17.6 be coded as ‘providing information.’ Id had percent policy both per- matters and By 62-63. treating them as such and sonal characteristics as their primary fo- adding them to the Brennan Center’s 331 Expert cus. Gibson Report (which PCS]; at 57 figure [1 rejects) he he concludes that see also Report Gibson Rebuttal at 16 [2 the “genuine” so-called airings constitute PCS] (applying the denominator used in percent 24.1 of all airings within 60 Dr. Expert Goldstein’s Report to days election, conclude which did not use percent 84.4 of “electioneering” express advertise- advocacy and mentioned candi- *520 ments had policy matters their primary date. Id. at 63. He then comments that focus.) Many arguments the in “if made one assumed airings that presented ¶App. I.D.7.p, supra, are directed at this within days election, 60 the 2000 which behind method the not reveal does son candidates, did not which but
mentioned Report at Expert Lupia selection. to words,’ intended were ‘magic mention Dep. at 5]; also Gibson see 5-Tab 57 [DEV ..., would be one candidates promote no he has 7](confirming Vol. 180 [JDT scenario, approximately wrong, under the advertisements how understanding of added); (emphasis Id. time.” of the 24% Report selected); Expert Goldstein were Vol. [JDT 179-80 Dep. at Gibson also (“[W]here-as here- 7] 3-Tab [DEV no determina- made that 7](confirming he nothing on based are assumptions such should advertisements the how about tion conjecture of self-serving the more than never he (stating coded); at 181 id. be percentage counsel, any such plaintiffs’ 30 adver- for the storyboards looked at meaningless.”). Dr. Gibson tisements). leads This exercise coding of in the “changes that unlike the conclude notes Dr. Gibson g. change the ads can appears numbers “it very study, small Time Buying current version “the at- dramatically,” serious results some project made the 2000 many possi- supports reliability of the data data base of the 2000 tempt assess of ads number coders.” Gibson of the by estimates the student ble collected characteristics,” all of the “given and evaluates He PCS]. Report [149 Expert these cod- base and in an article data testing of the as detailed reliability deficiencies Goldstein, based, wisest course Krasno and it is Drs. ing on published about dif- whatsoever the recoders conclusions found that no is to draw where empirical on the of the coders original the basis ads on fered from these Expert only one inquiry “purpose” base.” Gibson Question in the data evidence Krasno & (citing Dr. Goldstein “Jonathan Id. PCS].204 instance. Report [1 at 68 Tele- Goldstein, the 30 Facts about The exercise with Kenneth finds Dr. Gibson’s “a re- the McCain-Fein- Advertising to be vision counsel-chosen advertisements Bill,” the data Political Science 35 PS: manipulation gold markably bizarre (Jun.2002)).205 procedure Buying Time Politics artificially inflate in order to advertise- recoding of 250 Id. at involved count.” positive’ ‘false 2000’s ” ‘assumed,’ “how ments, questions Dr. but Gibson “if we *521 accepted as producing any useful Gibson, informa- 36. Dr. in his report, rebuttal tion.” Id. Dr. Goldstein discusses his ef- challenges this test. Dr. Since Goldstein forts to assess reliability inter-coder which was unable discover original the coding appear to be different from that discussed database used in Buying Time Dr. by Dr. Gibson. See Gibson Rebuttal Re- questions Gibson whether or not the relia- (“It port at 9 n. 14 [2 PCS] is unclear how bility exercise tested correlation between [this test] relates the to” one described the coders, recoders and the original or the article published by Drs. Krasno and the recoders manipulated and a data set. Goldstein). Dr. Goldstein pro- describes a Gibson Report Rebuttal at 9 [2 PCS]. whereby cedure randomly Next, he chose 150 Dr. Gibson challenges sample the advertisements, unique had them by coded used Dr. Goldstein. He notes that the undergraduate five pool students and gen- “[i]n which Dr. Goldstein selected the eral, found [ ] inter-coder reliability to be advertisements “highly was skewed” in extremely high.” that very Goldstein Rebuttal Re- few were genuine coded as issue port 34 [DEV 5-Tab Dr. 4]. Goldstein advertisements. Id. at 10. Dr. Gibson also conducted a finds “any more recent that into conclusions inquiry about whether reliability the this sort Question the of ad coding [group-sponsored] inwas He took all fact reliably 350 advertisements in coded cannot accepted data set basis of an sponsored were examination of such a interest small number ads.” groups, Id. He “randomly posits selected 50206 also genuine since undergraduate asked 10 issue advertisements students to code were 1) “exceedingly rare” in sample them on three ... set that attributes[:] whether “it quite seems ‘generate likely the ads that even support after cod- opposition or ing only ads, few particular a developed coders ‘provide candidate’ or informa- strong 2) expectation, implicit action’; explicit, tion or or urge (attack, their tone the next ad contrast, coded 3) would be an elec- promote); (a their focus ad. It tioneering very difficult to make personal candidate’s attributes or policy).” subjective assessments of infrequently oc- Id. at 34-35. original The coders had curring events. Once a coder discerns a percent found 64 of the sampled advertise- pattern responses in the subjective ments to generate support, candidate variable, it becomes difficult indeed for the percent provide information or ac- urge ” coder to ‘break habit.’ Id. tion, and for percent two of the advertise- ments they were unsure or unclear about h. NRA Buying criticizes the purpose. commercial’s Id. at 35. The Time study for including two 30- recoders agreed with original codes minute “news magazines” in the data time, percent of regardless of whether which it “genuine claims are issue adver- original coding “support was or oppose Proposed Findings tisements.” of Fact of a candidate” or “provide information the NRA and the NRA 9. “If PVF these urge action.” Id. at 35-36. The fact “that airings considered, been had 34 % of the the coders agreed original with the in total code of speech volume that BCRA in 2000 percent cases, regardless what would covered in days prior the 60 was,” original code Dr. Goldstein as- general election would genu- have been serts, means that “there is no hint sys- ine issue advertisements.” Id. One of original tematic bias coding.” Id. at magazines” these “news was titled “Cali- drop He later had four because "their set.” Goldstein Rebuttal Report at 35 [DEV codes were missing original from the data- 5-Tab 4]. *522 752 af- would have 2000 during ¶ it ran zines” App. 12 [NRA Decl. LaPierre
fornia.” See Time. Buying of the results in fected times aired 800 was at “California” 5]. NRA the Fact of Findings of Proposed 29, to 2002 Novem- August from California ¶¶ 3-7. NRA PVF ¶ and the the entire- “During 14. 5, Id. 2000. ber was program, there 30-minute ty of the Run Advertisements II. AFL-CIO to reference fleeting only one Primary Elec- Days aof Within during a Specifically, office. for candidate tion join the urging viewers segment short put forth has AFL-CIO Plaintiff A. mem- of the benefits describing and NRA are they claim examples of what of number of the NRA’s an issue cover bership, a relating to advertisements” issue “genuine depicting Vice Freedom’ ‘First magazine cap- that BCRA would legislation pending presiden- image, then Gore’s President tele- ran on the commercials because ture on the screen candidate, flashed tial pri- days of a ¶ radio within and other vision One Id. 13. seconds.” several at 10-11 Br. AFL-CIO mary election. magazine” would “news NRA 30 minute 37-39, ¶¶ 32, 34-36, Decl. Mitchell (citing by BCRA “captured” would similarly 58-59). cited 50, The advertisements 40, Free- “First of the the inclusion due to aimed “flights,” ran the AFL-CIO 917, 920, 924, by 929 to App. NRA dom” cover. the pending (also legislation Here”) particular referring (“It Happen Can’t flights con- these Practically all of time. weapons assault to the “Clinton-Gore once adver- “cookie-cutter” variety of of a sisted ban”). allege that does not The NRA tisements, meaning advertisements minute advertise- other 30 included study they ref- except that virtually identical monitors such ments, CMAG or that the generally See candidates. different erence indi- does not It broadcasts. commercial Mitch- PCS].207 Ms. [6 Decl. Ex. maga- Mitchell “news minute other cate how 1, rely on I in Exhibit testimony the data provides her declara- Mitchell Ms. 207. de- more far listing its information all 1 as a chart Exhibit Exhibit 1 tion as Mitchell's the AFL-CIO Ms. purchased basis forms advertisements tailed advertise- Paragraph includes the 34 of example, in testimony. since For aired, title, the candi- where it declaration, district ment's Mitchell states Ms. her mentioned, whether markets, date officeholder identifying 3 28 media ran in "1991” advertisement, the television was a radio or primaries days of their within candidates discussed, issue(s) audio the commercial’s ¶ support. Id. 1 for cites Exhibit action," dates it was "call and visual However, advertisements 1 shows Exhibit broadcast, mentioned candi- the dates identifying one such 19 markets only aired general elec- primary and date/officeholder's tion, give Ex. 1. credence Id. I candidate. was the advertisement and whether addition, some In Exhibit information days primary, or 60 30 of the within aired same advertisement two cases forms 1 [6 Decl. Ex. See Mitchell date. the election PCS]; against the same in the same district run were (with some PCS] 4 [6 Mitchell Decl. were advertisements Unless the candidate. caveats, 1 is a that "Exhibit substan- attesting identical, separate them two I treated AFL- run tially of the ads accurate list e.g. Ex. id. advertisements. cookie-cutter 2001.”). „CIO Since between 1995 "Couples” advertise- (listing 33-34 two 1 at paragraphs Ms. brief AFL-CIO cites Congressional district fourth run in ments declaration, dec- and Mitchell’s Ms. Mitchell's Congressman Fred identifying Carolina North contained the information laration relies on Heineman, pictured in that one differing but for infor- both sources I in Exhibit look num- a 1-800 Congressman provided advertisements. about these mation not). other did while the ber inconsistency Ms. Mitchell’s between event ell advertising campaigns describes com- ran AFL-CIO four more flights *523 prising 29 different sets of of cookie-cutter cookie-cutter advertisements related to advertisements, legislation some of which were run would raise the minimum wage “Raise,” “Votes,” entitled days within “People,” 30 of a named candidate’s ¶ ¶¶ and “No.” Id. 35. primary 32, According to Exhibit election. Mitchell Decl. 34- 1, two aired, versions of “Raise” 36, 37-39, 40, were 50, one 58-59 [6 PCS].208 of which was aired within days 30 of the addition, 1 Exhibit shows four more named primary, candidate’s and 19 ver- advertisements would captured have been “People” run, sions of were two of which by BCRA due airing to their within 30 mentioned a candidate days within 30 of days of the identified primary, candidate’s primary. candidate’s Id. Ex. 1 at 21- but since all of the airings of three of these 25. The AFL-CIO’s data shows that five commercials captured would have been aired, versions of “No” were none during day-window well, BCRA’s 60 as I address days prior the 30 primary of an only one of these advertisements in this candidate, identified and Exhibit 1 shows Finding.209 airings no of “Votes.” Id. Ex. 1 at 22. In 1. “Too Far” was an advertisement late July 1996, June and of the AFL-CIO which nationally aired on cable television ran two more flights of advertisements and identified President William J. Clinton entitled “Minimum Wage” and “$5.15” days within 30 of the Iowa primary ¶ the same issue. Id. 36. Nine versions of ¶ 32, 1996. Mitchell Deck Ex. 1 at 17 [6 “Minimum Wage” aired, were none of PCS]. implicated days candidates within 30
2. During April of AFL-CIO their primary, while 14 versions of aired, ran a flight of were advertisements entitled one which “$5.15” named a candidate within days “1991” aimed 30 at increasing the candidate’s national primary. 17, 19, 21-22, ¶ 1Ex. Id. minimum 32-35. wage. 34. Exhibit 1 Id. shows that the produced AFL-CIO 19 ver- 3.Between late early June and August “1991,” sions of three of which ran within 1996, the ran flights AFL-CIO four of days 30 of an identified pri- candidate’s advertisements “Couple,” entitled “Lady,” mary “Peace,” contest. Id. Ex. 1 May at 17-20. In ‘Whither,” “intended to de- Far,” ¶ 138; ¶ 208. The 139; advertisements are: "Too 58 & id. "Sky,” Ex. 59 & Ex. ¶ PCS]; "1991,” Mitchell Deck 32 & Ex. "Protect," ¶ 31 [6 id. 59 & Ex. 140. ¶ 33; "Raise,” ¶ id. id. 34 & Ex. 35 & Ex. 35; "Votes," ¶ 36; "People,” id. id. 35 & Ex. "Job,” 209. These four advertisements are: ¶ 38; "No,” ¶35 39; &35 id. Ex. & Ex. ¶ (at 102), Mitchell Deck 61 & Exs. 1 141 [6 ¶ 42; Wage,” id. "Minimum "$5.15,” 36 & Ex. (All airings place PCS] of "Job” took within ¶ 44; id. id. "Couple,” 36 & Ex. election); days general of the 2000 "Bark- ¶ 47; ¶37 48; 37 & id. "Lady,” Ex. & Ex. er,” ¶ (All airings id. 53 & Ex. 116 of "Bark- "Peace,” ¶ 49; “Whither,” id. 37 & Ex. id. place days er” took within 60 of 50; ¶ "Another,” ¶ 53; id. 37 & Ex. 38 & Ex. election); ¶ general id. Way,” "No Two 41 & "Edith,” ¶ 58; "Pass,” ¶ id. 40 & Ex. id. (All airings Ex. 59 Way” of "No Two took 94; ¶ 95; & id. "Support,” Ex. 50 & Ex. place days general within 60 of the 2000 "Call,” ¶ 98; "Failed,” ¶ id. 50 & Ex. id. election); "Raiders,” id. Ex. 1 at 38- 99; "Liable,” ¶ 100; id. & Ex. &50 Ex. "Job,” "Barker,” "Soon,” Ex. 58 at 10. 100; Since the "Basic,” id. IT50 & Ex. id. ¶ 102; ¶ "Label,” Way” airings and "No Two 127; would have 50 & Ex. been id. 57 & Ex. "Trust,” ¶ window, 128; "Endure,” id. captured by 60-day BCRA’s id. 57 & Ex. ¶ 129; "Stand,” ¶57 130; id. 57 & Ex. Findings & Ex. addressed here but "Block,” ¶ 137; ¶¶ 2.11.3.2, id. 58 & id. "Help,” Ex. 2.11.8.2. ¶ entitled were advertisements These Republi- of efforts continuing feat “Failed,” “Call,” “Lia- “Pass,” “Support,” to reduce Medicare/Medicaid Congress can group The “Soon,” ble,” “Basic.” Id. FY 1997 federal of part benefits “Pass,” versions six two versions group ran Id. budget legislation.” “Failed,” versions three of which “Couple,” “Support,” two ran 34 versions “Liable,” ver- and seven days of within 30 three versions candidates mentioned at 78-82. Ex. 1 Id. “Basic.” of “Whith- sions of and 27 versions primaries, run was advertisements fell within of these run, None four which were er” *524 candidate’s named con- of a days 30 primary within candidate’s named of a days of “Call” versions of Id. primary. Five versions Seventeen 1 at 25-36. Id. test. Ex. feder- broadcast, which named of “Peace” were two of were versions four “Lady,” and pri- days of ran 30 candidates within al run, these advertisements of but none of versions of the three mary, candidate’s as did one an identified days of 30 within Ex. 1 at 80-82. Id. 1 at 29-34. “Soon.” Id. Ex. primary. 2000, February through June early September 7. From August and In
4. late of ads flights several another “AFL-CIO ran sponsored 1996, AFL-CIO “the ‘Endure,’ ‘Trust,’ and ‘Label,’ ‘Another’ entitled entitled of advertisements flight Clinton’s to President opposition of advertisements ‘Stand’ a series response to normal provide permanent called groups proposal interest run business ¶ The 57. Id. ads to China.” Medicare relations AFL-CIO’s trade question into “Label,” two of budget 14 ran versions Republican group by claiming that decrease, candidate’s a named days of increase, than within 30 rather would ¶ group 1 at 92-93. Sixteen Id. Ex. primary. 38. budgets.” Medicare Id. aired, dur- “Another,” which three six of were of of “Trust” ran 26 versions versions candidate’s candidate’s a named days named before days ing of a the 30 ran within 30 Eighteen 1 at 39-42. 1 Ex. Id. Ex. at 93-97. primary. Id. primary contest. broadcast, of “Endure” were versions 1996, the AFL-CIO August In of 5. days of the which aired within 30 of three radio adver- television “sponsored a Ex. 1 at Id. primary. candidate’s named was intend- which ‘Edith’ tisement entitled of versions the two Neither of 94-97. protect legislation support for gain ed to named AFL-CIO by the aired “Stand” working families savings of the retirement primary days of their within candidates 401(k) protections by applying the same 1 at Id. Ex. 97. elections. de- to traditional applied plans already ¶ Forty ver- Id. 40. plans.” 2000, fined AFL- benefit July of In June and 8. broadcast, 12 of of “Edith” sions were advertise- flight for a of radio “paid CIO days within candidates which identified pressuring aimed at entitled ‘Block’ ments 1 at 36-39. Ex. primaries. of their Id. Norwood-Din- approve the Senate advertisement of a radio Four versions Rights.” Patient’s Bill gell version were “Raiders” topic same entitled ¶ version 1 shows one 58. Exhibit Id. AFL-CIO, one aired aired, during the but not was “Block” 30- by BCRA's captured would been primary. candidate’s days before a named 36, 38-39. day rule. Id. Ex. Septem- August “In 1 at 86. Id. Ex. Congress, still stalled ber, the bill “spon- AFL-CIO July 6. of tele- flights several AFL-CIO] ran [the radio flights of television sored several tar- ‘Help’ advertisements entitled sup- vision generate designed advertisements who Representatives Republican geting Id. legislation.” port for HMO reform against passed had [bill] voted when over a range of studies does not suggest a October, 1999, urging House viewers consistent relationship” between contribu- to contact each of these Members and ‘tell votes); tions and roll call Bok Cross Exam, him he’s on the ... wrong (studies side.’ One of [JDT 18-19 Vol. 3] are ‘Help’ the flights August “flawed”). ran between Green also testifies that some and September 2000.” Id. 58. Nine studies have even negative found a correla- “Help” during versions were aired tion between contributions and roll call flight, days two of which aired within 30 of votes. Id. at expert 55. Defense Thomas primary. named candidate’s Id. Ex. 1 at Mann comments that these studies often used to the argument buttress corrupt contributions do not Finally, during July and August of policy process. inference, This is an odd “the AFL-CIO ran television adver- since it is based on studies of ‘Sky’ tisements entitled contribu- ‘Protect’ nam- tions that are ing approximately limited as to source Repre- twelve different size very purpose sentatives who had for the voted at the end of preventing *525 pass corruption to or prescription drug legislation appearance. June its PAC con- $5,000 guarantee capped that failed to tributions are at drug per benefits un- elec- ¶ tion, der Medicare.” an amount Id. 59. Twelve versions whose real value has aired, “Sky” were shrunk one of which two-thirds since it was was enact- ed in 1974. during broadcast Are we to days before a assume that $50,000 studies of named contributions primary. candidate’s Id. Ex. 1 at $500,000 97-98. Fourteen or million from corporations, versions of “Protect” $5
aired, three of which unions days aired within 30 and individuals produce would of a primary. named candidate’s Id. the same generally negative Ex. 1 findings? at 98-99. Expert Report Mann at 33. [DEV 1-Tab 1]. examples 10. These constitute 336 advertisements, cookie-cutter 50 of which experts testify part of the rea- would have been affected by BCRA. son the existing linking studies contribu- tions to roll call votes are flawed is that Empirical Corruption III. Studies on “political scientists lack the means my Title I I Findings, briefly summa- which to observe [quid pro and determine Exam, rize empirical the state of the studies cited quo bribery].” Sorauf Cross at 132 by experts to attempt to demon- 31]; [JDT Vol. see also Green Cross Exam, link strate a between donations (“[T]he [JDT 67-68 Vol. litera- 9] corruption. A more detailed ture on the relationship between roll call analysis of presented these studies is be- votes and money murky because the low. problem is an extremely difficult one to solve, statistically.”). expert Plaintiffs’
A. attempted Some studies have to David Primo summarizes the fink- studies show that PAC donations influence roll call ing contributions to roll call votes: votes. expert Defense Donald Green testi- is well [I]t fies that he knows of no established that PAC contri- statistically valid study conducted since butions flow correlating disproportionately to in- fed- holders, erally-regulated cumbent office majority party PAC contributions to can- members, didates and roll call powerful votes. Green Cross members of commit- Exam, 9]; at 58 Vol. [JDT see also id. at tees and to on members committees with (noting 54-55 picture jurisdictions “the spon- evidence relative to the PAC therefore, inherently ... it’s oh, public, and must say it could you sor.... — and what way or another one prove difficult fact, you get once But
be bribes. on would have PAC contributions effect possibly be it, can’t just deeper Exam, at Cross Bok behavior.” prevoting affecting money is little that such fact 3], Vol. [JDT political process. Exam, to es- attempted Vol. [JDT at 143-44 have studies C. Other Cross Primo dona- between 27], a link empirically tablish Plaintiffs’ legislators. and access tions attempted studies B. Other in the finds “scant evidence Primo expert legislative to other forms link donations money se- literature political science offering voting, as committee activity, such Report Rebuttal Primo access.” cures amendments, filibustering. Defendants’ Herrn- PCS]; expert also FEC [213 myri- “a are that there Mann notes expert (testifying at 300 v. Dep. RNC FEC son receive or groups ways which ad of “kind “access” are on existing studies votes. roll-call beyond favors denied 64-Tab washy”) wishy [DEV weak and support or express public can Members Exam, Vol. [JDT 35-37 3]; Bok Cross venues, of- legislative in various opposition PAC studying researchers (noting that 3] help amendments, support, mobilize fer access to show that failed donations have speed or agenda, on or off items place deci- impact policy significant has special access action, provide delay Exam, at sions); [JDT 93-95 Cross Green decline each They can also lobbyists. (unable study that identify a 9] Vol. Report, at Expert Mann requests.” these lead to access *526 PAC contributions shows in these One of studies 1]. 1-Tab [DEV lawmakers). experts Defendants’ federal PAC examines contri- particular,210 “the absence note that and Krasno Sorauf activity, has been legislative and butions prevents ... systematic data access unsound. See statistically to be found rela- searching for from scientists political 9]; see at 55 Vol. Exam [JDT Green Cross policy-mak- and tionships access between study not does (noting the at 68-72 also id. Expert Krasno & Sorauf ers’ behavior.” activities); Primo lobbying for account Exam, 2]. 1-Tab (“I Report [DEV at 5 27] 136-37 Vol. [JDT Cross paper...”); by their convinced am not OPINION MEMORANDUM PCS] at 7-9 Report [2 Snyder Rebuttal LEON, Judge. District “has Wayman’s study and (noting that Hall Campaign Bipartisan passage flaws”). expert Plaintiffs’ notable three (“BCRA”),1 as the Act of 2002 no Reform “there is Primo David concludes indicates, a considerable amply was record clear, systematic evidence and consistent many thought achievement that in the major legislative role play a that contributions Exam, Indeed, pass. come to never would Cross process.” Primo legislative comprehensive the most expert constitutes law Defendants’ 27]. Vol. [JDT finance is, campaign national difficulty of our reform explains “[t]he Derek Bok As twenty-eight years. past to system researchers course, ability history in the such, chapter a latest prior to vote is the get at the behavior recurring problem and longstanding limited since lot severely Science Review Buying Wayman, American Political & Frank Richard Hall (1990). and the Moneyed Interests Mobiliza- Time: Committees, 84 Congressional of Bias in tion 107-155, (2002). Stat. 81 1. Pub.L. No. (2) government wrestling that our has been to ban state and parties local from with since the administration of Theodore using money soft to fund a variety of elec- Roosevelt. tion activities that directly do not affect (3) elections; federal to ban the use of I and II of principal-
Titles BCRA focus corporate and treasury union monies to major ly campaign develop- on a finance genuine fund issue advertisements that are ment that has dramatically unfolded over past during particular aired corporate period decade: the use of time pre- funds, treasury union directly ceding either election they even though do not through money soft donations to directly advocate the election or defeat of a parties, finance electioneering to communi- (4) candidate; federal par- to ban national cations masquerading, predominantly, as ties from donating to soliciting soft In attempt prevent “issue ads.” 501(c) money for certain Section and Sec- apparent actual corruption arising tion 527 organizations under the Internal funding from the of such sham issue adver- Code; (5) prohibit Revenue federal of- tisements, Congress enacted a sweeping ficeholders raising money soft set of effectively: reforms that alters (6) parties; their national require national, state, methodology of our and broadcast licensees collect and disclose parties local and transforms their relation- certain records in connection with requests other; ship with each ability limits the purchase broadcast time. To the con- unions, individuals, corporations, and inter- trary, I find that in trying to do so Con- groups engage est in communications on gress unconstitutionally has infringed upon public policy; and diminishes the role of the First Amendment rights of the various in fundraising po- officeholders supporters. actors and their parties litical nonprofit interest short, defendants, my judg- groups. ment, have been able to establish some For the reasons set forth in the follow- others, respects, but not in a sufficient ing opinion, I find that the defendants Congress’s basis for intervention deal- have more than adequately demonstrated ing problems. with these As to those constitutionally necessary basis for succeeded, where I believe it would *527 (1) Congress: to restrict the use of soft mockery make a existing Supreme money national, state, donations and precedent regulatory Court and the local parties to fund certain types of cam- blessed, scheme that it has heretofore paign communications (particularly candi- hold otherwise. they As to those where advertisements) date-advocacy “issue” not, protections have accorded the to, designed do, which are and which di- plaintiffs under the First Amendment (2) rectly elections; affect federal adequately more than warrant their undo- airing corporate restrict and union ing. electioneering pro- communications which mote, oppose, attack, support specific following The is a brief of my outline candidates for the office which seek. opinion, organized which has been aon respect title title basis. With conclusion, Notwithstanding this howev- itself, opinion to the extent I agreed have er, I do not find that the defendants have judgment with both the and reasoning of demonstrated a sufficient constitutional (or both), (1) my colleagues either of I have so support basis to Congress’s decision: solicitation, noted writing. ban the and refrained from As to receipt, and use of soft money by national parties purposes agreed only those sections where I have elections; directly do not affect federal judgment my of one or more of col- record, enormity importance and the discussion limited have I
leagues, explain necessary to complete to that reasoning my opinion my have included in I great- To the holding. my I reached how I relied of Fact which my Findings set of acknowl- tried to I have possible est extent my judgments. reaching upon we any disagreements address edge and íj» However, sj- light if- factually. if- had if? if- Table of Contents
Introduction.756 Funds. Nonfederal on I: Restrictions Title I. “4 Ü1OO 323(a): Party Ban. National A. New FECA Section (cid:127)si OIOO to Political on Donations for Restrictions Review 1. Standard t> C5TO Parties. Directly Federal Elections Affect Used 2. Donations b- COCO by Congress Regulable . 323(a) Unconstitutionally Regulates the Use New FECA Section 3. -q 05 OO Purposes. Mixed Funds for Nonfederal of Nonfederal ~q -q 323(a) Severability . New FECA Section 4. CO 323(b) 301(20)(A): on “Federal Restrictions Sections B. New FECA Election Activities”. Cr-b- (iv) 323(b) (ii), 301(20)(A)(i), . New FECA Sections t> 301(20)(A)(iii). New FECA Section OGO 323(d): Tax-Exempt on Restrictions New FECA Section C. -q CO Organizations. -q 323(e): Federal Candidates Restrictions D. New FECA Section CO -q 323(f): .. Restrictions on State Candidates E. New FECA Section CD Expenditures.792 Campaign II: Noncandidate Title II. Primary Definition.792 The 201: A. Section Backup Definition.799 The 201: B. Section Amendment.803 The Wellstone 204: C. Section Party Choice Provision.805 D. 213: Section by Minors.808 of Donations Prohibition Section 318:
III. Broadcasting Records.811 Access to IV. Section 504: Public Findings .813 of Fact V.
VI. Conclusion.946 *528 essence, constitutionally in is
Congress, par- a national prohibited regulating on Nonfederal Title I: Restrictions I. receive, solicit, use non- or ty’s ability to 323(a), Funds New Sections FECA (i.e., nonfed- money) for funds soft federal 323(d), 323(e), 301(20)(a), 323(b), To the extent purposes. and mixed eral 323(f) 323(a) regulate dona- seeks that Section 323(a): Nonfed- A. New FECA Section are used for parties national tions to National Par- Fund Restrictions eral indirectly most affect purposes that at the ties (i.e., or mixed nonfederal federal elections have failed purposes), the defendants conclu-
I Henderson’s agree Judge 323(a) an serves reasons, that Section sion, demonstrate although different
759
interest,
important government
431,
10,121
if
2351,150
even
533 U.S.
448 n.
S.Ct.
(2001).
had,
they
sufficiently
that it is
tailored
L.Ed.2d 461
political
Our national
structure
firmly
serve that interest.
by
anchored
our two
major parties.3 The role those national
However, I
Congress
find that
can re-
parties
in
play
defining wide-ranging polit-
a national party’s
strict
use of nonfederal
agendas
ical
and bringing together individ-
money
directly
affect federal elections
(and
resources)
uals
their financial
on be-
through communications that support or
half of
political agendas
those
is critical to
oppose specifically identified federal candi-
stability
political
our
system
en-
has
Therefore,
Judge
dates.
like
Kollar-Ko-
joyed
past
years.4
over the
telly, I find
Congress’s
constitutional
ban
Upon giving money
political
to a
party,
on the use of
nonfederal funds
national
or to any political organization for that
301(20)(A)(iii)
parties for Section
communi-
matter,
hopes
a donor
organiza-
that the
result,
in,
I
in part
cations. As
concur
amplify
political
tion will
perspective
his
from,
part
dissent
Judge
preference.5
candidate
Any number
ac-
of
judgment
Henderson’s
and reasoning re-
by political
tivities
party can amplify the
323(a).
garding Section
activities,
donor’s
voice. Some
1. Standard of Review for Restric-
like direct contributions to state candi-
tions on Donations to Political Parties
dates, are for
purpose
a nonfederal
be-
right
The
freedom
associa
cause
have no effect on a federal
tion under the First Amendment is a fun
Others,
election.
public
like
communica-
right
damental
political par
donors to
tions that advocate the election or defeat
ties,
Valeo,
1,
Buckley
v.
24-
U.S.
particular
candidate,
of a
federal
are for a
25,
612,
(1976),2
96 S.Ct.
poses” because
purpose
influencing
make
Regardless
elections.
federal
state and
contribu
enacting
such
el ections.9
served,
ac-
party
all of these
purpose
had to demon
Congress
tion limitations
dona-
aggregated
tivities,
paid for
in furtherance
doing
that it was
so
strate
effectively,
and often
loudly,
tions, express
interest
important government
this
position.7 For
political
the donor’s
corruption
actual or
preventing
apparent
politi-
to a
donation
reason, an individual’s
or the federal
of either
officeholder
political association
act of
is an
party
cal
25,
Buckley, 424
at
system.
U.S.
electoral
But
First Amendment.
by the
protected
see,
612;
Against
e.g., Citizens
96 S.Ct.
is,
not
right
it is
important as
as
Housing
Fair
Rent Control/Coalition for
absolute.
298-99,
290,
Berkeley, 454 U.S.
City
v.
Court, Buckley
v. Valeo
Supreme
(1981);
The
434,
To the extent that contributions ter strict-scrutiny under the standard of given political quid pro to secure a review that Supreme Court tradi- has quo potential from current and office tionally applied to analyze expenditures. holders, integrity system of our of See, e.g., Republican National Committee representative democracy (“RNC”) is undermined Opening Br. at I 51-53. dis- .... equal Of almost concern as the agree. danger quid pro quo of actual arrange- 323(a)’s agree While I pro- Section impact appearance is the
ments
of hibitions on soliciting, receiving,
using
corruption stemming
public
from
aware- nonfederal funds
party’s ability
restricts a
opportunities
in-
ness of
for abuse
spend
money,
principal
nonfederal
regime
large
herent
a
individual
effect is to limit
ability
of future do-
financial contributions.
through
nors
their contributions to use the
26-27,
762
on contributions
616,
which involved limitations
L.Ed.2d 539
93
259-60,
S.Ct.
107
of
purpose
the
committees with
Missouri, 528 U.S.
political
Shrink
see also
(1986);
measures,
ballot
supporting
opposing
or
Supreme Court
The
387, 120
897.
S.Ct.
at
434,
291,
the Su
102 S.Ct.
454 U.S. at
contributions, for
hurdle
the
lowered
strict-scrutiny re
on
settled
preme Court
387-88,
Missouri,
120
at
528 U.S.
Shrink
political
limitations
for contribution
view
on contribu
897,
restrictions
because
S.Ct.
not
This conclusion is
organizations.14
impact associational
tions,
judgment,
in its
reading
the
enough
of
on a
based
close
free
leaving “the
rights less
contributor
suggest
does
plurality
case. While
any political asso
a member
to become
“exacting judicial
standard
undefined
in the asso
personally
assist
and to
ciation
Control,
Rent
Against
scrutiny,” Citizens
candidates,”
behalf of
on
efforts
ciation’s
434,
294, 298,
102 S.Ct.
at
454 U.S.
Buckley,
387,
(quoting
id. at
769
Missouri,
nor,
389,
parties
deny that the national
use nonfed-
Shrink
RNC funded a issue advertisement in ing years. on the radio that Republican's touted the Republicans Male: working are for bet- education proposal. It broadcasted the ter, safer schools ... following: ... Female: so no child is left behind. Every Male: child learn ... can right Male: That’s ... Republicans. Female: ... quality and deserves a edu- Anncr: Learn Republican how education in cation a safe school. help your reforms can children. Call .... Help President Bush and leave No people say Male: But some chil- some Child Behind. ... dren can’t learn ¶ 91(e) Josefiak Decl. & X. Exhibit While just Female: ... so shuffle them pure advocacy, issue like the above adver-
through.
tisement, can indirectly affect a federal
Male: That’s not fair.
election,36
unlikely,
it is
and there is no
evidence to the contrary, that candidates
right.
Female: That’s not
will feel indebted to
helped
those who
fund
Male: Things
changing.
A new fed-
Moreover,
such advertisements.
the fact
eral
says every
law
child deserves to
parties
state and local
would still be
learn.
able to use nonfederal money
engage
says
every
Female: It
test
child to make
genuine
advocacy37
issue
serves to under-
they’re learning
sure
and give
323(a)’s
them ex- mine Section
complete ban on na-
help
tra
if they’re not.
parties
tional
being able to do the same.38
¶ 91(e) (“The
Valeo,
821,
35. See Josefiak Decl.
(quoting Buckley
RNC seeks
v.
519 F.2d
(D.C.Cir.1975))).
public
positions
to educate the
about the
stands.”);
Republican Party
which the
La
101;
323(b);
§
§
37. BCRA
FECA
2 U.S.C.
("Political
Raja
parties
Decl. 16
use nonfed-
441i(b)(l);
101;
§
§
BCRA
FECA
develop
eral
politi-
funds to
and disseminate
301(20)(A);
431(20)(A).
§
§
2 U.S.C.
I,
616,
messages.”);
cal
Colorado
518 U.S. at
parties
presumably
state and local
could also
(recognizing
Lastly,
assistance, mone-
or direct
gain
financial
even
inability to demonstrate
the
regard to
otherwise,
effort.
election
to his
tary
nonfed-
or
corruption when
appearance
defined cor-
pur-
Supreme Court has never
being used for mixed
funds
eral
terms.
in those
appearance,
elec-
its
ruption,
affect a federal
or
indirectly
poses that
only benefit the
purpose
previously, the
true when the
As stated
tion, it is even more
on is
any
finding
a
no effect on
Court has
Supreme
has
based
nonfederal
is
gain
re-election.
to them-
election or
of financial
prospect
“the
candidate’s
their
provided
money
no
into
short,
infusions of
the
defendants
selves
497,
party’s
NCPAC,
use
105
a national
U.S.
to
470
campaigns.”
basis
restrict
legal
pur-
did,
for nonfederal
funds
Even if the Court
how-
of nonfederal
S.Ct. 1459.40
nonmonetary
ever,
a
notion that
poses.
bless
than the donor
from someone other
benefit
con-
defendants’
finally, the
Third
circumstances, give
could,
right
under
candidates, who
soft
raise
that
tention
public
that
rise
an indebtedness
to
parties,
their national
for
money donations
legisla-
its
perceive
“corrupting”
as
could
use, are
subsequent
regardless of
on
no evidence
independence, there is
tor’s
“internal
due to
to the donors
indebted
has
corruption
either
record
such
receive
they subsequently
party benefits”
public
perceived by
to
or is
occurred
donations,39 is
the nonfederal
raising
ap-
relating
evidence
to
exist. The
from both a
tenuous
theoretical
equally
is, only
it
corruption, such as
pearance of
and,
any
evidentiary standpoint,
and an
there is
public
that the
believes
establishes
323(a)
insufficiently
event,
remains
Section
donations
large
a connection between
justification
pass
tailored based
influence and ac-
parties
national
muster. The defendants’
constitutional
the donors receive.
public believes
cess the
because
theoretically flawed
contention
however,
not,
Part I.B. It does
that the cor-
premise
from the
proceeds
infra
exists inde-
that this connection
establish
nec-
appearance
corruption,
ruption, or
funds.
parties use the
of how the
pendent
congressional interven-
essary to warrant
exposure
public’s regular
anything,
If
by a federal
can be satisfied
candidate
tion
(ex-
Opp’n Br. at 26-27
Intervenors
39. See
ing
the ban
reasonable
... as to render
473,
regard to how soft
plaining that "without
S.Ct.
response
Id. at
115
threat.”
spent,
parties
money
ultimately
...
Congress's
thus found that
1003. The Court
officeholders]
application
[federal
the ban
candidates
exemption
reward
undermined
party
govern-
raising
in the
it” and that "success
speeches
a connection to
without
nexus,
government
no
because
employment:
such
stature in
"[a]bsent
ment
reinforces
impro-
leadership posi-
bargain
appearance
even
corrupt
federal officeholders attain
likely.”
Congress partly
115 S.Ct.
a result of their
priety appears
Id.
tions
Gilleo,
1003;
City
Bumpers
(citing
Ladue v.
512
Decl.
see also
as fundraisers”
success
43, 52,
¶¶ 7-9)).
114 S.Ct.
129 L.Ed.2d
U.S.
(1994)
"may
exemptions
di-
(observing that
credibility
government’s ra-
minish the
Blasi,
Speech and the Wid-
Vincent
Free
Cf.
restricting speech
first
in the
tionale for
Why
Fund-Raising:
Campaign
ening Gyre of
place”).
May
the First
Spending Limits
Not Violate
All,
Further,
L.Rev.
only
Colum.
Congress's
restrict
Amendment
decision
After
("If
(1994)
not stand to
did
using
candidates
parties
state and local
nonfederal
campaigns from the
gain much for their own
advocacy,
BCRA
funds for candidate
raised,
loyal-
101;
301(20)(A)(iii);
money
one doubts
so
§
U.S.C.
§
FECA
(or
to excessive di-
(20)(A)(iii),
pressure) would lead
premise
ties
§
reinforces
money]
only
[soft
of candidate time
corruption
version
apparent
actual or
manifests
fund-raising.”).
candidate.
when there is a
to federal
nexus
*541
sponsored
to so-called “issue ads”
by
114 S.Ct.
hai'd lack knowledge its of of degree er of corruption, evidence of or (both campaign finance regulations of appearance thereof, to warrant congres- demonstrated),42 which have been should Thus, sional regulation. in the absence of this reasonably lead Court to infer that the proof sufficient expanding warrant public believes that these donations direction, FECA this in Congress may whole, in part, by parties used on in only prohibit the parties national from us- directly help their candidates. It is that ing money purposes nonfederal federal benefit, perceived in my judgment, that such those as defined in Section gives public’s rise to the view that office 301(20)(A)(iii),which are clearly designed holders, gratitude, either of in hope out to directly affect federal elections. contributions, of similar provide future in use of nonfederal funds for nonfederal or creased access purposes, and influence to do mixed those which at the most indi- in light rectly elections, nors. And affect utter of simply absence is not regulable by evidence Congress on the record establishing any because it does not give corruption rise to public other reason appearance that the ac believes 323(a)’s of corruption. Thus counts for federal Section com- officeholders granting plete ban on the use of increased nonfederal funds is influence and access to those closely drawn to designated serve the give large who donations to their party, government interest. this Court should infer the same. In any event, the argument is Severability defendants’ flawed of New FECA Section 323(a) because their internal-party-ben supposed efit rationale not even by was relied upon 323(a) prohibits Because Section all uses Congress parties limit national use by parties, nonfederal funds national been, of nonfederal funds. If it had Con I only uphold because Congress’s pow- gress only would have restricted nonfeder prohibit er to the use of nonfederal funds al funds that federal candidates themselves (as purposes for federal defined Section Thus, 323(a)’s solicited. sweeping Section 301(20)(A)(iii)), I.B.2, Part con- infra restriction, even acceptable if theoretically presented siderable issue is as to whether factually based on the internal-party- we can uphold prohibition isolate rationale,
benefit
sufficiently
is not
tailored
undefined,
remaining
from the
unconstitu-
to “alleviate
harm
[the]
direct and
323(a)
prohibitions
tional
in Section
in a
way.”
material
Turner Broadcasting Sys., manner consistent with both the severance
(“Turner I”),
Inc. v.
FCC
clause
Supreme
U.S.
precedent.
Court
For
clearly
41. These
gress
advertisements
raising
money
show who
soft
receive the
donations
advertisements, stating
funds the
helping
parties
uncer-
no
additional benefit of
re-
tain terms at the end
each
Congress.
advertisement:
tain
control
Hickmott Decl.
See
Republican
"Paid for
Com-
assuming, arguendo,
National
Exhibit A 18. Even
by Republican
mittee” or
Party
"Paid for
benefit is not
too attenuated to estab-
See, e.g., Findings
Florida.”
45 & 46.
large party
lish a
sense
indebtedness to the
donors,
severely
parties
it is
undercut if
Findings
cannot,
held,
42. See
264-67.
large
we
as
use
nonfederal
directly
donations
assist the election and
suggested
It has also
been
supra
one of the
re-election of their
Part
members.
defendants'
witnesses
Members of Con-
I.A.2 &
Part I.B.2.
infra
has made it clear
reasons,
Supreme
can and
Court
I believe we
following
avoid
great pains
must
take
a court
should.
Thus,
a sever-
“rewriting”
statute.46
statutory
principle” of
It
a “cardinal
clause,
part
separation
ability
due
as much of a statute
save
construction to
concerns,
“aid,” not a
powers
merely
Laugh
v.
&
NLRB Jones
possible. See
“command,”
Nonetheless,
judiciary.
to the
*542
615,
1, 30, 57
301 U.S.
S.Ct.
Corp.,
lin Steel
Supreme
frequently
has
found
Court
C.J.).44
(1937) (Hughes,
In
with severance clause admonition. regularly before a scheduled federal elec- Finally, applying tion; (2) identification, Section “voter get-out-the- 301(20)(A)(iii), T which hold to be constitu- vote activity, generic campaign activity tionally acceptable 323(b), for Section conducted connection election in I.B.2, prohibited Part define which a candidate for ap- Federal office infra 323(a), (3) conduct Section I pears ballot”; avoid the Su- on the public “a commu- preme Court’s additional concern of creat- nication that clearly refers to a identified a definition ing constitutionality candidate Federal ... office and that which has not been decided.53 According- promotes supports a candidate for that ly, reasons, all I above find that office, or attacks or opposes candidate 323(a)’s prohibition Section implicit on na- for that office (regardless of whether the parties tional money use nonfederal to communication expressly advocates a vote fund communications of the kind defined in candidate)”; (4) for or against a ser- 301(20)(A)(iii) Section constitutionally provided vices by a state or local party remaining severable its unconstitu- employee committee spends who more applications. tional twenty-five percent than of that individu- 323(b) al’s compensated time B. New “on activities in FECA Sections con- 301(20)(A): nection with a Federal election.” Restrictions on BCRA Nonfederal *545 101; § 301(20)(A); § Funds for FECA 2 “Federal Election Activities” U.S.C. 431(20)(A). § 323(a)’s Unlike Section total ban on Only 301(20)(A)(iii),however, by
use
nonfederal
par-
funds
national
Section
de-
ties,
323(b)
Section
only prohibits
scribes conduct which
targeted
state
exclu-
is
parties
sively
from using nonfederal
federal
for
at
elections and which direct-
funds
activities,”
certain
ly
“federal election
federal
BCRA
affects
Accordingly,
elections.
101;
§
323(b);
§
FECA
2
below,
for the
U.S.C.
reasons set forth
I find that
441i(b)(l),
§
323(b)
which it
in
301(20)(A)(i),
defines
Section Section
and Sections
301(20)(A).
101;
(iv)
§
(ii),
BCRA
FECA
and
are substantially overbroad in
301(20)(A);
§
431(20)(A).
§
2 U.S.C.
that
they seek to
parties
restrain state
Thus, in order to
assess
constitutionali-
from using nonfederal funds for election
ty of the restraint
parties
activities,
on the state
in
which only indirectly affect fed-
licitation, contribution,
unregulat-
and
part,
use of
judicial obligation
its
because
was to
candidates,
money by
ed soft
federal
federal
"independent
concerns”);
avoid
constitutional
officeholders,
parties.”);
national
288,
TVA,
see
Ashwander v.
also
297 U.S.
346-
Opening
("Any
Gov’t
Br. at 103
successful
47,
466,
(1936) ("The
56 S.Ct.
80
688
L.Ed.
attempt
party
to limit
money
national
soft
'anticipate
question
Court will not
consti
activity
perforce prevent
must
easy evasion
necessity
law in
tutional
advance of the
”
through surrogates such as state
local
deciding
(quoting
it.'
Liverpool, N.Y. & Phi
parties.”) (citing
31).
Expert Report
Mann
at
Comm’rs,
Steamship
Emigration
la.
Co. v.
113
33, 39,
352,
U.S.
5 S.Ct.
eral corruption for necessary to I that “the corruption opportunity rado appearance mixed-pur- funds for to posed by” As nonfederal intervention. congressional warrant however, registration 301(20)(A)(iii), I that activities like voter pose find Section “is, best, because, attenuated.” get-out-the-vote constitutionally permissible it is 616, Though 116 S.Ct. on election activities 518 U.S. contrast, it focuses be, particularly telling. it may is elections and as dictum federal directly affect that States, v. United Green Co. appearance of cor- See Central such, to the rise give 1005, 425, 431, 121 S.Ct. Congress’s 531 U.S. necessary to warrant ruption (2001) (“dicta ‘may be fol- rights L.Ed.2d 919 First Amendment on restraint persuasive’ but are not sufficiently if lowed donors. v. Humphrey’s Executor binding” (quoting 323(b) and New FECA Sections 627, States, 55 S.Ct. U.S. United (iv) 301(20)(A)(i), (ii), and (1935))). can infer L.Ed. 1611 One 323(b) part, premised, is Section Supreme plain statement from the Court’s that certain mixed- belief congressional corruption less opportunity parties, state when activities purpose link between there is no clear because funds, sufficiently nonfederal funded predominantly these donations used for they give rise elections affect federal ac- benefit activities and whatever generic corruption between appearance of to an to the crues candidate. whose cam- and the candidates the donors go funds nonfederal When of these activi- the benefit paign receives candidates, spent and are parties, not Setting aside the consid- disagree. I ties. directly affect federal purposes that do not the Elections issue of whether erable Const, elections, do- concern about there less I, 4; Buckley, § Clause, art. U.S. arrangements having quid pro quo nors 612,54 S.Ct. can be at 13 n. U.S. Indeed, that Sec- given with candidates. Congress regulate to allow fairly read 301(20)(A)(iii) prevents communica- tion as those defined state activities such candidates, the promote tions 301(20)(A)(i), (ii), (iv), in Sections 301(20)(A)(i) activities defined Sections 20-27, justi- Br. at Opening CDP/CRP (ii) necessarily “generic” specif- are here fail to and evidence submitted fication is, candidate: only ic to a nonfederal provisions serve suf- that those establish at a specif- activities not directed justify an these government ficient interest *546 Conversely, such ic federal candidate.55 rights. First Amendment infringement on 49,- (67 431(21); Fed.Reg. § 11 100.25 and Section C.F.R. I find these sections Because 29, 2002)), (aside "get-out-the-vote” is 323(a) (July and funds used for 111 from nonfederal activities) registered "contacting ... based on defined as voters unconstitutional federal Amendment, engaging act vot- I reach either in the First not to assist them need equal-protection regardless claims. to a ing,” federalism or a federal reference 100.24(a)(3). § In See C.F.R. candidate. 11 event, get-out-the-vote registra- voter any or regime, political par- pre-BCRA 55. Under the "public a employing tion communi- any if the activities ties could not use nonfederal funds cation,” broadly to is defined include supported op- or voter mobilization effort telephone banks to mass everything from posed specific "a See 11 C.F.R. candidate.” 101(b); BCRA, § 2 106.5(a)(2)(iv). mailings, U.S.C. generic § see BCRA cam- And in 100.26, 431(22); promotes § that public 11 C.F.R. paign activity as "a commu- is defined clearly identified federal candi- or attacks a opposes promotes that nication or 101; date, § FECA BCRA promote oppose and does not 431(20)(A)(iii), (20)(A)(iii); § § 2 U.S.C. 301 clearly candidate or non- identified Federal candidate,” 101(b); allowed if Section § 2 would U.S.C. Federal BCRA activities potentially considerably assist a parties. cal evidence, The is, such larger number 301(20)(A)(i) of state and local candi- (ii) regarding Sections ac- one, that greatly dates outnumber tivities fails to either demonstrate the de- two, possibly federal candidates on the bal- gree of effect such activities have on the lot,56 many of invariably unop- whom run re-election, federal candidate’s or the exis- posed or in clearly noncompetitive races. public perception tence of a that donations There is also that evidence state and local used to fund such efforts create a sense of parties undertake voter mobilization ef- indebtedness between the federal candi- principally forts for state and local candi- date those who make large donations dates,57 mostly from nonfederal money to the party. That there is no evidence own,58 they raised on their and in elections public perceives corruption in where the practical- federal candidates are these circumstances is not surprising. ly uncontested.59 Since public would expect parties state engage light of this focus on such voter state and local mobilization efforts candidates, there for the every candidates, is reason benefit of all of for this its we can, should, Court to doubt whether federal candi- infer reasonably dates generic public themselves would view such would correspondingly view a feder- by parties activities state and local al as suffi- candidate’s indebtedness, sense of if ciently helpful their campaigns any, as to be diluted among the numerous warrant even a token sense of indebted- state local equally candidates who ben- money ness to the soft politi- donors to the efit from these activities. Feingold 301(20)(A)(iii) upheld. See also primarily Bowler driven desire affect State ¶ 20(b) (noting races”). Decl. that California Demo- and local ("CDP’s”) Party's cratic programs direct mail ¶¶ (ex- 58. See also Bowler Rebuttal Decl. 3-4 typically candidates); do not mention federal plaining pays that the CDP for much of its ¶ (explaining Erwin Aff. 9 that "[t]he over- registration get-out-the-vote voter activi- whelming registration] of [voter amount ac- money ties party); raised the state tivity 'generic' registration voter activity Bowler (explaining Decl. in the urging potential registrants 'Register Re- cycle, 1999-2000 election the CDP raised ”). publican’ $15,617,002 funds, in nonfederal which it activities). used to fund state and local ¶¶ 56. See Bowler Decl. (explaining money amount nonfederal the California cycle, in the 2002 only where the federal Republican ("CRP”) Party and CDP raised office on the congres- California ballots awas themselves is much more than nonfederal race, sional expenses administrative were re- funds received national-party trans- quired to be percent 12.5 allocated (in fers. the 1999-2000 elec- CDP/CRP percent and 87.5 nonfederal based on the cycle, presidential tion which was a election formula). composition ballot California holds cycle, only percent 19.1 of all CRP nonfederal officers, legislative elections for 120 eight money transfers); national-party was from officers, statewide-elected and four members 35, 37, (in 2000, only percent CDP/CRP Equalization. of the State Board of It also money of all CDP nonfederal was from na- *547 offices, judicial holds elections for local of- transfers). tional-party While the state and fices, and ballot measures at both the state parties may spend local most of their nonfed- 13; ¶ ¶ and local levels. See id. Erwin Aff. 5. national-party eral transfers on candidate ad- vocacy, they spend very little of their overall 113-37, Findings 57. See 150-54. The CDP nonfederal funds on such activities. spent money registration more for voter 1998, year elections, eight a with statewide example, 59. For actively registered the CDP 300,000 presidential than in year. a throughout election over Democratic voters ¶ 20.a; ¶ Bowler Decl. see also Erwin during Aff. 14.a though California even there was (stating registration that "voter only are competitive congressional activities one race out must official party a of time amount of that soft (acknowledging at 126-27 Dep. election, a federal in connection with campaign spend generic for used being
money 301(20)(A)(iv); 2 101; § § FECA an appear- BCRA to create likely is less activity 431(20)(A)(iv), stark- provides the uncertainties § Such corruption). U.S.C. of ance tailoring. to which from this insufficient example basis of hardly a sufficient est are par- per- and local spends employee state party precluding that If a state allege for funds “in nonfederal connec- time using compensated ties from of his cent gov- election,” serves his en- activities then mixed-purpose a Federal with tion corruption, preventing interest using federal paid ernment salary must tire of Thus, the absence appearance. employ- or its of the percent Clearly, 74 funds. showing to evidentiary a substantial time, has no rela- compensated ee’s conjecture,” Shrink “mere is contrary, it election, is a federal to whatsoever tion 392, 120 S.Ct. Missouri, 528 U.S. adequate no There is being regulated. appearance that an defendants by the determine us to before in the record basis to state donations corruption arises suffi- his conduct nature of whether parties, from national transfers parties, or rise give the election impacts ciently or noncan- generic these for that are used between corruption appearance in Sec- set forth activities didate-specific his efforts funding may be who donors (ii). 301(20)(A)(i)and tions and the candidate party through state dem- had defendants even if Finally, Thus, services. of his receiving the benefit mixed-purpose activi- that some (iv) onstrated 301(20)(A)(i),(ii), and if Sections even appearance create an somehow ties do of cor- appearance some prevent served 301(20)(A)(i), (ii), and corruption, Sections closely enough they are not drawn ruption, con- tailored to be (iv) sufficiently not scrutiny. to survive limiting dona- acceptable. By stitutionally 301(20)(A)(iii) New FECA Section 2. unmistakably noncor- many for so tions previously, Con I indicated As activities, for voter like donations rupting na require power both has gress candidates, of state on behalf registration only federal use parties to and state tional simply It is too far. extend these sections directly that money for activities election just that because enough to claim Section elections.61 federal affect aon has effect some a donation use of 301(20)(A)(iii) type such on one focuses election, completely it must be federal re that communication public “a activity: To reach funds.60 funded for identified candidate clearly a fers to sweep inevitably would such conclusion promotes that ... and office Federal deserve First that many in too activities office, or candidate supports Section protection. Amendment a candidate opposes attacks 301(20)(A)(iv)’s definition percentage based (20)(A)(iii) is 20.a; analysis of Section This Decl. Torres See Bowler 52 races. state, national, and local applicable equally ¶ 8. Decl. and fi- Considering the coordination parties. between the various transfers nancial Post, Regulating Speech Election Robert Cf. levels work parties all Amendment, levels 77 Tex. L.Rev. the First Under candidates, state, national, local behalf ("It (1999) surely the case differently parties to view the elections, unrealistic it is does but so speech affects election labeled that one is simply the fact based on were all that neces- public If all discourse. the na- "state.” It another "national” and authority of sary bring speech within rather undertake activities speech pro- ture managerial were that domain *548 that they defines domain, they assume label nothing than much duce effects on regulations. discourse.”). type allowable public would left 101; § BCRA press 301(20)(A)(iii) FECA in advocacy Section in office” 301(20)(A)(iii); 431(20)(A)(iii) § way § U.S.C. that will withstand constitutional added). scrutiny. For the (emphasis following reasons, Judge Henderson con- I have concluded that Congress only in not can opinion reg- cludes her that Supreme uncoordinated, ulate nonexpress advocacy in Buckley required Court “magic certain directly which elections, affects federal but words” specifically that advocate the elec- has defined nonexpress that advocacy tion or defeat of a candidate in order for a 301(20)(A)(iii) Section in a way that is suf- communication to type advocacy be the ficiently tailored to government serve the regulable by Congress. All other commu- interest of preventing actual or apparent nications, if they directly even affect a corruption, and in a way that is not uncon- election, perspective, from her are stitutionally vague.63 regulable.62 I disagree. For the same In defining “candidate reasons, advocacy” as part, set by Judge forth Kol- did, Congress couple chose to two concepts lar-Kotelly opinion II, her on Title I together in order for communications to that Buckley believe did not set forth a (1) qualify regulable: the identification “bright-line test.” Kollar-Kotelly See J. of a office; (2) candidate for a federal Op. But, at Part III.I.C.l. even if the words that promote, oppose, attack, or Supreme Court did set bright-line forth a support that candidate that office. Congress’s test for regulation of expendi- 101; § BCRA 301(20)(A)(iii); § FECA tures nonparties in Buckley, 424 U.S. 431(20)(A)(iii). § U.S.C. Therefore, unlike 39-51, 96 S.Ct. that rationale is not genuine issue advocacy, which both nation- to, necessarily on, applicable and binding al and parties state have every right Congress’s power to regulate donations to participate in funds, with nonfederal political parties under BCRA. help all party candidates in a gener- Therefore, the question before this sense, ic Congress in this definition was Court is not so much Congress whether seeking to focus on parties using nonfeder- regulate can the use of nonfederal funds al funds for communications intended to uncoordinated, nonexpress advocacy directly help specific federal candidate. directly elections, affects federal but Because such assistance is focused on a Congress whether has defined candidate,64 such nonex- specific it is natural for that See, e.g., tern, 62. Op. J. Henderson at Part supra IV.D.l.a see accompanying note text, & Part (referring repeatedly "pro- IV.D.l.b Congress such that is warranted in treat- advocacy”). issue tected I do ing not believe we differently. contributions to them should just Medical, assume that 200-01, because the 453 U.S. at California S.Ct. 2712 currently advertisements are funded with (rejecting equal-protection chal- definition, money they, by nonfederal lenge to limits for contribution multicandi- purpose. have a committees, nonfederal See J. Henderson date stating that "[t]he atOp. Part IV.D.l.c. differing placed on [different restrictions enti- judgment by Congress ties] reflect a that these Any attempt regulate differing entities have pur- structures and communications elections, poses, directly may require therefore affect federal like those 301(20)(A)(iii), regulation different regulated pro- forms of Section in order to does not Congress's integrity tect the authority process”). exceed regulate electoral feder- Finally, Clause, Judge al I concur elections under the Henderson’s Elections dis- Const, I., reason, cussion of the Thompson equal-pro- § U.S. art Plaintiffs' For this I do tection Op. not need to claim. See plaintiffs' address further the J. Henderson fed- Part IV.D.4. eralism claims in relation to Section 301(20)(A)(iii). reject plaintiffs’ I also equal-protection 64.See, II, challenge because e.g., 533 U.S. at Colorado parties unique ("I political sys- actors in S.Ct. 2351 that when understood I raised *549 country when his So responsibility. those towards indebted feel to candidate seri- He was ... he answered. called the communica- funded whose donations Paralyzed, in combat. ously wounded exactly not know he does tion, if even operations. nine he underwent actually funds money donors’ which soft look- I went around Dole: of Bob Audio nat- Concomitantly, it is possible. made it me make that would miracle a ing for those perceive that to public ural for again. whole funded money donations soft large whose he’d never said The doctors Voice Over: parties’ communica- and state the national months, he after 39 But again. walk parties’ by the known only are not tions wrong. them proved who candidates staffs, by the federal but persev- Dole: He Elizabeth of Audio the donations. from directly benefitted his up. fought He ered, gave never he the defen- submitted The evidence paralysis. from total way back these corroborates overwhelmingly dants Americans, his many Like Voice Over: record is The conclusions. sense common as a serve values experience life most, party if not many, clear that principle of The compass. strong moral specific refer to ads” “issue principle so-called The replace welfare. work to also evidence And the our crim- strengthen accountability to federal candidate.65 principle system. advertisements justice that the inal demonstrates Washington wasteful do, oppose to end support discipline to, and designed spending. illus- office.66 To candidates those down Dole: It all comes Bob genre: this Voice of extreme
trate one you in. What you believe values. What Committee National Republican for. you stand what for. And sacrifice called ad” (“RNC”) “issue supposed ran a 2; only quick Decl. requires Dep. McCain Story” Exhibit “The Fabrizio ¶ ¶ 3; Dep. Fabrizio Decl purpose Huyck true its to discern reading 15; trans- advertisement Though this 49-55. effect. Senator to assist intended parently was a moral We have Bob Dole: Audio of part funded it was campaign, Dole’s an Amer- children give our obligation to dis- It is hard funds. nonfederal with values opportunity and ica with Levin, who described Senator agree with up in. grew we the nation way: “It’s advertisement spending; inup Rus- grew Dole or wasteful Bob about welfare Voice Over: ad elect that why should we he his is an ad about sell, parents From Kansas. nominee.”67 work, particular honesty of hard value learned money to large of soft gress to raise amounts Cam- Senatorial the [Democratic funds for re-election.”); ], others' (“DSCC”) own and ex- benefit their donors paign Committee Findings amount of also 31-35. receive the pected I would multiplied by a num- certain their donations election, $25.6 $24.6 out in ad- In the had DSCC determined ber that the parties on advertise- by political spent vance, million assuming has raised other DSCC re- Wirth)); spent advertisements Timothy ments were (quoting Senator funds.” 44,485 ofOut ("Members ¶ a federal candidate. if ferred know Simpson Decl. advertisements, 42,599 re- advertisements fundraising, be it party assist & Krasno specific candidate. ferred money, later assist will soft hard or Report at tbl. 1. Expert money Sorauf Although can- campaign.... soft candidates, directly given to federal not be Findings 36-52. easy push 66. See fairly everyone it is knows that system through our tortured money 18, 1999) (Oct. Cong. Rec. candidates.”); S12747 Decl. McCain specific benefit (Sen.Levin); Memorandum see also ("[P]arties Con- encourage Members *550 Another typical and more form of sham ture in carpeted cells. Chapin’s County by parties issue advertisement run is a Commission jail ran this soft jail ... a candidate-centered ad that focuses on the she called a “national model.” Ask Cha- actions, positions, past general or pin why charac- she’s taxpayers hard on and soft candidate; ter given traits of a federal on convicts. contrasts party’s them view of the ¶ Chapin 2; Decl. Exhibit Chapin 10; Decl. issues; proper outlook on those and en- ¶ 10; Beckett Decl. Pennington Decl. courages the viewers contact the candi- ¶ 14.68 This type of electioneering . adver- date to ostensibly inquire why he/she tisement, it, and many others like run were or actions. See by the
taking positions those party, state which used mostly non- & 46. Findings election, In the 2000 federal pay funds to for it. It takes little example, for Republican National convincing to find that these advertise- Congressional Committee and the Florida can, do, ments directly influence the Republican Party ran television advertise- outcome of a federal election69 and that criticizing ments Chapin, Linda the Demo- parties engaging in them are “electioneer- cratic Congress: candidate for ing guise advocacy.” issue Mann Chapin.
Announcer: Linda Hard on Expert Report Moreover, at 26. because taxpayers. Soft on Chapin convicts. money amount of used for candidate utilities, raised your taxes on pushed to advocacy substantial,70 the candidates raise the county sales tax and even tried likely are to feel even more indebted to the raising your property Meanwhile, tax. donors whose contributions to the jail hard time the county turned parties into made possible this form of cam- “Chapin time.” Where convicts received paign assistance.71 Not surprisingly, cable tv lounged on padded furni- use nonfederal funds type for this Haley advertisement, Charlie Nave to (May Barbour of the encouraged let alone 1996) (explaining that the register Dole advertisement support voters to party with or was tested see its effect on Senator Dole’s to volunteer party organiza- with the local election). tion). example negative 68. Another candidate ad- Dep. 70. See Oliver (estimating 148-49 vocacy, by parties: expect funded “We our spent the RNC $56-61 around dollars million public responsible, officials to be jobs do their during on "issue campaign); ads” the 2000 obey ¶ the law. But Corrine Brown missed (stating Marshall Decl. largest that the astonishing Congress.... 187 votes Ap- portion of Democratic National Committee parently, (“DNC”) Brown Corrine she’s budget during thinks above cy- the 2000 election the law. A government ads”). audit extensive found cle was used “issue during million, violations federal law her 1992 RNC majority $254 raised of which campaign. Call Corrine .... Brown Tell her was parties transferred down to the state public officials responsibly, should act mostly do for "issue advertisements.” Josefiak job obey 76; ¶ 63; the law.” Dep. ODP0041-1024. Vogel Decl. McGahn Decl. 41, 45, ¶ examples, For more Findings 36-52, Findings 69. See parties 138-47. The 71. The donors themselves are not blind to the clearly were using such advertisements fact parties that donations to the are used to party building purposes percent See, since benefit the e.g., candidates. federal Roz- of the ("Donors advertisements did not even mention en Decl. parties to the national party name body in the understand that aif federal officeholder is (stat- Buying advertisement. Time 2000 at 64 raising money supposedly soft ‘non-federal’ — election, ing that in per- uses, the 2000 almost 92 money they raising it for federal — party cent of namely advertisements even help never iden- that Member or other tified the body elections.”). name of in the candidates in their money, I advise or soft party, hard was, all appear- advocacy candidate in which the manner them de- concern primary ances, Congress’s just them not I that. tell do should 323(a) and Sections enact BCRA ciding to *551 committee, party the to the check send 323(b).72 member staff young to the example, for that demonstrates further The record I Instead checks. collecting the iswho the who know candidates congressional personal- should they that my clients tell In some are.73 donors money major soft of Con- a Member money to give ly the the in helping assist actively cases, they to money the give can then who gress asAnd contributions.74 such raise party committee, to who party the Chair the not, parties the do who candidates to those check that the make sure in turn' will ap- many of them keep That donors and the young member. the staff reaches donations. large check, the gets donor, made one of who prised with way the Hickmott, lobbyist of Con- multiple Members Robert example, “chits” with For in official, donors advised gress. DNC and former ¶ manner: following
the
9.75
Decl.
Hickmott
in the
no evidence
there is
Finally,
while
going
is
my clients
one of
[WJhen
corruption,76
pro quo
quid
of actual
record
candidate
ato
a donation
make
17,
(August
Corporation
the Microsoft
at
supra note
72. See
1998)
“immedi-
(asking potential donor for an
donor,
political fundrais-
former
and
73. One
National
support of the
commitment”
ate
following:
er,
the
observed
Committee’s
Republican
Senatorial
money donors
what soft
about
Information
see
advocacy campaign);
("NRSC’s”) issue
among
the Members
given travels
have
and
McConnell
Senators Mitch
Letter
also
who
Obviously the Member
ways.
different
Center
Steel Service
Donor at
Frist to
Bill
also
Members
money knows.
solicited
25, 1998) (thanking donor
(February
Institute
ma-
the various
who is involved
know
$25,000” to
contribution
a "nonfederal
attend,
they
such
events which
jor donor
NRSC).
retreats,
calls.
meetings and conference
among Mem-
is communication
there
And
208; see,
176,
e.g., McCain
Findings
75. See
money dona-
made soft
has
about who
bers
¶
parties often
("Legislators of both
Decl.
given, and
they
level
and what
tions
money
large
contributors
soft
who the
know
by the
widely
understood
known
this is
are,
legisla-
particularly those
party
their
staff.
and their
Members
money,” and
soft
solicited
who have
tors
10;
¶
Bumpers Decl.
see also
Decl.
Randlett
inform a
lobbyists often
or their
"[d]onors
¶¶
even
18,
Members
(testifying that "some
they have made
that
particular Senator
in their offices”
big donors
keep
lists
¶ ("Even
donation.”);
Simpson Decl.
large
or a
good Democratic
abe
"you cannot
events,
attend
did not
these
some Members
not be
if
aware
Republican Member
good
gave the
knew
donors
party.
If
all still
money
someone
gave
of who
DNC,
donations,
$50,000
who
party publicizes
large
to the
as the
gave
in Arkansas
that.”);
¶
("Each
what.”);
certainly
Sena-
Decl. 6
know
Boren
gives
I would
example,
("[Candidates
biggest
A 17
to his
donors
Decl. Exhibit
Wirth
knows who
tor
"[djonors
of the sources of
prefer
aware
hand
generally
were
often
because
are”
party committee
that enabled
to the
funds
checks
money contribution]
[soft
campaigns.”).
support their
lobbyist informs
or their
personally,
Senator
just
was
large donation
Senator that
172-79;
Findings
Colorado
74. See
made.”).
("|Y|ou are
II,
S.Ct. 2351
533 U.S.
directly
you
contrib-
can
at the limit of what
201-06,
Although it
Findings
209-10.
76. See
"you can further
campaign,” but
my
ute to
established—that
not
possible though
assisting
Colorado
my campaign
help
—
syn-
access alone
appearance of increased
then-Congress-
Party.” (quoting
Republican
increased
public’s mind with
onymous in the
Allard));
Letter
Wayne
also
man
influence,
in the record
is no evidence
there
Donor
to Potential
Mitch McConnell
Senator
the record does
public
establish that the
surprise
Congress
particularly
was
only appreciates
many
there are
concerned with the consequences of the
giving large
donors
sums of money (mostly public’s perception of a correlation be-
unions)
corporations and
tween large donations to parties and the
but
and expects
believes
special
that the
access and
public
influence that the
parties,77
donors—in
privileged
return —receive
ac- believes are accorded to these donors.79
cess to the legislators
special
Influence
ample evidence,
There is
including polls80
legislative
It is
press
of little
to support Congress’s
process.78
reports,81
necessarily
increased access
results
Telephone
of a
Study Among 1300 Adult
*552
Supreme
23,
actual influence. Since the
(Sept.
2002)
Court
Americans 7
(poll result find-
has never found
ing
that access in and
percent
itself
that 71
of
of Americans think that
corruption,
constitutes
Congress
I believe
is no
members of
there
sometimes decide how
corruption.
evidence of actual
to vote on an issue
big
based on what
contrib-
want,
utors
to their
even if it is
want,
not what
2000,
people
most
Buying
in the
77. See
2000 at
district
Time
even if it
is not what
thirty-five
top
think
best for the
of the
50 nonfederal donors
country);
Shapiro,
Robert Y.
Opinion
corporations,
Public
they gave
were
a total of
18,
& Campaign
2002)
Finance
$29,447,350
(Sept.
13-14
Republican
to the
com-
national
(poll
showing
public
results
that the
has been
cycle
mittees in the 2000 election
which was
by large
troubled
donations to
par-
percent
11.4
money
of all nonfederal
received
ties).
by
party.
that
Expert
national
See Mann
Re-
port at tbl. 6.
of the
Most
other donors in the
Evidence,
reports,
like these two
need not
top 50 were
plaintiff
attorneys.
unions
have
Congress
been before
when it made its
Id.
predictive
I,
judgment. See Turner
512 U.S.
667,
114 S.Ct.
(explaining
2445
that to
78. Thus the Court reviews the evidence of
Congress
ensure that
drew "reasonable infer
apparent corruption against
actual or
ences,”
the
Supreme
the
Court needed "substan
and,
background
plausible justification,
of a
tial elaboration in the District Court of the
earlier,
explained
plausible
the more
the
predictive or
upon
historical evidence
argument,
the
relied,
evidence
less
the
Congress
defendants
or the introduction
some
Missouri,
must marshal. See Shrink
added));
528 U.S.
(emphasis
additional evidence."
Tur
391-95,
judgment
these do-
accorded to
are
it believes
ence
those
accorded
influence
special
ceived
assistance, the
gratitude
is in
nors
public’s
undermined
donors
large
ade-
more than
evidentiary documentation
of its elect-
independence
confidence
appearance
me that
quately convinces
donors, and
from those
representatives
ed
ar-
from such
arisen
has
corruption
appearance
to an
rise
giving
thereby
stated,
has
Congress
Simply
rangements.
clearly establishes
record
corruption.
of the same
inference
drawn a reasonable
used in
are
large donations
those
evidence.83
on substantial
based
bombard
parties
part by
large
type
advocacy of
with candidate
public
Moreover,
Section
any fear
301(20)(A)(iii). See
by
301(20)(A)(iii)
Section
cured
defined
is overbroad
the ad-
Because
36-52, 138-47.
circum-
Findings
three
effects
accumulated
sponsored
301(20)(A)(iii)
recognizably
only
First,
are
vertisements
Section
stances.
41, it takes
note
supra
candi-
parties,
communications that
regulates
that candi-
conclude
public
specific,
such
little for
not issue
specific,
date
large
benefitting from
directly
should
communications
dates are
issue
genuine
most
*553
Moreover, the
Hearing
parties.
the
See
subject
regulation.
to
donations to
not be
distinguishes
2002)
Second, though
(Dec. 4,
neither
public
the
at 17.
fact that
Tr.
money,”
and “hard
advertise-
money”
issue
genuine
“soft
some
there are
between
restrictions on
candi-
of the
mention
specifically
knowledgeable
that do
nor is
ments
the
nothing to deter
the
Section
contributions,82
dates,84
fact
that
does
the
301(20)(A)(iii)
influ-
the com-
access and
special
requires
definition
the
inference that
“pro-
that
language
to the do-
are accorded
to have
munication
perceives
ence
for that
plainly
supports
visible
for the
or
candidate
motes
in return
nors is
office,
opposes a candidate
to candi-
or
provide
or attacks
parties
the
assistance
remaining
any
plausi-
eviscerates
high
for that office”
Given
campaigns.
dates’
advertisements
by focusing on
feel indebted
overbreadth
candidates
bility that federal
“a candidate for
influence
fund,
parties,
directly
through the
who
to donors
fact
Finally,
301(20)(A)(iii)
that office.”
communications
Section
type of advertise-
running this
“speaker”
beneficiary, and the
they are
which
sup-
party also
or state
is a
public ment
national
plausibility that
high
equally
Cal.,
FCC,
Post,
Inc. v.
Washington,
De-
Sable Communications
Wash.
Power in
ron’s
2829,
115, 129,
106
109 S.Ct.
A01;
U.S.
25, 2001,
492
Ratcliffe and
at
R.G.
cember
(1989)).
93
Bernstein,
L.Ed.2d
Have the
Donors
Political
Alan
Chron.,
Time, Houston
Money,
Get
advertisements
example, genuine issue
84.For
1999,
23,May
at 1.
op-
(1)
support
advertisements
include:
like the
legislation,
pose officeholder-named
Findings 264-67.
82. See
bill,
McCain-Feingold
is the common
here;
(2)
666,
legislation at issue
I,
2445
label
at
114 S.Ct.
U.S.
512
Turner
legis-
opposing
supporting or
advertisements
is to "assure
a court’s
(explaining that
role
a call-to-action
simply ends
that,
Congress
lation that
formulating
judgments,
its
their con-
asking
the viewers
contact
line
based on
drawn reasonable inferences
has
against
for a
vote
evidence”).
gressional
Though
members
courts must
substantial
bill;
(3)
advertisements
particular
even
pre-
to the
deference
"accord substantial
personality
I,
a certain
Congress,”
512
that criticize
Turner
judgments of
dictive
partic-
2445,
party’s base on
energize the
665,
order to
it does
S.Ct.
not
U.S. at
"
issue,
long
those
advertisements
ular
independent judgment of the
so
our
'foreclose
candi-
identified
within the
broadcast
of constitutional
bearing on an issue
facts
666,
or state.
law,'”
date’s district
(quoting
S.Ct. 2445
id.
ports the defendants’ contention that most
disbursements,
those disbursements will
advertisements,
referring to a candi- presumptively be expenditures within the
manner,
date in this
will be intended to
statutory definition.”
FEC,
Akins v.
promote or attack
particular
(en
candi-
banc)
F.3d
(D.C.Cir.1996).87
date.85 A
party, as opposed to With this understanding of parties and
corporations and
nonparties,
other
exists
other political committees, it is not surpris-
large
extent for the purpose of elect-
ing that
Supreme
Court limited disclo-
ing candidates of its party to office.86 In
sure of expenditures by all
groups
other
Buckley,
Supreme
Court
express
observed that
advocacy, but sanctioned disclo-
expenditures by political parties, and other
sure of
expenditures
all
by “political com-
political committees with
major
“the
pur- mittees.” Buckley,
788
Nat’l
v.
Comm’n
Serv.
Civil
States
United
that Section
contend
so, plaintiffs
Even
580,
548,
Carriers,
U.S.
413
Letter
Ass’n
its
because
defective
still
301(20)(A)(iii)is
(1973).89
2880,
796
L.Ed.2d
S.Ct.
must
communications
definition
crafted,
301(20)(A)(iii),as
Indeed, Section
to
vague
money is too
with
funded
intelligence
ordinary
person of
“give[s]
They
scrutiny.
constitutional
withstand
is
know what
opportunity
a reasonable
“op-
“promote,”
as
such
that words
claim
standards
explicit
“provide[s]
prohibited,”
too
are
“support”
“attack,” and
pose,”
them,”
where
apply
who
those
to deter-
officials
party
to enable
vague
implicated,
are
rights
First Amendment
noncandidate
line
between
where
mine
far
to ‘steer
“citizens
not
induce
advertisements)
does
(i.e., pure issue
advocacy
if the
...
than
zone’
unlawful
wider
Like Section
advocacy lies.
candidate
areas were
forbidden
boundaries
definition,
see BCRA
fallback
201’s
City
v.
Grayned
clearly marked.”
304(f)(3)(A)(i); 2
§
201(a); FECA
§
108-09,
92 S.Ct.
U.S.
Rockford, 408
however, the
434(f)(3)(A)®,
defi-
§
U.S.C.
(1972)
Bag
(quoting
2294, 33 L.Ed.2d
in Section
advocacy
of candidate
nition
S.Ct.
Bullitt,
U.S.
v.
gett
unconstitutionally
not
is
301(20)(A)(iii)
(1964)).
1316,
largely circumvent and solicitation the donation argue through funds tunneling unlimited under be reviewed should restrictions for advertisements pay to parties Intervenors scrutiny. See closely-drawn broad- from prohibited now they are agree IWhile atBr. 21-23. Opp’n To FECA. 441b of Section casting under closely- Buckley’s defendants that manner in circumvention such a allow to donation apply scrutiny should drawn na- Finally, permit to ludicrous. would be can well as organizations to limitations local) to convert (or parties state tional scrutiny didates, clear less is it donations, from whether nonfederal restriction. to the solicitation apply should un- corporations treasuries general Part Op. at IV.D.4. J. Henderson wealthy individuals ions, from on solicitation However, if the restriction purpose the federal groups, MCFL closely-drawn scru even withstand cannot election influencing a federal directly between to choose is no need there tiny, type advocacy of candidate through v. Blount of review. standards Cf. 301(20)(A)(iii)is, in and defined Section (D.C.Cir.1995). S.E.C., 938, 942-43 61 F.3d a funda- itself, a circumvention direct 323(d) itself, Section statute to the As regulatory FECA premise mental donating parties donations, national prevents blessed relating to scheme 501(c) organi- its Section Buckley and to certain any funds Supreme Court used on donations may ban money complete only This zations. progeny: federal As abilities parties’ election. various directly infringes influence voices, remains be- Buckley line of cases as the long members effectuate mockery of those law, make to serve closely it would drawn it not even cause reg- current interest, cases Supreme Court it cannot government a sufficient parties to allow ulatory 323(d) scheme scrutiny. Section withstand in what Justice engage money 501(c) soft use organi- as to Section closely drawn as “covert aptly described Kennedy has solicitation prohibits because zations Missouri, 528 U.S. advocacy.” Shrink mere- organizations those donations J., dis- (Kennedy, S.Ct. 897 made, effect, ex- they have ly because senting). purposes for federal penditures *557 323(d): Nonfed- New FECA Section do- C. of whether those regardless past, Tax-Exempt on Fund Restrictions very eral again for be used nations will Organizations purpose By specifying not purpose. put, Congress, money will state, for which the national, 323(d) prohibits Section for and effect, solicitation prohibiting in soft donating either from parties local 501(c) donations to these Section organiza- manner is similarly closely drawn. that might tions in turn be used for non- Perhaps if Congress had structured Sec- or 323(d) mixed purposes. Congress, of tion 323(b) like Section prohib- federal course, can only do if this it could show ited these organizations from using non- that a government sufficient federal interest was funds—which they had received being national, served so. It doing state, has not. As parties and local —to earlier, discussed at length only directly affect elections, re- federal it might strictions on uses of have been nonfederal able funds that to demonstrate that can be restriction constitutionally regulated are was closely uses drawn to serve the that directly sufficient government election. See interest required affect federal under supra any Parts I.A.2 & standard Any I.B.2. other use review to justify these infringements. of the donation is tangential too But give to did not. Therefore, all reasons, rise to the risk corruption, above I appear- or 323(d) conclude that Section corruption, ance of is unconstitu- necessary tionally overbroad. warrant congressional this infringement on First rights. Amendment say 323(e): To D. New FECA Section Nonfed- least, the defendants have not eral produced Fund Restrictions on Federal Can- sufficient evidence to didates demonstrate that an appearance of corruption, let alone corrup- Judge Henderson and Judge Kollar-Ko- itself, tion arises organizations when telly uphold 323(e) Section in its entirety. type
this national, use donations from While I concur the extent this state, and parties local for nonfederal or section prohibits federal officeholders and mixed purposes. candidates from receiving, directing, trans- 323(d) ferring, spending any
Section is also nonfederal funds constitutionally with problematic any election, connection as a including result of its treatment of the kind of election activity Section 527 organizations. defined Sec- Section 527 or- 301(20)(A),95 tion I ganizations, regard dissent according applicable prohibition on candidate, definition, exist, IRS part, to influence officeholder, from soliciting selection, funds for nomination, election, or ap- benefit of his party, national pointment especially of individuals to state and local since Congress can legally prohib- and has offices, public as well various parties (national, local) ited the state, and organizations. 527(e)(1) §§ 26 U.S.C. from using nonfederal (2). directly funds to Accordingly, since organi- Section 527 influence federal elections. Accordingly, I expend zations could the solicited or donat- am writing separately to in part dissent ed funds for one of these nonfederal or from, in, in part concur their opinions. mixed purposes,94 prohibition blanket 323(d) national, Section state, and With regard to the First Amendment parties local from assisting them in rights of federal candidates and office- example, 94. For Republican the California magnitude. circumstances, In those it is nat- Party organizations funds Section 527 to en- public ural presume for the that the dona- gage registration in voter Op- activities in its tion will help either be used to the federal Bounty program. eration See Erwin Aff. 9. get candidate elected way or in some other directly enures for benefit. Ei- his/her money Soft donations to federal candi- way, ther perception personal gain, of a dates, regardless of whether are used for and the sense indebtedness that follows purposes by nonfederal after, the candidates there- therefrom, justly Congress’s regula- warrants give can rise to apparent actual or cor- tion. ruption, especially if any the donation is of *558 restriction this 301(20)(A)(iii). By placing the for money funds soft to solicit holders simply is Congress candidates state on prin- dissent I would parties, of use of conversions similar against, guarding defendants that the the basis cipally communica- to fund money donations soft soliciting demonstrate to failed accomplish designed to that are tions for by parties used to be funds nonfederal influencing a directly purpose of federal most, indirectly affect that, at purposes section Since election. federal Congress. regulable elections federal money soft of to uses closely drawn ac- for such used donations example, For pur- for that exclusively candidates state newsletters, gen- building, party as tivities constitutionali- its similarly uphold I pose, voter generic advocacy, issue uine ty- indirectly federal affect so mobilization give not all, they do elections, if at Campaign II: Noncandidate Title II. necessary appear- minimally to the rise 201, 204, Expenditures Sections congression- warrant corruption of ance al intervention. Henderson, for but Judge join I with to be used soliciting donations Indeed, pri- reasons, that the holding in different mixed on such party the national for electioneering communi- of definition mary nonfederal) is the kind purposes (and/or is unconsti- in Section forth set cations public by officeholders conduct however, in her not, join I do tutional. participate expect them to would only pro- backup definition also holding that to the suc- is fundamental in, but which is unconstitutional. in Section vided par- national major operation cessful backup uphold I contrary, To par- helping their extent that To the ties. Judge as does constitutionality, definition’s with officeholders way provides in this ties as my opinion joins in Kollar-Kotelly who offi- among other status added some Judge alternative necessary attenuated is too cials, my judgment, in primary finding my Henderson’s appearance to the rise give benefit following The unconstitutional. definition congres- to warrant necessary corruption primary rejecting my are reasons Part supra I.A.3. intervention. sional defini- backup upholding the definition in, and dis- part I concur Accordingly, tion. my col- from, holding of part sent Primary Defini- 201: A. Section leagues. tion 323(f): Nonfed- FECA Section E. New attempt Congress’s BCRA is Title II of on State Candi- Restrictions Fund eral FECA loopholes in close certain dates arising from conduct regulate certain can 323(f) state prohibits Section corpo- indirectly, of use, directly and both for a commu funds spending didates from finance treasury funds and union rate in Section discussed type nication that direct- communications electioneering subject 301(20)(A)(iii) the funds elections, though unless even affect federal ly report limitation, ad- prohibitions, “pure issue to the otherwise masquerading (i.e., Judge hard mon Because, part, of FECA ing requirements vocacy.” its money by Buckley and use of soft Restricting the believes Henderson ey). requir- test line bright communications set forth a progeny state candidates “magic is, words” of certain presence ing the elections directly affect a fed- or defeat the election advocating dis my preceding course, consistent advocacy to for this order eral candidate constitutionality of Section cussion of the *559 793 regulable by Congress, she strikes unions and other genuine entities air issue both the primary down and backup defini- .advertisements in periods the immediately tions.96 Judge Kollar-Kotelly and I dis- preceding general and elections, primary agree with reasoning, this I join in the the purpose sole which of is educating the portion opinion of her analyzing why the viewers about an upcoming vote on pend- Supreme Court never intended the so- ing legislation, and encouraging them to express called advocacy test be a consti- inform their representative elected to vote tutional rule of limiting power law of for or against (i.e., legislation-cen- bill Congress to regulate expenditures for cer- advertisements). tered Monroe, Edward tain uncoordinated advocacy that directly Director of Political Affairs for Associated elections, affects federal notwithstanding Builders and Contractors (“ABC”), ex- the absence of these words.97 plained that legislative “serious initiatives or regulatory proposals While often Judge are consid- Kollar-Kotelly I and agree ered near the time of regarding Congress’s elections.” power Monroe regulate ¶¶ Decl. 18-19. Laura Murphy, legislative source of the funds used for these ACLU, director communications and the seconds disclosures this: 60 file, days “[The] donors must I before a general do agree election and 30 primary definition, days before a primary ... by Congress, crafted are often periods of sufficiently legislative tailored to intense regulate the activity. elec- tioneering advocacy During years, it election seeks to cover. To candidates stake positions out contrary, definition, primary virtually all of the contro- regulates versial issues of day. referring communications Much of the clearly debate identified occurs against federal candidates the backdrop based upon pending when and broadcast, legislative where they are action or executive rather than their effect branch on federal initiatives.” elec- Murphy Decl. 12. Exam, tions, sweeps so broadly that also Mann captures (ex- Cross at 176 too much First protected plaining Amendment flurry legislative activity speech that Congress, in occurs the absence near the of a end of congressional demonstrated compelling session, government therefore, in- often within the day terest, power has regulate. period no preceding election); a general What Find- type speech is that? ing 359.98 plaintiffs have clearly demonstrated Notwithstanding expert defendants’ tes- corporations, interest groups, labor timony the contrary,99 groups interest 96. See J. Op. Henderson (H.R.5710, IV.A. Part Cong.); 107th appro- and various priations departments, bills for federal includ- Kollar-Kotelly See J. Op. at Part ing Defense, Justice, III.I.C.l Departments & Part III.I.C.2. legislative State. While last fall's calendar may typical, not be it nevertheless illustrates alone, example,
98. For last period fall in the potential impact BCRA’s genuine on ¶ ad- issue immediately preceding congression- vocacy. Murphy (“Some Decl. election, Congress al following considered the Attorney President's or General’s boldest ini- important, controversial, pieces legis- during tiatives years— advanced election lation: a resolution authorizing the use of days often within general of a election. (HJ.Res.114, against armed force Iraq, instance, 107th year, This legislation creating a Cong.); an update election reform bill to bal- department new federal of Homeland Securi- provide lot greater machines and ty access is under during pre-elec- consideration individuals polling places with disabilities to period."). tion (H.R.3295, Cong.); legislation 107th to estab- Department lish the Security Homeland Finding 99.See n. *560 “[tjhere many are NAM states Huard of that expert agrees,100
believe, plaintiffs elec-, to refer may ad need an that issue reasons preceding immediately periods the or candi- official an elected of to the name to run times most effective the tions are par- identified Many bills are date. discussing pending issue advertisements by known the may be sponsors ticular in interest public’s the because legislation Also, incumbents both names. sponsors’ of Monroe Edward peak.101 at its is policy people prominent may be candidates that “it ... clear is explains ABC a bill or opposition or support whose generally more are public members ef- persuasive important may have policy considering in engaged to and receptive used to Aso, is if issue ad ... fect. elec- as ideas and issues policy government par- of a position legislative a explain why people the time is when If that tions near. for his good is Congress of ticular Member speak. And time to listen, the that is will state, gener- the member her district occurs, there seems election once an is true The same be mentioned. ally must during which fatigue of period induce may be to ad the purpose the interest, making issue are of less matters of if and com- Member contact the viewers Decl. Monroe less effective.” then ads Decl. Huard policy position.” Likewise, municate ¶¶ Finding 359. 18-19; see also Finding ¶ added); see also (emphasis Fi- for Huard, President Vice Senior Paul Mitchell, Special Denise Similarly, 293. National the Administration nance AFL- to the Afairs (“NAM”), for Public Assistant of Manufacturers Association concurred, it is often explaining that CIO, greater tend to have “Americans finds that candidate to a federal to refer necessary an election matters as in interest implied express or time, by “[t]he name because elected At the same approaches. to contact or listeners of viewers urging to the views most attuned officials ... is issue [an] policymaker regarding the peri- pre-election the in constituents their showing them how effective especially pre- Thus, many purposes, od. impact the issue de- personally can for issue critical time is a season election ¶ 11; see Mitchell Decl. in question.” 10; bate Finding see also Decl. ads.” Huard of a review quick A Finding 293. also legislation-centered example of a classic issue advertise- fact these mere The demonstrates advertisement genuine issue of a candidate the name ments mention points. these representative whose (i.e., elected an adver- ran) the AFL-CIO aired does not the advertisement district The adver- “Barker.” entitled indicate, tisement prove, alone let necessarily candidate a federal tisement referred designed for election- is advertisement line only the call-to-action name the tes- contrary, To the eering purposes. urged it where of the advertisement indi- end plaintiffs’ witnesses timony various Congress Member to call their viewers there are that, experience, in their cates regarding position express if why helpful, it is many reasons The legislation. Track trade pending Fast name to mention candidate’s necessary, vote for a was legislation scheduled to focus order in these advertisements September on Representatives House particular pend- on a public’s attention general days Paul 1998—within example, For legislation. ing piece of Gibson, focusing policy matters in (statement advertisements Finding Dr. 100. See elections). periods before argument rejecting the defendants’ legislation-centered issue unproductive to run Findings 358-60. election. The text of the advertisement is only referent to [the candidate] Exam, follows:102 call line.” Magleby Cross at 104.
Paid for by Working Men and Wom- generic [A] call your Congressman, call en of the AFL-CIO. speaking]: [Barker your Senator, when then linked to a Okay gents, ladies and step right up and legislation and call your Congressman or if you can followthe ball. Is it here? Senator about legislation without a *561 Is there? Where could it be? [Voice referent position their issue, on the They’re over]: playing games again in seems to substantively me different than Washington. Without discussion or de- when they are mentioned in view of bate, they’re planning another vote on what position is on that Q. issue. the controversial Fast spe- Track law— When you say substantively different, cial powers to ram through trade deals you referring ato difference with like NAFTA. Fast Track failed last respect to whether the advertisement year because working families don’t communicates an electioneering mes- want more trade put deals that big cor- sage? A. Yes. porations first; that ignore deals our Exam, Magleby Cross at 106. jobs; concerns about lost environmental genuine Because advertisements, issue problems borders, on our and danger- “Barker,” like been, have and will need to ous, imported foods. But Newt Ging- be, aired during periods of legislative ac- rich and sponsors of Fast Track tivity up elections, leading plaintiffs con- hope they can by fall, sneak it this while tend the primary definition, if upheld, will public attention is focused on other is- capture them as “electioneering communi- sues. [Barker speaking]: Keep your 104 such, cations.” As they will subject- be eyes on the ball now ... [Voice over]: ed to a of host limitations and _ regulations Representative Call xxx- which, according plaintiffs, to the will limit xxx-xxxx and tell him to vote no on Fast and chill their ability to engage in First Track. Tell him we’re still paying atten- protected Amendment speech. agree. I tion. And Fast Track is still a bad idea. The crux of problem Mitchell 116, pri- Deck Exhibit Exhibit 1 at 86. mary that, definition is Defendants’ own unlike expert, backup David Magleby, definition, it does depend who stated report in his on that the effect he would “presume” message communication’s a can- advertisement is electioneer- merely such, didate’s ing election. As many because it genuine mentions a federal ads, name,103 “Barker,” candidate issue like will candidly admitted treated the reviewing after same as “Barker” the sham that such an “issue” ad- ads Congress vertisement a “genuine” supposedly issue was intending advertise- regulate. It ment. He concluded as is the such—even absence of a link between the advo- though it mentions a federal cacy of an candidate’s fitness, issue and a candidate’s body name —because “[t]he of thereof, the ad lack has for election that renders no referent to [a candidate] whatsoever. congressional intervention with respect to 102.The advertisement in the aired districts of 103. See Finding (discussing 290 of indicia Congressman (LA-07); Chris John Congress- electioneering advertisements). (WI-02); Klug man Scott Congresswoman Jo (MO-08); Ann Congresswoman Emerson Opening McConnell Br. (arguing at 65 104. (KY-03); Northup Anne Congressman Jack generally genuine advocacy issue will be (GA-01); Kingston Congressman Rick BCRA); regulated by Opening NRA atBr. (WA-01), White referred those federal candidates Finding name. See
796 City Members application. missible 'type unconstitu- this ads issue genuine v. Tax- Angeles Los City Council absence Notwithstanding the tional. 19, 789, n. Vincent, 800 U.S. payers contend, Judge link, defendants this (1984) 2118, L.Ed.2d 104 S.Ct. the evidence Kollar-Kotelly agrees, Oklahoma, 413 U.S. v. Broadrick (quoting though even demonstrates sufficiently L.Ed.2d S.Ct. advertisements issue genuine some Instead, J., dissenting)). (Brennan, (1973) election leading up to an months in the run shown, Supreme have plaintiffs definition, it is swept under bewill Vincent, that BCRA put it in aptly Court render the number insufficient too the stat- danger that “a realistic presents defec- constitutionally definition primary recog- compromise significantly will ute disagree. I tive. par- protections First Amendment nized 800-801, Id. the Court.” not before ties their burden met plaintiffs *562 2118. S.Ct. 104 they have challenge because facial this plain- the of both evidentiary basis primary definition BCRA’s that shown concern- arguments and defendants’ tiffs’ constitu of amount substantial “reaches overbreadth definition’s primary ing the Hous City conduct.” tionally protected of Time Buying Time 1998 Buying the 458, 451, S.Ct. 107 Hill, 482 U.S. v. ton cor- the defendants While studies. 2000 (1987) Vil (quoting 398 L.Ed.2d 2502, 96 carry the bur- plaintiffs that rectly contend Flipside, v. Estates lage Hoff Hoffman of substantially that BCRA is to show den 489, 494, 102 Inc., Estates, 455 U.S. man rely overbroad,105 studies defendants the (1982)) (empha 1186, 362 71 L.Ed.2d S.Ct. narrowly tailored106 that it is upon to show short, have dem Plaintiffs, added). in sis “sur- essence, controversial are, highly ... “text statute’s from the onstrated leading run in the months the ads vey” of number a substantial fact that actual from Judge elections. and 2000 the up 1998 cannot [l]aw the in which exist instances of opinion, her notes in correctly Henderson New York constitutionally.” applied be IV.A, the that Op. Part Henderson J. York, 487 New City v. Ass’n Club State of the regarding length” “quarrel parties 1 2225, 101 L.Ed.2d 14, 1, 108 S.Ct. U.S. Time Buying studies the of significance added). instances These (1988) (emphasis regard- conclusions and, its particular, “ overbreadth,” Ash merely ‘some’ not advo- issue genuine of percentage the ing 584, 564, 122 S.Ct. ACLU, U.S. regulated 535 improperly v. that would cacy croft (2002) (quoting Judge 771 Unlike 1700, L.Ed.2d 201 of BCRA. 152 by Section Buying 844, 896, the Henderson, 117 that ACLU, I U.S. believe 521 v. Reno some eviden- (1997)), are entitled to or a studies Time L.Ed.2d S.Ct. weight.107 tiary imper- of an possibility” “bare “single” or in- sponsoring the advertisement 159; group Opp’n Gov’t Opening Br. Gov’t 105. elec- of an outcome to influence tended tion,” atBr. 68. ” " which tests 'bright line’ content-indifferent itself—a definition 106. The advertisements regulate all "attempt criteria.”). alone— and location time definition based on objective meet certain campaign regulating approach a novel evidentiary no Judge accords Hasen, Measuring Henderson L. speech. See Richard J. See Buying studies. Time weight Empirical De- Using Evidence Overbreadth: IV.A. & III.B.2 Part Op. at Part Henderson Constitutionality Campaign Fi- termine of 344-48 Findings 322-33 and also Advocacy, Targeting Issue Sham Laws nance Buying how the criticisms (2001) (draw- discussion 1777-78 L.Rev. Minn. ” “ Court preclude this tests,’ do studies Time like 'intent ing a distinction between purposes those studies relying definition, usually require a backup litigation. this person to determine whether "factfinder However, I do not believe that election, the stud- even though such ads aired dur- ies’ statistical conclusions are the last word ing period are entirely regulable by analysis this Court’s of whether or not BCRA’s primary definition. See Finding the primary definition is overbroad. With 316. respect to the percentage protected, Furthermore, Court, in my judg- speech is, be, or will regulat- ment, rely cannot upon the BCRA, is, results of course, ed impossible to two, Buying Time studies without
quantify analyz- the exact percentage with abso- ing, certainty. extent, lute Ferber, See New some parties’ York v. dispute 747, 773, 458 U.S. 102 S.Ct. regarding produce formulas used to (1982) L.Ed.2d 1113 (explaining that those results. The defendants favor the often, “[h]ow if ever” the statute at issue formula used in the study,108 Ferber regulate protected would speech compares the total number genuine is- “cannot be known with certainty. Yet we sue ads regulated by BCRA to the total doubt, seriously and it not been sug- has genuine number of issue ads run in a gested, that these impermissible arguably year. calendar 335, 336, See Findings applications of the statute amount to more The result is the percentage genuine of all than a tiny fraction the materials within issue advocacy that would have been regu- reach.”). Thus, the statute’s impor- it is lated by BCRA in the course of that year. *563 tant not to overstate the significance of the plaintiffs, however, contend that the Buying Time studies using when them as 1998 formula misstates impact BCRA’s be- the basis of a finding of unconstitutional cause it includes ads that were run outside all, overbreadth. After the studies did not 60-day period the preceding general a analyze every advertisement that ran in election, and therefore would not have every market during the 1998 and 2000 subject been to regulation under the pri- Instead, elections. they analyzed the top mary 336, definition. Findings See 338. markets, 75 media encompassing eighty According to plaintiffs, the the formula percent of the advertisements runs during applied in the Buying Time study 2000 those elections. See Findings 315-17. I more accurately reflects impact BCRA’s not do state this fact to suggest every that by focusing on period the exact of time ad had to be reviewed before the studies regulated by BCRA: days preced- the 60 credible, could be rather, deemed that the ing general' election.109 Looking at ads percentages produced by the studies may, only aired during fact, 60-day period, that in the overstatement, be an or under- 2000 statement, formula compares of the of gen- the number statute’s overbreadth. uine Findings addition, issue ads to the ads, 317-18. In total I number of would note that the Buying thereby calculating Time 2000 study the did of all percentage analyze not run in advertisements the 30 ads that would have been regulated by days preceding a primary preference BCRA genuine that were issue ads.110 108.Gov't Opp'n Br. at 74. Defendants argue 67; 109. Opening McConnell Br. at McCon- that the 1998 formula best "measures the Reply nell Br. at (offering 35-36 analogy impact of genuine BCRA on the universe of explain formulas). the methodology of the two issue any particular ads aired in calendar and, thus, year answers the question critical Opp’n (explaining Gov’t Br. at 73 any at the analysis heart poten- of of BCRA’s formula); 2000 Finding see also overbreadth, i.e., tial genuine the amount of issue advocacy that BCRA subject would regulation.” Reply Gov't at 72. Br.
798
357;
also
Gold-
Finding
advocacy. See
v.
in Broadrick
Court
Supreme
As the
Exam,
169;
160,
McConnell
Cross
over-
stein
a statute’s
stated
Oklahoma
discrep-
Percentage
at 36-37.
the Reply
Br.
“judged
relation
must be
breadth
percent
14.7
aside, I find that
find
sweep,” I
ancies
legitimate
plainly
statute’s
the months
run in
accurately
ads
of the
percent
more
17
formula
2000
elections,
and 2000
1998
U.S.
to the
leading up
413
impact.
BCRA’s
measures
(1973).
a “substantial
represents
L.Ed.2d
respectively,
615, 93 S.Ct.
formula
renders
speech
the 1998
protected
produced
amount”
The results
comparing
consti-
this Court
defective
assist
definition
primary
do not
legiti-
“plainly
its
overbreadth
tutionally
BCRA’s
overbroad.
it measures ads
sweep,” because
mate
alone,
statistics,
pres-
not
do
But these
regulated
have been
would
never
on
impact
of BCRA’s
picture
full
ent
shows
formula
the 1998
While
BCRA.111
days
in the 60
advocacy
issue
genuine
advo-
issue
genuine
all
impact
BCRA’s
Indeed, de-
election.
general
preceding
year,
of a calendar
the course
cacy over
defi-
primary
BCRA’s
whether
termining
value when
limited
is of
that information
amount
a substantial
reaches
nition
only
applies
definition
primary
BCRA’s
advocacy
issue
constitutionally protected
election
primary
preceding
days
the 30
calculating
function
simply a
elec-
a general
before
days
that would
ads
pure
issue
percentage
tion.112
dur-
by that definition
captured
have been
the data
formula
Applying
preceding
60-day period
ing
studies
and 2000
during the 1998
collected
Because
elections.
over-
definition’s
primary
that the
shows
likely to
advocacy
issue
amount
total
hypo-
nor
speculative
neither
breadth
ais
year
election
any given
generated
thetical,
and substantial.
real
but
and nature
quantity
of both
function
defi-
primary
met BCRA’s
ads
chooses
address
Congress
the issues
*564
pre-
days
the 60
aired
were
nition and
numbers
period, those
pre-election
in that
election,
percent
14.7
general
a
ceding
legislative
in a
vacu-
not be viewed
should
Finding
advocacy. See
issue
genuine
were
additional-
should
this court
Ideally,
um.
however,
Buying
the
2000,
339. As
agendas
legislative
the
whether
ly assess
figure was
that
study concluded
Time 2000
active,
unusually
were
2000
1998
That
Finding 357.
See
percent.
only 2.33
how-
Regrettably,
or both.
controversial
however,
increased
was later
percentage,
itself
ever,
lend
record does
the
the
Goldstein,
compiled
who
Professor
more ac-
Obviously, the
analysis.
such
of
as the foundation
that served
data base
legislative
the
controversial
tive and/or
Gold-
Professor
studies.
Time
Buying
lesser)
(or
schedule,
greater
he
that
examination
cross
stein testified
ex-
would
advocacy one
issue
amount
study
the results
had reevaluated
Simply put,
generated.
it to
pect
con-
litigation and
purposes
for the
cap-
advocacy
pure issue
the amount
ads
fact,
percent
that,
cluded
contentious,
ac-
particularly
ain
tured
definition
primary
BCRA’s
that met
likely
is
tive,
period,
legislative
preceding
days
the 60
were aired
slow, or
captured in
that
than
higher
issue
genuine
were
general election
provide information
“could
formula
Finding 336.
111. See
time
during
particular
impact
about the
25. Defen-
Report at
Lupia Rebuttal
112. See
is,
60-day period in when
period,” that
Lupia, concludes
Arthur
expert, Dr.
dants’
Finding 340.
applies. See also
BCRA
reasonable, the
is
formula
either
that while
routine, legislative
Furthermore,
period.
the internet.113 I disagree
join
Judge
restricting
percent
14.7
of genuine issue Kollar-Kotelly’s analysis on that
issue.
advocacy in 1998 would have restricted
See J. Kollar-Kotelly Op. at Part III.I.F.
protected
otherwise
speech that would However, one point bears emphasizing:
have been seen in 30 million American Congress is infinitely more familiar than
homes, a number that brings
sharp
into
this Court with the circumstances and
relief the effect BCRA will have on the
practical ramifications surrounding federal
amount of information available to voters.
elections and campaign finance laws. The
Finding
335. Accordingly, for the
record thoroughly, and convincingly, dem-
reasons stated previously, there is reason
onstrates that Congress’s decision to regu-
to believe that the amount of issue advo-
late
communications,
broadcast
rather
cacy likely to be generated in future elec-
than other forms
communication,
was
tion cycles will be at least as substantial
justified.
well
Congress, as defendants ar-
as it was during
years.
those
gue, “need not regulate the entire universe
Ever mindful
overbreadth
is of activity intended to influence federal
“strong medicine” to be used “sparingly
elections” in
order
constitutionally regu-
only
resort,”
Broadrick,
as a last
late electioneering communications. Gov’t
613,
at
2908,
U.S.
93 S.Ct.
I
not lightly
do
Opp’n Br. at 96. As Congress, in its ex-
find
the primary definition of election-
pertise, has made this judgment
eering communications is substantially
record “demonstrates
the recited
However,
overbroad.
the realistic danger
harms
[justifying a
real,”
statute] are
primary
that the
definition of electioneer-
plaintiffs’ argument that the
un-
statute is
ing communications will significantly com-
constitutional for underinclusion is unavail-
promise genuine issue advocacy necessi-
I,
ing. Turner
U.S.
114 S.Ct.
such
tates
finding.
circumstances
these,
such as
“the possible harm to soci-
ety in permitting
unprotected
some
speech B.
Backup
Section 201: The
Definition
go unpunished
outweighed by
definition,
Unlike the primary
possibility that protected speech of others
backup requires as a link between the
may be muted.”
v.
Speech
Free
Ashcroft
identified federal candidate and his elec
Coalition,
234, 255,
535 U.S.
122 S.Ct.
office,
tion
language
certain
(2002)
280-84, in effective far less type is “magic the words” (showing that 3, 4, 7-8 1, Study at Find- See vote. in- viewer’s over a winning has advertisements issue of number Bailey Decl. 279; also 273-74, see groups of ings number as creased, well as 1998, rarely ¶¶ advisable and that that “it (stating to 1-2 them, from airing ‘vote and unions or ‘vote for’ groups, as words use such interest to corporations, treasury actively ”). use against.’ in 1996 began that advertisements issue sponsor
funds to these that because contend Defendants ads.”). campaign like and sounded “looked essence, directly ads, affect in issue sham express as regulation to avoid In order “behol- elections, candidates advertise- “issue so-called advocacy, those It is that them.116 fund those who den” “magic certain contain not did ments” defendants, indebtedness, according to the a oppose or support designed words” will undermine unregulated, if left that re-elec- or election candidate’s specific integrity in confidence public’s however, construct- ads, were The tion.114 in process our electoral of fairness simultaneously that way a ined such express advo- unregulated that way same is- stand sponsors’ presented give would, thereby cacy otherwise posi- candidate’s specific sue, identified of appearance or corruption rise thereon, and under record track tions or and Wirthlin Mellman See corruption. viewer admonishing the guise the same reasons essentially For 9-10.117 view, suggested his the candidate inform fed- definition Congress’s uphold I that taken) (or has who takes that candidate Section activity election eral (or should should position the candidate’s I.B.2, I be- Part 301(20)(A)(iii), supra see as Ads such not) office. to that be elected money expenditures soft large lieve that typically described been these have advocacy, regard- of covert type fund this advertisements,”115 or candi- issue “sham unions, labor corporations, of whether less advertisements, fac- and the date-centered them them- produce groups and interest that establishes unequivocally tual record perception selves, public ato give rise crafted only been not they have directly benefitted being the candidate affecting feder- directly specific purpose with either reciprocate naturally and will very successful elections, have been but al in- access, legislative increased favored Findings 273-74. See just that. doing Accordingly, fluence, See id. or both. so successful Indeed, they have been identity the funds used source industry widely it is believed 108; gen- 53; Opening Br. at Intervenors Report at Expert & Sorauf Krasno 114. 142-46; Br. at Interve- erally Opening Gov't (noting Report at Goldstein at 104-109. Opening Br. nors only percent of cycle, four 1998 election used parties by candidates sponsored ads poll, which Wirthlin Mellman 117. advocacy, in 1996 express words through Septem- August was conducted major- regulate *566 FECA did through 2002, percent of those 80 that showed ber every groups: for by interest ity ads aired of Congress would a Member polled believed 2000, by regulated FECA group ad interest a give special consideration likely to candidates federal ads that mentioned twenty or her on his issue ads had run group that Finding covered). also See were not that concluded and Wirthlin Mellman behalf. between very difference little "Americans to a money as donation described a soft been ads have also influence 115. political ads funding See and the ads.” ads” or "issue "electioneering & Wirth- Mellman radio.” television and Findings 288-89. Report at 9. lin
801 both, sponsors (1975)) my judgment, added). (emphasis Moreover, if a regulable Congress. “gives statute person of ordinary intel- ligence a reasonable opportunity to know
Plaintiffs a raise number of arguments prohibited,” what it is not void as to why backup definition of election vagueness. Grayned, 408 108, U.S. at eering 92 communications is “impermissibly S.Ct. 2294. vague.” McConnell Br. Opening at 70. First, they claim that people “reasonable Next, plaintiffs contend that the defini can, do, and emphatically disagree about tion’s use of the “promote,” words “sup
whether virtually any particular advertise
port,” “attack,” and “oppose” to define the
ment meets the criteria of BCRA’s fallback sponsor’s message causes it to be unconsti
definition.”
proof
Id. As
of the definition’s
tutionally vague.120 I disagree. The back
vagueness, plaintiffs
deposition
offer the
up definition’s language, specifically those
testimony of one of
sponsors
BCRA’s
and words, is not void
vagueness
because a
one of
expert witnesses,
defendants’
in person of ordinary intelligence would un
which they disagree about
par
whether a
derstand
prohibited.
what
ad,
ticular ad is a genuine issue
or whether Grayned,
108,
Seastrand
lead
“inevitably
Grayned,
stated
congressional Court
other
thirty-five
ran in
also
the unlawful
of
wider
from
far
steer
to
candidates
citizens
districts, naming federal
the
of
the boundaries
than if
...
zone
districts.
those
408
marked.”
clearly
areas are
I both
forbidden
husband
My
CAROLYN:
chilling
The
109,
two
92
S.Ct.
year, we’ll
U.S.
next
And
work.
the
not doom
very
language does
this
will be
of
And it
college.
effect
children
unconstitutionally
the
with
through, even
definition
backup
them
put
to
hard
to
susceptible
Working
however,
it is
because
vague,
[Announcer]:
incomes.
two
De
J.
Congress-
But
Edward
See
struggling.
construction.
saving
are
families
with
Bldg.
voted
&
Seastrand
Coast
Corp.
Andrea
v.
woman
Bartolo
Gulf
loans,
568, 575,
while
college
Council,
cut
to
U.S.
Gingrich
Newt
485
Trades
Constr.
wealthy. She
(1998)
the
to
breaks
645
giving
1392,
tax
99 L.Ed.2d
S.Ct.
108
Department
the
eliminate
to
voted
be
even
must
construction
(“[E]very reasonable
again
vote
Congress will
Education.
a statute
to,
to save
in order
resorted
Seastrand, don’t
Tell
budget.
the
v.
Hooper
(quoting
unconstitutionality.”)
CARO-
future.
our children’s
off
write
207,
648, 657, 15 S.Ct.
155 U.S.
California,
all
are
her,
priorities
her
LYN: Tell
Com
(1895));
Carlin
see also
297
L.Ed.
wrong.
FCC,
F.2d
munications,
v.
Inc.
is
Congress
Exhibit
Cir.1988)
Decl.
“the
(2d
that as
(finding
Mitchell
560-61
constitutionally
be,
not,
not
and should
severability,”
favor of
is in
presumption
the
tests such as
line”
“bright
to
confined
part”
“invalid
the
“dropped”
court
the
words”
“magic
the
primary definition
i.e.,
“or
the words
regulation,
an
from FCC
finance
campaign
enacting
formulation
the
indecent,”
“the remainder
because
ordinary intelli-
person
A
restrictions.
denied,
cert.
fully operative.”),
is
statute
this
expected to understand
can be
gence
305, 102 L.Ed.2d
924, 109 S.Ct.
U.S.
prohibited.
test,
is
what
and know
(1988).
believe
However,
I
not
do
while
to
susceptibility
definition’s
backup
The
message
the
define
used
the words
howof
a function
construction
saving
backup
the
I
do believe
vague,
are
offending
Because
is written.
it
clause,
requires
which
final
definition’s
end of
to the
appended
simply
phrase
plausible
noof
“suggestive
message without
definition,
be excised
it' can
an
than
exhortation
meaning other
Com-
See
definition.
the entire
rewriting
my
unconstitutionally vague.
vote,” is
Comm’n, 478
Trading
modity Futures
difficult, if not
extremely
it is
judgment,
(“Although
841,
tion assures that real, there will be no ad, (2) let office in its groups those may substantial, alone deterrent effect on po- seek an advisory opinion from the FEC to unrelated, litical discourse to federal elec- determine whether communication is tions. Genuine issue advocacy thereby regulated by BCRA.122 exempt remains from both backup the Thus, plaintiffs have failed to dem- definition and its attendant disclosure re- onstrate that vagueness of the backup quirements and source restrictions. Simi- definition as severed is real and substantial larly, genuine issue advocacy, specifically enough to deprive person of ordinary legislation-centered type, that men- intelligence a reasonable opportunity tions a federal candidate’s name in the know what prohibited. such, As context of urging viewers to inform their backup definition of electioneering commu- representatives or senators how to vote nications is constitutional. on an upcoming bill will not be regulated C. Section 204: The Wellstone Amend- by the backup definition because it does ment promote, attack, support, oppose the election of that candidate. See Find- join While I Judge Henderson in ings (providing 368-73 examples legis- holding that Section 204 is unconstitutional lation-centered advertisements that do not as it applies to MCFL nonprofit corpora promote, support, attack, oppose tions, I do not agree that it is unconstitu candidate). election of a federal tional applies as it nonprofit those cor Indeed, porations backup that do not qualify definition of election- for MCFL eering Therefore, communications status. with its final I am clause writing separately severed is very similar to the type “pub- explain my reasons for joining with lic communication” defined by Judge BCRA’s in part, Henderson and with Judge 301(20)(A)(iii) Section as “federal election Kollar-Kotelly part who upholds the activity.” 301(20)(A)(iii). § See BCRA constitutionality of Section 204 for differ While arguments against vagueness ent reasons. applicable 301(20)(A)(iii) to Section Defendants concede that Section 204 applicable
generally to the backup defini- does not contain an exemption for MCFL tion, one important distinction is to note: organizations. However, argue defendants sophistication in electioneering commu- exemption nonetheless exists for parties nications being regulated is organizations those Supreme because the not equally applicable to the backup defini- Court in MCFL out “carvefd] an as-ap- said, tion. however, That I do not believe plied exemption to restrictions on corpo- it is necessary to make a similar finding rate election activity.” Opening Gov’t Br. here in regard to comparative sophisti- (emphasis in original). It is there- cation corporations, unions, labor inter- fore inconsequential, according to the de- est groups, and other participants in politi- fendants, that BCRA codify does not cal speech. Additionally, whatever chilling exemption. MCFL The defendants’ rea- effect, any, if of “public definitions soning misses the mark. communications” and “electioneering com- may FECA, munications” Under nonprofit corporations are minimized in two, (1) substantial were ways: required corporations, pay for express advocacy la- unions, bor banks, individuals, expenditures national from a separately segregated other entities can fund, avoid regulation simply rather general funds, than treasury by not mentioning a candidate for federal unless corporation met the three re- supra Part I.B.2.
804 too, I, in MCFL.124 decision preme Court’s Supreme by the forth set quirements be conclusion, I also but this with agree of BCRA 203 Section in MCFL.123 Court is unconstitutional 204 Section that lieve segregated separately FECA’s expands nonprofit to those application in only its to cor- only apply not to requirement
fund MCFL. under exempted advocacy, organizations express for expenditures porate author the has judgment, my in Congress, labor corporations, expenditures but it provided exemption the to withdraw ity electioneer- for unions, banks and national corpora nonprofit those 203 Section in (i.e., nonexpress advo- ing communications Thus, the by MCFL. exempted tions Like- 201. by Section defined cacy), as nonprofit applies 204 that Section fact exemption the wise, expands 203 Section itself, im not, of in and does corporations sepa- from corporations nonprofit for factor critical constitutionality; the its pair of requirement fund segregated rately that corporation nonprofit whether cor- nonprofit is those only Whereas FECA. from protected one regulated being requirements three themet porations holding. MCFL by the regulation such exempt from were MCFL in forth set re- fund segregated separately the ex- FECA’s authority withdraw Congress’s ignores of BCRA 203 Section quirement, exemption rests pansion and instead criteria MCFL non- completely require authority as its basis same or- corporations nonprofit all only provides to use MCFL, corporations nonprofit 501(c)(4) or Section either under ganized purchase funds segregated separately Revenue 527(e)(1) communications; Internal dem- Section electioneering electioneering communi- for pay may Code corruption appearance onstrated funds, sim- treasury general using unions cations corporations and for-profit if arises incorporation under of their treasury virtue ply their general to funnel able so, judgment, my in Doing in those sections. corporations nonprofit through funds MCFL with both consistent perfectly was electioneering communi- to purchase order the Elections under power Congress’s pur- and otherwise they cannot cations Const, I, § 4. art. Clause, Kollar-Kotelly U.S. Judge directly.125 chase portions reasoning however, forth sets provides, 203 Section What prohi- 203’s upholding Section opinion her away. As defendants takes 204 Section union and corporate use of on the can bition completely 204 Section acknowledge, disclo- funds, 201’s Section treasury nonprofit for all exemption out the cels un- corporations, for requirements, sure 203. See by Section provided corporations J. See corporations. ions, nonprofit 164, Plaintiffs n. 115. Br. at Opening Gov’t I III.I.E.l.a. at Kollar-Kotelly Op. Part agrees, Henderson contend, Judge no it needs reasoning and her concur be is unconstitutional that Section here. repetition further Su essence, it contravenes cause, in 17-24; ACLU Opening Br. See NRA is, (1) corporation is whether 124. 123.That at 16-17. Opening Br. promoting purpose of express for the "formed ideas, engage in business and cannot Michigan Chamber v. generally Austin activities”; (2) or other shareholders "has no 656-60, Commerce, S.Ct. 494 U.S. affiliated,” have “no so that members persons MCFL, (1990); 108 L.Ed.2d disassociating with disincentive economic 616; 258-60, Find- see.also S.Ct. activity;” U.S. at disagree its it if and la- corporations (explaining that ing 284 (3) established corporation "was not "magic words” do not use bor unions policy corporation,” has by a business to avoid order advertisements issue sham entities.” such refusing "contributions restrictions). source MCFL, 107 S.Ct. 479 U.S. Accordingly, the reasons stated provisions are, Section 213 above and the relevant portions of Judge plaintiffs acknowledge, “relatively straight- Kollar-Kotelly’s opinion, I hold that Sec- forward.” McConnell Opening Br. at 85. *570 tion 204 is unconstitutional After only the date on ap- in its which a party nominates plication MCFL, candidate, its if nonprofit corporations. it first an indepen- makes expenditure dent on behalf of that candi- Party D. Section 213: The Choice Pro- date, any subsequent expendi- coordinated vision ture will subject $5,000 to the same FECA, Under interpreted as by the Su- limitation that exists for multicandidate preme I, Court Colorado and Colorado committee expenditures, and not under the II, national party committees could make higher limitation set forth in formula form independent unlimited expenditures on be- in the Party Expenditure Provision of Sec- half candidate, of a federal as well as 441a(d) tion of FECA. Conversely, if the expenditures coordinated up to the amount party chooses to first make a coordinated provided by the Party Expenditure expenditure on candidate, behalf a Provision, 441a(d).126 § BCRA, U.S.C. thereby taking advantage of the higher, however, changes by forcing national formula-based dollar limitation under the parties, effect, to choose between mak- Party Expenditure Provision, it cannot ing expenditures coordinated and unlimit- thereafter any make independent expendi- independent ed expenditures on behalf tures on behalf of that candidate. Addi- their federal candidates. The defendants tionally, Section 213 treats “all political contend that such a choice necessary, is committees established and maintained by because a once party national coordinates national political party (including all con- candidate, with a expenditure no thereaf- gressional committees) campaign and all ter truly is independent.127 agree While I political committees established and main- that Congress can constitutionally place by tained political a State party (including restrictions on the ability of a national any subordinate committee of a State com- party to make expenditures, coordinated mittee)” as “single political committee.” Section 213’s restriction on party national Finally, transfers, Section 213 forbids as- independent expenditures flies the face signments, receipt of funds a com- of the Supreme holding Court’s in Colora- mittee of a political party that has made a I, do and is therefore unconstitutional.128 expenditure coordinated for a federal can- 126.According Party sion, Expenditures Pro- FEC Party Announces 2000 Spending vision, 441a(d)(3), § 2 U.S.C. (Mar. I, 2000). elections for Limits Senate, the United States and for elections to Representatives House of in states entitled 127. Opening (cit- Intervenors Br. at 147 only Representative, one House parties are McCain, ing Senator explained who Sec- spending $20,000, limited to greater "helps tion 213 expenditure ensure that the inflation, adjusted for multiplied or two cents political [of the party] national truly will be voting age population of the State independent by prohibiting ... party from where the election is held. In states making entitled expenditures coordinated for a candi- more one Representative, than House date at the same making time indepen- expenditure coordinated limit for House cam- expenditures dent for the same candidate.” $10,000, paigns is prior adjustment Cong (daily Rec. S2144 ed. Mar. 2002)). inflation. expendi- coordinated $33,780 ture limit campaigns for House was per party. The limits for Senate races were Judge 128. While agrees Henderson us in with $1,626,438 high (the as result, expen- coordinated separately she writes to stale her race). diture limit for the California Senate doing reasons for so. Op. See J. Henderson Release, See Press Election Federal Commis- at Part IV.C. 213’s restriction tion,129 that Section I find “that committee political ato didate by national expenditures independent indepen- to make intends made
has
unconstitutional.
parties
political
candi-
to the
respect
expenditure
dent
315(d); 2
§
213;
Colo-
FECA
clear in
§
made
Supreme Court
BORA
date.”
441a(d).
expression
independent
§
“[t]he
I that
rado
U.S.C.
First
is ‘core’
views
party’s
political
aof
practical effect
argue
Plaintiffs
than is
activity no less
Amendment
parties
“ban
is to
of Section
individuals, can-
expression
independent
expénditures
independent
making
committees,” 518
other
didates
coordinated
to make
(if
choose
all
*571
2309,
cannot
and it
616, 116
at
S.Ct.
U.S.
from
them
first),
to ban
expenditures
expendi-
the
unless
restricted
be
therefore
(if
at all
expenditures
making coordinated
corrup-
of
“special dangers
pose
tures
expendi-
independent
make
to
choose
they
130
contention
the FEC’s
Despite
Id.
tion.”
atBr.
first).”
Opening
McConnell
tures
expenditures
party
“all
I that
Colorado
claim,
un-
plaintiffs
latter
toAs
the
86.
been
if
had
”
treated
should
213’s reach.
Section
exaggerate
doubtedly
law because
as a matter
coordinated
“
of
na-
prevent
it does
clear that
it is
While
course
of
a matter
will as
‘party officials
an
that have made
committees
tional
before
candidates
party’s
the
consult
of a
on behalf
expenditure
independent
influ-
intended
funding communications
coordinated
making
from
”
candidate
federal
election,’
aof
outcome
the
ence
amount
to the increased
up
expenditures
risk
no such
found that
Court
Supreme
the
2in U.S.C.
formula
under the
as calculated
619,
at
U.S.
518
existed.
corruption
of
able nonetheless
441a(d), they are still
§
the
the brief
(citing
620,
2309
116 S.Ct.
(or contri-
expenditures
coordinated
make
constitutionally significant
FEC).
“[T]he
provid-
$5,000
butions)
limitation
the
up to
relied
Court
Supreme
which the
upon
fact”
441a(a)(2),
any
just like
§
2in U.S.C.
ed
parties
political
national
that
determine
Thus,
committee.
multicandidate
other
ex-
speaker,
political
could,
any
like
other
may still
parties
political
the national
since
right
Amendment
First
ercise
mak-
after
expenditures
coordinated
make
without
expenditures
independent
make
first, the
expenditure
independent
an
ing
lack
“is the
corruption,
a risk
posing
the constitu-
Court is
this
real issue before
candidate
between
coordination
pro-
617,
provision
new
at
Congress’s
Id.
tionality of
expenditure.”
source
added). Absent
party committees
political
(emphasis
hibiting national
2309
S.Ct.
if
refused
evidence,
Supreme Court
expenditures
independent
making
from
such
FEC’s
expenditure
a
matter”
accept “as
factual
a coordinated
first made
it has
by party
a
expenditures
that
Applying
all
candidate.
contention
a federal
on behalf
Id. at
coordinated.131
ipso
prohibi- were
to this
scrutiny review
facto
strict
might
do-
funnel
parties
Court,
bilily
national
citing
that
I,
Supreme
Colorado
129.
through in-
to candidates
nors’ contributions
indepen-
Buckley,
"restrictions
that
stated
evade
an effort to
expenditures
dependent
impair
significantly
expenditures
dent
limits, presented a
contribution
the individual
engage in
groups to
ability of individuals
616-17,
S.Ct.
at
corruption.
Id.
risk of
'represent sub-
advocacy and
direct
quantity and
on the
restraints
...
stantial
”
I,
speech.’
Colorado
diversity of
politi-
acknowledging
national
131.While
(citing Buck-
S.Ct. 2309
U.S. at
right to
have First Amendment
parties
cal
612).
S.Ct.
ley, 424
U.S.
defen-
expenditures,
independent
make
narrowly
I
Colorado
contend
dants also
wheth-
Court
Specifically, the
considered
According
defen-
to the
right.
defines
donor contributions
parties’ use of
er the
proposition
dants,
I stands
Colorado
possi-
or the
expenditures,
independent
fund
Section 213 conditions a party’s exercise
tional in Colorado I.
of its First
right
Amendment
to make
independent expenditures upon
having
its
produced
Defendants have
no evidence
refrained
engaging
in coordinated ex-
“special
dangers of corruption” posed by
penditures up to the limit of
Party
national parties making an independent
Expenditures Provision. Defendants’ ar-
expenditure
after having made one or
gument
that “[providing
...
option,
more coordinated ones. At most
which a party committee is free to accept
presented
Court
with defendants’ own
decline,
does
constitute a
speculation
restriction
and suspicion that all expendi-
of First
is,
rights”
best,
Amendment
tures made after a coordinated expendi-
fanciful. Gov’t Opening Br. at 180.132 By
ture are necessarily coordinated between
mandating
party that has made a
candidate and party. Of course,
if they
expenditure
coordinated
cannot thereafter
had such evidence of corruption
poten-
make independent
expenditures, BCRA tial corruption,
then restrictions on the
*572
political
leaves
parties
national
with the
independent expenditures of
par-
national
predicament
familiar
only
of
being able to
might
ties
possibly be warranted. Howev-
expenditures
make
up
Party
er,
to the
Expen-
the nature of the defendants’ concerns
diture Provision limits
forth in 2
set
U.S.C.
about coordination between parties
and
political
that a national
party may
inde-
Supreme
make
placed equal,
Court
greater,
if not
pendent expenditures only the party has not
weight on the lack of
if
interaction between the
yet selected its nominee. See Intervenors
Party's
Party
nominee
the
at the time the
Opening Br. at 148-49. The defendants fur-
expenditure
I,
was made. See Colorado
argue
Supreme
ther
the
that
opinion
Court’s
614,
U.S. at
was
"special
coordinated. Though
privilege,”
the fact that the
I find unconstitutional
Party
yet
had not
selected its
conditioning
BCRA’s
nominee was an
this privilege
on the
important factor in the Court's
party
determination
national
forgoing its First Amendment
that
the expenditure
independent,
was
rights.
transfers
forbidding
tee,
provision
and the
file a
they can
such
are
candidates133
committees
between
receipt of funds
challenging
FEC
complaint
I
those
Even if
found
party.
political
of a
on behalf
expenditure
party’s
a
whether
constitutional, I do not
provisions
A
fact, independent.
is, in
a candidate
indepen-
the ban on
finding
believe—after
ex
independent
on all
ban
complete
unconstitutional —that
expenditures
dent
expenditure
a coordinated
after
penditures
to Sec-
can be applied
construction
saving
tai
sufficiently
not
just
occurred
has
with Con-
consistent
213 so
tion
problem.
type
deal with
lored to
choice
provide a
intent to
clear
gress’s
indepen
ban on
Moreover,
213’s
Section
independent ex-
unlimited
between
parties
national
treats
expenditures
dent
expenditures
and coordinated
penditures
ac
other
differently than
lim-
Expenditure Provision
parties
Party
to the
up
to the
previously,
construction
saving
Applying
as mentioned
though,
it.134
even
tors
option,
one
only
allow
that would
no statute
expenditures
independent
party’s
that intent.
other, would flout
but
activi
Amendment
First
protected
less
above,
Therefore,
set forth
reasons
for the
I, 518
See Colorado
of others.
ty than that
is,
judgment,
in our
213 of BCRA
Section
616, 116
S.Ct.
atU.S.
unconstitutional.
213’s ban
rejected Section
Having
318: Prohibition
III. Section
parties
expenditures
independent
Minors
Donations
expenditures,
made coordinated
first
Judge
judgment
in the
I concur
the constitu-
unnecessary
reach
I find it
Kollar-Kotelly that
Judge
Henderson
remaining provisions
the two
tionality of
children
prohibits
Section
*573
all
or do-
treating
to candidates
provision
making
213:
the
contributions
Section
unconstitu-
parties,135is
to
nations
single
a
party
a
as
commit-
of
committees
post-nomina-
149,
party
its
the
makes
first
when
149
Opening Br. at
Intervenors
133. See
or in-
coordinated
expenditure
only
anecdotal
tion
offer
The defendants
n. 537
—either
candidate....
and current Members
dependent
of former
behalf
declarations
—on
produced
right
documents
fully recognizes
as well as
the
of
Congress
of
provision
This
con-
support
parties to
by
independent
the national
unlimited
parties to make
the
amply
“evidentiary record ...
the
tention that
helps
ensure that
it
expenditures. But
that,
expert judgment
Congress's
supports
truly independent,
expenditure will
the
coordinate efforts
party chooses
when a
I, by
Republican
by
required
Colorado
nominee,
same
claim the
it cannot
its
with
malting coordinat-
party
prohibiting
truly
making expenditures that are
time to be
at the same
a candidate
expenditures for
ed
at 149.
Id.
of that
independent
nominee.”
expenditures
making independent
it is
time
point to the declara-
example, defendants
For
believe that
candidate. We
the same
par-
stated
who
Senator McCain
tion of
nominated a
has been
once
candidate
"generally communicate
candidates
ties and
a candidate
party cannot coordinate with
variety
regular basis on a
on a
and coordinate
independent
the same election
and be
party
that a
idea
topics,” so that "[t]he
of
nomination,
date of
the
campaign. After
‘indepen-
both ‘coordinated’
could make
to coordinate
to choose
party is
the
free
party
the
has nomi-
expenditures once
dent’
candidate,
indepen-
operate
or to
awith
candidate, is
sensible.”
nated a
not
chooses the
it
dently
candidate.
If
of that
former,
upheld
subject S2096-02,
the limits
S2144
Cong.
148
Rec.
134. See
it chooses the
Republican II. If
20, 2002)
(statement
Colorado
(Mar.
of Senator
latter,
right upheld
to exercise its
McCain).
it is free
stated:
Senator McCain
engage in un-
Republican I to
in Colorado
allows the
213 of the bill
Section
independent
money spending
hard
limited
either
parties to choose to make
coordinat-
expendi-
of the candidate.
independent
expenditures or
ed
candidates,
of their
tures on behalf of each
who is
"An
states:
individual
318
135.Section
made
is to be
but
both. This choice
not make a
candidate,
younger shall
years old or
its
after the
nominates
write, however,
I
tional.
only
explain
Supreme
the
Court has varied across a
why I believe this Court should evaluate wide range of circumstances, lower courts
provision
this
under
the striet-scrutiny
have had to wrestle with some uncertainty
standard of review.
in assessing when the
power
state’s
can
trump
children,
the rights of
but not those
If
complete
Section
were a
ban on
Indeed,
of adults.
the Supreme Court it-
adults,
minors,
instead
on
Supreme
self acknowledged that uncertainty: “The
precedent
Court
would require us to re-
question of the extent of
power
state
provision
view such a
under the strictest of
regulate
conduct minors not
Indeed,
constitu-
scrutiny.
one of the primary rea-
tionally regulable when
by
sons that
committed
Supreme
Court reviewed
adults
one,
is a vexing
perhaps not suscep-
contribution
limitations
Buckley under
precise
tible of
answer.” Carey v. Popula-
the less-demanding closely-drawn standard
tion
International,
Services
678,
of review was
U.S.
because contribution limita-
97 S.Ct.
permit
(1977).
tions
L.Ed.2d 675
expression
some
support.
Two years later
Supreme
20-21,
Children,
99 S.Ct.
adults,
like
protected
the Constitution.136 The Supreme Court, While these
provide
reasons
clearer
however, has made clear that minors in guidance on when children can be treated
*574
certain circumstances should not be treat-
differently
adults,
not,
from
they do
how-
ined
the
way
adults,
same
as
ever,
repeatedly
explain
court,
whether a
having
upholding laws that treat
them different-
found one of those
present,
reasons
should
ly.137 Because the treatment
of minors
employ a lesser standard of review in
contribution
("Constitutional
to a candidate or a contribution
rights do not mature and
or donation
a
to
political
committee
aof
being
come into
magically only when one
318;
party.”
324;
§
BCRA
§
FECA
2 U.S.C.
attains the
age
state-defined
of majority. Mi-
§ 441k.
nors,
adults,
as well
protected
as
by the
possess
Constitution
constitutional
136.
622, 633,
See Bellotti v.
443 U.S.
Baird.
rights.”).
3035,
99 S.Ct.
(1979) ("A
jurisdiction, unlike case not expression, circum- certain question that answered Com- Independent Des Moines v. Tinker stances. District, the Su- in which munity School D.C., D.C. where v. Hutchins In district’s rejected a school Court preme District of Columbia’s upheld Circuit wearing students discipline attempt to minors, F.3d curfew of a imposition opposition express to armbands black (en banc), (1999) Circuit 531, S.Ct. 393 U.S. War. to the Vietnam reasons, con- Court, the Baird applying in in a (1969). Even 21 L.Ed.2d more may be “vulner- children that cluded in the custo- were the students where case than hours during curfew harm able recog- state, Supreme Court dy of make mature adults,” less able “are to, no harm speech caused that the nized pressure, peer in the face of decisions of, the state’s learning interrupted the nor supervision parental in need of more “are 508-09, It 89 S.Ct. Id. at charges. rea- For Id. those hours.” during curfew “[sjtudents in school that emphasized stat- the curfew review sons, decided to under ‘persons’ of school are as out well and found scrutiny intermediate ute under of possessed They are our Constitution. substantially related the curfew was must the State rights which fundamental in- government important achievement Such S.Ct. 733. respect.” Id. however, Here, I do not be- Id. terests. interests, un- government involving cases the level we should lower lieve children, not do protection related Hutchins, other cases scrutiny. scrutiny less any under review warrant standard applied lesser courts expression The strict. than paternalistic review, the courts identified enough children, if are old especially children protecting interests state taxes, surely deserves pay work and harm, parentis. acting in loco scrutiny as constitutional level of same Hutchins, particularly Circuit, was D.C. college to attend enough old adult young “vulnerable children are concerned vote. Id. And curfew hours.” during
harm
course,
mean,
that the
not
does
This
by children
concerning decisions
cases
fact
entirely ignore
need
government
Su-
in which the
procreation
affect
—cases
“that
possess
do
some
children
standard
applied lesser
has
preme Court
choice which
capacity for individual
full
*575
con-
equally
has been
Court
of review—the
of First Amendment
presupposition
the
make decisions
may
that children
cerned
649-50,
Ginsberg, 390 U.S. at
guarantees,”
themselves.138
harm
that
1274,
they sometimes
S.Ct.
an in-
decisions in
“critical
not
make
was
drafted
cannot
318 of BCRA
Section
Baird,
manner,”
U.S.
formed, mature
children
safeguard
to
a concern
out of
means
simply
It
634,
99 S.Ct.
at
in the
harming themselves
absence
against
is not
person
parentis that
parent
in loco
Parenthood
example, in
For
Planned
of
428 U.S.
adult.”
present
case of an
Missouri,
in the
paren-
Court reviewed
the
Central
2831;
75,
Carey,
U.S.
see also
96 S.Ct.
less-
under
provision for
consent
abortions
tal
15,
(applying lesser
97 S.Ct.
693 n.
it must "examine
scrutiny, explaining that
er
regulation of mi-
contraceptive
scrutiny to
any significant state interest
whether there
nors).
conditioning
on the consent
an abortion
government,
courts,
that the
and the
importance,”
can national
including communi-
take into account these concerns
cations relating
when
legally
“a
qualified can-
didate,”
evaluating whether
“any
there is in fact a
office,”
com-
election to Federal
and “a
pelling government
Here,
legislative
interest.
national
for ex-
issue
public
importance.”
ample,
504;
§
the government
BCRA
could claim that
FCA
§ 315(e)(1);
315(e)(1).139
§
U.S.C.
children under thirteen who generally have
“compelled
Since
disclosure
poten-
no
has
independent
means
the
parents
of their
tial for substantially infringing the exercise
rarely make financial
indepen-
decisions
of First Amendment rights,” Buckley, 424
dent of
parents,
their
are vulnerable to
66,
U.S. at
612,
96 S.Ct.
Supreme
the
represented
being
by
parents
as hav-
Court insisted that any law compelling dis-
ing
which,
made
effect,
donations
cir-
closure of campaign information must be
cumvent contribution
If
limits.
there were
reviewed under “exacting scrutiny,” id. at
in fact more substantial evidence of such
64,
612,
96 S.Ct.
such that
government
circumvention, see J. Kollar-Kotelly Op. at
interest
“substantial,”
served is
id. at
III.III,
Part
provision
were more
96 S.Ct.
and “sufficiently important to
narrowly
tailored
serve the circumven-
outweigh the possibility of infringement,”
concern,
tion
see J. Henderson Op. at Part
id. at
have
special
by affluent
process
the initiative
of
have evad-
purchasers
proving,
alone
202, 119
636.
S.Ct.
Id. at
groups.”
interest
requirements.
evade, disclosure
ed, or will
pro
however,
Here,
the defendants
off-
made an
defendants
though the
And
interest
“special
no evidence
of en- vided
importance
reference
handed
or co-
have,
dominated
yet,
as
groups”
pro-
are
requests
that broadcast
suring
relating
communications
broadcast
fashion,”
opted
Gov’t
in an “even-handed
cessed
importance.
of national
issues
134-35,
nothing
at
there
Br.
Opp’n
(refusing to
203,
[IJssue discussions unwedded Findings. cause of particular a candidate hardly purity
threaten the
of elections. More- Moreover, in some instances where evi-
over,
very
and
importantly, such discus- dence
by
was submitted
one side or anoth-
sions are vital
indispensable
to a
(or both)
er
on a particular point, but in
society
free
and an informed electorate. my judgment
that evidence did not meet
Thus the interest of group
engaging in
standard,
this
I have either commented
nonpartisan discussion
high
ascends to a
effect,
specifically to that
or simply stated
plane,
governmental
while the
interest
was
probative
there
“no
evidence in
in disclosure correspondingly diminish-
the record” as to that point.
In other
es.
instances, where I
great weight
accorded
to the
probative
relevant and
Id. at 873.
I
evidence sub-
could not agree
more.
mitted
particular
on a
point, I
specifi-
the absence of evidence that disclosure of
cally acknowledged that that evidence was
nonelection-related broadcasts
serves
“substantial” or “overwhelming” as to that
government
interest,
substantial
Section
point.
In those limited circumstances
504 cannot
scrutiny.
withstand
where the evidence
by
submitted
one side
Findings
V.
of Fact
was not
other,
controverted
I have
Despite our
produce
best efforts to
acknowledged
“uncontroverted” nature
complete
Fact,
set of Findings of
in which of the
on
point.
evidence
two or more
members
this Court con-
Finally, I would be remiss to not ac-
cur, we were unable to do so.
knowledge the herculean
expended
effort
Because of
importance
the critical
parties
in assembling
“elephan-
case,
facts to the
in
holdings
and the
tine”
record over a seven-month time
enormity
sheer
of the record developed by
period.
testament, indeed,
It is a
to their
parties,
I believe it necessary to set
professionalism
sense of
duty
on a
"
142. The D.C. Circuit's decision on Section
comments that she has a
'definite
firm
437a
appealed.
was not
See Buckley, 424
conviction that a mistake
been
has
commit-
U.S. at 10 n.
matter of Moreover, job of re- Findings of government. whole, following I make this record would evaluating viewing and Fact: difficult, and substantially more have been * * * if had reliable, judgment, my less materials these factual not assembled extraordinary care.
such
Table of Contents H I: Restrictions National Thomas The RNC’s National National Republican National Committee. National Senator The RNC’s The RNC’s The The California RNC Advocacy. Candidates. Republican Mixed Activities. Role of Political RNC’s Assistance Fundraising. McConnell. Mclnerney. Party Parties Party Party Federal Election Involvement Involvement Party on Nonfederal Democratic Nonfederal Use of Use of Nonfederal and Their (“CRP”). Parties Nonfederal in Nonfederal Activities. in “Mixed” Activities. State Fundraising Party Congressional Activities Funds. in Democracies. (“CDP”) Money Money Local Parties . and to Benefit for Federal-Candidate Campaign Spending. for Nonfederal California Federal Committees and 00r-1 [00] i—I00 [0400] rH00 [0400] to^ [0400] to [00] [00] to <o [00] io CO 1— [00] COCOCO 00CO rH CC. BB. The Political While There is No Probative CDP CDP CRP Interest 3. Federal Officeholders 2. State Federal Officeholder Reduction CDP Donors Make Donations 1. The RNC. Efforts. Building al Donations to Induce Oppose Contributors, Party Lobbyists, Statistical Relationship CDP’s & and CRP Direct Mail and CRP Get-Out-the-Vote Party Nonfederal Access Officeholders. Donors Corresponds Some Groups Parties and Legislation. Donation Relationships “Issue 34 Federal Candidates Voter CDP Believe that Soft Evidence Former CRP’s Others Compared Donors Than Between Access and and CRP Ads” that With Registration Activities. Programs Nonprofit Solicitation Focus Evidence That National Members of Are Not. Regarding Larger to National Evidence of Federal Officeholders Are Not More Activities. with the National Fundraising Directly Political Parties. Receiving Show Federal Donors. Money Groups. Donations. State Are Aware of the of Nonfederal Activities. Donations Congress, That Increased Parties With Affect Federal and Local Donations Donations Likely to Meet With Access and Voter Pro Parties. and Access. Business Parties Use Nonfeder- Money. Activities. to Parties Increase . Identities of Support Mobilization Access Elections. Expectation of Leaders, Party oo LQ [00] uo ^ ^ GO GO CO 0010 or-a <0 0010 CO <0 or [00] 00 O 00 CO ^ CO <75 [05] [00] [00] *579 Lobbyists 1. Believe That Donations Will Enable Donors to Relationships Establish With Officeholders.863 2. Current and Former Acknowledge Federal Officeholders That Expect Relationships Donors to Establish With Obtain Access to Federal Officeholders.864 Hope 3. Relationships Donors to Establish or Receive With Access Their Donations.864 Giving EE. Opposed Effectiveness Nonfederal Donations to Federal Donations .866 FF. Donors Often Times Give to Both National Parties Order to Receive Access to of Both Members Parties.868 Lobbying GG. HH. Public Money.869 and Donations of Nonfederal Perception Corruption.870 O Q H II: 2. 4. 2. Genuine Issue 5. Criticism of 1. 3. Criticism of The Explaining the 1. 1. The CMAG Data Set. Candidate-Centered “Issue Advertisements” That Do Not Contain The Distinction Between Issue Notwithstanding Issues Are Run Centered Advertisements. Words of Purposes Labor Issue Advertisements Issue NonCandidate Buying Buying Representative Examples Examples Representative Electioneering Goldstein Rise of “Issue Within 30 ments Aired Advocacy Election, of a General Election . Issue Which the Buckley “Magic Advocacy Union Advocacy Time Time Express Advocacy . Expert Advertisements About Shift Toward “Issue General in Modern Buying Buying Days Advocacy by Organizations 1998’s Calculation of the Findings Campaign Expenditures. Group Running Studies. During Is Not a Function of Within Advertisements Have Advocacy” Mentioning Captured of a Report. Words”. Competition Treasuries. Time 2000 . Time 1998 . . Candidate-Centered Primary Campaigns. . Days of Candidate-Centered Issue Advertise- of Genuine Issue Advertisements Aired Sixty Days Campaigns Are the Name of a Federal BCRA. Them Has No Particular of a Election, or 60 Distinguishable Advocacy” Legislation Air Primary Been Before a Federal Election Percentage Funded Time for Presence Advocacy Run About . Electioneering Election or 60 and Public Days by Corporate from “Genuine” of Genuine Candidate- or Absence of and Pure of a General Candidate Issues Interest Policy Days oo o 0000 OO oo CO 0000 [05] [0000] OO CO OO r—I ^ CD O Republican
al Senatorial Committee (“NRSC”); As to Republican BCRA’s the National restrictions on nonfederal Con- funds, I find that gressional (“NRCC”); Committee (“DNC”); National Congression- National Democratic Committee Parties and Their Campaign al Committees Campaign Democratic Senatorial Com- (“DSCC”); mittee and the Democratic
1.The national committees of two major Congressional political parties are: Committee Republican Campaign (“RNC”); ¶6 National (“DCCC”). Committee Vogel145 Nation- [DEV Decl. 9- Vogel ¶ 41], Alexander is General Vogel Counsel the NRSC. Decl. 1 [DEV 9-Tab In the ¶ funds. in nonfederal million 8-Tab 6 [DEV $487.5 Decl. 41]; McGahn146 Tab cycle ¶ of 2002 21]; cycle past election 7-Tab 6 [DEV Decl. 30]; Jordan147 funds. million nonfederal raised 44]. $495.8 9-Tab 6 [DEV Decl. Wolfson148 FEC, Release, Fundrais- Party Press Fundraising Party Nonfederal National in 2002 Election Billion ing Reaches $1.1 Spending (Dec. 18, 2002), available Cycle expert defendants’ According to *580 http://www.fec.gov/press/20021218party/ Mann 20021218party.html. party Republican national the In 1980 was 4.There money, in million soft roughly spent $15 party national increase in threefold consti- million. This Democrats $4 the 1992 and activity money between soft by the two spending total 9% of tuted million. to million $272 $80 1996—from amount of In 1984 the parties. national national of total money as a share parties Soft by the national spent money soft 16% jumped from spending party million but marginally $21.6 increased elected (5%) parties and Both of 30%. share a smaller constituted mon- hard solicit soft activity. In 1988 officials worked party national total wealthy corporations, more from money spending ey donations soft [p]arty .... individuals, During million, unions. and labor which was to $45 than doubled party com- By .... the party totals election national the 1996 of national 11% 27,- developed approximately had effec- ... 1988, parties mittees received both money prohib- federally soft courting large of contributions tive means election, Republicans million ... Less than $10 After ited sources donors. gifts directly they had received million was contributed revealed that the $272 donors; Demo- in the 1996 $100,000 from 267 each local candidates to state and contributing donors transferred parties counted 130 crats The two cycle.... .... $100,000 money more million in soft total $115 committees, financed which party state 1-Tab [DEV 1] at 12-13 Report Mann money ex- party soft of state two-thirds omitted). (citations money soft .... State penditures the first cycle was 1992 election 3. The communica- expenditures were donations 'nonfederal in which than jumped from less tion/advertising cycle During FEC. by the tracked million 1996. $65 million $2 togeth- Republican parties Democratic and 1] 1-Tab at 21-22 Report [DEV Mann funds. million nonfederal raised er $86.1 omitted). (citation During the 1996 elec- the two cycle election the 1994 During money top 50 nonfederal cycle, in non- tion million raised major parties $101.6 ranging from contributions donors made cycle the 1996 During federal funds. $3,287,175. at 22.149 $530,000 Id. million but rose to total $263.5 combined money spent [in total amount of soft “The during the million dropped to $222.5 cycle] 1998 midterm election cy- $221 election presidential cycle. During — 1996 but more than in less million—was total of they raised a combined cle of 2000 Director Wolfson is 148. Executive Howard Counsel for is General 146. Donald McGahn 44], ¶ 1 9-Tab [DEV Wolfson Decl. the DCCC. ¶1 8-Tab [DEV Decl. the NRCC. McGahn 30], money top 50 donors soft 149. Four of parties in but the national Director Executive James Jordan Expert Report at parties. . Mann were state 7-Tab 21]. Decl. 1 the DSCC. [DEV Jordan tbl. 6. tbl. than previous plaintiff double the midterm election. attorneys. Expert Mann Report money And soft a share of spend- total tbl. 6. ing by parties jumped national to 34%. During the first 18 months of the The congressional party campaign commit- 2001-2002 election cycle parties re- put premium tees on raising spend- ported receipts nonfederal mil- $308.2
ing money soft to advance the election lion, is a 21 percent increase over prospects of .... their candidates Both period the same during the 1999-2000 cy- national party committees had discovered cle. The FEC notes that this increase is campaign could finance activity on “all the significant more given that typical- behalf of their senatorial candidates with parties ly raise more in Presidential cam- money soft the form of advocacy.’ ‘issue paign cycles in non-presidential than cam- pattern, pronounced The same more with paigns.” Release, FEC, Press Party Republicans, Democrats than the was Fundraising Growth Continues *581 evident in the campaign House commit- 19, (Sept. 2002), available at tees.” Mann at 23 Report [DEV 1-Tab 1] http://www.fec.gov/press/20020919party- (citation omitted). fund/20020919partyfund.html. By October 16, 2002, parties expert
5.Defense Mann has had reported raised over $421 million in nonfederal money financing “soft of cam- funds. Press Re- party lease, FEC, National paigning exploded Party Fundraising in the 2000 election Strong cycle. money Filings Soft Pre-Election spending by the na- (Oct. 2002), available parties million, tional at reached now $498 http://www.fec.gov/press/20021030partypre 42% of spending. their Raising total .htmV20021030partypre.html. half billion in soft money dollars [in major 2000] took a by effort the national 7. Experts attribute the accelerated parties officials, elected but had rise money expenditures nonfederal the advantage focusing of efforts President Bill Clinton and his con- large donors. paid That focus substantial sultant Dick Morris’ use of such funds (435 dividends: 800 corporations, donors during campaign the 1996 to fund unions organizations and other and 365 designed ads promote television Clin- individuals), each contributing minimum ton’s promi- reelection. While the ads $120,000, of accounted for almost $300 President, nently featured the none of million percent or 60 money the soft charged these costs were as coordinated parties. raised top soft expenditures on behalf of cam- Clinton’s money donors ... each be- contributed paign. Instead the party paid the entire $955,695 $5,949,000. tween cost, Among legal on a argument based never many soft money donors before gave party made: that who communications generously parties which explicit both were did not use Global words advo- cating Crossing, Enron and the election or of a WorldCom.” Mann defeat (citation could Report generic at candidate be treated like 24-25 1-Tab [DEV 1] omitted). party financed, advertising and “A accord- total of million in soft $280 ing rules, to the FEC allocation with a money half over the amount raised —well mix of and hard soft money. by the six national committees— 2000], parties was transferred to state [in Mann at Report [DEV De- 1]. 1-Tab along with million hard fense money.” Expert Magleby David $135 notes that Id. at In thirty-five development top of the corporations. 50 donors were Most ran to the purposes counter stated top the other 50 donors were money permit unions and soft parties were to sertation, University of California money amounts unlimited to raise (discussing emergence Berkeley) hard unlike building’ purposes, ‘party money”)). soft “party subject to the contribu- money which help parties given limits tion “It experts, According to Defense The strat- candidates.... defeat elect or long to Republican party not take the did pur- these money for soft deploy egy Bob Dole by promoting in kind respond in a series of memos poses is described Report Kemp.” Magleby Expert and Jack I says, Morris Dick Morris.... 8]. 4-Tab [DEV attorney[s] ... and ex- ... met with National Republican May I in mind. of ads had kinds plained the million “is- announced a $20 Committee permitted they said the law Fortunately, advertising campaign. advocacy” sue expenditures unlimited in the words of the chair- purpose, Its By “issue-advocacy” ads. party for such man, the differences would be “to show race, spent had almost we the end of and between Dole and Clinton between dollars on issue-advo- thirty-five million on the is- and Democrats Republicans (in fifty mil- to about addition cacy ads country, we can en- facing our so sues candidate- on conventional lion dollars in one of the most conse- gage full-time media), Republican burying history.” oriented in our elections quential a national con- building proposals candidate-specific presidential These president on support ads, ones, were tar- sensus like the Democratic *582 and key key battleground issues. states geted on (mostly) mix financed with a of hard 11 Expert Report (quot- at 8.Magleby fi- parties were now money. soft Both Morris, Behind the Oval Office: Dick ing part of the cam- nancing significant 141, All Against Odds Getting Reelected presidential candidates paigns of their 8]). (1999) “The national 4-Tab [DEV the strictures of FECA outside of to finance two- party managed Democratic beyond the bounds of the 1979 and well ad’ televi- pro-Clinton its ‘issue thirds of may ruling parties that national FEC advantage of the more by taking sion blitz corporate and union funds and soli- raise methods available to allocation favorable from individuals cit unlimited donations simply transferred the They parties. state purpose of “for the exclusive and limited hard and soft dollars to requisite mix of influencing the nomination or election of they target- in the states party committees for nonfederal office.” candidates place committees ed and had the state (citation Report at 20 omit- Expert Mann Report 1- Expert [DEV ads.” Mann ted) [DEV 1]. 1-Tab 1]; Expert Ray- also Plaintiffs Tab 14, Raja Dep. approach Exhibit 8 at 37-48 for the use of non- mond La 10. This Raja, spilled congression- (Raymond Joseph La federal funds over into [JDT 15] Report at Expert in the Era of al races. Mann Political Parties American (2001) 1]; Lamson150 Decl. (unpublished Ph.D. dis- 1-Tab see also Money [DEV Soft 1996, 2001, through Lamson January has served district. From 1983 150. Since Lamson for the Of- as the Communications Director director United States served as the state of the State of Mon- fice of Public Instruction congressional Representative Pat Williams’ tana, post early he also held from 1997 until During period, office in Montana. this same January During Lamson man- Congressman managed Lamson also represent aged Nancy campaign to Keenan’s campaigns election in Montana. Williams’ Congressional During Montana's district. Executive Lamson was From 1981 managed Bill Yellowtail’s cam- Lamson Party. the Montana Democratic Director of paign congressional represent Montana’s Mclnerney (describing parties’ both national com- Thomas money use of soft to run mittees’ adver- Mclnerney, 14. Thomas a resident of Congress tisements in a race for in Mon- York, Republican New shares the Party’s tana). general philosophy policy issues such as Senator McConnell taxes, lower government, smaller free trade, and a strong national defense. He routinely par- 11. Senator McConnell pursued has his public policy ticipates political and fundraising events goals by making Republican donations for state and local party candidates and national, organizations state, at the committees. local promote Republican levels order to Senate, 12. Since his election to the principles federal, and candidates at the Senator McConnell has been a member of state, and local levels. Mclnerney Aff. NRSC, promotes Republican (cid:127)¶¶ 2-3. position range on a wide of issues and
supports Republican candidates the fed- 15. Prior to BCRA’s enactment eral, state, and local levels. Senator Mclnerney donated amounts in excess of McConnell chaired the NRSC the 1998 $57,500 BCRA’s aggregate amount limit of and, chairman, and 2000 election cycles per cycle to the national subject he raised funds not to the restric- Republican Party committees of and in and prohibitions tions of federal law. $10,000 per year excess of to state and These nonfederal funds were used for vot- Republican party organizations. local His registration identification, er get-out- support donations were intended to state activities, advocacy,” the-vote “issue build- and local candidates voter registration ac- funds, ing support national for state tivities for parties; state and local voter and local candidates. As NRSC Chair- activity; get-out-the-vote identification ac- man, Senator McConnell directed nonfed- tivity; generic campaign activity for state *583 eral NRSC donations to dozens of state parties, and local including broadcast com- candidates, and local including Virginia promote Republican munications that Republican gubernatorial candidate Jim party when a federal candidate is on the (in 1997); Republican Gilmore California ballot; cards, cards, palm slate sample and (in gubernatorial Lungren candidate Dan parties; ballots for state and local absen- 1998); Republican and the candidate for tee ballot programs state and local Warwick, (in 2000). mayor of Rhode Island parties; phone programs bank for state ¶ Id. 8. parties; public and local communications issues, 13. The overwhelming majority discussing policy including of the commu- people with whom Senator McConnell has nications that mention federal candidates during met his in tenure the Senate do not in a manner could be construed to Republican donate funds to the Party “promote, support, oppose” at attack or such , national, state, candidates; Typically employees or local level. salaries of staff spend Senator McConnell is unaware of the in percent any dona- who of their time history tion given any individuals with whom month on of these activities. Id ¶ ¶ he meets. Id 13. 4. provided Lamson a sworn declaration in FEC 533 U.S. 121 S.Ct. 150 L.Ed.2d ¶¶2-3 Republican Campaign
v. Colorado
(2001).
Fed.
Decl.
7-
[DEV
Lamson
Comm.,
(D.Colo.1999),
F.Supp.2d
26].
Tab
Cir.2000), rev'd,
aff'd,
(10th
enfranchisement ODP0025-02641-45 [DEV 48] 70-Tab eighteen, voting age reduction of ternal RNC Memoranda from then-Chair- taxes, poll and the elimination of and other Barbour); .Haley man Resp. RNC’s registration. voting constraints on See RNC, FEC RFA’s in No. 40 [DEV 68-Tab Expert Report Keller at 15. Intense com- 35]; ODP0021-02003 [DEV 70-Tab 48] petition among post-Civil parties War (RNC Haley Chairman Barbour stated: led to increased voter turnout and close purpose political “The of a party is to elect presidential elections. id. at 11-12. office, public its candidates to and our first addition, experts goal president.... In find that is to elect Bob Dole
25. parties agents developing act as critical in Electing highest priority, Dole is our but it consensus the United States. See Milk- only priority. is not our goal Our is to Expert Report at 19. In the words of majorities increase our in both houses of expert, parties one defense are “the main Congress and among governors and state building coalition ... institution^] legislatures.”); generally ODP0021- Exam, good measure.” Cross of Green at 19; 90; 02001 to ODP0021-02386 to Exam, 84; at see Cross of Mann 56 ODP0025-02641 to 45 70-Tab [DEV 48] (“[n]o group other come could close to (internal RNC memoranda then- political parties” moderating extreme Barbour). Haley Chairman views); Expert Krasno & Report Sorauf154 Republican National Committee (“Parties necessary ‘big at with their party, 28. As a national the RNC has compete tent’ for the of multi- allegiances historically participated participates ple groups-”). today in electoral and activities at Furthermore, experts 26. find that the federal, state, and local levels. Ac- parties community cultivate a sense of counsel, cording to general its “[t]he responsibility politi- collective in American RNC’s national focus should be misun- Expert cal Report culture. See Milkis derstood as a federal focus.” See Josefiak 19-21; Raja Expert Report La at 3-4. ¶¶ 19, Decl. 41-59. The RNC seeks to integral forming Parties have been principles advance its core smaller fed- —a publicly consensus on divisive issues. See government, eral lower taxes at all levels Expert Report Milkis at 4. freedom, government, individual and a Finally, by experts is also noted strong national promoting defense — major purpose that it is a agenda advocating Republican posi- issue parties to elect candidates to office. See tions, candidates, electing Republican ¶ 10]; Bumpers155 Decl. 4 [DEV 6-Tab encouraging governance accord with ¶ 44]; Decl. 6 [DEV Wolfson 9-Tab Jordan Republican these views. See Josefiak 21]; Dep. Decl. 6 7-Tab Tr. [DEV Shea ¶ 22; Raja Expert Decl. see also La Re- 2002) 88-90; (Sept. Knopp Cross ¶¶ 11,16. port ¶ (“The 10; Tr. at Brister Republi- Decl. pursuit objectives, of its Party primary purpose can of Louisiana’s *585 help engages frequent Republicans is to elect to office ‘from RNC communications ”); members, officeholders, the courthouse to the White House’ with its eandi- Governor, Jonathan Krasno and Frank Sorauf are After his service as he served as a 154. experts Senate, for defendants. repre- Member of United States Arkansas, senting the State of from 1975 to Bumpers 155. Senator Dale served two terms ¶2 Bumpers 1999. Decl. 6-Tab [DEV 10]. Arkansas, as of Governor from 1971 to 1975. Money Party committees, of Nonfederal National Use party dates, and local state Federal Candidates to Benefit These communica- public. general and the campaign seasons during both money given tions occur often 31. Nonfederal Banning156 understanding times. See parties' other at all national and ¶¶ campaigns ¶¶ assist the 28(d) 28(f); Decl. 88- it will be used to Josefiak Decl. — and, candidates, in- federal particular 89,100-101. purpose. deed, for that it is often used Election Activities Federal The RNC’s Simpson157 testified that 32. Senator “[djonors be- RNC, really differentiate and its national do not 30.The money; they often tween hard soft committees, range in a wide engage favor with an gain assist or contribute to federal elections. influence activities give politician. When donors individual federal spends RNC example, the For is some- parties, there money to soft (i) training candi- recruiting and funds on: implicit understanding at least an times (ii) candi- contributing to federal dates; be to benefit a money will used (iii) committees; making campaign date Likewise, Members certain candidate. behalf of fed- expenditures on coordinated party with if assist the know that (iv) candidates; making communica- eral money, be it hard or soft fundraising, or defeat of for the election calling tions campaign.” later assist their party will (v) candidates; part, funding, ¶ “Al- 38]. 9-Tab Simpson [DEV Decl. 6 (vi) development; and issue research and directly given money though soft cannot registration, voter part, funding, voter candidates, knows everyone to federal identification, cam- get-out-the-vote money through easy push fairly it is ¶ 28(d); Decl. Banning Josef- paigns. See specific can- system to benefit our tortured ¶¶ 89; 26, 35, Raja La Decl. also iak see ¶ 7; Bumpers Decl. Id. also didates.” ¶ 11(d); Expert Report at Magleby 33-34. ¶¶ 10]; Decl. 6-Tab McCain [DEV 10-12 BCRA, some of the enactment Prior to ¶ (“[P]arties of Con- encourage Members only funded with fed- were these activities money of soft large to raise amounts gress funded with were money; eral others and others’ reelec- benefit own ¶ tion.”); and nonfederal [DEV of federal Decl. 10 9-Tab combination Simon158 ¶6 3]; 37]; Decl. [DEV6-Tab Beckett159 money. 159.Terry S. Beckett is a Democratic Jay Banning served as the RNC’s 156. has spent years about 25 consultant who has and Chief Finan- Director of Administration working political campaigns. Beckett on 1983, and has been em- since cial Officer ¶ Beckett 3]. Deck 2 6-Tab worked on [DEV capaci- ployed by these and other the RNC in campaigns and 1980 Presidential the 1976 years. Banning twenty-six Decl. ties for Carter, Congres- Jimmy Bill Nelson the 1978 campaign, she ran Dick Batche- sional Simpson Alan served as United 157. Senator campaign. Congressional Id. lor's 1982 Wyoming from 1979 Senator from States to establish a House Beckett also endeavored 38], ¶2 Simpson 9-Tab [DEV Decl. legis- within the Alabama Democratic Caucus Gary ran in the mid 1980s. Id. Beckett lature as a 158. Senator Paul Simon served United campaign in Presidential Florida Hart’s 1988 from 1985 to States Senator for Illinois Louisiana, Gephardt's Dick Represen- and was a Member of the House campaign in Florida. Id. Presidential being to 1985. Prior to tatives from 1975 polling Linda Cha- did Beckett Congress, served elected to Senator Simon as (Florida) Orange County pin’s campaign for of Illinois from 1968 to Lieutenant Governor Commissioner, Chapin’s 1990 and and ran the Illinois House and served in County campaigns Orange Chair- Representatives and in general 1954 to 1962 con- Id. Beckett also served man. *586 campaign Chapin’s to 1966. Si- Ms. 2000 Illinois State Senate from 1962 sultant on congressional ¶ Eighth dis- represent Florida's mon Decl. 1 9-Tab [DEV 37].
823 ¶ 7]; money, But- Decl. 3 6-Tab tations on federal because national [DEV Bloom160 ¶ political parties and state use nonfederal 11]; 6-Tab [DEV tenwieser161 Decl. money elections); to influence federal (let- 69-Tab [DEV 48] ODP0018-00501-02 ¶ Rudman Decl. 19 8-Tab [DEV 34]. “how regarding ter from federal candidate help my by as- you campaign can further 33. Senator Wirth163 understood sisting Republican Party”); the Colorado DSCC, when he raised funds for the do- ¶12 40]; Shays expected Decl. 68-Tab nors that he [DEV would receive the (ex- multiplied by amount of their donations a Dep. at 114-16 [JDT 10] Hiatt162 Vol. prede- certain number that the had DSCC anyone plaining donating nonfederal termined, assuming had DSCC money indirectly giving it the cam- raised other funds. Wirth Decl. A Exhibit paigns candidates and office- ¶¶ 5, 43]; 9-Tab [DEV also Colorado ¶ holders); Buttenwieser Decl. 15 6- [DEV II, 458,121 U.S. S.Ct. 2351. (explaining Tab that there is little dif- 11] 2000, ference between federal and nonfederal In a Fortune 100 company $25,000 money beyond the source and limi- agreed amount to contribute to the NRSC trict, overseeing campaign cycle, the work of the he $2.8 has donated over million in manager polling and the media and consul- nonfederal funds to national committees of tants. Id. Beckett has also been in involved Party, including the Democratic $1.2 over government having worked on the Executive cycle. million the 2000 election Also from Staff for Bob Graham from 1981-82 when he cycle through the 1996 election the current serving was the Governor of Florida and also cycle, he he estimates that and his wife have Chapin's as Ms. Chief of Staff from 1991 to $100,000 approximately per cycle contributed County was 1994 when she Chairman. Id. In in federal funds to federal candidate commit- addition, polling Beckett worked for a firm tees and other federal committees during the 1980s. Id. political parties. During not affiliated with period, many this same he has also hosted currently engaged 160. Elaine Bloom is money fundraising hard events for federal consulting, public speaking, community Philadelphia. candidates Buttenwieser ¶ 7], activities. Bloom Decl. 6-Tab In [DEV ¶ 11], Decl. 6 [DEV 6-Tab 2001, Mayor Bloom was a candidate for Beach, 2000, Miami Florida. Id. In Bloom engaged general polit- was the candidate in 162. Arnold in substantial Hiatt Democratic represent congres- election spending years. Florida's 22nd a ical number of He district, running against sional the incumbent cycle estimates that from the election Shaw, Republican Clay 1997, who had served through approximately he donated (Shaw Congress years. nearly 20 Id. won $60,000 funds, mostly in federal to federal by approximately the race 500 votes out of candidates, with a few contributions to feder- 200,000 cast). race, over Prior to the 2000 ("PACs”). al action committees Bloom served as member of the Florida 1996, $500,000 gave October he nonfed- Representatives years, House of for over 18 February eral donation to the DNC. In (representing from 1974 to 1978 Northeast money $5000 he made hard donation County) (repre- Dade and from 1986-2000 PAC, League to the Voters’ Conservation Miami). senting Miami Beach and Id. Bloom only money and believes that is the hard Speaker Pro-Tempore was of the Florida given donation has since 1997. Hiatt he House from 1992 to and also served as ¶ 18]. Decl. 5 6-Tab [DEV committees, legislative chair of several includ- Committee, ing Leg- the Health Care the Joint Timothy 163. Senator Wirth served in the U.S. Committee, Management islative the Joint Representatives House from 1974 to Committee, Auditing Legislative and the Tour- representing Congressional the Second Dis- ism and Cultural Affairs Committee. Id. trict of the State of Colorado. From 1987 through 1992 he served as Senator for the large 161. Peter is a Buttenwieser contributor Party. State of Colorado in the United States Senate. to the Democratic He estimates that 43], through cycle election the 2002 A 2 9-Tab [DEV Wirth Decl. Exhibit *587 Allen, By the end of the 2000 election the then 37. George request using cycle, parties it was clear that were Senatori-
Republican candidate
money
union soft
do-
corporate and labor
incumbent
against
Sena-
Virginia
al race
elections, often
nations to influence federal
noted that
employee
An
Robb.
tor Chuck
ads,
candidate-specific issue
through
donated to Senator
had
company
and local elections.
primarily
not
for state
PAC and that a similar
Leadership
Robb’s
Expert Report at 25-26.
necessary Mann
NRSC was
to the
contribution
company’s support
to balance out
has offered to run these
38.
RNC
memorandum
Internal
the candidates.
Members of
so-called “issue ads” for
Con-
2000)
(Oct. 26,
sealed].
[citation
districts,
in their
and to have the
gress
provide
national committees
the soft mon-
money do-
nonfederal
35.
Individual
place
ey portion
required
of the funds
requests that the
specific
made
nors have
ads,
provide the
if those Members
money gifts to
apply their nonfederal
RNC
to 67
portion.
federal
See ODP0021-01365
campaigns.
RNC0035464
particular
48], ODP0025-02936
[DEV
[DEV
70-Tab
[DEV99],
[DEV 92]
RNC0032733-34
(memorandum and email from
70-Tab 48]
requesting that soft
(fundraising letters
offering
pay
money
the soft
the RNC
particular
money donations be used for
portion
advertisements
for
90-91,
elections);
Dep.
Hiatt
Congress
willing
Members of
who are
(stating that soft
10]
117-18
Vol.
[JDT
portion).
pay the federal
ear-
to the DNC are
money donations
candidates,
say-
but
particular
for
marked
suggests
Evidence
39.
submitted
money
if the
was
ing he does not know
election,
during
party
the 2000
ads were
candidates).
actually spent on those
party building.
aimed at
Almost 92%
party ads never even identified the
Money
Party
of Nonfederal
National
Use
body
party
name of a
Advocacy
for Federalr-Candidate
advertisement,
encouraged
let alone
voters
parties spend
large
36. The national
register
support
with or
or to
money
nonfederal
on
proportion of their
party organization.
volunteer with the local
advertisements” that are
so-called “issue
Buying
[DEV 46].
Time 2000 at 64
help
specific
really designed to
elect
feder-
expert
states:
Defendants’
Green
example,
al
candidates.
portion
original exemptions
soft-money
spent
large
[T]he
RNC
of their nonfed-
justified partly
grounds
million
on the
money,
eral
an estimated
were
$70-75
dollars,
production
get-out-the-vote
activity
help
and broadcast-
would
ing
strengthen parties.
happened,
of television and radio “issue ads.”
As it
Dep.
Supp.-Tab
only
money
Oliver164
at 148-49
a small fraction of the soft
[DEV
(or
matter)
amount,
mil-
approximately
money,
Of that
hard
for that
1].
$14
expenditures,
parties
lion were coordinated
flowed to state and national
was
Id.;
spent
activity,
“issue ads.”
on voter mobilization
even
rest were so-called
¶ (largest
broadly
see also
Deck 3
sin-
conceived to include direct mail
Marshall165
gle portion
budget during
phone banking.
of DNC
and commercial
Ac-
ads)
cording
system pre-
election
was used for issue
to the classification
cycle
Raja
La
[DEV
28].
8-Tab
sented
Javish Shean
Deputy
Chairman of the
165. Brad Marshall has served as Chief Finan-
John Oliver
cial Officer of the DNC since 1994. Marshall
RNC.
¶ [DEV
Decl.
8-Tab 28].
*588
3),
(2001,
indistinguishable
soft
ads”
from candidate ads
p.
8.5% of national
subject
which are
to contribution limits
expenditures went
to ‘mobiliza-
money
and
requirements);
Cong.
disclosure
146
‘grassroots.’
figures
tion’ and
(2000)
(Rep.Ganske);
Rec.
H428
parties are each 15%.
state and local
48];
[DEV
ODP0021-01365-67
70-Tab
Raja
La
Elizabeth
(citing Raymond
and
48];
[DEV
ODP0022-00277-88
70-Tab
Jarvis-Shean, Assessing
Impact
of a
48];
[DEV
ODP0023-02358-65
70-Tab
Money
Money: Party
Ban on
Soft
Soft
48];
[DEV
ODP0023-03560-660
70-Tab
(Un-
in
Spending
the 2000 Elections.
48];
ODP0025-01560
70-Tab
[DEV
manuscript:
Institute of Gov-
published
QDP0025-02720-21
48];
[DEV 70-Tab
Re-
ernmental Studies and Citizens’
48];
ODP0031-00424
71-Tab
[DEV
2001)).
search Foundation
48];
[DEV
ODP0033-00534
71-Tab
48];
[DEV
ODP0036-03603
71-Tab
14
1-Tab
Report
[DEV
D. Green
n. 17
48];
ODP0037-00062
[DEV 71-Tab
3].
48];
[DEV
ODP0037-00884
71-Tab
permitted
41.
has been
as “issue
What
(exam-
71-Tab
[DEV
48]
ODP0037-02271
only included
advocacy”
genuine
has not
advertisements);
ples
Shays
see also
promote legislation
pub-
issue ads that
¶¶7,
40];
Decl. in
8 [DEV
RNC
68-Tab
communications,
policy positions but
lic
¶
Meehan Decl. in RNC 13
68-Tab
[DEV
part
in
with nonfederal
paid for
whole or
¶
30];
34];
12
Rudman Decl.
8-Tab
[DEV
money,
support
that attack or
a candidate
¶ 11,
Beckett Decl.
Exhibit
[DEV
3
6-Tab
using
“magic
¶
name
words”
without
3];
12];
Chapin167
11
Decl.
6-Tab
[DEV
¶¶
Buckley.166
Cong.
144
9, 17,
described
Lamson Decl.
Exhibits 2-4 [DEV
¶
(Sen.Levin) (“issue
(1999)
26]; Pennington168
Rec.
7-Tab
Decl.
[DEV
S10071-73
13
52,
Buckley,
companies engaged
169.Senator William Brock he served as Dep. Congress from 1979 to 1997. Williams Representative ed States from Tennessee from at 8. he until 1971. From 1971 until as a United States served Senator Deputy Terry until he Nelson is the RNC's State of Tennessee. From 1977 171. Mr. Politi- Republican Nation- and Executive Director of served as Chairman of the Chief Staff Dep. Vol. Operations. at 8-9 [JDT al Decl. 6- cal Nelson [DEV Committee. Brock 24], Tabl3]. incumbents”); by polit- ads” 46.Many Dep. so-called “issue McConnell at 237 (“I parties actually electioneering ical were Vol. think every [JDT 19] Senator real- compared posi- advertisements izes the resources of the [NRSC] tions, actions, past competing going deployed of two to be to the ... maximum candidates, focusing places federal rather than extent where competi- there are See, races”). pending legislation. e.g., tive 48]; ODP0023-02375-80 70-Tab [DEV 48.From late March 1996 through the 48]; ODP0023-02387 [DEV 70-Tab Convention, Republican National the RNC 48]; ODP0023-02393-94 70-Tab [DEV spent approximately million on adver- $20 48]; [DEV ODP0029-00149 71-Tab designed tisements to boost Senator Dole’s 48]; ODP0029-00159 71-Tab [DEV image at a time virtually when he had run 48]; [DEV ODP0029-00329 71-Tab out of federal matching primary funds. *590 48]; ODP0036-02984 71-Tab [DEV paid portion The RNC for a of its issue 48]; ODP0041-00457-61 71-Tab [DEV advocacy advertisements with nonfederal 48]; ODP0041-00585-86 71-Tab [DEV funds, including the costs of creating 48]; ODP0041-00729-32 71-Tab [DEV disseminating advertisements that and/or 48]; [DEV ODP0041-01152 71-Tab attacked President Clinton’s record on 48]; ODP0041-01164 71-Tab [DEV reform, taxes, welfare and budgetary poli- 48]; [DEV ODP0041-01177 71-Tab ¶¶ cy. Huyck172 Decl. in Mariani 48]; ODP0041-01189 [DEV 71-Tab 60]; [DEV 79-Tab see also id. at Attach. 48]; ODP0041-01198 [DEV 71-Tab (text Supp.-Tab A [DEV 9] advertise- 48]; ODP0041-01266 71-Tab [DEV paid ments for the and RNC other 48]; ODP0041-01337 71-Tab [DEV Republican party in part committees with 48]; ODP0041-01474-76 71-Tab [DEV money). soft The RNC conducted a de- 48]; ODP0041-01479-81 [DEV 71-Tab analysis tailed of several advertisements it 48]; [DEV ODP0041-01850 71-Tab planning was to run in various markets. 48]; [DEV ODP0041-01854 71-Tab The advertisements essentially consisted 48]; ODP0041-01859 [DEV 71-Tab up of two themes: build Bob Dole and
ODP0041-01884 (scripts [DEV 71-Tab 48] Bill attack Clinton. These advertisements advertisements). party were tested in groups focus to see the 47.Parties aim their nonfederal money effects had on undecided voters. The largely competitive races. The up advertisement used to build Dole Bob spend committees millions of soft story dollars told his life and never mentioned competitive for,” “elect,” U.S. Senate races and hun- any words “vote so- dreds of thousands of “magic express advocacy. dollars more called words” of competitive U.S. House Magleby races. The second set of advertisements showed 8];- Report issue, speaking [DEV 4-Tab see also Bill Clinton on a certain Bumpers 10]; Decl. publicly stating opposite. [DEV 6-Tab then All of ¶22 (“par- McCain Decl. 8-Tab [DEV 29] the ads were tested to see which would generally ties focus their money help soft most Dole hurt Bill Bob Clinton spending taking par- polls. first on care of the in the Haley Memorandum to Barb- ties’ current officeholders and on the can- our Mincey, from Charlie Nave and Joel running open 28, 1996, didates May seats and after dated FEC MUR Fa- that on challengers running against Dep., 113]; brizio Exhibit 5 55-Tab [DEV ¶¶ 3, 60], Huyck 172. Pat was RNC’s Director of [DEV iani 79-Tab Accounting Huyck as of 1999. Decl. in Mar- Anderson and RNC’s Curt Wes 83-94 The Dep. at Fabrizio FEC MUR the RNC Chairman Anderson wrote to as a (despite working 113] 55-Tab [DEV advertisement, “Story” Dole, regarding Dole Fabrizio Senator consultant snag a real run into stating: “We could sharing were Associates McLaughlin all Certainly, Story spot. the Dole NRSC, with RNC, data qualitative research quantitative NRCC). spot this needs suggests that strongly “issue a 1996 RNC example of An spot pass issue Making run. Story”: “The ad” is doing.” some may take advocacy test have a moral Dole: We of Bob Audio 48]. 70-Tab [DEV ODP0025-02018-20 an Amer- our children give obligation ad looking at that person “Any reasonable and values opportunity with the ica Presidential time particular at that up in. grew nation we an ad say: It’s not about season would grew up Rus- Bob Dole Over: Voice it is an ad spending; or wasteful welfare parents he sell, From his Kansas. particular elect that why should we about work, honesty of hard the value learned (1999) Cong. Rec. S12747 nominee.” country when his responsibility. So (Sen.Levin). Dole himself stated Senator He was seri- he answered. ... called says running I’m Story” “never that “The Paralyzed, in combat. ously wounded fairly that it’s obvi- hope I for President. *591 operations. nine underwent he picture.” in the only I’m the one ous since around look- Dole: I went of Bob Audio Politics, A Responsive Bag Center for make me miracle that would ing for a Fi- Campaign Loopholes in the Tricks: again. whole (1996) ODP0018- System nance he’d never The doctors said Over: Voice 48]; see also McCain [DEV 00172 69-Tab months, he But again. after walk ¶ D) [DEV 8-Tab (citing Decl. 15 Attach. wrong. them proved 29]. persev- Elizabeth Dole: He Audio cycle, the the 1998 election During 50. ered, fought his gave up. never He he in RNC con- NRCC coordination paralysis. from total way back Breakout,” an “Operation “issue ducted Americans, his many Like Over: Voice expand to advocacy” designed campaign as a and values serve experience life Congress. in Republican majorities compass. principle The strong moral (Sep- 48] 71-Tab [DEV ODP0031-00299 replace principle The welfare. work 25, 1998, from RNC Chair tember letter crim- accountability strengthen our thanking him for his to donor Nicholson principle of justice system. The inal Breakout,” describ- “Operation donation Washington discipline to end wasteful campaign de- advocacy an ing it as issue spending. Republican majori- signed expand all comes down to of Bob Dole: It Voice Congress); [DEV in ODP0043-00679 ties you you in. What What believe values. generally ODP0043- 48]. 71-Tab for. you for. And stand sacrifice what 48]; ODP0033- [DEV 00673-703 71-Tab 2; 48]; Decl. Dep. Exhibit McCain Fabrizio ODP0041-00176- [DEV 71-Tab ¶ 48]; Story,” “The in paid The RNC ODP0029-00138-49 [DEV 15. 71-Tab 48]; money though was see also ODP0030- part with soft even 71-Tab [DEV sup- help requesting Bob Dole in the letter obviously (fundraising intended to 00002-3 Republican in state and Huyck port Decl. for coalition Presidential election. ¶3 60]; campaign organizations FEC mount national [DEV Maricmi 79-Tab in advocacy campaign issue largest 55- Dep. [DEV Fabrizio at 50 MUR ¶ 48]. 71-Tab 113]; party history) [DEV 29]. 8-Tab [DEV McCain Decl. 15 electioneering Television and radio ture in carpeted Chapin’s cells. County advertising by political parties played jail Commission ran this jail soft ... a important congressional role in the she called a “national model.” Ask Cha- pin why in she’s Eighth taxpayers elections Florida’s and 22nd Dis- hard on and soft parties on convicts. tricts. Political on both sides of campaigns
these ran “issue so-called ads” ¶ 2; Chapin 10; Decl. Chapin Exhibit Decl. partly that were financed with nonfederal ¶ ¶ 10; Beckett Decl. Pennington Decl. 14. money, clearly influencing but directed at The RNC’s Involvement in Nonfederal the outcome of the election. In the Eighth Activities District, example, the DCCC ran tele- 53. The RNC also undertakes activities advertising praising Chapin, vision Linda exclusively in connection with state and candidate, the Democratic criticizing local elections. RNC General Counsel Jo- candidates, Republican through the Demo- sefiak “given testified that the RNC’s Party cratic take State order to advan- structure, state-based it is not surprising tage money- of the more favorable hard that the RNC actually many focuses of its money enjoyed soft allocation ratios purely resources on state and local election ¶ 9, parties. state Beckett Decl. Exhibit 1 activity. This frequently signifi- involves ¶ 3]; Chapin [DEV 6-Tab Decl. 9 6- [DEV activities, cant grassroots resources ¶ 12]; Tab see also Bloom Decl. Exhib- some of which exclusively benefit state and (Democratic 1-1, 1-4, its ads local candidates.” Josefiak Decl. 19. race) Florida 22nd congressional district Testimony 6-Tab and the Flori- RNC officials [DEV 7]. NRCC states that for Republican Party da ran elections which there is a also television feder- ballot, al prior ads the two candidate on the general months to the RNC still election, Chapin’s of which funds the training most criticized state and local candi- dates, *592 positions, record or and which contributes to state and local candi- witnesses committees, testify clearly campaign supports were date and intended to influence ¶ get-out-the-vote Chapin the election results. Decl. activities. 12]; 2 [DEV Exhibit 6-Tab Beckett Decl. 55. In 2000 approxi- the RNC donated ¶ 3]; Pennington 10 Exhibit 6-Tab [DEV mately million in nonfederal funds to $5.6 ¶ 31];
Decl. 14 Exhibit 3 8-Tab [DEV state and local candidates. Josefiak Decl. ¶ also 2 (Republi- Bloom Decl. Exhibit ¶ 61. can in party ads 2000 Florida 22nd district 56. The RNC devotes resources to 7], race) congressional [DEV 6-Tab state and local activities during example, 52. For one so-called “issue years federal election even when the feder- following: ad” stated the competitive particular al races are not in a Chapin.
Announcer: Linda Hard on in hopes influencing guber- state taxpayers. Chapin (as Soft on convicts. in natorial race California in 2002 and utilities, ¶ your pushed raised taxes on 2000). (tes- Indiana in Josefiak Decl. 62 county raise the sales tax and even tried tifying that “the sometimes devotes RNC Meanwhile, raising your property tax. significant resources toward states with in county jail hard time turned into competitive gubernatorial races even “Chapin time.” Where though convicts received the races for federal offices are ¶¶ 4, tv lounged padded competitive”); cable and on furni- Peschong173 less Decl. ¶ Peschong Regional chong 173. John RNC’s Po- Decl. 1. Region. litical Director for the Western Pes- election, “off-year” For the 2001 pro- typically “the RNC that (stating
8-9 on fund- no federal candidates election with share very substantial vides are ballot, more than victory programs,” spent $15.6 the RNC ing of state entire support the on state and designed in nonfederal funds “programs million ticket, place frequently and contributions Republican activity through local election profile state-wide high emphasis candidates, more transfers local to state races, especially than on federal races spending. See parties, and direct state running candidate is federal no ¶ when 28(a). two off- the last Banning Decl. In state-wide.”)- 2000, according to Josef- combined, spent the RNC year elections Indiana iak, believed most observers funds to in million nonfederal over $21 George Bush a “safe” state was activity, and local election support state competitive have a did not it also commitments including substantial Nevertheless, RNC race. Senate This Id. and other resources. staff time resources significant “committed contri- million in direct includes over $9.5 guberna- influencing hopes state candidates, over to state local butions ¶Decl. 62. race.” Josefiak torial parties, and dollars to million state $10 is no in which there 57. For elections expendi- in direct million dollars over $1 ballot, RNC candidate on federal Id.; Duncan176 Decl. see also tures. candi- state and local trains frequently ¶¶ (discussing RNC contributions 14-15 dates, candi- to state and local contributes ¶¶ 19, races); Decl. and local Josefiak state committees, funds commu- campaign date activity electoral (discussing 41-59 RNC the election or defeat calling for nications on the appear no federal candidates when candidates, supports and local state Exam, Expert ballot); of Defense Cross Banning activities. get-out-the-vote gu- donations (agreeing Mann at 71 ¶¶ ¶ 41-59; 28(a); Decl. Decl. Josefiak in an odd-numbered candidate bernatorial ¶ 14; Bok174 Cross Raja La Decl. cf. is intended something is not year Exam, at 34-35. election); Raja Expert La affect Louisiana, Kentucky, 58. Five RNC con- Report example, 15. For States — Jersey Virginia— Mississippi, New $500,000 Re- to the approximately tributed for state and local hold elections office Virgi- publican gubernatorial candidate nor- when there years odd-numbered ¶ 14(b). Raja La Decl. nia *593 ballot. mally no federal candidates date 60. Until BCRA’s effective ¶ Likewise, 41. numer- Decl. Josefiak nonfederal ac- twelve RNC maintained Houston, Indianapo- including ous cities— counts, accounts. See known as RNSEC lis, Minneapolis New Angeles, and Los ¶¶ 6,17. Decl. Banning in odd- mayoral elections City York —hold among of the variations 61. Because id.; Erwin175 Decl. years. See numbered laws, set finance the RNC (GOTV campaign state ¶ 5; DecLApp. at 10 Reb. C Green each RNSEC up govern rules different study on 2001 elections conducted and amount according type Columbus, Detroit, account Minne- Bridgeport, deposited Paul, could Raleigh). contributions apolis, St. filed, Complaint case was he expert plaintiffs. Bok an RNC’s 174. Derek is for RNC, July but as of as Treasurer of served Ryan Operating Offi- 175. Erwin the Chief is Counsel. Dun- 2002 he became its General ¶ cer of the CRP. Aff. 1. Erwin ¶ can Decl. 1. 176. Robert is a Member of RNC Duncan Kentucky. from the State At the time type “During
therein and the of disbursements that 67. the 2000 cycle, election ¶ could be made therefrom. See id. 7. spent RNC million of nonfederal $85.6 funds and million of federal $52.9 funds on 62. Some RNSEC accounts were re- administrative overhead.” Banning Decl. funds, corporate served for which were ¶ 27. “Administrative overhead expendi- used to make contributions or includes operating facilities, tures in states the use of permitting such costs of RNC such funds in connection state and local utility maintenance, bills and fundrais- ¶ elections. See id. 8. costs, ing expenses and routine for travel supplies. Administrative overhead 63. accounts Other RNSEC were re- also includes the salaries of employ- RNC funds, served individual which were ¶ Id.; (stat- ees.” see also Bowler Decl. 15 expendi- used to make contributions or permitting ing tures states not that allocation required use for adminis- corporate funds in rent, connection with state expenses utilities, trative like ¶ local 10. elections. See id. salaries). other Still RNSEC accounts held regularly The RNC broadcasts ads funds and spent pursuant raised to the for the purpose of influencing issue or unique legal requirements particular See, policy. 91(e); e.g., Josefiak Decl. La states; up state-specific the RNC set ¶ 16(b) (“Political Raja parties Decl. use California, RNSEC accounts for Massa- money develop nonfederal and dissemi- chusetts, Missouri, York, Michigan, New nate sages.”). me Carolina, North and Rhode Island. See id. ¶¶ 69. According to Josefiak: “The RNC 11-12,17. public seeks to posi- educate the about the RNC’s Involvement “Mixed” Ac- tions for Republican Party which the tivities ¶ 91(e). stands.” Josefiak Decl. 65. Prior to the date of effective BCRA engaged the RNC also in “mixed” activi- 70. According to Josefiak: “The RNC is, ties—that in- indirectly activities currently airing spot 60-second radio fluence both federal and state or local entitled ‘Leave No Child Behind.’ This (e.g., overhead, elections administrative advertisement, genuine issue which fea- ads, genuine party issue nonbroadcast a man discussing tures and a woman edu- communications, building state redistrict- issues, following: cation states the litigation, ing training for state offi- Every Male: child can learn ... cials, generic voter registration and ... quality Female: and deserves a edu- activities). get-out-the-vote As required cation in a safe school. FEC, paid RNC these activ- ities with a combination of federal and people say Male: But some some chil- nonfederal funds. dren can’t learn ...
66. The historically FEC allowed the just Female: ... so them *594 shuffle pay RNC to for its administrative over- through. salaries, benefits, including equip-
head— ment, Male: That’s not fair. supplies and party operations right. Female: That’s not headquarters Washington, RNC in D.C.— Things changing. Male: are A new fed- a mix of with federal and nonfederal funds. ¶ 27; says every eral law child deserves to Banning See Decl. see also Bowler177 ¶Decl. 15. learn. ¶
177. Kathleen Bowler is the Executive Di- rector of the CDP. Bowler Decl. 1. mix federal and make 72. The RNC used a says every test child to It Female: redistricting learning give support and them ex- funds to nonfederal they’re sure efforts, redistricting litiga- not. help they’re including if state tra ¶ tion. Josefiak Deck accountable. Be- schools Male: Hold approximate- example, budgeted the RNC in a should be school no child cause Seventy ly redistricting. million on change. and will not not teach $4.1 will percent redistricting budget was says every law child must The Female: money. Ban- be funded with nonfederal grade. the 3rd to read taught ¶ 28(i). spends The more ning Deck RNC right. a new civil reading is Because legislative redistricting state overall on Left Bush’s No Child Male: President redistricting. Josef- congressional than on Law. Behind ¶ iak Deck 74. education reform biggest Female: increase in education fund- biggest a mix of federal 73. The RNC has used ing years. training conduct and nonfederal funds to candidates, working are for bet- Republicans Republican Male: seminars for staff, ter, officials, ... campaign schools safer activists and in state and many of whom involved .. no child is left behind. Female: .so in- campaigns Topics and elections. local Republicans. ... right Male: That’s fundraising grassroots organizing, cluded Republican how education Anncr: Learn compliance campaign reg- finance help your children. Call reforms can cycle During ulations. 2000 election Bush and leave No Help .... President 10,000 RNC-spon- people attended least Behind.” Child sessions, training including 117 “nuts sored mentions President The advertisement organiz- on grassroots and bolts” seminars purpose identifying Bush’s name for During ing get-out-the-vote activities. proposal supported by the Re- precise $391,000 in cycle spent the same the RNC (‘President publican Party Bush’s No $671,000 in federal nonfederal funds and LawO, Behind but mentions no Child Left support. training funds on such currently facing federal candidate reelec- ¶ 28(c); Raja La Banning Deck see also request with a tion. It concludes Expert Report (parties “help at 11 candi- to learn listeners call a toll-free number by training campaign dates them and their Republican more education reform. about staff,” support impor- which “can make an ¶ 91(e); Exhibit 2428. Josefiak Decl. RNC tant in whether a candidate difference a mix of 71.The RNC has used office, particularly chooses to run for engage funds to nonfederal non- campaigning era of that re- cash-intensive sup- its broadcast communications with quires application skillful of advanced cam- porters. magazine “Rising The RNC’s paign technologies”). Tide,” provide designed readers with mix 74. The RNC has used a of federal in-depth “a education the Re- more about support and nonfederal funds to interstate publican agenda possible than is issue Repub- cooperation among on state issues the more traditional 30-second television lican state and local activities. For exam- 99; Decl. advertisements.” Josefiak RNC $100,000 Also, ple, provided the RNC of seed political parties Exhibit 977. use the internet, e-mail, Republican money for the formation of spread and direct mail to association that fo- Raja attorneys general La state messages to adherents. See *595 ¶ 978; 16(a); Exhibit Expert Report Magleby Expert cuses on state issues. RNC ¶¶ Report at 42. see also Josefiak Deck 82-84. addi- tion, during cycle the 2000 election the The RNC’s Assistance to State and Local $199,000 spent in RNC nonfederal funds Parties for Nonfederal and Mixed Activi- $33,500 in federal funds on state and ties governmental local affairs. Banning See 79. Prior to BCRA’s effective date the ¶ 28(b). Decl. provided RNC also financial and fundrais- 75. The RNC has used a mix of ing federal assistance to state and local candidates and nonfederal to support parties funds efforts to and through variety of means. ¶¶ minority 32-40; increase involvement and mem- B. See Shea178 Decl. Josefiak ¶¶ ¶ bership in Republican Party. During 63-72; Decl. Banning Decl. 28. cycle, example,
the 2000 election 80. During the 2000 cycle election $1,211,000 spent RNC in nonfederal funds RNC made approximately transfers of $2,163,000 support federal funds on million nonfederal $129 $93.2 million— groups of allied minority outreach. funds and million in federal $35.8 funds— ¶ 28(e). id. See parties. to state and local See Press Re- lease, FEC, regu- 76. Pursuant to FECA and FEC National Party Transfers to prior lations force to BCRA’s effective January Committees: State/Local date, paid 31, 2000, the RNC for mixed activities to December available using predetermined “allocation” formula http://www.fec.gov/press/051501partyfund/ for federal and nonfederal funds. Josefiak tables/nat2state.html. ¶ (“Since Decl. 23 long recog- the FEC has 81. The helped RNC state and local heavily nized the RNC is involved parties through donor exchanges; joint list levels, activities at the federal and state events; fundraising promotion of state historically paid the RNC has for its over- party events; fundraising facilitating con- allocation, using ‘split,’ head between donors; provid- tributions from interested federal and nonfederal funds: activities ing matching encourage incentives state purely that are paid federal are for with parties develop their in-house fundrais- funds; 100% activities that are ing capabilities through the RNC’s “Fi- purely state paid or local are for with nance program; devoting per- PLUS” funds; 100% nonfederal and activities that sonnel to party fundraising state needs.
relate to both federal and state elections ¶ 10; See Dendahl179 Decl. Duncan Decl. paid for with a combination of federal ¶ ¶ 13; 44, 65-72; Decl. Josefiak B. Shea funds.”). and nonfederal ¶¶ 32-40; Decl. Raja Expert see also La ¶ 12(b) 77. During presidential Report election years (discussing party national party national required support parties committees were generally). for state pay for their mixed activities with at 82. officers fundraising RNC have sent percent least 65 in federal funds. See letters on behalf of state and local candi- 106.5(b)(2)© (2001). § C.F.R. See, during off-years. e.g., dates even Jo- (RNC During nonpresidential election sefiak Decl. RNC Exhibit 292 0332976) years national committees re- (fundraising signed by were letter quired pay Deputy mixed activities RNC Chairman Jack Oliver on percent least 60 in federal Jersey funds. behalf of Bret Schundler’s New 106.5(b)(2)(h). § id. at gubernatorial campaign); Josefiak Decl. Beverly Shea is the RNC’s Finance Di- 179. John Dendahl is the State Chairman of Republican ¶ Party of New Mexico. Den- rector. Shea Decl. 1. dahl Decl. 1. *596 parties. parties depend on (fundraising letter state The state Exhibit RNC Haley Barbour on behalf pay everything these funds to signed gubernatorial cam- Virginia George Allen’s their own administrative overhead to voter (fundraising Exhibit RNC paign); mobilization, grass organizing, roots and by Haley Barbour on behalf signed ¶ letter 31; Banning media.” Decl. see also Republican Party); Fein- Jersey of New ¶¶ Duncan Decl. 11-12. (fund- Dep. [JDT 6] Exhibit 12 Vol. gold helped The and 89. RNC also state from Jim Nicholson on behalf raising letter parties fundraise for these voter mo- local Minneapolis mayoral of Norm Coleman’s ¶¶ 63, bilization efforts. See Josefiak Decl. campaign). ¶ (“[T]he 65-72; Benson180 Decl. Re- have been involved in RNC officers 83. publican party national committees also parties and local and candi- helping state Republican Party] in [the assists Colorado money raise accordance with state dates raising money party building pro- for these federal law. and grams.”). becoming of the 84. After Chairman presented 90. Evidence shows that the February Marc Racicot RNC cooperates closely and works RNC cities in in his trips made 82 to 67 36 states political parties support and local state capacity majority “The as Chairman. Republican platform the entire and ticket trips significant fundraising these have had federal, state, at the and local levels. ¶ components them.” Decl. 70. Josefiak experts agree 91. Both sides’ that “re- Wagner Ann 85. RNC Co-Chairwoman local, state, lationships among and national Deputy respec- Jack and Chairman Oliver organizations strengthened in the tively trips. majori- 31 and 33 “The made past they three decades” and attribute the trips significant have had fund- ty of these “the parties cohesion to role of the national components raising to them.” See id. providing expertise resources and Duncan, 86. Robert current General party.” Raja lower levels of the La Ex- Counsel and former Treasurer of the (citations omitted); pert Report 7at RNC, actively fundraising was involved in (“The Expert Report Mann at 30-31 rela- Party Republican activities for the of Ken- tionship parties between the national Kentucky tucky and state candidates. parties their state has never been closer Since 1992 when he became a member of today.”). than it is RNC, sponsored recep- Duncan has support tion to the reelection of a Ken- expert Raja 92. Plaintiffs La states tucky state senator and he also hosted and national, cooperation state, among fundraising attended numerous dinners in parties local generally healthy for Amer- support Kentucky Republican Party. democracy: ican ¶¶ Duncan Decl. 5-6. parties Cohesive enhance electoral ac- support has used countability by linking RNC been the campaigns parties state and engage local voter federal, platforms state and local registration, get-out-the-vote, generic way, provide candidates. grassroots organizing. Banning Decl. signals voters with clear about what the ¶ collectively. joint stands for campaigns parties across fed-
88. “RNC transfers of non-federal eral, gen- state local candidates also parties play funds to the state a critical in subsidizing role the activities of the erate electoral economies scale Republican Party. 180. Bruce Benson is Chairman of the Colora- do Benson Decl. 1. *597 greater mobilize numbers of voters. The 97. Although Victory Plans are de- parties catalysts national have been signed Republican to benefit candidates at party integration they possess because federal, state, levels, and local the resources to activity. coordinate such place often greatest emphasis on state ¶ and local races because most instances Raja Report La Rebuttal 9. there are far more state and local candi- national, state, Examples 93. dates than federal candidates on the ballot. political parties working local together ¶ 8; See Benson Decl. Bennett181 Decl. Republican are the Party “Victory Plans” ¶ 17.k (stating that average ratio of and the Party Democratic “Coordinated state and local candidates to federal candi- All Campaigns.” Republican levels of the 1). dates in Ohio in 2002 is 18 to party structure actively participate in the design, funding, fundraising and imple- nature, 98. “By their Victory Plans Plans, Victory mentation of see Josefiak specified and the programs span them ¶¶ 26-40, just Decl. as all levels of the year, just calendar the 60 or 120 Party Democratic participate in the de- days prior to the election.” Peschong sign, funding, fundraising, and implemen- ¶Decl. 4. tation of Campaigns, Coordinated 99. Victory Plans generally incor- ¶ Bowler Decl. 29. rallies, porate mail, banks, direct telephone 94. Victory The RNC’s Plans are voter brochures, cards, state yard signs, bumper contact programs designed to support the stickers, hangers, door and door-to-door Republican federal, entire ticket at volunteer activities. Id. state, and local levels. The RNC works Fundraising RNC every fund, state party design, 100. In the RNC raised implement the Plans. See Benson Decl. $99,178,295 in nonfederal funds ¶ ¶ 8; 26; Josefiak Decl. Peschong Decl. $152,127,759 in federal funds. See ¶¶ Shea 4-5. Decl. RNC Exhibit 2259. Victory
95. Plans are formulated and 101. The engages RNC in fundraising implemented after extensive and continu- through marketing i.e., mail, direct direct ous collaboration between the RNC and — telemarketing and internet solicitations— parties; the state each Plan is tailored to through “major programs. donor” In unique needs of each state and de- $105,860,700 2000 the RNC raised through signed to stimulate grassroots activism $146,929,900 direct marketing and through and increase hopes voter turnout in the ¶ major programs. donor B. Shea Decl. 7. benefitting candidates at all levels of the ¶¶ In $56,117,600 2001 the RNC raised ticket. Josefiak Decl. 25^10. $25,909,700 through marketing direct 96. 2000 the ap- RNC transferred through major programs. donor id. See proximately million parties to state $42 Victory use in programs, average, percent Plan percent On of the total (about million) of which amount year was the RNC raises each $25 nonfederal is ob- money and none spent id.; of which was tained through marketing. direct ¶ broadcast advertising.” “issue Knopp182 Josefiak Decl. Knopp Ms. testifies ¶Decl. 31. that she has observed that direct market- 181. Robert Bennett has served as Chair of Knopp Deputy 182. Janice RNC's Di- Republican Party Ohio since 1988. Bennett Finance/Marketing Knopp rector of Director. ¶¶ Decl. Decl. 1. 1-2. the aver- years nine the last 104. Over the best “perform messages ing RNC, including both to the age donation Par- Republican emphasize
those that funds, has been nonfederal federal and lower taxes philosophy ty’s core *598 ¶ 5; Knopp Decl. approximately $57. im- and the RNC’s government and less 2430. RNC Exhibit elections. and state federal role portant fundraising success short, RNC’s the In the ma raised 105. In 2000 RNC desiring persons appeal its individ money on from depends jority of its nonfederal philosophy.” governing average its with corporations to associate uals—not —and ¶ is funds 25. of nonfederal corporate Decl. donation Knopp average indi than lower significantly by the are defined 103.“Major donors” example, the In vidual donation. $1,000 or give who individuals as RNC nonfederal on corporate donation average ¶ In Decl. 6. B. Shea year. See per more indi $2,226, average while the funds was smaller do- like its experience, Shea’s Ms. funds nonfederal was of vidual donation most major donors nors, the RNC’s ¶ Knopp further $10,410. Knopp Decl. 9. the RNC’s appeals based responsive to cycle the 2000 election in the testifies that ¶¶ RNC has 23-24. The See id. ideology. in nonfederal million raised RNC $65 Club the President’s major programs: six individuals, million and $51 from funds contributions federal to raise designed is However, Id.183 corporations. from $2,000 per per couple $1,000 person per top 50 soft that out be noted should ¶ Advi- 14.b; the Chairman’s id. year, see combined, parties to both money donors to raise federal designed is sory Board percent 11.4 corporations gave thirty-five $5,000 per contributions nonfederal re money ($29,447,350) all nonfederal ¶ 14.c.; Eagles program, year, id. national commit Republican by the ceived de- major program, donor is oldest RNC’s cycle. Mann 2000 election in the tees contribute who either members signed for Report at tbl. 6. Expert $20,000 funds or donate $15,000 in federal Party Democratic The California ¶ 14.d; id. per year, funds in nonfederal Republican (“CDP”) the California directed PACs is Majority Fund (“CRP”) Party $15,000 in federal or either that donate and the CRP each main- CDP 106. The ¶ 14.e; per year, id. funds nonfederal registered with committee tain a federal who for members designed Team turn, the committee federal the FEC. In upon $100,000 funds in nonfederal donate account, contributions maintains federal $25,000 in each donate joining and then source-and- comply with FECA’s to which ¶ 14.f; id. years, subsequent three require- reporting limitations amount for members designed Regents program ¶ 9; Morgan184 Decl. Bowler ments. See $250,000 amount of give aggregate who ¶Aff. 3. per two-year election in nonfederal funds ¶ addition, CRP are each four and the every 107. The CDP cycle, 14.g. id party committees special registered “Pres- establishes years the RNC law. Each California Trust,” accordance designed for contributions idential ¶ into which nonfederal account 15. maintains a $20,000 id. funds. See Republican Timothy Morgan is Na- including corpora- 184. figures, These California, breakdown, elected do not apparently tional Committeeman tion/individual in dona- approximately $134 of the CRP. include million by the central committee state aside Republican national tions to committees Morgan Aff. from the RNC. permissible contributions unlimited, under California are likewise although contribu- deposited. parties’ law are nonfederal tions other contributors po- other than campaign subject activities are to direct parties litical to state candidates are limit- regulation by the California Fair Political depending upon ed the elective office. Practices party reg- Commission and each Contributions to state and local political ularly reports files receipts disclosure parties for purpose of making contri- expenditures Secretary with the of butions to state candidates are limited to ¶ 11; State. See Bowler Decl. Morgan $25,000 per year per contributor. Contri- ¶3. Aff. butions to state and local parties 108. Prior to BCRA’s effective date for other purposes' e.g., funding adminis- *599 — costs of the CDP’s and the CRP’s “mixed” costs, trative and overhead registra- voter activities were “allocated” between each tion or generic get-out-the-vote activities party’s federal account and ac- nonfederal or supporting ballot measures or issue ad- count. vocacy unlimited. Contributions to —are
109. state The CDP was and local required parties to allocate are not source-limited; funds for expenses is, administrative such as corporations and salaries; rent or employee generic voter labor may unions contribute funds in ac- activities; identification registration voter cordance with generally applicable limits. activities; get-out-the-vote ¶ ¶ activities 11; 5; See id. Erwin Aff. see also Cal. candidate-specific; were not fundraising 85301, §§ 85303(B), 85303(C), Gov’t Code expenses; and communications on behalf 85312. of both federal and nonfederal candidates. 112. By 34, adopting Proposition Cali- ¶ See Bowler Decl. 15. fornia approved voters the statement that 110. Bowler testifies that the CDP allo- “[plolitical parties play important role funds in cated accordance with the FEC’s in the American process help regulations. They allocated funds for ad- insulate candidates from potential cor- ministrative expenses, generic voter identi- rupting large influence of contributions.” activities, fication registration voter activi- CDP App. (“Proposition 34: Text ties, and get-out-the-vote activities based Law”). Proposed composition” on a “ballot formula cal- The CDP’s and Focus on CRP’s State culated the ratio offices and Local Activities nonfederal expected offices to be on the 113. The CDP and focus the CRP ma- general ballot in a given cycle. election jority resources on supporting They allocated public funds for communi- candidates, state and local participating in cations supporting opposing federal and elections, state and local and influencing nonfederal using candidates a “time-and- state policies. and local space” formula. And allocated funds fundraising expenses on a “funds California, 114. In and local state races ¶ basis. raised” See 15. id. any on particular ballot substantially out- Proposition 34 races, number federal which there will be, most, three in any cycle. election November 2000 California vot- ¶ ¶ 13; See Bowler Decl. (explaining id. 15 adopted Proposition ers govern 34 to cam- cycle, the 2002 only where the paign contributions in the state. Under Federal office on the California ballots was Proposition expenditures by political race, congressional party committees behalf administrative ex- of state candi- penses required dates unlimited. were by po- Contributions be allocated 12.5 litical committees to state percent percent candidates federal and 87.5 nonfeder- formula; over actively registered 122. The CDP composition the ballot al based on 300,000 throughout a Presi- Democratic voters Cal- which included cycle in the 2000 were there was race, expenses during though 2002 even administrative ifornia dential percent federal “only closely Congressional contested to be allocated one required nonfederal). the 52 races for the U.S. among race” percent and 57 Bowler Representatives. House of for 120 holds elections 115. California ¶Decl. 20.a. officers, eight statewide-elected legislative of the State members and four officers expenditures on voter 123. The CDP’s still more It holds Equalization. Board of mix of a of federal registration consisting — and local office judicial office elections approximately and nonfederal funds —were the state and at both and ballot measures $145,000 cycle; in the 1996 election ¶ 13; Erwin Aff. 5. See id. local levels. $300,000 $100,000 cycle; in the the 1998 $185,000 cycle; during 2000 election cycle 2002 election During the —in period January 2001 to June Torres, which, Art Chair according to CDP id. 2002. See congres- one “contested” only there was matter”' —the practical race “as *600 sional voter expenditures 124. The CDP’s eight in state- actively involved was CDP (a higher year in 1998 registration were state races and dozen wide nonfederal elections) in than eight statewide ¶ Torres185 Decl. 8. legislative races. See (a year). Id. presidential election actively participates 117. The CDP paid regis- The for voter 125. CRP has years the In recent municipal elections. a mix of federal and nonfed- tration —with million dollars in spent several CDP has Boun- through “Operation its eral funds — supporting candidates in funds nonfederal county program, Republican in which ty” Angeles as Los and San major cities such committees, Republican central volunteer ¶Decl. 8. Francisco. Torres candidates organizations, Republican and actively supports participate. and 118. The CDP for federal and state office drives, opposes Through Operation Bounty and local ballot measures. state ¶ 350,000 typically registered Bowler Decl. 8. has over CRP cycle Republican voters each election Registration Activi- CDP & CRP Voter 1997-98). (except cycle since the 1984 ties 13; App. at Erwin Aff. at see also CDP shows that the CDP and 119. Evidence registration ac- (charting CRP’s voter registration pri- conduct voter CRP cycle). tivity by cycle election since 1984 marily and local elections. for state and Direct Mail Activities CDP CRP 120. testified that over- “[t]he Erwin and the CRP conduct 126. CDP whelming registration] [voter amount of campaigns primarily mail for state direct activ- activity ‘generic’ registration voter and local elections. ity potential registrants ‘Regis- urging ” ¶ Republican.’ ter Erwin Aff. 9. spends approx- typically 127. The CDP imately 121. and million to million nonfed- CDP CRP officials testified $7 $8 support mail regis- program that “it is often the case that voter eral funds on its not primarily tration driven of state and local candidates does activities are races.” include federal candidates. See Bowler the desire to affect State and local ¶ ¶ ¶ 20(b). 14a; Erwin Aff. Bowler Decl. 20.a. Decl. ¶
185. the CDP. Torres Decl. 1. Art Torres is the elected chair of In produced 128. the CDP voters of informing date the election out pieces sent over 350 different mail Id.; and the polling place. Erwin Aff. ¶ its state and local candidates lO.c; ballot H, Bowler Decl. Exhibit Exhibit I. measures. mailings These do refer- 136. Slate cards and hangers door ence federal any candidates or usually tailored for particular area, local ¶ 20(b). races. Bowler Decl. This mail state local races dominate numeri- often gives both the election date and the cally over federal races. Bowler Decl. person’s polling places. Id. ¶ ¶ 20.b; Erwin Aff. lO.c. cycles most election the CRP 137. Prior date, to BCRA’s effective mails an application absentee ballot reg- the extent slate cards or door hangers Republican istered households. In the both mentioned federal and nonfederal 1994, 1996, cycles and 1998 the CRP sent candidates, expenditures therefore consist- between 2.25 2.5 million absentee bal- ed of a mix of federal and nonfederal Republican lot mailers to voters. In the id.; funds. See Bowler Decl. 20.b. cycle the CRP sent approximately 5.2 Party State “Issue Directly Ads” that million absentee ballot mailers. Erwin Affect Federal Elections ¶Aff. lO.b. parties State also use nonfederal CDP and CRP Get-Out-the-Vote Activi- money fund federal-candidate centered ties “issue ads” that are really electioneering 130. The CDP get-out-the- conducts advertisements intended to directly affect telephone vote primarily banks for state federal elections. and local elections. parties 139. State use large portion *601 131. Approximately percent 40 to 50 of the transferred nonfederal money to paid the CDP’s phone banking is conduct- finance public communications (principally in ed specific connection with a state or advertisements) broadcast and cable that local race and does not make reference to support oppose a federal candidate. any federal candidate. See Bowler Decl. ¶ ¶ 63; Decl. Wolfson Marshall Decl. 3 ¶ 20.b. (noting largest single 132. date, Prior to BCRA’s effective portion budget DNC was used for the extent the phone banking CDP’s re- issue advertising, but that typ- DNC “[t]he ferred to both federal and nonfederal can- ically expend did not money for these issue didates, expenditures therefor consisted of itself, ads but instead transferred both fed- a mix of federal and nonfederal funds. Id. eral and money non-federal to the state date, Prior to BCRA’s effective parties expenditures”); make these Nel- the extent the phone banking CDP’s did son Dep. Tr. at party 123. National any candidate, endorse federal expen- advocacy” “issue advertising focusing on ditures therefor entirely consisted of non- electing federal bought candidates is often federal funds. Id. by parties, state by but funded national 134. The CDP and the CRP conduct committees, party who transfer the funds get-out-the-vote door-to-door canvassing See, needed parties. to the state e.g., campaigns primarily to influence state and ODP0021-01365-67, ODP0023-02358-65, local elections. ODP0023-03560-660, ODP0025-01560, (in-
135. The CDP and [DEV the CRP ODP0025-2720-21 routinely 48] 70-Tab mail slate and hand ternal correspondence cards door RNC referencing deliver hangers candidates, listing urg- endorsed “issue through par- to be run ads” state ing ties). voters to day, vote on election
840 ratio); Nelson allocation fund Expert Magleby states al/nonfederal
140.Defense (stating 24] Vol. Dep [JDT at 76-77 advertisements purchasing money soft stretch can Parties advantages: has two parties state through soft and transferring further even (1) alloca- fund better they parties where federal/nonfederal to state money hard (2) dis- “having state [a] ratios and soft to hard tion a better ratio achieve can generally money advertisement] they spent [on claimer if than dollars disclaimer on having the ratio of a national is because better than This themselves. spending it”). if party for hard dollars soft to patty committees is national by the done party committees 141. The national hard for percent and 65 percent soft 35 $9,710,166 in federal funds to transferred soft percent 40 years, and presidential 1992 during the party committees state if years, off but hard for percent 60 $9,577,985 during the cycle, election ratio of soft to parties state done $49,967,893 during cycle, election The reason greater. hard dollars $30,475,897during cycle, election are al- parties is state difference $131,016,957during the cycle, election ratio to calculate their lowed soft/hard national cycle. The 2000 election offices to all ratio of on the based $18,646,162 non- committees transferred any year. given on the ballot offices party committees to state federal funds spend- found parties have Both $18,442,749 cycle, during the 1992 election accompanying money with its ing soft $113,738,373 cycle, election during the 1994 through their state money match hard $69,031,644 cycle, during the election most smoothly, for the to work parties cycle, and 1998 election during the readily acknowl- state officials part, and $265,927,677 cycle. the 2000 election during simply “pass throughs” to edge 6]. Decl. 6-Tab [DEV Biersack tbls. the broadcast ads providing the vendors federal and transferred RNC or direct mail. Republican par- money to state nonfederal Report [DEV at 37 4-Tab Magleby Expert pay electioneering ty committees to Decl. 3 8- 8]; [DEV Marshall see also ¶ 4 in Mariani ads.” Decl. Huyck “issue the DNC (testifying Tab 28] *602 97; 60]; Dep. at Josefiak 79-Tab [DEV parties to state funds
transferred 118-19; also Dep. at see Hazelwood rates); their allocation advantage of take (RNC to 12 NM0406326— INT810-1605 48] 70-Tab [DEV to 1367 ODP0021-1365 33) (1998 financial statement 114] [DEV (memorandum Haley Barbour to the from New Republican Party of Mexico for the Republicans, discussing House California (“RPNM”) shows that received revenues buy California to make a media need $1,524,634 in from nonfederal transfers buy, accomplish this stating and that “[t]o $1,110,987 Republican organizations, other funds to the would transfer [RNC] contributions, just in individual which would Republican Party, California $389,552 Republi- transfers actually buy advertising. Under FEC spent RPNM over organizations; can Par- Republican regulations, the California revenues, $1,062,095, its 1998 one-third of with one- ty pay advertising for the must advocacy television, radio on “issue and two thirds third FEC contributions — mail”). 2000, the RNC raised $254 dollars”); Dep. at nonfederal McConnell million, majority of which was trans- (stating that 19] 267-77 Vol. [JDT parties state various ferred down to state prefers to transfer funds NRSC activities, advertising. Jo- including issue adver- parties purchase who then NRSC 11], ofMost Dep. at 76 Vol. [JDT feder- sefiak a more favorable tisements with the transfers are used to pay for issue ads. tent of the ad and the amount of money to ¶ ¶ 63; Vogel Decl. McGahn Decl. 55. spent before calling the state party in question “to let it know that an ad was 143. The support DSCC and DCCC coming”). Democratic party state commit- in producing tees disseminating elec- 145. These so-called “issue ads” are in- communications, tioneering large tended to and support do campaigns majority of their nonfederal transfers to federal candidates. Raja See La Cross party state and local committees have been 15, 101-04; Exhibit 3 at Pennington Decl. support the nonfederal share of issue ¶¶ 10, 13, 31]; also, 14 [DEV 8-Tab advocacy communications. These commu- e.g., 0369, 371, CRP 373 [IER Tab 12] frequently nications refer to Democratic (transcripts of television advertisements Senate or House candidates or their Re- paid for with nonfederal money trans- publican opponents, even though “not ex- CRP). ferred from NRCC to pressly advocating any candidate’s election 146. Certainly, party communications ¶¶ 63, or defeat.” Wolfson Decl. 71 [DEV promote, attack, support, oppose ¶¶ 44]; 9-Tab Jordan Decl. 7- [DEV clearly identified candidate federal of- 21]; 02095-101, 2103-04, Tab CDP directly fice affect federal elections. See (wire [IER 12] Tab transfer instructions ¶¶ 15-18; McCain Decl. Beckett Decl. from the DNC to the CDP for media ¶¶ ¶¶ 3]; 8-9 Chapin [DEV 6-Tab Decl. 8- (de- buys); CDP [IER 02984-89 Tab 12] 10; 9; Lamson Decl. Pennington Decl. tailing transfer of funds from DCCC to ¶¶ 10, 13-14; Cong. Rec. (daily S2138 buy). CDP for media 2002) (statement ed. Mar. of Sen. parties When the national transfer McCain). money parties to state to fund so-called 147. Out of the estimated million $25.6 ads,” they “issue on control insist spent by political parties on ads in the communications, participate in the creative cycle, election million went $24.6 process, and work with the consultants to fund ads that to a referred federal candi- content, determine the timing, place- date. See Expert Krasno & Sorauf Report ment of the communications. Wolfson 44,485 ads, 42,599 at tbl. 1. Out of referred ¶¶ 65-67, Decl. 44]; 70 [DEV 9-Tab Jor- to a federal per- Id. candidate. Viewers ¶¶ 71-73, 21]; dan Decl. 76 [DEV 7-Tab ceived percent of these ads as election- ¶ ¶ 63, Vogel 41]; Decl. 67-68 [DEV 9-Tab eering in nature. Id. tbl. 7. ¶ ¶ 55, McGahn Decl. 58-59 [DEV 8-Tab 30]; 2002) National committees have Dep. (Sept. Castellanos Tr. 111-12 directed give donors to (stating money that when nonfederal working on parties, parties ads for state state National Media order to assist the cam- dealt *603 with representative, paigns an RNC not a of federal state candidates. Kirsch186 ¶ ¶¶ member); party 6, Marshall 4 Decl. (noting 23]; Decl. 9 [DEV 7-Tab Hassen- ¶¶ normally the DNC approved the 17]; con- feld187 Decl. 9-10 [DEV 6-Tab 186. Mr. Kirsch is and founder Chief Execu- based in Rhode with Island annual revenues Propel tive Officer Corporation. Software designs, $3 excess of billion. Hasbro man- He has donated millions of dollars to the ufactures, toys, games, and markets interac- Party "progressive Democratic to and candi- software, puzzles tive products. and infant 2, ¶¶ groups." dates and Kirsch Decl. 4 [DEV philan- He also sits on a number civic and 23], 7-Tab thropic boards. He is member of a the Board University Pennsylvania of Trustees of the 187. Mr. Hassenfeld has served as Chairman and Deerfield Academy, serves on the Dean’s of the Board and Executive Chief Officer of Kennedy Council of the School of Govern- Hasbro, 1989, global Inc. since a company
842
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stating “Since
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¶¶ 8-9; Philp190
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844 contri- number of 1995 the funds, Since 159. both the CDP’s of spending ing, and $5,000 ¶¶ at the to the CDP made Decl. butions Bowler nonfederal. federal and maximum —was “in- federal Bowler, is FECA CDP the level—the According 29. ¶ than for less small, accounting Id. 5. usually very [DNC].” the related to tegrally federal total in percent the CDP’s of five the closely with works The CRP 154. the CDP amount The total contributions. a Vic- implementing planning in RNC contri- federal maximum received from has to allo- is of which Plan, purpose the tory (in $170,000 the from ranged has butions the plans for coordinate cate resources (in $355,000 the cycle) to election up and candidates Republican of benefit of con- number cycle). Because the Victory Plan The ticket. the entire down up $5,000 lev"elmake cy- at the election general in the tributions implemented is staff, money federal RNC of percentage CDP’s full involvement the small cle with leadership, and not believe staff, legislative Bowler does fundraising, state CRP $5,000 of the ticket top the from the limit from representatives doubling BCRA’s ¶ 4. Aff. Erwin See increase campaigns. $10,000 in a will result substantial CDP. Fundrais- contributed funds and CRP in federal in CDP Reduction ¶ Efforts ing Mobilization id. 35. and Voter See more always raised date has effective The CDP to BCRA’s
155. Prior 160. money. than federal money relatively constant amount nonfederal raised a CDP $12,991,251 It raised money. nonfederal relatively has raised The CDP 156. election the 1996 funds in in nonfederal It money. federal amount constant in money $15,957,831in nonfederal cycle; in the funds in federal $4,316,528 raised $15,617,002in nonfederal cycle; $4,076,870 in federal cycle; 1996 election $13,928,496 $4,837,967 cycle; money feder- cycle; money in the $3,455,887 2002 elec- cycle; during money in the 2000 money al nonfederal during 2002 election funds money 2002. The up federal to June cycle tion funds 2002. The were CDP; fig- as of June cycle directly by the raised were CDP; figures do by the directly raised from transfers any include do not ures other any transfers not include from candi- party committees other Bowl- See candidates. or from committees ¶ 12, A. Exhibit dates. See Id. ¶ 10, A. Exhibit er Decl. to 86 percent Approximately 161. believes even Bowler Ms. 157. donations the nonfederal percent of efforts, may difficult increased with from dona- have been has received CDP substantially more to raise for the CDP ¶ 19, $10,000. Ex- id. exceeding tions past. Id. it has than money federal ¶ A; 7. Decl. hibit Torres ¶10. a wide employed has The CRP 162. many methods has tried The CDP to raise techniques fundraising variety of funds, with little federal raising more Aff. Erwin money. See federal more telemarketing pro- Through success. ¶ 12.a. its has been states Bowler gram, which funds raises The CRP raising federal method most successful that to mail. Erwin states through direct between funds, has raised the CDP direct and effective a current maintain average million $800,000 and $2 list, must the CRP donor fundraising mail telemarketing $27. contribution prospecting funds continually spend however, very expensive program, prospecting and that donors such new run; approximately $0.50 it costs $0.40 Federal money. often loses expensive and Id. 35. raised. every dollar *606 returns on mailings range, direct percent aver- and 20 in nonpresidential election age, per ¶ from contributor and $20 $40 cycles. Erwin Aff. 15.a. mail CRP direct returns reached a 167. On average, Erwin attests that be- high 1986 of over million and have $2 tween 1993 and 2000 BCRA would have declined to under million since 1997. $1 reduced the CRP’s overall spending from Id.; App. CDP at 1189 (charting CRP’s million to $30 million during presiden- $18 1985). major funding by year sources since tial election cycles from million $17.5 164. The CRP also uses telemarketing million during nonpresidential $14 elec- to raise federal funds. Federal returns cycles. tion Id. on the CRP’s telemarketing range, on av- 168. Party officials believe under erage, per from contributor. $20 $40 BCRA the CDP will have to reduce their Erwin testifies that like pros- direct mail communications with voters. only Not will pecting, telemarketing prospecting is “ex- administrative reduced, costs have to be pensive unproductive.” and often Er- accounting likely costs will increase be- ¶ 12.b; win Aff. App. CDP at 1189. The cause of BCRA’s additional reporting re- “Major CRP also relies on Donor Pro- quirements. Moreover, fundraising costs grams” and “Event Fundraising” for its will increase only because federal money federal money fundraising. Erwin Aff. can be used to raise federal or Levin ¶ 12.e-d. Thus, funds. even maintaining current During 165. the 2000 cycle, election fundraising efforts will come at a direct $5,397,400 CRP raised in nonfederal funds parties’ cost to the programmatic and can- $10,000 the 166 gave donors who didate-support activities. Because candi- ¶ 13(B); more. Erwin Aff. Erwin Aff. support date get-out-the-vote activities Chart 5. Those donations totaled likely parties’ remain the first prior- $5,397,400. aggregated amount above ities, registration, voter generic party- $10,000from those donations accounted for building and grassroots activities likely will $3,737,400 ($5,397,400 $1,660,000 minus be reduced or even eliminated. Bowler (166 multiplied by $10,000)). donors Er- ¶ ¶ 23; Decl. Torres Decl. 9.
win Aff. Thus, Chart Chart 6A. if the Federal Officeholder Solicitation of Non- CRP had been limited in funding certain Money electoral activities with donations raised $10,000 within the specified limit It practice is a common for Mem- Amendment, $3,737,400 Levin bers of Congress to be in raising involved $5,397,400 raised from donations above both federal and nonfederal dollars for the $10,000 have been would unavailable for party committees, national sometimes at those purposes. Erwin Aff. ¶¶ Chart Chart parties’ request. McCain Decl. 6B. This also means that CRP would (“Soft 21 [DEV money 29] 8-Tab is often have had 10.5 percent less total revenue to directly raised by federal candidates and use for (i.e., Levin-Amendment activities officeholders, largest and the amounts are $3,737,400 $35,649,993, the total revenue often President, raised Vice Presi- for the 2000 cycle, election not have could dent and Congressional leaders.”); party activities). been used for those Erwin Aff. Feingold Dep. at 6]; 91-93 [JDT Vol. Chart 1. Shays (“Soft Decl. 18 [DEV 35] 8-Tab money is raised directly by Erwin testifies that BCRA’s ban federal candi- dates, officeholders, on national party transfers will reduce the and national CRP’s budget by available party approximately leaders. National officials of- percent in presidential cycles election ten raise these promising funds donors support at the NRSC *607 [McConnell] The national officials. to elected access advocacy campaign. issue cam- congressional the Committee’s national and
parties allow us Mem- will we raise now request resources also committees paign through calls to soft La- strategy make the our Congress to communicate of bers funds.”); see more solicit commitment to immediate money donors Your Day.... bor 34]; ¶ 8-Tab [DEV Decl. Rudman deal to great a also would mean project to this 10]; ¶¶ 6-Tab [DEV 7-8 Bumpers Deck to me and Republican Senate the entire 37]; ¶ 9-Tab Wolfson [DEV Deck Simon [DEV ODP0037-01171-72 personally”); 44]; ¶¶ Randlett 9-Tab [DEV 34-35 Deck referencing (correspondence 48] 71-Tab 32]; Murray191 ¶¶ 8-Tab [DEV 6-9 Deck and officeholders by federal solicitations 79-Tab 41-42 [DEV in Mariam Dep. ¶ 12 in RNC candidates); Shays Deck ¶ 8- 7 [DEV Exhibit A 58]; Deck Rozen192 person- general, 40]. 68-Tab [DEV ¶4 9-Tab Deck 33]; Simpson [DEV Tab of leaders high-ranking al involvement ¶¶ 7-Tab [DEV 32-33 38]; Deck Jordan component significant a Congress is 21]. money from and nonfederal raising federal and candi- officeholders 170. Federal ¶¶ Bumpers Deck 8-9 major donors. See for donations large nonfederal solicit dates ¶ 10]; 6 [DEV Deck Meehan 6-Tab [DEV (letter ODP0031-00440 parties. their ¶ 30]; 9-Tab [DEV Deck Simon 68-Tab RNC, that “I am stating to from donor ¶ 33]; 8-Tab 37]; [DEV Deck Rozen for one hundred a check happy deliver ¶ II, A 7-Tab [DEV Exhibit Deck Kolb you fulfills dollars thousand 25], friend my good I made commitment However, Director of Finance 171. him”); in a I sent letter Dole Bob “exceedingly it is the RNC stated (letter from contributor ODP0031-00821 federal of- rely on for the RNC rare” contribution, stating “Congress- RNC telephonic solic- personal or for ficeholders most [sic] Mclnnis deserve Scott man B. Shea major donors. See itations credit”), ODP0037-00882 the recruitment policy by RNC 17. She states that Deck from Senator McCon- (a letter solicitation Chairman, RNC Co- practice, and Corpo- donor at Microsoft potential nell Chairman, Chairwoman, fundrais- Deputy per- this ration, hope expressing major donor members ing staff or leadership role with a would “take son lobbyist as a worked Rozen govern- 192. Mr. Robert Murray as a served Mr. Daniel Wunder, GTE, and at the law firm Sprint, various interests specialist for for ment relations Diefenderfer, until 1995. from 1995 Corporations from 1982 & BellSouth Cannon Thelen companies, he of those Executive Director years, As' he has been the last six 1997. For until selecting can- their PACs them and assisted Washing- lobbying firm called partner a a sup- groups financial for didates and Counsel; Council Ernst- Washington now ton and funds. port in both nonfederal federal represents variety Young. Mr. Rozen & on the Dem- During period he also served association, non-profit, and corporate, trade DNC, the Ad- Council of the ocratic Business Congress and clients before both individual Leadership visory Council of the Democratic work includes Branch. His Executive Council, Convention and 1992 the 1998 DNC writing lobbying strategic plans, preparing Committees, the DSCC Leader- Selection Site complex is- papers, explaining difficult Circle, Com- Dinner ship DCCC Annual staff, drafting proposed legislative sues to Committee, mittee, Annual the RSCC Dinner for organizes fundraisers legislation. He also many House and steering committees ad- time-to-time federal candidates has acted campaigns. he Senate Since political contributions. vises clients for busi- government relations as a consultant ¶ 4 [DEV 33]. 8-Tab Rozen Deck Maria- Murray Aff. in and other clients. ness 59], ¶¶ni 3-5 79-Tab [DEV groups federal officeholders—under- ask of Congress members to raise money —not committees). take initial contact and solicitation of ma- for the jor donors of both federal and nonfederal 175. The DSCC maintains “credit” funds. Id. program that credits nonfederal money Republican incumbents raised and candi- Senator or candidate to that dates solicit Senator donations of federal and non- candidate’s party. state Jor- ¶¶ money 21], both dan Deck the NRSC [DEV 36-39 7-Tab *608 ¶¶ Vogel 25-28, NRCC. Deck 32 9- Amounts credited to a [DEV party state can ¶¶ 41]; 27-30, Tab reflect McGahn Decl. that the 33-37 Senator or candidate solic- 30]; (Victo- donation, [DEV 8-Tab ited the ODP0018-00137 or can serve as a donor’s ry sign ’96 Brochure outlining support tacit donor RNC’s the state party or ¶¶ programs and describing the uses Senate of Victo- candidate. Jordan Deck 37- ry proceeds JO, F, 21], ’96 and Presidential Tabs [DEV candidate G 7-Tab Dole’s funds); raising assistance these 176. Both the NRCC and NRSC are ODP0018-00139-41, ODP0018-00151-52 aware of which Members have raised (Victory [DEV 69-Tab ’96 solicitation 48] funds committees, for their may advise Dole). letters signed Senator Members of they amounts have raised. ¶¶ party “National McGahn Deck committees often 34-35 30]; [DEV 8-Tab they ¶¶33, feel need Vogel 41], to raise a certain amount Deck 36 [DEV 9-Tab money soft for a given election cycle. Similarly, although To the DCCC uses “no reach that overall goal, they may formal credit or up tally divide program,” it “advises potential donors by geography, Democratic House affiliated Members organization, or amounts DCCC, issue interests. The have raised for the particular committees ascribing which decide Members of Con- contributions to the gress fundraising should contact efforts of the potential these Member in ques- do- ¶36 nors, tion.” and these Wolfson Deck put [DEV Members then in a 9-Tab 44]; Thompson Dep. certain at amount call 28-29 [JDT time at the Vol. national 32], committee soliciting the money. A Mem- potential
ber and a donor may be matched 177. Federal parties of both candidates because the legislative Member is on a raise nonfederal money through joint fund- committee in partic- donor has a raising committees formed with national interest, ular whether economic or ideolog- ¶¶ committees. See Deck Buttenwieser 8- ¶ ical.” Randlett 32]; Deck 6 [DEV 8-Tab 11], 14 [DEV 6-Tab ¶ see Rozen Deck 33]; 15 [DEV 8-Tab 178. One joint common method Krasno Report and Sorauf [DEV 12-13 fundraising is for a national committee to 2], 1-Tab form separate joint fundraising commit-
174. The House Senate congres- tee with a federal A candidate committee. campaign sional committees and their joint fundraising committee collects and leadership ask of Congress Members deposits contributions, pays related ex- raise specified funds in amounts or to de- penses, proceeds expenses allocates specified periods vote of time to fundrais- participants, keeps records, required ¶33 ing. 21]; Jordan Deck [DEV 7-Tab joint discloses overall fundraising ac- ¶¶ Vogel 41]; Deck [DEV 32-33 ¶40 9-Tab tivity to the FEC. Wolfson Deck ¶¶ McGahn Deck 30]; 34-35 [DEV ¶¶ 44]; 8-Tab Vogel [DEV 9-Tab Deck 39-45 ¶ Wolfson ¶¶ Deck [DEV 35 (stating 41]; 9-44] [DEV 9-Tab Jordan Deck 50 DSCC, NRSC, NRCC, that the 21]; and DCCC [DEV 7-Tab Dep. Oliver [DEV in- activities other advertisements common the most Similarly, 1]. Supp.-Tab example, For elections. activity fluence fundraising joint NRSC method national joint testified separate Kirsch to form a Steve the NRSC is for regula- role important FEC Party played under Democratic fundraising committee candidate. money Senate soft Republican to donate decisions in his tions with ¶¶ running 39-45. that were Vogel groups Decl. interest “certain Vice- effort to elect in the ads effective officeholders ask often Parties Gore, NARAL. such as President who individuals money solicit soft funds would assumption was cam the officeholder’s out have maxed ¶ other activ- ads or some 38]. television 9-Tab [DEV Decl. used Simpson paign. ¶¶ in the 6-Tab a difference [DEV make 9-11 that would ity Decl. Bumpers ¶ 68- [DEV in RNC Kirsch Decl. 10]; Decl. election.” Meehan Presidential ¶ 12 A Decl. Exhibit Rec. 30]; Billings 23]; Cong. also Tab 7-Tab [DEV ¶27 [DEV 5]; Decl. Jordan *609 (1998) (Sen.Glenn). 6-Tab [DEV S1048 188 Dep. [DEV at 21]; Oliver 7-Tab for, donate raise funds Parties 182. to 2000 (pertaining 1] Supp.-Tab to, tax-exempt organiza- money nonfederal fund); So defense Bush/Cheney legal influence to funds tions, in turn use Republi in Report Colorado rauf/Krasno ¶ [DEV Decl. 10 Kirsch elections. federal 44]; 68-Tab can, [DEV 13-14 ¶ 9 8-Tab 23]; [DEV Decl. 7-Tab Marshall (fed 48] [DEV 69-Tab ODP0018-00620-21 28]. “recently he noting that eral candidate NRSC, RNC, and NRCC The 183. maxed out donors [his] to letter sent a to the NRCC”). donations nonfederal all made to contributions suggesting Committee, inde- an “max Life Right first to that donors prefer National parties The Republican can- money gifts before contrib that assists pendent group federal out” on ¶Decl. 8 money. Kirsch advocacy” activities. nonfederal uting “issue through didates stated, oneAs candidate 23]. 7-Tab First To Defs.’ [DEV Rt. Life Pis. Nat’l Resps. can you limit of what 5]; “[Y]ou 10-Tab 3 [DEV Interrogs., No. campaign,” but my to directly contribute 134- RNC0065691A, [DEV RNC0065691 campaign help my can further “you 3, Af- 101]. DEV Supp.-Tab DEV Tab Party.” Republican assisting the Colorado donation, then-NRSC 1994 ter the NRSC’s Fed. Republican Cam v. FEC Colorado The told Phil Gramm Senator Chairman 431, 458, 121 S.Ct. Comm., U.S. 533 paign party made that the Post Washington (2001) (quoting 461 L.Ed.2d would the funds it knew because donation from fundraising letter August specific Re- of several used on behalf be Allard). then-Congressman Senate, saying for the publican candidates Groups Nonprofit Political Parties provide to a decision... he had “made pro-life voters help money activate federal candi- some to parties and Political 180. cam- would nonprofit groups key states where with in some work dates 5975; Moreover, they have Id. at election.” paign pivotal activities. to the (letter for, non- directed money Tab 31] [IER raised nonfederal RNC also nonfed- and transferred Elec- money State federal National Republican from use in nonprofits for money to eral Defense American to the Committee tions $300,000 elections. of a notifying group Institute “non-federal from RNSEC’s donation di- party committees national 181. groups “efforts component” assist the money to nonfederal to donate rect donors living over- and inform Americans educate issue for broadcast interest groups certain ¶ responsibilities”); ¶ seas of their civic 3]; RNC Decl. 6 [DEV Chapin 6-Tab Deck 6 (three 0373370, 0373376, 12], [DEV letters to 6-Tab for Tax Americans Reform all dated in expert Defendants’ Green testifies October 1996 providing group parties “[n]ational ... transferred $1,000,000, $2,000,000, $600,000 donations large of money sums tax-exempt organi- in recognition of group’s “efforts to because, zations parties, unlike state these educate and inform the public”). American tax-exempt organizations are not bound allocation formulas that specify how much Right 184. The National to Work Com- money hard spent must be conjunction mittee “pays for its advertising from its money expenditures.” soft Green treasury, admits that [and] certain Mem- Expert Report at 17-18 n. [DEV 1-Tab bers or Branch Executive Officials have 3]. generally encouraged support financial and, Right Work cause Most specifically, committees that are orga- support for the nized to support oppose of NRTWC advocating ballot measures issues, 501(c)(4) California are organized for these through lobbying as well committees. Bowler states that virtually as issue advertising.” Resp. Nat’l Rt. Comm, all of the ballot measure committees RFAs, Work to Defs. First No. 17 engage California in activity that can be 2]; [DEV 12-Tab see also NRW-2812 characterized as get-out-the-vote activity (letter [DEV 129-Tab Congress- 2] under BCRA. Bowler Deck 30. man Pete asking recipient Sessions *610 meet with Right National to Work Com- 189. Most Congress Members of either personnel mittee in regarding the a formal leadership Commit- position, or aspiring thereto, “stop tee’s effort to Big Labor from his or her seizing own 527 group. November”). Congress Watch, Public Citizen control of Congress Congres- in sional Leaders’ Soft Money Accounts Show Congressman 185. Ric Keller signed Need for Campaign Bills, Finance Reform Club for Growth fundraising letter dated 26, 2002, 3], Feb. at 6 [DEV 29-Tab “For July 2001 which credited the Club for congressional leaders, groups 527 appear his own 2000 electoral success and assured to collect about as much money as their potential donors that their money would be campaign committees and often as much “help used to Republicans keep control of as their leadership PACs.” Id. at 9. Congress.” CFG00208-10 [DEV 130-Tab 190. ofMost the 527s in active ¶¶ 5]; see Pennington Decl. 19 [DEV politics promote exist to either poli- certain 8-Tab 31]. (which ticians Public “politi- Citizen calls 186. The 2000 Democratic coordinated 527s”) cian promote or ideas, certain inter- in campaign Eighth Florida’s Congression- partisan ests and in orientations election al District was funded primarily by EMI- campaigns. “Politician generally 527s LY’S List through its Florida Women’s serve as money soft arms of ‘leadership project, Vote though the DCCC Con- and PACs,’ which incumbents use to aid other gressional Chapin candidate Linda also candidates and otherwise further their own raised funds for it. Florida Women’s Vote careers. Like the campaign committees of gave money to Party, the State which then Congress, members of leadership PACs up set the coordinated campaign and hired can only receive money’ ‘hard contribu- the staff. EMILY’s List also some sent tions, which are limited in amounts and staff to assist in the coordinated campaign, may not come directly corporations which they also did in their other targeted or Politician unions. 527s use their soft races throughout the country. Beckett money mainly sponsor pro- events
850 Mon- Soft Watch, Leaders’ Congressional a ‘farm careers, help create own their mote Fi- Campaign Show Need ey Accounts local candi- and state of successful team’ 26, 2002, at 10-11 Bills, Feb. Reform nance ‘get-out-the-vote partisan dates, spur 3]. 29-Tab [DEV at 6. Id. (GOTV)’efforts.” include organizations or- 193. Section Member Many donors 191. contributed has CDP clubs. The political of influ- the intent with donate ganizations solely in engaged Pe- clubs example, For to Democratic elections. encing federal registra- voter early grassroots, in testified state-focused ter Buttenwieser activities. organiza- tion, $50,000 get-out-the-vote to a donated 2002 he organiza- ¶ Likewise, Democrats, ran broad- most of id. tion, Daschle Operation Sena- the CRP’s supporting in participating Dakota tions ads South cast organiza- the attacks response to are Section Bounty Program Tom Daschle tor Mr. him. against made Aff. 9. Erwin had been tions. do willing to “I was stated: Buttenwieser funded are groups 194. Interest attacks were I felt that because corpora- entities —whether persons Tim and Senator Daschle hurting Senator associations, advocacy unions, tions, trade as campaign well.” re-election Johnson’s (1) intensely like—that groups, ¶20 11]. 6-Tab [DEV Decl. Buttenwieser or set issue a particular about concerned (includ- industries Twenty-seven pro- political (2) issues; participate executives, individuals, associ- such ing like (3) others with cess; associate industries) contributed ated mind. year just single $100,000 more in contrast groups, interest 195. “Most These groups. politician top 25 relation- seek to build parties], [to of all percent for 52 accounted industries im- way as a officeholders ships with top politician 527s. contributions process legislative proving access contributing were: industries top 10 position. lobbying & invest- securities computers/Internet, *611 support science, strong empirical there firms, telephone utili- ments, lawyers/law allocate interest theory groups for TV/movies/music, air estate, ties, real pursue to ‘access’ primarily resources building tobacco, gas, and oil & transport, candidates they give to meaning strategy, corporate Top equipment. and materials office, to win likely are most who T, AT & SBC Com- included contributors (see, example, for incumbents usually the Morris, In- Mortgage munications, Philip 2000). howev- parties, Political Herrnson America, Clifford Companies surance for electoral strate- er, resources allocate and American Offices, Tobacco U.S. Law ato money they contribute meaning gies, Overall, percent of total only 15 Airlines. potentially who is in party candidate politician top 25 527’s to contributions Report Raja Expert La close election.” $5,000. less than in amounts came ¶ 14. and unions committees party Democratic subject less groups 196. Interest $100,000 top to the over contributed also parties. Unlike political than regulation fact, Democratic 527s. politician inter- example, special parties, DNC) were (mainly the committees required rarely been groups est politician contributor largest single receipts, their disclosure public (81 make per- money all of this Almost 527s. disbursements, activities. See donors, Black cent) Congressional to the went BCRA, ¶¶ 3, (prior to Decl. Beinecke193 Congress Public Citizen 527. Caucus ¶ 1. Deck Beinecke NRDC. rector Di- Executive is the Beinecke 193. Frances National Resources Defense Council did out a turned million additional black voters not have to file disclosure forms with FEC (over and increased numbers) turnout public disclose to the amounts donated among targeted groups by percent in ¶ foundations); Gallagher Decl. 15 (pri- York, New percent in Florida and 140 or to BCRA National Abortion Repro- Exam, percent in Missouri. See Cross (“NARAL”) ductive Rights League Action Green Exhibit 3. effort, The NAACP’s was not required to track whether it re- which cost approximately million, was $10 ceived persons donations from outside in large part funded by a single million $7 ¶ States); (Prior United Sease194 Decl. 11 donation by an anonymous individual. See BCRA, Sierra Club was not generally Exam, id. at 3; Exhibit Cross required report identity of individual McCain at 73-74. any donors to government entity); see also 200. NARAL’s Executive Vice Presi- ¶ Expert Keller Report 42 (stating that the dent, in 2000 NARAL spent million $7.5 political activities of interest groups “are and mobilized 2.1 pro-choice million voters. far less transparent than those of par- The group also made 3.4 phone million ties”). calls and mailed 4.6 pieces million of elec- Groups Compared Interest to Political ¶ tion mail. Gallagher See Decl. 24. Parties The Record Contains No Evidence of groups Interest engage voter Quid Quo Corruption Pro registration, identification, voter get-out- 201. The record does not any include activities, the-vote and lobbying of office- evidence that nonfederal po- donations to ¶ holders, Decl. Dendahl and witnesses parties litical have resulted in “actual” predict that under BCRA such activities quid pro quo corruption, such as buy- vote groups expand, interest will see Ben- ing. ¶ 11; nett Decl. 12; Benson Decl. Cross Exam, of Green 158-59. 202. There is no presented evidence the record that any Member of Congress groups Interest have increased has changed ever his her any vote on grassroots, mail, telephone direct legislation in bank, exchange for a donation of door-to-door mobilization efforts nonfederal funds to his or her increasingly distribute absentee party. provide Resp. ballots and See supporters of FEC to with trans- RNC’s First portation polls. Reqs. (con- Second Peschong Decl. Admis. at 2-3 Exam, ¶¶ 13-14; ceding evidence); Cross lack of Green at 21-22. Dep. McCain *612 (unable 171-74 to identify any of-
199. During the closing weeks of the in quid pro ficeholder quo corruption); 2000 campaign the NAACP National Voter Dep. Snowe (same); at 15-16 Jeffords Fund registered 200,000 over people, put Dep. (same); at 106-07 Dep. Meehan at field, 80 staff in 40,000 the contacted peo- (same); 181-83 Shays Dep. (same); at ple in 171 each target city, promoted get-out- a see Cong. also 148 hotline, Rec. (daily the-vote S2099 ed. ran three newspaper print 20, 2002) (statement March issues, Dodd) on ads of made Sen. separate several direct (“I mailings, never operated particular have of a banks, known telephone Sena- provided tor grants to affiliated whom I thought [sic] organizations. cast a ballot Exam, See Cross 15-20, of Green at because of a contribution.”); Exhib- Cong. 147 Exam, 3; it of Cross at 2001) McCain Rec. (daily 27, 70-72. S2936 ed. March reports (statement NAACP that the Wellstone) program (“I of Senator don’t Legislative Sease Deborah is the Director of the Sierra Club. Sease Decl. 1. of example a clear was that. This forget by any wrongdoing individual any of
know on the not way, their getting donors party.”). of either Senator just be- but legislation, merits former from other 203.Testimony I big contributors. been they had cause best, describe, at Congress Members that any question is not think there do the regarding conjecture personal their passed. it is reason this on money donations of soft impact 87]; ¶¶ and for- see present their 9-Tab [DEY 13-14 practices Deck voting Simon ¶ 10 Decl. Simpson n. See II, colleagues. 533 U.S. mer also Colorado not is thought first (2001); (“Too often, Members’ L.Ed.2d 121 S.Ct. believe, how but or right what (testify- is what 6] Vol. [JDT Dep. at Feingold all, Who, after fundraising. it will affect a Senator senior of 1996 the fall that in ing $100,000 do- that seriously contend can he that Feingold to Senator suggested one thinks way alter does nation amendment Express the Federal support is- on—an votes possibly quite about—-and $100,000”). us just gave “they because piper pay you don’t ... When sue? any that there the extent To will nev- you campaigns, your finances that which record in the evidence statistical piper. that money any more get er nonfed- that conclusion support would poli- milk of mother’s money Since or parties political eral donations that in situa- to be tics, want you never pro quid in actual has resulted committees tion.”). testifies Simon Senator candidates corruption of federal quo large contributors unusual It is not seriously officeholders, so has been exchange in favors legislative to seek proba- no it is of question into called example good A their contributions. value. tive mind be- my in out stands that which oc- recent stark so it was testified cause Green expert 205. Defense day of last next to curred valid studies statistically are no there Ex- Federal session. legislative 1995-96 do- between a correlation showing being con- a bill amend press wanted nonfederal) and (either federal nations Committee, to aby Conference sidered Cross voting behavior. legislative truck drivers of their coverage shift Exam, Indeed, Green at 58-61. Green Act Relations Labor National from the have studies “[s]ome acknowledged air- Act, includes which Railway to the at Id. correlation.” negative found even This was railroads. lines, pilots and Exam, Sorauf 54-55; also Cross Express, to Federal benefit clearly of means lack the (“political scientists reports published according to Exam, of things”); Cross ... such observe the last million $1.4 had contributed (some existing 18-21, studies 35-36 Bok incumbent Members cycle to 2-year money “that because erroneously assume million soft almost $1 Congress way, particular vote people who goes op- I parties. money to vote”). caused money must Caucus, the Democratic posed expert re- opines his Moreover, Green *613 legisla- good it if was that even arguing relation- on the “the literature port without tion, approved not be it should is money call roll votes ship between not cave should hearing, we holding is extreme- problem because the murky my senior of One special interests. statistically.” solve, one difficult ly said, of ‘I’m tired up and got colleagues Exam, Green 67-68. at Green of Cross special inter- always talking about Paul report expert in his explained further to who attention ests; pay got we’ve contributions between I will never buttering bread.’ “Correlations our legislative behavior cannot disentangle 2002 Annual Meeting of the American Po- whether contributions reward fealty, cre- litical Association, Science Boston, 29 Au- it, merely ate affect ideological affinity gust September), available at http://ap- —1 legislators between and their financial saproceedings.cup.org/Site/papers/022/ backers.” Report Green Expert at 24. But 022023StratmannT.pdf.2002. Green does note that corruption, whether While Some Federal Candidates Are quid pro quo otherwise, “redound[s] to Aware of the Party of Identities Contrib- the personal benefit of the candidate seek- utors, Others Are Not ing to win election.” Id. at 20. 207. Some federal candidates and of- 206.To the extent that there is any ficeholders are unaware of who donates presented statistical evidence support of money to either their campaigns, the par- the conclusion that nonfederal donations ties, or both. e.g., Feingold Dep. at legislative influence other actions such as (“Q: 115-16 How generally are ... Sena- voting, committee offering amendments, of, tors made all, aware if at the amounts or filibustering, so undermined and identities of soft money donors to the challenges to its validity that it has no national committees? Exam, A: I don’t know probative value. See Cross exactly that’s how done or how much it’s 55, 68-72, Green at 95 (noting that one done.”); (unaware Dep. Snowe at 223-24 study attempts to find such evidence fails to nonfederal RNC); take donors to lobbying other Jef- activities Exam, account); into Dep. fords Cross at 94-97 (generally Primo at unaware of 136-38, 142-43 (existing study’s nonfederal findings donors to DNC); RNC and are mathematically unsupported); Snyder (aware Meehan Dep. at 179 of few nonfed- Report Rebuttal at 7-9 (existing study eral donors to national party committees, flawed). critically expert Defendants’ and only because “from time to I time read Mann acknowledges that “[t]here is little who are in newspaper”); also, statistical evidence that campaign contri- e.g., Dep. Rudman (unaware); at 76 Wirth butions to members Congress directly Dep. (unaware); at 66-67 Dep. Hickmott affect roll call their Party, decisions: ide- (noting 66-68 Deputy Chief ology, constituency, public mass opinion Staff former Senator Wirth he un- was president and the correlate much more aware who donated nonfederal funds to with voting behavior in Congress than do committees). national party PAC contributions.” Expert Mann Re- Others, however, not only ac- port 1]; [DEV 1-Tab Expert Milkis knowledged their own awareness but their Report (political II41 parties reduce the belief that other federal officeholders and quid pro risk of quo corruption by provid- candidates are typically aware of who do- ing “protective layer of decision makers nates to their campaigns and to par- donors”). between candidates and How- Indeed, ties. one Member of Congress ever, he notes that “[w]hen these variables suggested that he did not know the identi- are significant, less there is evidence that ty of contributors to his because he contributions, interest group particularly made a conscious effort to remain un- junior members of Congress, have influ- ¶¶ Bumpers aware. Decl. (explain- enced roll call votes—for example, on fi- ing that nancial officeholders parties of both regulation.” services Id. at 32-33 aware of (citing Stratmann, identities, Thomas contributors’ Can Special In- and that terests Buy he Congressional had “heard that Votes? Evi- some even Members dence from Financial keep Services lists Legisla- big donors in their offices” *614 tion). Paper (prepared for delivery at the and that “you cannot be a good Democratic
854 funds that the sources ally aware not be and Member Republican good or a support party If the committee enabled party. to the money gave of who
aware Decl. Simpson $50,000 the campaigns.”); Senator gave their Arkansas someone ¶ would “[p]arty know leaders certainly that (explaining example, I would DNC, for ¶ 6, who meetings Rud- Decl. at caucus Rudman that”); Members inform Senator while that tell (explaining If the 75-78 leaders at were. Dep. big man the donors contribu- identity of has group know the person he did not a certain that you mon- or soft hard “either and will party who donated tors to the large sum donated “probably” RNC RNC, the that ey” to the be night, you’ll Saturday an event and that information him provided person the to know get and to attend sure office, [admin- the the came to they “if that if some .... Even the donation behind probably them and took assistant] istrative events, they these attend did not members explains also Rudman read them.” large gave donors knew which all still are the ones Congress sitting Members who donations, publicizes party as dona- party federal and raising nonfederal ¶ 6 Decl. what.”); Boren Senator gives de- committees tions, party and who knows Senator that “[e]ach (testifying which contact should donors cide be- are” to the donors biggest Cong Shays, 148 members); Congressman hand their prefer to often “[d]onors cause (2002) that “it’s (recognizing Rec. H352 checks to money contribution] [nonfederal surro- and their themselves candidates lobbyist their personally, or the Senator candi- money. The soft solicit gates who large donation that a informs Senator huge contri- these makes who dates know ¶ (“Leg- made.”); Decl. just McCain was expect”); donors what these and butions who parties often know of both islators ¶ (“Information about Decl. Randlett par- to their money contributors large soft given travels have money donors soft what who are, legislators those particularly ty ways. in different Members among the money,” “[d]onors and soft have solicited who solicited Member Obviously the particular inform a lobbyists often their know who also Members money knows. large dona- made a they have Senator major donor various involved with ¶¶ (explaining tion.”); 25-28 Decl. Vogel retreats, attend, such as they events which potential lists distribute that the parties And there calls. conference and meetings can they so that incumbents donors about among Members is communication ¶¶ 21, 34- donations); Decl. McGahn solicit money and donations soft who has made ¶¶ 20, 25-28 (same); Decl. Jordan this is given, and they have what level ¶¶ (same); 21, 28-31 (same); Decl. Wolfson by the and understood widely known ¶ 49; ¶¶ 58; Decl. Wolfson Decl. Jordan staff.”); Decl. and Wirth Members 117-18; Decl. Andrews195 Dep. at ¶ (“[Candidates Josefiak gener- were Exhibit A throughout the nation attorney clients from senled abroad, is an Wright Andrews 195. Mr. corpo- major included But- Washington, D.C. firm of lobbyist at the coalitions, associations, rations, Andrews, trade government specializing in &era worked He has governmental entities. state legislative representa- and federal relations array includ- of issues on a broad with clients lobbyist before active tions. He has been taxation, matters, time, ing he environmental Congress Prior since 1975. services, housing, and banking, financial then Legislative Assistant served as Chief terms as two many He served has others. Prior Sam Nunn. United States Senator Lobby- League of Andrews, American President he worked Butera & forming ists, magazine him Washingtonian named Washing- practice at the government relations Lobbyists.” Top Sutherland, “Washington’s one Asbill ton the law firm office of 1]. 6-Tab career, [DEV Decl. 1 repre- Andrews has During his he & Brennan. *615 ¶ 14; Letter from RNC Chairman Jim Ni- the Chair of the party committee, who Fisher, cholson to Donald August will in turn make sure that the check (copies to House Speaker Gingrich, Newt reaches young the staff member. That Majority House Leader Dick Armey and way donor, the check, with one gets Congressman John Linder (stating “I ap- “chits” with multiple Members of Con- preciate your interest us hold helping gress. onto our majority in the House.... I can Hiekmott Decl. 9. you tell every single of your dollar contri- There is No Probative Evidence That bution go directly will into Operation National Parties Use Nonfederal Dona- Breakout you .... If your will make check tions to Induce Federal Officeholders to (which out can be personal or corporate) to Support Oppose or Legislation Republican National Committee and annotate for Operation it I Breakout will probative There is no evidence personally Newt, show a copy of it to Dick that parties national have attempted, Armey and John Linder. Please feel free through use of donations, nonfederal to accompany it with a transmittal letter get federal to change officeholders containing any other message you position on legislation. Senator Rudman choose.”)); Senator Feingold Dep. 115 testifies that the RNC never asked him to (explaining that he while does not know particular take a position because a donor how Senators are made aware of the iden- had contributed soft money to party. tity of donors of nonfederal money to na- Rudman Dep. at 77-82. Senator McCain parties, tional it is because he “made real testifies that “there many times where effort to far away part from that of the Republican National Committee tried process so [he is] not privy to or aware of to change my votes and other votes of exactly how that’s done and to what extent Republicans other ... Republican [T]he done.”); it’s Congressman Dep. Meehan at National Committee constantly weighs in 178-79 (explaining that he was unaware of on legislation before Congress the Democratic National Committee’s “tal- States,” United Dep. 171-72, McCain lying” process, by which the amount of but he also “knoyr states that he does not money the spends DNC on a particular [if was] for exchange donations or candidate is related amount of non- not”. federal money that candidate raised for probative There is no evidence in DNC, however, that he was “probably the record which suggests national one of the people last that they would let support committees or sup- withhold know about the tallying process”). One port from federal officeholders based lobbyist, official, and former DNC ob- See, their voting records. e.g., Vosdingh served that (FEC Dep. at 89 of any unaware national [W]hen one of my clients is going to party committee using nonfederal funds to make a donation to a federal candidate induce federal to support officeholder party, hard or soft money, I advise oppose specific legislation); Mann Cross them on the manner they Exam, (“I at 118-15 should would be if do that. I shocked tell them just not [the RNC] send the ever did a thing.... check such party committee, to the [T]he point is to example, seat, win margin to the young staff control member who is collecting majority party, the checks: Instead I weaken my tell clients potentially should personal- vulnerable candidate.... It ly give the money ato Member of Con- would be self-defeating. That isn’t how it gress who then give works.”). can money *616 con- has donor money that the of amount and Access Relationship Between The any reject to and party; to the tributed
Donations a obtaining on is conditioned that donation substantial contains The record 211. at Id. officeholder. with meeting fed- of both that donors evidence probative however, exam- includes record, 46. The parties donations to nonfederal eral and aby national provided of documents ples access, amount the both greater receive contri- a link between suggest party which officehold- federal with they spend of time of occurrence and party the to the butions with priority in the and ers e.g., leadership. See party with meetings comparison are accorded interests 48] 70—Tab [DEV to 57 ODP0025-02456 ¶ 14; Decl. Bumpers See nondonors. Lead- Majority (RNC asking Senate Chair ¶ 9; ¶ Sena- 6; Decl. Boren Decl. McCain gener- “loyal meet with er Dole (1998)); (144 S1048 Cong. Rec. Glenn tor Pfizer); [DEV RNC0044465 of ous” CEO ¶ of (the message overall Decl. Shays a (RNC asking establish employee 93] former current of these statements “gen- for Dole’s office in Senator contact expecta- is that officeholders federal contributor); ODP0030-03512 RNC erous” has or she he is that donor tion of (notes RNC of 71—Tab 48] 13 [DEV contri- of his by virtue needed when access take he stating will Nicholson soft often Chair Jim give bution, donors that Trent Senator with for an up a donor’s issue invitation to an response money Lott). ac- face-to-face allow them will that event officeholder); also see a federal cess with RNC’s a review the upon Based 213. that he (stating Decl. Simon Senator Director, files, RNC’s Finance donor the tele- return to first likely
was more during each Shea, testifies Beverly than campaign to his of a donor call phone RNC receives cycle election two-year donated, and that not had who someone from con- requests more than no —most large give those who for access increased meetings funds —for tributors federal fair to is not party contributions B. See Congress. of the with Members contribu- give afford cannot who those ¶ 45. Decl. Shea all). tions at and officehold- candidates 214. Federal The RNC donors held for appear at ers events Bev- Director RNC’s Finance for donors well as funds as federal does RNC that the erly testifies Shea 22; also at See id. funds. nonfederal offi- government meetings with arrange and Second RNC’s First FEC to Resp. of non- its donors—federal any of cials for (conceding 4-5 Admis. Reqs. for attempts a donor whenever federal —and attend nonfederal donors both federal obtaining such a donation to condition all six and that party fundraisers rejects the donation. meeting, RNC committees’ major national ¶44. main- Ms. Shea Decl. B. Shea of do- types open to both fundraisers Division, “[a]s Finance that the RNC tains nors). requests along passes policy,” a matter Donations Regarding Evidence Statistical a federal meetings with donors Access schedul- to that officeholder’s officeholder sup- evidence statistical No valid pur- into inquiring “without ing staff dona- nonfederal the conclusion ports to “neither meeting”; proposed pose to federal access any different tions secure wheth- ascertain meeting nor to advocate Experts and officeholders. candidates to not arranged”; been meeting er a has agree the defendants and for plaintiffs scheduler the officeholder’s provide to there exists no study valid linking sions as to who [he] give[s] meet[s] types of donations and “access” or “legis- to”); access Dep. Meehan at 180 (stating Exam, lative effort.” Cross Defense provides he preferential no access to non- Expert 69-72 (existing Green stud- Exam, donors); Cross of Shays at *617 fail ies to control for effect of lobbying ex- 20-21 that, (acknowledging like con- most penditures and are not “statistically gressman, “pretty he much open [has] an sound”); (studies id. at 95 make no effort door policy to meet people who want to to “track access specifically”); Krasno & talk to [him] about important legislative (“[T]he Expert Sorauf Report at 5 absence issues”). systematic data prevents on access ... Lobbyists, Former Members Congress, political scientists from searching for rela- Leaders, Business and Donors Believe tionships between access policy-mak- and that Money Donations to Parties In- Soft behavior.”); ers’ Expert Report Primo crease Access to Officeholders 8-9 (noting only “scant evidence Lobbyist political Robert Rozen science testifies: literature that money se- cures access” stating and that I existing lit- know of organizations who believe that flawed); erature is statistically see also to be treated seriously in Washington, FEC, RNC v. Civ. No. 98-CV-1207 and I mean that to player be a and to (D.D.C.) (Herrnson Dep. at 300 (testifying access, have you need give to soft mon- on behalf of FEC stating and that existing ey. result, As a many organizations do studies on “access” are “kind of weak and give soft money. While some soft mon- wishy washy”)). ey is given for ideological purposes, com- Federal Are Not More Like- panies Officeholders and trade associations working on ly to Meet With Donors Than public policy for the part Nonfederal most give to Federal Donors pursue their economic In interests. cases, some that might
216.The limit defendants have their submitted contri- no probative evidence butions to one party. federal officehold- More of- ten, ers are likely more to they meet with give nonfeder- to both. They give soft al donors than with federal donors. money because they believe that’s what fact, legislators certain testifying helps establish better contacts with case stated that they do personally Members of Congress gets and doors provide special access to individuals or cor- opened when they want to meet with porations provide large contributions Members. parties to upon based whether the dona- ¶ Rozen Decl. 33]; 10 [DEV 8-Tab see also tion was federal or nonfederal. Resp. ¶ 14. id. of FEC to RNC’s First and Reqs. Second Lobbyist Daniel Murray’s testimo- Admis. at (conceding lack of evi- ny prior case, in a which incorpo- has been dence); (“I see also Feingold Dep. at 116 rated case, into the records of this states cannot imagine a situation where ... I “contribution soft money ... has would meet somebody they because proven provide to excellent access to fed- gave money.”); soft Dep. Snowe at 210-11 eral officials and to candidates for federal (stating she has given preferential never elective office. Since the donor, amount soft any access to nonfederal, federal or money individual, that an corporation and that “[everybody has my to access office entity may other limit, the extent I contribute has no time avail- able”); Dep. money Jeffords soft has 96-97 become the (stating favored meth- person’s status as a par- donor to of supplying political national od support.... [S]oft ty committee does not “affect deci- [his] money begets both access to law-makers to the Senator’s tributions provide groups —to membership and inter- in- matter position on adopt opportunity access greater ever pressed Mariani Aff. in Murray Senators est to them.
fluence.” legisla- introduce 59]. [DEV 79-Tab their benefactors legis- to block tion, legislation, to amend “By explains: Rudman 219. Senator in a legislation lation, to vote world, including the business large, unions, money gave says: “We way. No one gives certain corporations help believe us.’ [because] ... do this parties you should money so for such solicitations they decline that if perfectly it—it say No one needs offi- appointed contributions, elected every participants by all understood *618 worse, or, that views their ignore cials will meeting. such do make who interests competing business ¶ 7. Id. question in to the large contributions influencing legis- in advantage an will have Greenwald196 Gerald 220. Chairman decisions. government other lation or corporations and unions that some testifies of cases preponderance in the true same is to money contributions large soft give $50,000, give individuals wealthy where po- both to parties political to politi- even more $250,000, or $100,000, —sometimes afraid they are Rud- parties money donations.” litical in soft parties cal —because 34]; ¶ also see do not They 8-Tab unilaterally [DEV Deck disarm. man to ¶ sitting members that (stating enjoy id. to alone competitors their want these entities money from raise Congress large soft with that come the benefits to large sums contribute they that knowing and access namely, money donations: ac- such to achieve in order parties Though a soft Washington. influence in that cess). states Rudman also Senator to a made out might be check money large give who interests [s]pecial lead- and business party, labor par- money to soft amounts open checks that ers know those objectives. their fact achieve in ties do and of individual offices to the doors Sitting Sen- special access. get They do Congress and Members important have limited Members House and ators Administration, oppor- donors giving time time, they make but amounts or corporation’s for their tunity argue to with to meet schedules in available their statute, particular on a position union’s and unions of business representatives ac- governmental or other regulation, large gave who wealthy individuals and be- leaders and business tion. Labor are not These parties. their sums experience lieve—based philosophy about the idle chit-chats gives access such good reason —that meetings, these these democracy. shape and affect opportunity them an interests, accompanied often special their decisions governmental officials—Sena- elected press lobbyists, the fact from do so derives ability to money from raised tors who either of mon- large sums given have they who bene- question in special interest ey parties. their con- indirectly from directly fit that, was vice chairman he Prior to United. currently Chairman Mr. Greenwald at Ford Airlines, Corporation worked largest Chrysler em- at of United Emeritus ¶ 2 company [DEV Decl. Company. United Greenwald majority-owned ployee Motor through his retirement States. From 1994 16] 6-Tab and CEO as the Chairman he served ¶ 16]; Greenwald Decl. 12 [DEV 6-Tab campaign finance reform. I used the ¶ also Greenwald Decl. 10 [DEV 6-Tab opportunity to talk to the President 16]. about how the campaign system finance
“[L]abor business regu- leaders are country had crisis, become a larly advised that —and experience argued that the provided crisis op- directly confirms organizations portunity for the President that — to provide large soft money make donations some leadership. I don’t think that we political parties in fact do get preferred got leadership I was seeking on the government access to officials. That ac- campaign issue, finance Ibut did get the cess gamut runs the attendance chance to make a personal pitch to the events where opportunities President as a my result of donation. present points of view informally to law- Hiatt Decl. 9[DEV 6-Tab 18]. Hiatt tes- direct, makers private meetings in an tifies that others attendance also shared official’soffice to pending legisla- discuss their views on policy matters of impor- tion or government regulation tance to them as the event was advertised company affects the or union.”. . as an opportunity to “give advice to the Individual donor Peter Butten- president.” Dep. Hiatt [JDT 119-21 *619 wieser testifies: 10]; ¶ Vol. see also Hassenfeld Decl. 12-13 Events, meetings and briefings held for (“[W]hen [DEV 6-Tab given 17] the oppor- soft money provide donors opportunities tunity, some donors try to pigeonhole or for the donors to speeches hear and Members, corner in diplomatic a less than engage policy in with discussions federal way, to discuss their issues at these office holders. There is also a certain events.”); ¶ Geschke Decl. 5 [DEV 6-Tab amount of politicking and lobbying (testifying 14] that in connection with these events. This is true particularly $50,000 in donations made to the he DNC in the discussions, side in which donors and his wife attended a dinner of 10 to approach can office holders and discuss people with President Clinton “lastfing] their issues. hours, two or three and consisting] pri- ¶ Buttenwieser Decl. 25 [DEV 6-Tab 11]. marily of a conversation about issues Arnold Hiatt testifies that importance to the nation and the Presi- $500,000 [A]s my result of soft money dent’s program”). DNC, donation to the I was offered the 222. Evidence shows party leaders chance to attend with events the Presi- have in some instances direct facilitated dent, including events the White communications money between soft do- House, a number of I times. was of- nors and officeholders on certain policy special fered access as a result of the A matters. handwritten note dated Octo- made, I contributions had though I gen- 27, 1995, ber from RNC Haley Chairman erally never took advantage of that ac- Barbour asks Senate Majority Bob Leader cess. One event that I did attend awas Dole to meet with Pfizer, the CEO of dinner Mayflower at the Hotel in Wash- member of the “Team RNC’s 100” soft ington, D.C. in approximately March money group, donor to discuss an exten- 1997 with President Clinton and Vice- sion of the lucrative Section 936 tax credit: President Gore. The dinner was for the Dear Bob
largest DNC, donors to the about thirty people. I did plan Steere, not on Bill Pfizer, attending CEO but has asked to I went because several people urged you see me on Wed. He extremely 11/1. to use occasion speak to loyal favor generous. and He also long- is not high technol- to the future important and so business tend his He’ll
winded. the dinner noting that pro- and They ogy” time. up extra eat event, all and § 936 annual prestigious ] Code Revenue “most a [Internal posed House the U.S. Wil- Senator members [Republican Republican solution attendance”) Congress- [Republican [DEV bewill Roth Senate liam] considering. I’m testi- Wirth Archer Former Bill] man Senator 41]. 9-Tab appreciate I’d issue. that is sure fies: Bill, Haley. [signed] you’d if see campaign com- national The Democratic 48]; 70-Tab [DEV to 57 meet asked me ODP0025-02456 sometimes mittees from John letter July I also whom donors large with (reminding addressee] to [redacted Palmer re- party’s At the before. had not met him asked Palmer had addressee I under- donors. with the I quest, met noting that Team RNC’s join the making goal in the donors’ stood Team new escorted Barbour Chair RNC oc- was often large contributions Lupberger Energy CEO member other me or with meeting(s) casion “very sig- that were appointments on four congressional Democratic prominent companies affecting legislation nificant” legis- on positions press their leaders his him “a hero in made like his occasions, some- these On lative issues. 70-Tab [DEV industry”); ODP0023-02043 would the donor knew about all I times 97], [DEV 48]; RNC0240565-RNC0240566 was interested. he the issue upcoming (discussing an year] Sept. [no 9-Tab 15 [DEV Exhibit A Decl. Wirth Bristol-Myers requested meeting (note written 95] 43]; [DEV RNC0177216 its consider- in connection Squibb, Director, Team 100 stationery of RNC’s Pass” “Season the RNC’s joining ation of *620 pretty Barbour, “they have stating Haley atten- program; scheduled donor major They T-100 .... join to decided much major representatives included dees Their players.... to access want companies and “Active pharmaceutical reform”); RNC0044465 tort top issue is Bristol-Myers 100 members” Team Barnes (Memorandum Tim from 93] [DEV Pfizer; Wellcome, the and Glaxo Squibb, noting that Roth Royal to the RNC particularly group is “This stated: memo Capital Management Moore from someone proposal House’s in the White interested in a contact establish “trying to been had to drug benefit prescription to add a Bacon. As for Mr. Dole’s office Senator vehemently op- They program. Medicare Capital know, Moore [of Bacon Mr. you a million- helping fund to and are pose it to very generous has been Management] and July began campaign dollar you can any Flo, way there RNC. If who named woman an older features appreciated.”). my assist, greatly would declares, T want bureaucrats don’t ” in- The memorandum cabinet.’ medicine That In- Show Programs Party Donation di- Point” the “Key Talking as a cludes Larger Corresponds With Access creased it is how crucial know them “[l]et rective Donations elec- support this we financial show documents 223. RNC D at Vogel Decl. Tab see also cycle”); tion ac- greater offer programs donor RNC’s (draft chair- letter 066-000009 NRSC as the dona- office holders to federal cess Technology and NRCC men of NRSC level the highest larger, with grow tions Technology inviting High Committees offered access most personal and Republican House-Sen- the 1998 CEOs donors. money ODP0018- largest soft industry’s your response “to ate Dinner (RNC Bro- 48] 69-Tab 36 [DEV cutting edge issues a voice on plea for chure “Donor Programs”); see also Resps. Republican Party leadership throughout RFA’s, RNC FEC’s First No. 62 [DEV year, special events, membership in 12-Tab 10]. The RNC offers its donors the Eagles program, the opportunity to range of donor different programs, a participate in international missions, trade range of different donor financial levels and other ODP0025-00377, benefits. and interests. ODP0025-00375 79 ODP0025-00424, ODP0025-01705 to 13 [DEV (“Summary 48] 70-Tab of RNC’s [DEV 70-Tab The 48]. Season pro- Ticket Programs”). Donor The RNC President’s gram required a $250,000 donation of upon required $1,000 Club annual contribution joining renewals thereafter. and offered at least one meeting per year, ODP0022-03045-46, ODP0023-02480, which policy included briefings and discus- ODP0025-01569 [DEV 48]; 70-Tab led by Republican sions congressional and ODP0030-03408 [DEV 71-Tab 48]. The other leaders. Id. at ODP0025-00375. “Season Ticket” or program “Season Pass” The Chairman’s Advisory Board required offered greatest and most exclusive $5,000 money annual hard contribution range of RNC program donor benefits, and offered a “vigorous and informal ex- including one Team 100 membership, two change of among views Board members Eagle memberships, special to a access leaders.... Board meetings in- range Republican events, Party and the clude three or panel discussions, four each assistance of RNC support staff. chaired a Congressional leader or sen- ODP0025-01569 [DEV 70-Tab 48]. policy ior particular adviser with expertise 224. The NRSC offered major several in the area under consideration.” Id. at programs. donor In 1995 and ODP0025-00375 to 77 [DEV 70-Tab 48]. NRSC offered a corporate donor program According document, to the the Chair- called “Group “G21,” 21” or required Advisory man’s Board was established “to annual $100,000. donation personal enlist the energy professional ODP0037-02246, ODP0037-02275, expertise Republican leaders business ODP0037-02281 [DEV 71-Tab 48]. The community affairs in developing policy “Group 21” program offered donors “small campaign strategies at highest dinners with [then-NRSC Chairman] Sena- levels for party.” Id. Republican tor D’Amato and other senators” and other Eagles required an annual contribution of *621 “VIP benefits.” [DEV ODP0037-02275 $15,000 (individual) (with $20,000 or spouse 71-Tab 48]. The Chairman’s Foundation corporate). or Id. at ODP0025-00377- required an annual corporate (meaning 0378, ODP0025-00429 [DEV 70-Tab 48]. funds) nonfederal $25,000. donation of Eagles The program offered a series of ODP0036-03603 [DEV 71-Tab 48]. The national regional and meetings with elect- Senatorial required Trust an annual dona- Republican leaders, ed congressional spe- $10,000 (cor- tion of (personal) $15,000 or events, cial access to Republican and other porate). ODP0036-03873—74 [DEV 71- benefits. ODP0025-00428 [DEV 70-Tab 48]; 48]. Tab The Presidential ODP0030-02838 -39 Roundtable re- [DEV 71-Tab quired $5,000 an annual 48]. The donation of Team 100 program required a $100,000 personal or corporate upon donation funds. ODP0037- joining and ev- ery fourth year thereafter, 48]; $25,000 [DEV 71-Tab with see also (letter required donations ODP0036-03525 signed each of the by three Senator intervening years; ODP0014-00983, McConnell to NRSC asking member him to ODP0014-01457 58 [DEV 69-Tab to renew membership, 48]. his noting that Team The program “[y]our offered members non-federal contribution to the national regional meetings with the Chairman’s will put Foundation allow us to 48]; 70-Tab [DEV ODP0023-3288 the Comm.” directly towards dollars our Lev- Leadership 2000 RNC Gala desper- see also they are where campaigns, Senate 92]; 2000 (letter undated, els, [DEV RNC0022509 needed.”); ODP0036-3562 ately Forms, April ad- Attendance thanking RNC McConnell by Senator
signed (filled by out Mi- 97] [DEV Foun- the Chairman’s RNC0236323 joining dressee seated (letter to be signed requesting attendee crosoft dation); ODP0036-03595 “Leadership or to soliciting particular someone Senator with McConnell Senator Comm, Foundation); Judiciary”); RNC Commerce Chairman’s join brochure) (NRSC 0032805-32806, 92] [DEV RNC ODP0037-01861-69 ¶¶20 48]; Vogel Burger King Deck Chairman (request 71-Tab [DEV $100,000 their federal reached who donated 100 member Team (“When donors limit, may Thompson encour- the NRSC Fred with Senator to be seated contribution Senators, donations additional and document make three other them age account.”), placed at Thompson was nonfederal showing Senator NRSC’s (2002 table). Senatori- 41] 9-Tab Judith A, PhRMA’s King Burger [DEV J Tabs materials). the five Members Trust testified al Bello options for as listed that PhRMA Congress Forum Congressional NRCC table at at its to be seated the “VIP” an give its members designed to “has been dinner House-Senate Republican develop work- setting stronger intimate responsibility had all Members who were Republican the new relationships with ing importance oversight over issues majority,” ODP0042-01226 Congressional Dep. industry. Bello pharmaceutical 48], and the “benefit 71-Tab [DEV 1]. Vol. [JDT at 82 are the din- members most Forum attracts and the Chairmen Committee with ners used appear to have parties 227.The from each Commit- members Republican vari- promote their opportunities such 48]; 71-Tab [DEV OD00042-00028 tee.” example, a letter clubs. For ous donor (CDP bro- [DEV 106] also CDP see Congressional of the the' chairmen who that those contribute showing chure to the sent a letter the NRCC Forum classified to the CDP $100,000 Lawyers of America of Trial Association “Trustees,” the CDP Fo- upcoming Congressional an regarding extraordinary supporters its “recognizes Dinner, in which rum Chairman’s extraordinary opportunities,” with excel- give you event will “[o]ur wrote: brief- “[e]xelusive “Trustees” provides Mem- to meet with opportunity lent officials meetings with receptions and ings, dis- [Judiciary Committee] bers Feinstein, Dianne as U.S. Senator such organization.” your relevant to issues cuss Boxer, Lt. Governor Barbara Senator 48]; U.S. 71-Tab [DEV ODP0042-00025 Davis, Connell Controller Kathleen *622 Gray (memorandum to all also ODP0042-000654 figures.”). national and other from the members Forum Congressional chairmen, upcoming of an informing them contribu- shows that The evidence Banking featuring members dinner law- to be seated with certain request tors Committee, event will noting “[o]ur donor events. For exam- at these makers meet opportunity excellent to you give List” Buyer’s Guest an RNC “Table ple, to committee discuss members of the Republican “The Official 1995 sheet organization”); your relevant to issues Bank- out “Am. Gala” filled Inaugural ¶ (testify- 13] 6-Tab [DEV Decl. 8 re- Fowler Bank” contained a er’s Ass’n/Nation’s government officials “[p]arty and ing of Con- with certain Members to sit quest large contributions raising Banking participate on House “anyone gress interests have matters pending a contributor whose company just gave a before agencies, Congress, Executive large contribution your political party. government and other agencies. Party of- Rozen Decl. [DEV 8-Tab 33]. ficials, who are not themselves elected of- 229. Some evidence shows the connec- ficials, offer large money oppor- donors tion between large donations and access to tunities to meet with government senior elected officials as being even more direct. officials. Donors opportuni- use these A call prepared sheet for then-DNC Chair ties—White House and congressional Fowler him instructs to call a number of meetings press their views on matters —to large givers donations, ask for and invite pending before government.”); RNC them for (note lunch with the President of [IER Tab 7] from the di- (“POTUS”). United rector of States RNC’s Team 100 program DNC 113- thanking a donor for (“Ask “facilitating [DEV Dow 134-Tab 7] her to generous [Chemical]’s contribution to give 80k more this year for lunch with Republican Party. It’s a timely donation 27th.”) (“Ask Potus on October him to as we head into the final hours the write another 100K to become a Managing campaign. me a Give call ... and we can Trustee for the campaign and come to figure out when is a good time bring 27.”). lunch with POTUS on Oct. A CDP your Dow leadership [Chemical] into town call sheet entitled List, “Child Call 5/16/96” to see [RNC [Barbour], Chairman] Haley includes the notation that potential donor Majority [Senate Leader Robert] Dole & should be asked “if they might be able to [Speaker of the Newt [Ging- House] $25,000 do for a small mtg with the Presi- rich].”); (let- RNC 0194817[IER Tab l.E] dent, you know steep, it’s but want ter from pharmaceutical RNC to a compa- include them in types these of meetings.” ny asking company opinion for its CDP 00124 [IER Tab 11]. suggestions on the enclosed RNC “health Donors Make Donations to National package” care $250,000 and a donation to Expectation Parties With the of Build- join the RNC’s Season program). Pass ing Relationships Receiving Access 228.According to lobbyist Robert Roz- en: Lobbyists Believe That Donations Will money
[S]oft contributions built around Enable Donors to Establish Relationships sporting events such as Super Bowl With Officeholders or the Kentucky Derby, where you Lobbyist Robert Hickmott testi- might spend Member, a week with the fies that he advises his clients to make are even more useful. At the events contributions in order “establish rela- that contributors are entitled to attend tionships. Having those relationships in as a contributions, result of their some many ways helps then get us meetings and subtly contributors will or not-so-subtly continue that relationship.” Hickmott legislative discuss a issue that Dep. at 50 [JDT Vol. 10]. Hickmott testi- an interest in. Contributors also use fies that when Senator Robb was chairman the events to establish relationships and of the DSCC he go would to the DSCC then take advantage of the access offices where he “accept would checks later calling the Member about a legisla- from individuals organizations tive issue who or coming back and seeing the *623 wanted to give money Member in to his or her office. DSCC and Obviously from they the Member’s wanted face perspective, time with Chairman hard to request turn down a for a Chuck Robb.” Id. at meet- 94-95. Donors would ing you just after spent a weekend with “use this as an opportunity not only to Former Federal DSCC, also Current and but to the a contribution
make Officeholders to Es- Expect Acknowledge That Donors what their Robb convey to Senator to Ac- and Obtain Relationships With tablish on an position was or individual group Deck cess to Federal 95; Hickmott also Id. issue.” Officeholders ¶ is a (stating “[t]here that A. Exhibit federal current 233. Some former and who con- of contributors very rare strata ex- that donors acknowledge officeholders DSCC to the be- amounts large tribute with office- relationships pect to establish in Democratic actually believe they cause nonfederal do- for their in return holders those who majority of .... politics parties. Senator the national nations to parties do so political contribute to ¶ people (testifying that Bumpers Deck 13 influen- reasons, access to gain to business feel party committees money to give that get and to to Congress tial Members themselves” “ingratiating they are that Members.”). know new who solicits the federal officeholder with ¶A. 5 donation); Exhibit Deck Wirth explains: Andrews Wright As made con- donors who (stating those that particu- political Sophisticated donors— al- “almost to the state tributions directors, and other PAC larly lobbyists, expected that the they ways did so because spe- behalf of acting on insiders my support cam- would contributions groups interest cific —are that, expected “they generally, paign,” and money their dispensing business remember would [the Senator] that or charitable ideological purely on ¶ 5(a) contributions”); (testify- Brock Deck Rather, political donors these grounds. they have a ... feel ing “contributors wisely invest their trying to typically are they contribute ... officials”when ‘call’on return. maximize resources ¶ (tes- Deck 8 money); Boren soft Senator up show one do not Sophisticated donors “first hand he knows from tifying that contribution, hoping for day awith with interactions experience and from [his] Instead, day. vote the next favorable feel beholden other Senators relationships. longer term they build donors.”); Simpson testifies large Senator convey to the mem- seeks The donor give “to to someone who groups used is a friend and he or she ber that now philosophy,” but your “[fit’s was for help can trusted who be supporter and kiss butt you get so can access giving he or she is official when federal elected things you so the rest and do all Presumably, most needed. perch.” get knocked off won’t recognize that continued elected officials 30], Dep. at 11-12 Vol. Simpson [JDT often donor support financial Relationships Hope to Establish feel- Donors upon the donor may contingent Their Access With Donations or Receive received a fair or she has ing he of consider- degree some hearing and that: Kirsch testifies 234. Steven support. ation or federal officials Policy discussion 1]. 6-Tab [DEV Andrews Decl. sponsored events major donor occurs at I have attended political parties. that dona- lobbyists believe Some in- They typically many events. such to their parties are beneficial tions answer ses- speeches, question volve See Rozen clients’ interests. business discussions, sions, but group policy (“[L]arge political contributions Deck 1Í10 time to talk Members there is also potential are worthwhile because of line.”) issues. individually about substantive company’s bottom benefit to the I event. was example, at a recent For [DEV 33]. 8-Tab *624 speak to with a represent- able Senator Roger Tamraz, an American busi- a ing state other than California and we nessman involved in investment banking had short conversation about how our energy international projects, made
respective working staffers were togeth- donations to the DNC during the 1996 particular er on a issue. cycle. election When asked during con- ¶ 7-23]; Kirsch Decl. 12 [DEV see gressional also hearings by Senator Levin ¶ Hiatt Decl. 11 (stating that “[l]arge soft whether one of the reasons he made the money give donors in order to obtain ac- contributions was because he it “believed influence.”). fact, cess and corporate might get access?,” [him] Mr. Tamraz re- donors view nonfederal donations as the sponded: “Senator, I’m going even far- “cost of doing business.” Hassenfeld Deck ther. It’s only reason-to get ac- ¶ 16 (testifying that nonfederal donations cess-” Thompson Comm. Report at are viewed the “corporate as “a world” 2913 n. 46 (quoting page 63 of Mr. Tam- good investment relative potential to the raz’s testimony committee). before the economic business.”); benefit to their Has- 236. Donor Buttenwieser, Peter a large ¶¶ (“I senfeld Deck companies 23-24 think donor to Democratic party committees, in some industries have reason to believe testified that that because their activities are closely so [t]here is question no who, that those linked with government actions, federal me, like make large soft money dona- must they participate the soft money tions special receive powerful access system succeed”) in order to [DEV 6- federal office holders on the basis of the ¶ 17];
Tab Randlett Deck (stating that donations. I am close to a number of “many soft money donations are given Senators, I see them on very personal consis- philosophical or reasons. basis, tent and I regard now Majori- They given by are donors with a lot of ty Leader aas close money who friend. I they believe under- need to invest in stand that the unusual I who can access have officeholders or protect specific advance correlates to the through interests millions of policy dollars I given action inaction. Some committees, soft money do- give $250,000,$500,000, more, nors I and do not year myself delude into thinking year, in after order to achieve goals. these otherwise. many Not people can give For donors, most institutional you’re if scale, soft money on that and naturally it put going to that money in, much you need limits the number of those return, just as though you were level of access. investing in a corporation or other some ¶ Buttenwieser Deck 22. ¶ venture.”); economic Randlett Deck 237. An Eli Lilly and Company memo- (explaining that “many members randum states that its 1995-96 business community recognize if “contributions and the related we activities want influence happens what in Wash- have participated in have key to our been ington, they have play money soft increased role ability our get views game. They are caught in an arms race heard right policy makers on a is accelerating, but that many feel basis; timely words, in other a smart in- they cannot speak afford to leave or out vestment.” Eli Lilly and Company Memo- against.”); Kirsch Deck 14 (stating that (Jan. 15, 1997), randum ODP0018-00481- “[major] perceive donors that they get- [DEV 48]. 69-Tab ting a business through benefit spe- access, cial good is a investment 238. Documents submitted indicate them”) 23], [DEV 7-Tab that a Fortune company contributes *625 and month chaired last he dinner com- NRCC party to national money
nonfederal Finance NRCC the my participation con- that its expectation with the mittees under- Tauzin the dinner. for its Committee strengthen or cultivate will tributions company] participated [our stood Members particular with “relationships” industry] in our as [others level 100 com- same the Fortune internal Congress. interest genuine did, expressed Ear- he and “Senator titled memorandum pany compet- to the out begin to reach to trying Democratic Carolina Hollings/South nest sum, event I think the 2000) industry. sealed] (June 29, [citation itive Party” company].” be- for $10,000.00 positive [our on for a real a “check was (requesting Hollings company to memoran- ‘Fritz’ Fortune Ernest Internal of Senator half Party,” Leadership Winner Democratic “NRCC Carolina entitled the South dum a Hollings 4, 2000, sealed]. has been 2000,” April [citation that “Senator noting dated many years for company] to [our friend Do- Giving Nonfederal Effectiveness thought- be a himself to has shown and he Donations Opposed Federal to nations industry,” in our issues regarding ful voice mon- nonfederal give donors 239. Some the Com- on currently serves “[h]e or parties to money rather than ey, Com- Transportation merce, Science cam- candidate’s ato contributions direct Ap- the mittee, Budget Committee nonfederal they believe because paign, concluding Committee,” and propriations small than several effective money is more to opportunity great be a would “I this feel See, access. obtaining contributions Senator relationship with our strengthen (ex- Exhibit A. e.g., Hickmott Decl. com- internal Fortune Hollings.”). An know get to want to you “[i]f plaining “Justification entitled memorandum pany Members or new Congress, 2000) (October 25, Members to [DSCC]” donation for write a more efficient to Congress, it sealed], stated [citation get the and to $15,000 to the DSCC check $50,000.00 a check requesting I am at the various them to meet opportunity Campaign Senatorial the Democratic to fifteen to write it would be than events (DSCC). Robert Senator Committee Senators, fifteen different $1,000 to checks for the DSCC chairman Torricelli candidates.”); An- Wright or Senators with conversation in a recent drews, lobbyist, a stated above Senator, amount requested he $100,000 corporate channeled properly Torricelli company]. Senator [our Re- to national company] money donation soft [our to a friend been has congressional to Democratic himself or publican he has shown many years and corpo- get can regarding campaign issues committees voice thoughtful abe several currently than serves more benefit industry. He rate donor our by that Gov- dollar contributions Judiciary, Foreign Relations & hard smaller dona- Although the and Admin- PAC. corporation’s and Rules Affairs ernmental polit- this would technically being I feel made Committees. tions are istration committees, our strengthen savvy donors great opportunity ical Torricelli elected relationship carefully Senator choose likely with contri- DSCC. take credit for officials can Chairman If a Committee butions. compa- advocate from legislative One or Senate House senior member con- reaped from ny the benefits described large asks for Leadership calls and think $100,000 the NRCC: “I tributing nation- party’s his her contribution [Con- goodwill we some established committee, campaign or Senate al House Tauzin, company] gressman] [our both so, to do client is able lobbyist’s and the level to $100,000 contributing at key elected official who is credited money donations get special access to *626 bringing contribution, with in the and federal office holders and at ap- least the possibly officials, the senior likely are to pearance of influence on issues that are remember the donation recognize and to important to them financially or politically. that big such donors’ interests merit Hard money contributions do not provide careful consideration. the same opportunities for influence on ¶ ¶ federal 14; policy Andrews Decl. as soft money Randlett Decl. donations ¶ do.”); (“[Soft Fowler198Decl. [DEV 8-Tab money 32] [DEV get donors] 6-Tab 13] (“Many a level of $1,000 attention that contributors of large hard sums mon- ey money Republicans donor never will. Even someone Democrats— —both $1,000 who gain wrote 25 access to party governmental hard checks money offi- but no money they soft cials that going is to get much otherwise would not have. access, less appreciation attention and With this than some- contributors are able to one make who wrote large one cases to money people soft pub- who make check.”). Rozen, lic policy lobbyist, and take official governmental stated that action. Those who contribute
Donors to small parties the national under- amounts of money do not have stand if this advan- that a federal officeholder is tage and thus are unable to raising gov- soft influence money supposedly ‘non- — effectiveness.”). ernment with the same federal’ money they are raising it for — uses, help namely Mem- In a memorandum to a high-level ber or other federal candidates in their Fortune 100 company executive outlining a Many elections. $100,000, donors giving proposed million $1.4 nonfederal fund bud- $200,000, million, even are doing $1 FY1999, get members of the Compa- because it is a bigger favor than a ny’s governmental affairs staff noted smaller hard money contribution would With both houses of Congress and the be. That helps you donation get close to White House hotly contested cycle, person who making decisions that importance money, soft and con- affect your your company industry. sequently the efforts parties That is the reason most economic inter- raise even more soft money, is greater give ests soft money, certainly not be- than ever. side, On the Democratic they cause want to help state candidates [our company’s] already advocates have rarely because want fielded money soft calls from House to succeed.... bigger money soft Democratic Gephardt, Leader House contributions are more likely your to get Frost, Democratic Caucus Chairman call get you returned or into the Mem- Congressional Democratic Campaign ber’s office than smaller money hard Chairman Kennedy, and Democratic contributions. Senatorial Campaign Chairman Torri- ¶¶ Rozen 33]; Decl. 12-13 [DEV 8-Tab celli. Similar contacts to money soft ¶9 Geschke197 Decl. [DEV 6-Tab 14] have been made by Republican congres- (“Corporations and individuals can use soft sional leaders. addition to in- 197. Mr. Charles Geschke is Chairman of the 198. Mr. Donald Fowler from until Inc., Systems, Board of Adobe which he co- he served as Chairman the South Carolina ¶ founded in 1982. Geschke Decl. 1 6- [DEV Party Democratic January and from un- Tab 14]. Since Mr. Geschke estimates January til 1997 he served Chairman $150,000 that he has donated over in federal Democratic National Committee. Fowler committees, funds to federal ¶Decl. 2 [DEV 6-Tab 13]. $18,000 over in nonfederal funds national party committees. Id. 3. im- about employees from upset. Calls con- party and from pressure creased are Dem we says House White leaders, that our balance. clear
gressional trouble”). compet- potential competitors direct mon- big soft weighing
itors Randlett comments 243.CEO ey donations. you if goals, with business a donor “[a]s compa- a Fortune getting your chances Memorandum want to enhance high-level favorably advocate legislative to and ny’s attention issues your paid *627 [citation executive, Congress, bipar- dated March of by Members reviewed Giving way go. sealed]. to right tisanship is the right is the to money both sides lots of soft Na- Both to Times Give Often Donors per- pragmatic the most go to way Ac- to Receive in Order Parties tional ¶ 8- 11 [DEV Decl. Randlett spective.” Both Parties Members of to cess explains 32]. Tab He shows that presented 241. Evidence money to lot of soft giving a you’re [I]f that do and associations “companies many For side, knows. other side one contribute to money typically soft give donors, economically-oriented many want access they ... because parties both side, only one to giving a risk there is the aisle.” on both sides Members to may read other side because ¶ 33]; see also 8-Tab [DEV Rozen Decl. a have staff or reports and through FEC ¶ (testify- 18] 6-Tab [DEV Hiatt Decl. that indicate lobbyist call and friendly money donations to give soft ing “[p]eople a certain interests before someone with want make they because parties both had their contributions has committee regardless of who’s have access they sure get a They’ll side noticed. the other seat, House, filling the Senate in the White you “Are basically message asks: that dis- Congressional representing one only to giving to be you sure want l.H] Tab trict.”); [IER OH 0418778 RNC friends you want to have Don’t side? (an enti- Republican Party document Ohio inter- your If of the aisle?” both sides Give,” ob- including the People “Why tled from the other subject anger ests are to both sides “many people give servation: aisle, to fear you need side of the to whoever is they will have access so you if don’t penalty may suffer you winner”). all, get atten- it’s hard to give. First Company mem- Lilly and Eli An giving. you’re if your issue tion wor- company was orandum indicates Then, play you’ve once decided Washington Post article ried about worry about you have to money game, to the significant donor listing it as imbalanced, if there’s especially being memorandum party. Republican in Wash- control or influence bipartisan being made at contributions discusses fact, usually is. ington, there occurring in the party events Democratic 1990’s, more and during became con- The memorandum near future. someone, saying call acceptable to more talked to the “Jay has cludes with: so he person, to this gave saw he you back into get and we can House White person’s you give to should also 100,000 to the by giving $50— fi- Referring to someone’s opponent. they pleased says would be DNC— arena activity in the nancial 48]; 69-Tab [DEV ODP0018-00463 this.” limits, it’s and now clearly off used to be (the also id. ODP0018-00461 common. increasingly article), Post ODP0018- Washington ¶ ¶ Decl also Buttenwieser 12. See Id. part article (photocopy (“I that some am 11] aware 6-Tab stating [DEV “Dems are note with handwritten donors, soft money such as corpora- some spend also considerable sums of money tions, give substantial amounts to both ma- lobbying federal Indeed, officeholders. jor political parties. Based on my obser- the amount money spent by such orga- vations, they typically do this they because nizations on lobbying geometrical- is often have a agenda business want to ly larger than the amount they donate to bets, hedge their to ensure they get access parties. See Resp. of Intervenors to office holders on the issues that are to RNC’s First and Reqs. Second for Ad- important to them. This occurs at the mis. at 23-24 (admitting top five cor- levels.”); national and state Geschke Decl. porate donors of nonfederal funds during (“In view, [DEV 6-Tab my 14] donors 1995 and $9,009,155 1996 donated na- give who large amounts of money soft to tional party committees and same five cor- major both parties are probably hedging porations spent $27,107,688 on lobbying their bets trying get They influence. during 1996 along); (ad- see id. at 24-25 may feel that influence with one party is mitting top five corporate donors *628 not sufficient to achieve their financial or nonfederal funds during 1997 and 1998 policy goals, especially now that power in $7,774,020 donated to national party com- Congress balanced.”). is pretty evenly mittees and same five corporations spent $42,000,000 on lobbying during that same Lobbying and Donations of Nonfederal period). Money 248.Some of the lobbyists who testi- 244. According to some national party depositions fied in cross examina- officials and former Members of Congress, tion state that their corporate clients hire lobbying more effective in obtaining ac- in them large part because of their con- cess to legislators than donations to cam- tacts on Capitol Hill and because they paigns parties. have access to federal officeholders wheth- 245. According to the RNC Finance er or not their clients have donated money Director, lobbying is far more in effective candidates, officeholders, parties. or securing “access” to federal officeholders 46-47, See Hickmott Dep. at 50-51; than donating campaign funds. -See B. Cross-Exam, of Andrews 19-20. How- ¶ (“It Shea Decl. 45 why major obvious ever, the evidence clearly shows that some donors to the do RNC not regularly use lobbyists believe that help contributions their donations as a means to obtain ‘ac- gain them access to lawmakers. Lobbyist cess.’ All or virtually all who per- Andrews states: sonal organizational or business with the amount influence that a lobbyist government retain or employ pro- has is directly often correlated to the lobbyists.”); fessional see also Primo amount of money that he or she and his Exam, Cross at 164. or her clients infuse political into the (who As Former Bumpers Senator system. lobbyists Some help raise large testified on behalf of the in defendants “soft money” donations host and/or case) has testified previously, lobbying ex- many fundraising key events for legisla- penditures are more likely to obtain nonin- tors. simply Some represent a single cidental contact with a federal officeholder very client with deep pockets can than campaign are donations. See v. RNC easily large corporate reach into un- or FEC, Civ. No. (D.D.C.); 98-CV-1207 ion funds for “soft money” donations Bumpers Dep. at 38-40. other expenditures allowable may that 247. Many entities and individuals who legislative influence actions. who Those donate federal political funds to parties are most heavily involved giving to such to allocate they are able sources fre- money are finance campaign raising agen- legislative advance efforts to lobby- surprisingly, and not quently, soft would include plans also Such da. clout. political most ists with parties political money contributions 1], An- 6-Tab [DEV Decl.
Andrews po- with associated groups interest com- become a it has that testifies drews litical issues. num- “host a lobbyists to practice mon ¶¶ 79- [DEV 6-7 in Marumi explains Murray Aff. He fundraisers.” ber Dep. in RNC at 58]; also Meehan periodically parties Tab “[wjhereas political (“[P]ower and influ- 4] ballrooms 66-Tab large [DEV 40-41 ‘gala’ events organize the amount just donors, lobbyists Washington is ence hundreds filled with industry contributes money smaller events attending soft prefer now often say that also I would only ten lobbyists, parties. with by other hosted they at a sitting money all of PAC amount participating, people it’s fifteen candidates, it’s the invited table or breakfast contribute dinner contribute, al- type money event This hard official. amount of guest elected money build opportunity to lobbying lobbyists better the amount lows it’s ex- and to members relationships to influence personal order they expend more ¶ 16. Id. change views.” Congress.”). “ba- lobbyists maintain 249.Some Corruption Perception of Public lobbying activities traditional
sic” or sub- have offered defendants 250. The *629 many in to be effective alone insufficient believes public the that evidence stantial To endeavors. lobbying in instances the between correlation is a direct there raising and clout, giving the political true political to a contribution of a size donor’s po- candidates money for campaign of to, and of amount access the party and important. critically is often parties litical of that with, officeholders the influence Lobby- 1]. 6-Tab [DEV Decl. Andrews enjoys thereafter. the donor that that Murray testified Daniel ist submitted evidence principal 251. The plan [a legislative ... [a]long with each of their con- support the by defendants legislative client’s the “advance plan to ap- an perceives public the tention that the achieving essential agenda”], large non- due corruption pearance politi- parallel develop I a goals, client’s a research parties is donations federal In other support plan. financial cal by 1,300 Americans conducted adult poll of to which clients as words, my I advise Mellman199 Mark candidates) pollsters: prominent (or two office-holders 200 (“Mellman and Wirthlin and Richard in what contribute they should Report”). re- Wirthlin use the amounts, to best in order currently on politics, and is briefing daily The Mellman is "CEO 199. Mellman Mark Washington Univer- George faculty of The the consulting firm.... polling and Group, a Manage- of Political sity's School Graduate campaigns of guide helped the has Mellman 2- [DEV Wirthlin at ment.” Mellman Senators, dozen two over some fifteen U.S. 5], Tab Governors, Congress, and three Members of local officials. state and as numerous as well "Chairman is Wirthlin Richard 200. variety of addition, a works with Mellman Worldwide, strategic a of Wirthlin Board ranging ... and public organizations interest he founded firm opinion research as a con- served corporate ... He has clients companies in top its of the is one which now News, presiden- to CBS politics sultant on known perhaps best is field. Wirthlin PBS, contributing analyst tial for poll- debate strategist Reagan’s President Hotline, Journal’s analyst respected National widely The ster."Id. 2-3. He at survey The was conducted over a 257. No presented evidence has been 28, 2002, period days (August five that show the methodology by used through September 2002), and Mellman poll- and Wirthlin improper or inval- Exam, made id. average generally sters an of 4.58 See dialings per Wirthlin Cross telephone (demonstrating number in sample plaintiffs while set in gener- ally dispute wording order to sample ensure of the repre- was questions, they do not contest sentative. See Mellman and validity Wirthlin Re- sampling or methodology port 22-23. conducting poll). study’s 253. The rate contact was 38 principal finding of
percent, the Mell- more than double the industry man and Report Wirthlin relating to average of percent. See Mellman and appearance whether of corruption Report Wirthlin at 23. arises out of large contributions political 254. The rate of respon- refusal parties is that: “A significant majority of dents who polled refused was within Americans believe that those who make range normal for a random telephone large contributions to parties have survey conducted the United States. major impact on the decisions made See Mellman and Report Wirthlin at 23. federally elected addition, officials.” In 255. The took pollsters several steps to Mellman and Wirthlin find many avoid bias. Mellman and Wirthlin Re- Americans believe that the “views of these Exam, port at 24. See also Wirthlin Cross big contributors carry sometimes more (explaining pollsters that the took weight than do the views of constituents or steps to avoid bias randomly ordering the best interests country.” Mell- questions, “so that there is no se- man and Wirthlin Report at 6. quence developed question where one may, 259. The Mellman and Report Wirthlin always if order, asked the same affect[ ] established that 77 percent of Americans question.”). the second believe big contributions to
256. The *630 margin parties statistical of sampling have at impact least some on deci- error, is, that the error sions by to made the sampling government. due federal Fifty-five percent versus if pollsters thought the talked every big to contribu- tions great American in had a States, impact; of per- the United deal per- is 2.7 cent thought it had impact. some centage points: Id. the opinions actual of Americans will be within 2.7 percentage 260. The Mellman and Report Wirthlin points of reported those in the study 95 established that 71 percent of Americans percent of the time. Mellman See and “think that of Congress members some- Report Wirthlin at 22. regions All of the times decide how to on vote an issue based United represented States were in the on big what contributors to political study, based on 2001 Population Current party want, even if it’s not what most Survey Id. at 24. results. people want, in their district or if even it’s in the "field of social science research University’s 'outstanding and to cam- contribution country's one of respected political most paign consulting.' year, the same In he was and strategists." business Id. Wirthlin "was designated ‘Pollster by of the Year’ Ameri- the strategist chief for two of sweeping the most can Association of Political Id. Consultants.” presidential history victories in the of the at Washington 3. The Post named Wirthlin United States. 1981 he was acclaimed prince pollsters” "the of Gallup, and George by
Adman of Advertising Age the Year for his Jr. said Wirthlin very is "one of the best at role in campaign the 1980 and in 2001 was our Id. craft.” Republicans one of four awarded American in the exists a correlation that suggest, coun- the is best think not what aof the amount mind between public’s 7. Id. at try.” and the party a to contribution donor’s Mellman and the to According 261. donors influence of access amount (84%) majority “large a Report,
Wirthlin officeholders, exists thereafter enjoys bewill Congress of that members think money use to which of the independent give who those to listen likely to more by parties. is used response party in to their money political evidence, no Moreover, there 267. large donations.” solicitation to their Report Wirthlin in the Mellman either 8. Id. at record, public or elsewhere the Mellman to According 262. if it conclusion the same hold to would two-thirds Report, “[o]ver Wirthlin do- of nonfederal portion that no believed con- big (68%) ... think Americans any feder- to given either could be nations parties sometimes political tributors parties to by the candidate, used or al government the federal block decisions any election directly affect everyday people’s improve could candidates. at Id. 8. lives.” professor Co- Shapiro, Robert 268. Further, Wirth- the Mellman and 263. public analyzed University, also lumbia in five “about four found Report lin money contributions of soft perception Congress think Member Americans publicly reviewing all parties, political consider- special likely give would survey data sources. opinion available individual, issue anof opinion to the ation [DEV 7-8. Report at Expert Shapiro union who do- or labor corporation, group, examined Shapiro survey data Tab 6]. to their $50,000 or more nated opinion telephone mostly of comprised was $50,000 or (81%) paid for who Shapiro fo- Specifically, at 8. Id. polls. radio ads on the more worth on data based opinion “public cused in four contrast, only one (80%). By TV fielded that were surveys responses (24%) that member think Americans an- public’s determine 1990” to since opinion of likely give Congress including two questions, to several swers special consideration.” them like someone degree what “To read: questions Id. poli- corruption perceived public has Report Wirthlin The Mellman and money influence tics connected understanding public’s measure did and “What donations?” campaign large and did system, finance campaign perceptions public’s have been *631 the understood respondents if the not ask political toward substantial opinions federal and nonfederal difference between money contri- of soft in the form donations Exam, Mellman of See Cross donations. 3, at 8. Id. parties?” political butions pur- that Mellman testifies at 31-35. show poll Shapiro, results According pub- measure was poll pose of unregu- large opposed has “public that the Id. at 31. perceptions. lie’s political money contributions lated soft not understand does public 265. been trou- public has that parties [and] and non- between the distinction Id. money donations.” soft by large bled cam- aware of is not federal donations that addition, Shapiro concluded at 13. Ex- Ayres regulations. finance paign “that a substantial data showed the poll ¶ 8(a). pert Report cor- perceived public has proportion that we system, political in the ruption Report Wirthlin The Mellman and Id. at losing ground.” have been any evidence show, there nor is did not 269.The defendants also submitted 2001) S3248-49 (April 2, (Sen.Levin) substantial, anecdotal evidence for- (“[PJermitting the appearance of corrup-, mer and current Members of Congress tion undermines the very foundation of our that their constituents believe that democracy these trust people in sys- —the large tem.”). parties present contributions to appearance corruption. See Simpson 270. The defendants have also submit- ¶ Decl. 14 (testifying that “[b]oth during ted a substantial number press reports my Senate, after service in the I have which suggest that large present donations seen that citizens of parties both are as the appearance of corruption. See, e.g., cynical government about they as have Jackie Koszczuk, Money Speaks Soft ever been because of the corrupting effects Loudly on Capitol Season, Hill This Cong. of unlimited soft money donations”); Sena- Q., 27, 1998, 1736; June at Abramson, Jill Baueus, tor 144 Cong. (1998) S. Rec. S1041 Money Buys A Access, Lot More Than (stating “[p]eople tell they me think Times, N.Y. 9,1997, 4; Nov. at Jane May- that Congress cares more about ‘fat cat er, Inside Machine, the Money The New special in interests Washington’ than the Yorker, 3,1997, 32; Feb. at Atta, Don Van concerns of middle class families like Fritsch, $25,000 Jr. and Jane Buys Donors theirs. they Or tell me think the ‘Best Congress’, Access to Times, N.Y. Jan. political system corrupt.”); 27, Senator Al; 1997. at Morgan Dan and Juliet Feingold, (2000) 146 Cong Rec. S4262 Eilperin, Gifts, Campaign Lobbying Built (stating that appearance “[t]he corrup- Enron’s Power in Washington, Post, Wash. tion .... We all know it’s 25, 2001, there. We December A01; hear at R.G. Rateliffe it from our Bernstein, constituents regularly. We Alan Political Donors Have it in press, we hear the Money,, about it Time, on the Get the Houston news.”); Chron., 23, Representative May Letter from 1; Asa see also Rud- ¶ 11; Hutchinson to man Decl. RNC Chairman Krasno and Sorauf Report Nicholson July 19-20; dated (de- Primo ODP0014-00003-4 Rebuttal at 7 (stating clining support “[t]he news proposed Nicholson’s media reinforces this view campaign money [that legislation finance distorts the process] because by portraying Hutchinson process had to balance being Nicholson’s driven ”). campaign concerns “with concern contributions my .... constitu- Senator Rudman ents which is that has also commented politics influence in on press’s being reporting money diminished soft do- the abuses of soft nations create an money appearance .... of corrup- If our party is unable to enact tion: every day, “Almost press meaningful reports campaign-finance reform while important public issues that being we’re control of Congress, I then believe considered in Congress. Inevitably, this failure to act will result more cyni- press draws a connection between an cism and out- create growing lack of confi- come and the amount that interested com- efforts.”); dence our Feingold Senator panies given money soft .... Even stated appearance “[t]he corruption *632 if a senator is supporting position that rampant system, in our and it touches helps industry an for reasons other than every issue us,” that comes before 147 that the industry gave par- millions to his (Mar. Cong. 2001), Rec. S2446 19, but also ty, it does not appear that way in the acknowledged that soft money being used ¶ public eye.” Rudman Decl. 11. generic for campaign activity is less likely to create appearance an of corruption, 271. Finally, the defendants have sub- Feingold Dep. 126-27; at 147 Cong. Rec. mitted no evidence public that the either
874 ‘defeat’; ‘elect’, for’, or like ‘vote verbs office- that federal believes, perceives, Including did. 2000, percent just 5 other by anything motivated are holders 10 Congress,’ like ‘Smith slogans financial assistance of receipt the than ads aired candidate percent they raise when campaigns own us- electioneering qualify would 2000 parties. respective for their funds The remain- magic words test. ing on noncandi- restrictions to BCRA’s As catego- been could percent ing 90 I find that expenditures, campaign date had a advocacy rized as issue them. sponsored group Campaigns Advocacy in Modern Issue 53-54 Report at Expert & Sorauf Krasno convincingly demon- record 272.The & Krasno (citing Jonathan 1-Tab 2] [DEV majority of overwhelming strates Tele- Goldstein, “The about Facts Kenneth not use do advertisements political modern McCain-Fein- and the Advertising vision they advocacy,201whether express words Poli- (PS: Bill,” Political Science gold candidates, par- political by financed are 2002). 2:207-212), tics, No. a result As ties, organizations. or other words” “magic The absence 273. found Congress development, con- ability of media impede does not only the courts by FECA, as construed mes- electioneering to create sultants containing expenditures independent limit rarely use the fact, “In candidates sage. Buckley, by advocacy, as defined express ” Magleby ads.’ in their own magic words political to modern relevant longer nowas For- 8]. 4-Tab Report [DEV Expert See, Cong. Rec. e.g., 148 advertisement. observed Rudman mer Warren Senator Jeffords) (Senator (2002) James S2117 most, ads campaign “[mjany, if created (“The words’ standard ‘magic them- by candidates parties and run made been in 1976 has Supreme Court It is ‘magic words.’ use ... never selves of modern realities political by the useless [DEV Decl. 18 Rudman unnecessary.” candidate Even in advertising. 34]. 8-Tab are say advertisements, many would what clearly sup- consultants 274. Political to convince made clearly advertisements modern conclusion port the candidate, particular support voter “magic rarely use advertisements used the advertisements only percent message. convey their words” ”). ‘magic words.’ Doug- Political Consultant Republican nearly appeared ads candidate Federal Bailey202 las L. mar- top 75 media 236,000 in the times politi- 30 second world of modern In In the 1998, 430,000 in 2000. times kets advertisements, rarely advisable it is cal spots used these 1998, percent just 'defeat,’ reject.’" against,' Congress,' 'vote MCFL, held that Supreme Court In 612. These S.Ct. Buckley, 44 n. 424 at and labor un- corporations prohibition on "magic to as the referred examples have been expendi- treasury funds using general ions by an invoked if words” because election a federal in connection tures they trigger FECA's limitations. organization, overbroad, narrowing restriction was Network, 110 e.g., v. Christian Action FEC "express spending on corporate union Cir.1997) ("[T]he (4th 1049, 1052-53 F.3d MCFL, S.Cl. 479 U.S. advocacy." express advo- 'strictly limit' court declined expenditure ("We that an therefore hold Buckley’s foot- 'magic words’ cacy to the advocacy’ in order 'express constitute must 52”). note 441b.”). § In prohibition of subject to the provided exam- Buckley, Supreme Court Bailey, Dear- Bailey founded " 'elect,’ for,' advocacy: Associates, 'vote among express ples of was & dourff for,’ firms, *633 'Smith for consulting work- your ballot ‘support,’ political 'cast first national to use clumsy such words as “vote for” instruct you viewers what want them to against.” or “vote If am designing I an They do. have to come to their own ad want the conclusion to be the conclusion. Americans like to think “20,” I number would use the ad to up make their own minds and de- count from 1 I to 19. would lead the termine their own fate. Without even “20,” viewer to think I but would never mentioning an election, upcoming say it. All professionals advertising un- media consultant can count on the elec- derstand that the most effective adver- toral context and voters’ awareness that tising leads the viewer to his or her own the election is coming. Voters will conclusion without it forcing down their link your themselves ad to the upcoming throat. This is especially politi- true of election. When viewed months years or advertising, cal people because are gen- after the election a particular ad might erally very skeptical of claims made pure look like issue advocacy unrelated politicians. or about to a However, federal election. during election, The notion that ads intended to influ- ads-whether candi- ads, ads, date sham ads, ence election can issue easily separated true issue ads, positive negative from those that are upon based ads or whatever- presence each seen just mere or particular voters as one absence more ingredient phrases thrown into a big cajún words such as “vote for” is at stew. best historical anachronism. ¶ Strother Decl. 4 40]; [DEV 9-Tab Exam, ¶¶ 2], (observ- Bailey Decl. also Strother 3-8 Cross [DEV 6-Tab at 44 ing percent that 90 of candidate advertise- Democrat Political Media Consultant ments Strother has put together in his Raymond Strother203 career have not express used advocacy). [M]edia prefer consultants putting The Distinction Between Candidate- across electioneering messages without Advocacy Centered and Pure Issue Ad- using words such as “vote for.” Good vocacy Is Not a Function of the Presence media consultants people never tell or Absence Buckley “Magic X; vote for rather, Senator you make Words” your ease and let voters come to their own my experi- conclusions. presence 275. The “mag- or absence of ence, actually proves words,” less effective to ic Valeo, as defined Buckley v. ing Republican Governor, consultant, candidates for 203. Strother is a media Senate, Congress, and President. The firm’s and President and founder Strother/Duf- ¶ clients included Gerald fy/Strother. Ford’s Presidential Strother [DEV Decl. 1 9-Tab Campaign, fifty and over successful cam- 40]. He is also Chairman of the Board of the paigns governor United Consultants, States Sen- American Association of Political ¶ ate in 17 Bailey states. Decl. 1 year [DEV 6-Tab and last served its President. Id. 2], consultant, campaign As Bailey’s job was Since he has for more worked than 300 plan campaign "to and then create campaigns. broad- Representative Id. clients at the shape cast advertisements that would its presidential, congressional, out- gubernatorial come.” Id. 2. In Bailey among Bentsen, was Lloyd levels have included Paul Si- eight recipients mon, Hart, first Clinton, Gore, Gary American Uni- Mary Bill A1 versity-Campaign Landrieu, Management Institute’s and Zell Id. In the Miller. last two 'Outstanding alone, Campaign Contribution to Con- decades "helped his firm has elect can- sulting’ given Award countries, to the consultants “who didates states and five includ- represented Senators, have best profes- Governors, ing ideals of the and scores of and shown consequences sion concern Congress for the members. firm won [His has] more campaigns public attitudes about our Democratic any Primaries other than firm.” process.” democratic Id. Id. *634 cancer-causing releasing tions continue ad- whether determine not alone
does Congressman will, our air. to, sup- into pollutants and designed was vertisement corporations big candidate. voted particular Ganske oppose port or for gave him 4-Tab bills Report [DEV at these Expert who lobbied Magleby Re- Expert & Sorauf Krasno in contributions. 8]; also dollars see thousands of (“The magic 2] 1-Tab Tell him to [DEV at 58 port Congressman Ganske. Call however, distinguish test, does For words environment. America’s protect adver- issue [candidate-oriented between our For our future. families. advertisements]; issue pure tisements that was claimed sponsor ad ads between distinguish it does not indeed issues ad, that discussed an ad issue type of any by candidates sponsored candidate, could be and so rather than political and ad, even between issue undisclosed by unlimited paid for its util- advertising. Whatever commercial if changed, word were If one funds. been, this standard once ity might Ganske,’ Congressman instead of ‘Call ads how now irrelevant said, Congressman ‘Defeat ad designed.”). aas Ganske,’ clearly qualify would and former elected current 276. Some lim- subject to contribution ad candidate words” no “magic also believe officials In the requirements. its disclosure ad- genuine issue distinguish longer help world, difference one word real adver- electioneering from vertisements sub- character or change the doesn’t (2001) Cong. Rec. S3072 tisements. Both versions that ad at all. stance didn’t (Senator (“People Feingold) Russ defeat of unmistakably advocate the magic words to so-called need hear Congressman Ganske. really all ads were these know what (Senator (1998) S10073 Cong. Rec. (Senator about.”); Cong. Rec. S3036 italics); Levin) (advertisement text Carl McCain) (“[W]e can demonstrate John 7] 6-Tab [DEV Bloom Decl. 5 also “express advoca- definition the Court’s (“In campaigns for feder- experience my bearing in no real words-has cy”-magic office, my in- al, including local state and ads.”). campaign today’s world we advertising the television volvement Indeed, Levin made Senator Carl particular Congress, no my ran race the floor of the following statement on ad to for an advocacy are needed words of in 1998: Senate election. of an outcome influence the law, absurd state To show run in order ads’ are Many ‘issue so-called circuits, just look we can in some least results.”). affect election ads that was one of the televised addition, Dale former Senator 278.In League of Conservation paid by the Bumpers testified: to House and which referred Voters into our way its money also finds Soft Ganske, Republican Greg Member ‘issue adver- through so-called system Iowa, who was then Congressman organi- sponsored by outside tisements’ way the This is the ad up for reelection. before an mostly right air zations that read: run effec- Organizations can election. land; our America’s It’s our water. a candidate that benefit tive issue ads But in protected. must be environment that candi- coordinating with without months, Congressman Ganske just 18 experienced profes- They have date. 12 out 12 times weaken has voted reinforce a race and analyze sionals Congress- protections. environmental These ads saying. a what candidate corporar- to let even voted man Ganske *635 influence the outcome of elections cal advertisements that contain words of simply stating “tell him opponent] express (i.e., [the words”) advocacy “magic quit doing “magic this.” The words” advertisements that are designed to influ- completely test is inadequate; ence viewers federal elections but do not use the get message against “magic vote some- words” of Buckley. one, though even may the ad never ex- Democrat Political Media Consultant plicitly say “vote-against-him.” Raymond Strother206 ¶26 Bumpers 10];204 Decl. [DEV 6-Tab easy it is so Because for consultants in ¶ Chapin also see 7 [DEV Decl. 12] 6-Tab my business to make ads that will influ- (“Based my on experience in campaigns ence federal elections without triggering office, for federal and local including the the need to use hard pay dollars to television advertising we ran in my races them, the difference between hard mon- County Chairman and I Congress, am ey and money joke. soft is a If I want familiar with campaign ads. No to use money to soft an influence elec- particular advocacy words of are needed tion, is no there real difference what I for an order ad to influence the outcome of do to create the ad. The only thing that election.”); an Paul Dep. also at 27-28 is tag different is the line at the end. (Plaintiff Vol. Congressman [JDT 25] Ron point From the of view of a media con- Paul testified that group the outside issue sultant, there is no real difference be- run in ads his Congressional cam- tween ending an advertisement with
paign were to influence intended the elec- “Vote for Senator X” ending versus an tion.). Congressman Christopher Shays advertisement with “Tell Senator X to also testified: working continue hard for America’s Although the Supreme Court has identi- public families.” The simply does not fied a limited category “magic words” differentiate between ads that are other- that make an advertisement a campaign identical, wise but contain slightly these advertisement, my experience as can- tag different lines at very end. didate and a Member of the House ¶¶ 8, 8, Strother Decl. 11 [DEV 9-Tab inadequate limited test 40], identify ads. campaign Campaign ads need not phrases include such as “vote for,” “re-elect” against” or “vote to be Republican Political Rocky Consultant tools, effective campaign prac- and the Pennington tice of large numbers of so-called “issue Many money soft ads that avoid the ads” before an proves election it. magic clearly words intended to af- ¶ Shays Decl. 12 [DEV 8-Tab 35].205 fect federal elections. Parties and inter- 279. Some consultants believe groups est spend would not hundreds of that there is no difference between politi- thousands of dollars to runs these [sic] Senate, Bumpers 204.After retired from the D.C. at law firm Arent Fox Kintner Plot- Kahn, ¶ spent year he kin & directing one PLLC. id. 3. the Center for Information, Defense nonprofit think-tank 205. n Shays has served Repre- in the House Washington, based Bumpers D.C. Decl. 2. Representative sentatives since 1987 as a currently practices He Washington law in District Shays Fourth of Connecticut. ¶Decl. 1 8-Tab [DEV 35]. supra Finding
206.See 274 n. Lam- Joe Operative Political Democrat if election days before ads 15 son result. affect trying to were not managing experience my Based ads are candidate-specific These I am campaigns, election many federal the election year before run the usually *636 No advertising. campaign familiar with after. or week needed advocacy are words particular ¶ 31].207 8-Tab [DEV Decl.
Pennington influ- advertisement for in order an Terry S. Consultant Political Democrat When of an election. ence the outcome run groups and interest political parties Beckett that an election just before ads” “issue particular that the idea I am aware her to do and tell a “call” candidate say in or-. required might be “magic words” typically purpose real something, their an to influence an advertisement der for some about the voters enlighten not However, particular in fact no election. of the the result issue, influence but to order are needed in advocacy words do have election, ads often and these of an the outcome influence an ad to general- groups and Parties that effect. could of such words No list election. ads” “issue pre-election these run ly 50, savvy political you if list complete: are com- where races only places in example, For find more. actors will generally “issue ads” petitive. These par- by run ads” “issue many so-called For the election. day of stop on the groups just before interest ties and run ads groups could example, these candidate, end then position attack on election Nancy Keenan’s explaining general to “tell” viewer the November urging the after supposedly the issues people discuss that could that so stop being election candidate “ask” the ta- dinner Thanksgiving over them really almost never ads way. These work that ble, seem to but doesn’t always almost They are issues. about way. ads, elec- designed to affect the election ¶ 26]. [DEV Decl. 7-Tab Lamson clear- see this most You can tion result. personal amount to ones that ly NRA Politi Former Chair Plaintiff on attacks, candidate criticize Metaksa208 Tanya K. Victory Fund cal unrelated several “issues.” regulato- legal, there is erected Today, po- and advocacy issue ry wall between 3]. 6-Tab [DEV Decl. 8 Beckett Insti- of the NRA Director and as Executive during deposition Feingold, his 207. Senator She made the Legislative Action. tute calls from he receives constitu- indicated opening remarks to in her above statement response to advertisements. television ents Consul- of Political American Association However, specifi- Feingold was not Senator Advo- “Issue Session on Fifth General tants’ were cally if these advertisements asked at Opening Remarks cacy.” INT Feingold II of BCRA. under type covered Title Fifth of Political Ass’n Consultants American ads, ("Q.... Dep. You mentioned at 238-239 Advocacy,” Jan. "Issue on Session General say call you ads and I shown 25], During this at 2 38-Tab [DEV so, so and so. and Senator so contact Senator President litigation, Executive Vice NRA you do call and Your sometimes constituents Metaksa Wayne LaPierre testified Ms. Q. Yes, they do. they A. you, contact do not? knowledgeable about who was "someone includ- about sometimes talk issues they And strategies” someone was NRA's abortion, right other ing to life issues and trustworthy employ- was "a who reliable Q. Yes, issues, they do. they not? A. do Dep. Vol. [JDT NRA.” ee of LaPierre they your opinion, are sometimes affected objected to Ms. Me- Plaintiffs have 14]. televi- they have seen on advertisements giv- hearsay grounds and on statement taksa’s are.”). I’m sure sion? A. comments, it trust- I find Mr. LaPierre’s en purposes of these worthy on it for rely Na- Chairman served as Metaksa findings. Victory Fund Political tional Association Rifle 2001”) advocacy. litical Report Tab-22], And the wall is built of 1 [DEV sturdy emper- research, material as Based same on their the Annenberg clothing. or’s Center concluded that “[o]ver the last cycles three election ads, the numbers of Everyone sees it. No one believes it. groups, and spent dollars on issue advoca- It is any prac- foolish to believe there is cy has climbed.” Id. tical difference between advocacy issue advocacy of a candidate. 281. The Annenberg Center estimated separates advocacy po- What issue that, during the 1996 cycle, election $135 litical advocacy is a line in the sand million to million spent was $150 multi windy day. drawn on a ple broadcasts about 100 advertise ments. Annenberg Report 2001 at 1 engaged advocacy We issue many *637 22], [DEV 38-Tab In the next election locations around the country. (1997-98), cycle the Annenberg Center Indiana, Bloomington, Take for example. found that 77 organizations aired 423 ad read, city in that Billboards vertisements at a cost of $250 between “Congressman Hostettler right.” million and million. Id.209 $340 In the “Gun laws don’t take criminals off cycle, 1999-2000 election the Annenberg streets.” Bloomington’s Center that 130 groups spent found over “Call 334-1111 and thank him fight- for 1,100 an estimated million on $500 distinct ing by getting tough crime crimi- advertisements. Id. nals.” 282. studying After advocacy” “issue Guess what? really hoped people We over a year period, seven the Annenberg would Congressman, vote for the not Study, which was relied on Congress in just thank him. people And did. When BCRA, drafting concluded inter that: alia away we’re three months from an elec- 1) The money spent amount of on “issue tion, not a there’s dime’s worth of differ- advocacy” is rising rapidly. ence “thanking” between elected officials 2) Instead of creating the number “electing” and them. voices Buckley v. Valeo hoped, had “is- INT Opening Remarks at advocacy” sue groups allowed such as American Ass’n of Political Consultants parties, business and labor to gain Fifth General Session on “Issue Advoca- louder voice. 17, 1997, cy,” Jan. at 2 [DEV 25]. 38-Tab 3) The distinction between “issue advo- Advocacy” The cacy” Rise of “Issue express advocacy Cam- is a fiction. paigns by Corporate Funded and Labor 4) advocacy” “Issue identity masks the Union General Treasuries key players of some doing, so it deprives citizens of information about 280.The Annenberg Center Public for source of messages which tells research Center”) Policy (“Annenberg been has pact us is a of assessing message vital studying advocacy” “issue since early credibility. 1990s. Annenberg Policy Public Cen- ter, Advocacy Issue Advertising During Report Annenberg 2001 at 1 [DEV 38-Tab Cycle Election (“Annenberg 1999-2000 plaintiffs’ expert Raymond 22]. As La J. Center, report Annenberg pro- 209. The Study Advocacy Advertising During Issue following cycle duced the 1997-98 election Cycle ("Annenberg Election 1997-1998 placed $275 estimate at between this million 1998”) Report at 1 [DEV 6]. 6-Tab $340 Annenberg Policy million. Public “ Ad- “Issue Toward Explaining the Shift election three stated, the last ‘Over Raja vocacy” sponsoring groups number cycles, often consumers exploded,
ads has expert Ma- According to defense are, who groups these who know don’t ad- using “issue toward the shift gleby, ” represent.’ them, and whom funds phe- by three explained can be vocacy” ¶ 24(h) Annenberg (quoting Decl. Raja La “First, groups permits it nomena. 1). at Report 2001 Second, disclosure. to avoid individuals estimated Annenberg Center The lim- avoid contribution them to it allows cycle, more election 1999-2000 in the (such Third, groups permits some its. television spent on was million than $509 unions) labor corporations Annenberg advocacy.” “issue and radio prohibited generally spend 22]. 38-Tab [DEV 4-5 Report 2001 Report Expert Magleby sources.” parties and Democratic Republican 8]; Krasno see also 4-Tab [DEV 18-19 (31%) of million almost $162 accounted 1- Report [DEV at 50 Expert & Sorauf Better Medi- Citizens spending; advertis- (“Avoiding FECA allows 2] Tab (13%); to Pro- care, Coalition million $65 money from any sum to collect ers Care, million $30 Health tect America’s Avoiding FECA they can. any source Commerce, (6%); $25.5 Chamber U.S. opera- *638 their to conduct advertisers allows AFL-CIO, million (5%); $21.1 million their activities disclosing without tions Association, mil- (4%); Rifle $20 National public.”). the' Limits, million (4%); $20 Term U.S. lion in “issue corresponding rise par- 286. the two (4%). and groups These Id. elec- 2000 three the 1996 and every advocacy” between out of for two accounted ties ads in the disclo- (67%) spent on issue fact cycles highlighted dollars tion groups that other (noting organiza- cycle. relating Id. to the information sure (33%) on million spent a combined not $166.2 was the advertisement purchasing tion elec- the 1999-2000 advocacy during issue was the advertisement available because ¶ 20(b) Decl. Raja also La cycle); tion Ma- subject to FECA’s restrictions. not and Annenberg data (quoting fig.& 4-Tab 8] at 18 Expert [DEV gleby Report closely ... figures noting “[t]hese (“The cycles 1996, 1998 and 2000 election issue party-based my match own data sought to who examples groups all saw financial re- examining ads collected for their communica- accountability avoid FEC”). ports filed with adver- electioneering an by pursuing tions developed a strat- groups Interest rather advocacy strategy tising/election 1990s, especially by early egy “by the indepen- activities to limiting than an effectively communicate 1996... ex- other expenditures or activities dent against or for electioneering message FECA.”). by the permitted pressly using without particular candidate amounts Groups larger raise can re- avoid disclosure magic and thus words if time frame money in a shorter source limits and quirements, contribution lim- by FECA’s contribution not bound are Report at Expert Magleby limits.” at 19 Expert Report Magleby itations. Indeed, wit- defendants’ 4-Tab [DEV 8]. example, (stating, 4-Tab [DEV 8] L. Douglas ness and consultant Medicare, like Citizens Better “groups until Bailey that it noted was and Manufactur- Research Pharmaceutical and labor cycle corporations election America, Voter NAACP National ers heavy use “issue began unions to make NARAL, far ex- Fund, were able Bai- electioneering. as a tool of advocacy” individuals, parties PACs what ceed 2]. 6-Tab ley [DEV Deck money hard through basically could do contribu- are candidate-oriented and elec- tions.”)- nature, tioneering in only those that present urge action on an issue. The Candidate-Centered “Issue Advertise- or. former are nearly format, identical That Do ments” Not Contain Words of structure, Express Advocacy Distinguishable Are timing produced by ads candidates, from “Genuine” Issue Advertisements while the latter bear little or no resemblance to electioneering.”). advertisements,” according 288. “Issue study, to one fall into three categories: expert 290.Defendant’s Magleby testi- candidate-centered, legislation-centered, fied, effect, that although mentioning a general image-centered. Annenberg candidate’s name indicia of an elec- 22], Report 2001 at 18 [DEV 38-Tab advertisement, tioneering per is not se “Candidate-centered advertisements make determinative, as some advertisements against a case for or a candidate but do so that refer to a candidate name are without the use of the ten words delineat- genuine nonetheless advocacy. issue De- ed in Buckley.” (noting Id. these expert fense David Magleby wrote: “usually present advertisements a candi- A number of indicia make clear that the date a favorable or light unfavorable ads run by individuals and interest urge and then the audience to contact the groups in reality electioneering ads him support candidate and tell or her to influence, that are meant to and do influ- sponsoring organization’s policy posi- ence, elections: These electioneering ads tion.”). Legislation-centered advertise- candidate, generally name a run close ments “seek to mobilize constituents or election, in time to the target the named policy support makers in in opposi- of or district, candidate’s are run primarily pending tion to legislation regulatory races, in competitive and generally *639 policy.” (noting Id. that these advertise- track the themes in the candi- featured usually ments specific, mention pending campaign. date’s legislation). Finally, general image-cen- Magleby Expert Report at 6 4-Tab [DEV tered advertisements are “broadly written added). (emphasis Later, 8] ques- when to enhance the visibility organization of an tioned about “presence whether the of the positions, or its issue but are not tied name or likeness of a candidate an [in ad] directly pending to a legislative regula- or preclude^] being it from ... treated a as tory issue.” Id. genuine advocacy issue” study, his Ma- separate Other commentators “is- gleby stated that he and his team of aca- sue types advertisements” into two of cate- “presume demies would was elec- [an ad] (also gories: candidate-centered called if tioneering” it referred to a by candidate electioneering) issue advertisements and by name or image and was aired “within genuine issue advertisements. Advertise- the district or person state which the designed genuinely ments influence de- image represented named or whose is is particular bate over a issue are known as the incumbent” and person “that is run- “genuine” advertisements, “true” or issue Exam, ning Magleby for office.” Cross while those issue designed advertisements Upon 79-80. further questioning, howev- to influence a federal elections are known er, it type became clear that the of refer- “electioneering” as “candidate-cen- ence Magleby to candidate to which was tered” issue advertisements. Krasno & Expert Report referring type was not the exclusively Sorauf at 65 con- [DEV 1-Tab (“Advertising 2] data show that there tained a call-to-action line at are the end of ads, types advertisement, two distinct of issue those that an but rather one or more the time—I don’t I don’t know “body in the because candidate to the references them. anything know about either what in connection the ad” Exam, issue, how an about has said at 90-91. candidate Cross Strother on an issue. voted has the candidate adver- electioneering issue 292. While Exam, at 103-105. Magleby Cross always specific almost refer tisements name, especially those seek- by candidates me a few minutes tell Q. you Didn’t upcoming to influence an officeholder’s ing thing as an no such there ago that issue pending legislation, genuine vote on all, well, first ad issue election that — to a likely to refer less advertisements genuine issue told me you haven’t candidate name. a genuine as ad, characterized to be testified: Raymond Strother mention a name ad, cannot you issue candidates, work for In addition to our No. In the context A. a candidate? (though firm done some my has also It ad, lines and so forth. the call limited) polit- for the advertising work vot- candidate] [the mention how doesn’t I parties. for third parties ical can- represent [the what It doesn’t ed. falling these ads as would characterize the issue. The about has said didate] true issue categories: two into distinct [the no referent body of the ad has is- electioneering or “sham” ads and only refer- candidate] whatsoever. sue ads. the call line. candidate] is ent to [the advocacy does exist. Over True issue designed I have issue ad- years, political consultant Defendants’ for, among other vertising campaigns testifies, effect, Raymond Strother laws, issue, edu- seat belt tightening objec- to determine the very difficult it is reform, the removal of the cation advertisement, particularly tive behind from the Mis- cross confederate battle viewed outside that advertisement when re- flag. The education sissippi state election: the context time policies promoted such form ads us, understanding the without None of loosening sizes and reducing class time, what a you can tell context and the tenure so that protections afforded a nonsham ad. You ad is and sham easily be more bad teachers could *640 looking pictures can’t that do run all across fired. These were ads I ads. When was looking even at the South; purpose their sole was Harvard, brought Doug I teaching at In Mis- public. simply to educate my class. He Bailey up change to lecture wanted to sissippi, my client commercials, he the confederate cross attitudes about showed series explain how it was said, flag, which is the best commer- “Okay, economically. back the state holding cial,” voted. “The worse everybody were not made These advertisements commercial,” everybody voted. He anyone. to elect or defeat said, no wrong. all There is “You’re mention true ads did not These issue because none or worse commercial best Indeed, by name. any candidates com- you qualified judge are these to mention usually there is no reason you don’t know mercials because point unless a candidate’s name they run or the context which were influence an election. I problems they to solve.” When were ¶¶ 40]. 9-Tab way no 5-7 storyboards, [DEV look at I have Decl. Strother examination, he cetera, fake, real, During Strother’s cross they’re if et knowing candidly during admitted that the course tioned in the context type of this of adver- career, year percent less than 10 his tisement.210 organizations of his work was issue Q. you Have ever advised a client who candidates, opposed to Strother Cross wanted to run an advertisement cam- Exam, 15], at 48 and that [JDT Vol. he had paign spoke of some kind that pend- spent working never much time for an ing legislation a sitting before legisla- Id. ideological organization. In- 56-59. so, ture? A. I think don’t but I could be deed, he admitted on cross examination wrong. Maybe my memory isn’t good, that he did not think he had “ever advised I Q. but don’t think you so. Do have a client who wanted to run an advertise- believe, any you reason to if were to do campaign spoke ment of some kind that that, you that would not want to run pending legislation sitting legisla- before a Exam, specifically advertisements encour- ture.” Strother Cross at 119. age the voters to call their member and Raymond 293. Political consultant to tell them which way they should vote Strother, acknowledged further when pending on that legislative initiative? A. questioned regarding advertisements Yes, good there’s a chance say, we would specifically encourage voters to call their “Call X legislators your Candidate and let regarding pending legislation views be that a candidate’s name would be men- known.” Moreover, Mr. Strother went on to char- ways islation? A. There are a lot of I can group’s acterize considering an interest need to a my opinion refer to look at that on the Amendment, legislation-centered candidate in advertise- First et cetera. I would like to during "loophole,” as a ment time groups pro- see those out of our of election Q. through groups which interest would evade Why cess. is that? A. I Because think campaign laws. Id. at 119-120. Mr. Stroth- they money. they taint it with their I think candidly personal er revealed his belief that can come in and overwhelm an election. I "independent groups” should be taken "out give you example somebody sending process” they of our election $1,000 because "taint it and someone else comes in and money.” with our Id. at 120-21. He ob- spends $1 million on the other side. No serves: it, you matter what want to call have They tainted that election. have influenced Q. getting just What I'm at here is They going that election. to win that there, possibility, there is a isn't that there you election. I don’t care if call it issue pending legislation, period will be in a im- advocacy you They’re going or what call it. election, mediately before federal where opponent to overwhelm their with the shear group campaign target- like would to run a they're doing. volume of what I would legislation ed at the and not at the election. independent groups stay rather see these But, that, they in order for them to do completely. out of our elections I wish politician to refer to the who is also a keep there was a law that would them from candidate. Isn't that true? A. I think it's a Q. interfering, and I wish there was a law that great loophole. you thought Have about riders, keep night would these which I today’s this issue before cross examination? *641 that, people would call the Triad and like living, A. In the context of what I do for a Q. that, They sweep out our elections. in with no you things think about like sure. machine, spread address but a fax and anti- you've Given that never advised a client Semitism and then leave and hide. I think legislative who has a they had initiative that ought it’s trying oppose insidious. I think there to be a support, you were to or have against given thought specific law it. I think candidates should prob- concrete to the that, legislative run lem when there’s a their own ads. Their names should be initiative pending right They spend on the bottom of them. before an election issue should to, candidates, groups money. need to refer to the be- their own If we have let's raise holders, they they money, apprecia- cause are also the office in the limit so can raise advocating against pending leg- money. for or ble Exam, contrast, testimony in expert In also 295. 119. See at Cross
Strother that candidate- also indicated ¶ the record (“There many rea- Huard Decl. al- almost issue advertisements centered to need to refer may ad issue sons that can- the federal the name of mention ways candi- or official an elected the name Report Expert Krasno & Sorauf didate. par- are identified bills Many date. (“The obvious characteristic most at 55-56 may known be and sponsors ticular candidate- ads and by candidate shared Also, incumbents both names. sponsors’ emphasis on them is oriented issue ads people may prominent and candidates in appear names Candidate candidates. to a bill or opposition or support whose candidates spots, with all of virtually these ef- persuasive important may have policy in their identify themselves likely to most ad is used to Aso, if an issue ... fect. most ads issue and candidate-oriented ads par- position of why legislative explain (in candidate opposing likely identify to good for Congress ticular Member way).”). pejorative some state, the member district his or her by Organiza- Advocacy of Issue The Use The same must be mentioned. generally Electioneering Purposes For tions may be to the ad purpose true if to contact Member induce viewers experts Krasno So- Defense (empha- position.”) policy communicate stated: rauf (stating added); Decl. Mitchell sis advocacy of issue Many sponsors [the implied urging express that “[t]he elections] federal designed to influence policy- to contact the or listeners viewers intent their about been frank especial- ... issue is regarding [an] maker example, the For elections. influence they can showing them how ly effective campaign in the first issue ad AFL-CIO in impact the issue debate personally acknowledged in 1996 House elections in question.”). candidates, help intent to Democratic its Bailey Doug measured accord- consultant results were 294.Political and its Growth, a conserva- for ingly. The Club testifies: bluntly discusses group, Republican tive candi- work we did for to the addition its web- electioneering activities on its Deardourff, did we also Bailey, dates contributions, site; direct include and is- political parties political ads for contributions, ads. and issue bundled creating we were When groups. sue especially in parties, goals (e.g., for ballot initiatives true ads issue candidates presidential where elections handgun as issues such general or more intimately agents their have been control), creating when we were their planning paying involved ads, it was never building true ads, hardly be doubted. party’s can specific us reference necessary for over- that citizens Survey results show office order federal candidates these advertisements whelmingly view instance, we ads. For effective create support or intended influence opposing a [sic] of ads a serious created candi- opposition particular referendum Florida gambling dates. any candidates. made no reference our conveying Expert Report
We successful were Krasno & Sorauf 2], two and the failed message, referendum 1-Tab [DEV to one. explains expert Magleby Defense *642 (em- ¶¶ that both labor unions expert report in his Bailey 2] 9-11 6-Tab Decl. [DEV extensive engaged in added). corporations phasis electioneering during communications Center for Public Integrity, “The cycle. 1996 election Publio-I, Groups,” ‘Black Hole’ The by unregu- initiative into The 1996 labor <www.public-i.org/watch_04_033000. at unlimited electioneering lated and com- htm>. AFL-
munications was substantial. The Magleby Expert Report at 10 n. 7 [DEV dollars, spent reported CIO million $35 (citations omitted); 4-Tab 8] see also television, much of it on aimed at defeat- (stat- Dep. Mitchell at [JDT 96-97 Vol. 23] ing Congress, including 105 members of 1996, that in in ing days the 60 before the heavily targeted Republican fresh- election, in terms of spent by dollars men. Labor broadcast television com- AFL-CIO on broadcast advertising, districts, in forty mercials distributed majority substantial of that money was million 11.5 in guides twenty- over voter spent on ads mentioned members of many four districts and ran radio ads in Representatives). House of The labor campaign triggered others. presented Evidence in the record complaint to the Federal Election Com- demonstrates that electioneering advocacy Republican mission the National Con- is, times, a consideration of the AFL- Committee, gressional which charged For example: CIO. that when the AFL-CIO’s ads are “heard, read, 1) and seen” as a whole “a Mitchell testified that Congress after person can only reasonable view them as adjourned 3, 1996, on October the AFL- advocating clearly defeat of a identi- CIO discontinued its broadcast adver- Congressional fied candidate the 1996 immediately pend- tisements “aimed at election.” See In the Matter AFL- ing legislative issues.” Mitchell Decl. Project (complaint CIO ’95 filed with the ¶ 42 began [PCS 6]. AFL-CIO then Federal Election Commission Feb. run guides” “electronic voter 1996). compared positions congressional community responded The business Id,.; candidates on various issues. major effort labor with their own also FEC MUR No. General unlimited and undisclosed communica- 9, 2000, Report, Counsel’s June tions, again avoiding any magic 3], [DEV INT003838 52-Tab words. Partners the business re- 2) 18, 1996, A September memoran- sponse were the National Federation of polling dum from a firm analyzed the Independent (NFIB), Business U.S. likely impact of five issue advertise- Commerce, Chamber of the National As- likely ments terms of their effect on Wholesaler-Distributors, sociation of voters. Memorandum Guy Mo- National Restaurant Association and the lyneux Molly O’Rourke of the National Association of Manufacturers. polling firm Peter D. Hart Research group, Their called the “Coalition-Amer- Associates, Inc., to the AFL-CIO’s Working icans for Real Change,” was Special Affairs, Assistant for Public thirty-seven races, active in spent House Mitchell, Targeting” Denise “Ad an estimated million on over thirteen $5 18, 1996), (Sept. AFL-CIO 001614-16 thousand television and radio commer- (“[The [DEV 124] Tax- advertisement] cials, and mailed over two million letters appears single strongest es to be the mainly support Republicans, spot, reaching in terms of the widest owners of small using business. Others range affecting people’s voters and this tactic in 1996 included Man- Triad impression agement activity Services. The incumbent’s Issue of Triad Management position. Services is documented at It especially should be di- *643 you than how better one knows adver- No [The voters. younger
rected ad- [These this can be.... very strong, consuming is also Kids tisement] done], you but peo- young can be vertisements be directed should again Medicare, ask- you advertisements] will be must understand ple. [The are most effective Homes, Retire to do political consultants ing these only you If can older audiences. had to they have never rules under Re- advertisement] spots, [the run 4 [all What these follow before.... drop.”) the one to probably is tire political manage the can is do] firms added); Memoran- see also (emphasis environment. message in a volatile Moly- Guy Garin from Geoff dum of Jo- Joe Cowart Memorandum from Hart Research Asso- D. of Peter neux Consulting Campaign seph Cowart Mitchell, “AFL- ciates, Inc. to Denise Mitchell, Media Con- “Political Denise Survey” (Sept. Intercepts CIO Mall (Mar. 1996), 29, AFL-CIO sultants” 1996), [DEV 001582-84 AFL-CIO 124], Pro- But see [DEV 001702-04 (Mall Survey of individ- Intercept 124] Fact of the AFL-CIO posed Findings of advertise- to these reactions uals’ ¶ (“[t]he COPE PCC and AFL-CIO advertise- including how the ments its broad- subjects [for of these selection respondents made ments feel campaign between 1995 advertising cast congressman’s posi- about fictitious by partisan was not motivated 2001] issue); also Mitchell each see tion on considerations”); Mitchell Decl. political Exam, 23]. Vol. [JDT at 66-75 Cross ¶ (“[The indirect effect [6 PCS] Fact Findings of Proposed But see never been the has outcomes] election AFL-CIO COPE AFL-CIO and pro- advertising point of our broadcast ¶ (“[t]he of these selection PCC the 30-and within or outside 60- gram, advertising its broadcast subjects [for periods.”). day was 2001] campaign between 4) 9, 1996, internal memo- An October by partisan motivated Brian the AFL-CIO’s randum from ¶ considerations”); Mitchell Decl. Mike Klein dis- to AFL-CIO’s Weeks (“[The elec- effect on indirect PCS] [6 buys might media where cussed never been the has outcomes] tion in his Illinois help Dick Durbin placed to pro- advertising point of our broadcast race, Mr. Durbin’s lack based on Senate or outside the 30-and gram, within to air advertisements of resources periods.”). 60-day Memorandum from certain markets. 3) received Mitchell March On Klein, Mike “Electronic Brian Weeks campaign consul- a memorandum (Oct. 9, 1996), Buy for Illinois Senator” media consul- analyzed political tant who But 125]. [DEV AFL-CIO 005244 The memoran- the AFL-CIO. tants for AFL- Fact of the Proposed Findings of dum stated: ¶19 PCC and AFL-CIO COPE CIO superheated are campaigns Political (“[t]he subjects its [for these selection of objective environments where campaign advertising between broadcast not, looking the best always, to make was not motivated 2001] 1995 and objective to communicate spot. The considerations”); partisan at the time persuadables with the (“[The indi- PCS] Mitchell Decl. 70 [6 able Being their decision. making outcomes] election has rect effect on exactly campaign at pivot the entire point of our broadcast been the never the real talent of a right time is within or outside advertising program, consulting Consequently, firm. media periods.”). 60-day spots. the 30-and great there is little reward *644 5) in probative Denise Mitchell indicated 300. There is other evidence election, record, however, 1996, presented in the days in the 60 before the that in- fluencing the elections of federal candi- spent by in of dollars the AFL- terms dates was also a consideration for the advertising, the sub- U.S. CIO on broadcast Chamber of Commerce crafting when “is- majority money of that was stantial sue advertisements.” spent ads that members of on mentioned In Representatives. sought proposals Mitchell the Coalition the House Dep. advertising “campaign firms for a [JDT 23]. at 96-97 Vol. pro-business to re-elect a Congress.” Josten, 299. Bruce Executive Vice TC00698 [DEV 121]. Media consultant President for Government Affairs for the Media, Alex Castellanos of National Inc. Commerce, Chamber of testified re- U.S. opened proposal by his to the Coalition peatedly purpose that the of the election- stating, you “Thank opportunity for the eering during communications aired present two 30 second television and 1996 federal election was not to influence scripts, one 60 second radio request- as candidate, any the election of federal but ed, your campaign pro- to re-elect a respond paid by to attack ads for Id.; Congress.” business organized by president, AFL-CIO and its The Coalition commissioned firms Sweeney. explained Mr. John Mr. Josten polls groups conduct and focus to mea- that there “were TV markets where John responses sure voter to their advertise- Sweeney accusing ran ad a member of AV0024-40, 0046-47, 0060-64, ments. Congress about their votes on issues 0106-118, 0139-41 [DEV 121]. Co- earlier, that I spring mentioned alition retained polling organizations two true, running he started ads that were not Group Tarrance and Ameri- and we would follow him” with television Viewpoint, specific can to test whether paid by ads for the Coalition. Josten Coalition and AFL-CIO advertisements Exam, According Cross at 44. to Mr. participants would make more or less Josten, the AFL-CIO ads attacked Mem- likely particular to vote for can- Congress supported pro- bers of who had didates. FEC No. General MUR business legislation initiatives and favored 20, 2001, Report, April at 22- Counsel’s “My objective the Coalition. was to 6]; Dep. [DEV 53-Tab Josten 68- impressions Sweeney knock down that Mr. surveyed Vol. firm [JDT 12]. One campaigns and his advertisers and were nationwide,” “voter attitudes TC 00513- trying express to undertake and our view- 121], survey and another tested [DEV points exactly opposite of that and let possible groups, ads on focus Coalition the viewers make their own decision about including “Swing one of Voters.” 121], dialogue imposed AV0139-41, that was being AV0037-40 [DEV them.” Id. at 88. Proposed See also 28, 1996, Group A memo- June Tarrance Chamber, NAM, Fact Findings of Asso- randum to the Coalition stated that “The Contractors, ciated Builders and et. al. among swing net result voters in Cleve- (“Defendants’ assertion that The Co- participants land was that 25% of were preelec- alition’s 1996 activities show that voting Republican moved closer to merely tion issue ads are candidate ads Congress candidate for and about half of disguise Participants is mistaken. in The participants against were moved na- words, were Coalition unanimous that its ads were tional labor leaders. other respond intended to run being response only to issue ads leveled the ads AFL-CIO.”). field, points playing put but some on the in the vast they were success-as candidates Republican board targeted districts (stating majority 121] [DEV AV139 web.” Congress are was involved. Members the Coalition Republican *645 by AFL-CIO attack under “currently evidence is substantial There 301. “outgunned and advertising” and ad- that candidate which shows record Republicans “targeted and if outclassed” for Citi- also a consideration vocacy was on an even operating hope to be ever (“CBM”), an or- Better Medicare zens for election, it the 1996 during field playing by primarily financed that was ganization voice come an outside require will sponsored drug companies major defense.”). their PhRMA, industry trade association. 1996, 12, memorandum JulyA (“We solic- Vol. Dep. [JDT 27] at 13 Ryan Viewpoint American from Coalition com- pharmaceutical from the funding ited in Des Pre-Test of the “Key Findings efforts.”); id. underwrite our panies to 4” Iowa con- Market of Media Moines (“PHRMA leading really was 10-11 “Greg Ganske Congressman cludes CBM.”); and fund organize organization the Des Moines deep trouble 2]; CBM PH 0379 128-Tab [DEV Market,” of the that “this is one stating (tally of donations from 1] 128-Tab [DEV that could districts challenging most 2001, in FY companies to CBM major drug impact to assess have been chosen $39,586,892.32). describes CBM totaling advertising If can advertising.... your repre- organization district, grassroots “a itself as should numbers in move seniors, patients, other districts. Vot- senting in most the interests be effective businesses, the union’s yet Americans, focused on ers have small disabled the com- only 25% has seen campaign as companies and research pharmaceutical result, time there is still mercials. As re- with Medicare many others concerned buy.” them with a substantial to reach Re- Annenberg According to form.” Gary Ferguson Memorandum million on broadcast port, spent CBM $65 Committee, Steering “Key the Coalition prior to the 2000 advocacy days in the 60 in the Des of the Pre-Test Findings Annenberg Report 2001 election. general 12, (July 4” Market of Iowa Moines 22], There is 20-22 38-Tab [DEV NAW0002, 1996), 121]. 05 [DEV that this in the record evidence substantial commissioned In late the Coalition Alex was advocacy candidate-centered. Group to a de- the Tarrance conduct Castellanos, with Na- consultant analysis. The Tar- post-election tailed Media, advertise- testified CBM tional Post-Election Group, rance Coalition names. often mentioned Members’ ments NAM0206-27, at Survey Analysis, 63-66; Ryan Dep. at see also Castellanos The Tarrance 121]. [DEV NAM0213 68-72, Timothy Ryan, for- Dep. at 79-85. Group reported: CBM, testified executive director mer re- commissioned this The Coalition strategy leading ad much of CBM’s impact of their search to assess sup- aimed at the 2000 was up to election advertising campaign and two-month in AFL-CIO porting candidates attacked in the face its relative effect on voters 68-72; Dep. at Ryan Castel- advertising. year-long cam- very aggressive, (cid:127) Dep. at 63-66. lanos AFL-CIO. paign sponsored by the media consultant not- The NRA’s 302. Republican Given that of the six four advertising objective of its that the first ed candidates in this research won tested to “influence outcome campaign was races, con- respective one could key con- and other presidential election were clude that the Coalition’s efforts ground’ Annenberg Report seats 10 ‘battle million. gressional 1998 at 1 McQueen Exam. Exhibit Overall, states.” Cross percent 66-Tab [DEV 6]. 53.4 22], [JDT NRA-ACK 17913-15 Vol. these advertisements mentioned candi- name, percent dates although 80.1 According its mission state- those advertisements run in the final two ment, primarily the Club for Growth “is months of campaign mentioned candi- promoting pro- the election of dedicated dates. Id. pro-freedom growth, through candidates advocacy contributions and issue The Annenberg Center further campaigns.” CFG 000217 130-Tab [DEV during finds that the 1999-2000 election donations, soliciting a brochure *646 5]. cycle 1,100 groups 130 aired distinct adver- Club for Growth noted that “Before the tisements, at an estimated cost of over elections, plans the Club to invest mil- $1 Report million. 1 Annenberg 2001 at $500 in advertising key lion in television con- 22], report [DEV 38-Tab The found that gressional pro- districts to advance our percent 60 of distinct radio and television growth issues. is a This tactic unions (689 1,139) issue advertisements out of effectively against pro- have used so 1, 1999, aired from January to November growth advocacy candidates. These issue 7, 2000, were broadcast for the first time can in campaigns make all the difference the final during two months of the election tight races.” CFG 000223 130-Tab [DEV addition, cycle. at percent Id. 12. In 73 5]; NRW-02814 129-Tab [DEV 2] cf. of all the distinct advertisements men- 2, 2001, (January fundraising letter from tioned candidate. Id. at 14. In terms of Right National to Work Committee advertisements, television the closer the 1,000 run noted that had “more than day, advertisement was aired to election Nevada, ads in Virginia, television Florida likely the more it contained a candidate shining a spotlight Nebraska on the mention. Id. at 15. Between March 8 and differences between the candidates 31, 2000, August candidates were men- Work”). Right those states on percent tioned 72 of the television issue organiza- 304. More than two-dozen August, advertisements aired. Id. After tions, including “political parties, labor un- percent of the television commercials ions, business, trade associations and ideo- broadcast mentioned a candidate. Id. The logical single-issue groups” spent report during found that the 2000 election estimated million to million $135 $150 cycle, percent unique advertisements during
worth of “issue advertisements” “candidate-centered,” meaning they were campaign, compared 1995-96 to the $400 made- “a case for or against candidate” spent advertising by million on the federal express advocacy. using without Id. at running candidates for office. See Annen- berg Report 1997 at 3 [DEV Tab-21]. Electioneering Advertisements Have Been percent Almost 86.9 these advertise- Group Run About Issues In Which ments mentioned candidate for office or Running Them Has No Particular Inter- public official name. Id. at 8. “Most” of est groups running these advertisements “declined make known the identities of 307. Candidate-centered issue adver- Id. their donors.” tisements, designed directly affect fed- employing “mag- eral elections but not Annenberg reported 305. The Center express ic advocacy, words” of have been in 1998 that at 77 groups least ran issue pending advertisements run about issues not before Con- during the 1997-1998 elec- cycle costing tion gress. Chapin [DEV between See Decl. 13 6-Tab $275 $340 Buying The Time Studies Florida Women’s (testifying “[t]he 12] also ran a EMILY’s List project Vote 309. The Brennan Center for Justice Eighth Florida [2000 ad in the television (“Bren- University New York Law School campaign[,] which Congressional] district Center”) produced two entitled nan studies prior I run in the two months recall was Buying Buying Time 1998 and Time praises The ad general election[.] to the advertising which examined television dur- my gun safety and ends with the record cycles. and 2000 election ing Chapin to continue fight- line: ‘Tell Linda 1998; Buying BT BT 2000. Both Time influ- clearly ad is intended to ing.’ This studies were funded the Pew Charitable my the election result. Based on ence 1998; BT BT Bren- Trust. See 2000. The observations, particu- EMILY’s List is firm “primarily nan Center is a law larly gun control issues. interested variety also does research on a of social However, support- are interested fi- campaign science issues that includes me, pro-choice female candidates like ing justice criminal other along nance purpose.”). ad serves that poverty Hol- electoral issues and issues.” Builders and Contractors Associated Dep. at 10. The Brennan man Center was *647 (“ABC”) run have also advertisements that in crafting also involved the of BCRA and are not of concern to its discuss issues that providing analysis being of issues debated 65-67, Dep. Monroe 90- members. See media, Congress legislators, in the (answering question [JDT 23] Vol. public. Representatives the Id. at 11. advertisements run the Asso- regarding the Brennan Center testified favor of and Contractors which dis- ciated Builders bill, 22, McCain-Feingold the id. at molesters, penalties for child cussed Mon- during legislation, Senate debate on the “no, [stronger penalties roe stated for child Buying cited to Time data and Senators particular is not a concern to molesters] Dep. analyses. Brennan Center Holman general public gener- of contractors or at 2 Exhibit 3 Vol. [JDT 10]. contractors.”) 91; group al Id. at but Proposed Findings of Fact of Cham- 310. While the Brennan Center’s fund- ber, NAM, Associated Builders and ing proposal Buying Con- for Time 1998 states (“In tractors, fact, et. al. ABC’s wit- that an study purpose, had academic explained ness the cited ABC ads in the evidence record demonstrates subjects Defendants assert address [that primary purpose fuel a was “to contin- policy distant from the concerns of the campaign propel uous and multi-faceted public policy reflected concerns of ABC] Dep. reform Holman Exhibit 4 forward.” membership.”). ABC’s proposal Vol. reveals [JDT 10]. study part larger that the was of a strate- 308.During cycle, the 2000 election reform,” gy to overcome the “obstacles to $20,000 gave Club for Growth to the Amer- step in achieving *648 ion, purpose is the provide of the ad to study, primary purpose “the was to con- information about urge or action on a bill body tribute to the knowledge about issue, or or is it generate support campaign finance specifically reform and ” opposition particular for a candidate?’ advocacy issue ... to fill what we Expert Goldstein at 7. Report Advertise- empirical viewed to be an void in the liter- provided ments that information or urged ature about advocacy.” issue Dep. Seitz action on a bill or “gen- issue were labeled 22at Vol. independent [JDT “An 28]. but studies, uine issue ads” in both whereas purpose related ... was provide indeed to those generated communications that sup- information to ... proponents campaign port opposition particular a for candi- finance reform help them fashion new date were referred to as “sham issue ads” arguments reform, and better but ar- in Buying e.g. Time Buying guments would be based on research 87; Time 1998 at “electioneering issue verifiable, checkable, that was transparent, ads” in Buying Time Bivying Time reproducible.” Holman, Id. princi- Mr. 2000 at 30. Each Buying Time database pal co-author of Buying Time did consists of 40 million points. data Id. at approach project not the purpose with the 37. of producing results support that would campaign reform and had never seen 316-317, 313. As noted Findings in- grant proposal. 25-26; Dep. Holman at Dr. fra, Gibson criticizes the CMAG data (“I see also id. at mostly 29-30 was excited underlying reports. both Dr. Arthur Lu- aspect about science pia by [the was asked the Brennan Center to study] .... It was clear at any point Expert Report evaluate Dr. Gibson’s explained and never exactly to me what provided report detailing findings. his in.”). policy sort of direction that go would Rebuttal Expert Report of Dr. Arthur Goldstein is aired. 2002) advertisement Re- (“Lupia Rebuttal (Oct. 14, Lupia 1) at 16. (Vol. Exhibit 9 at 52 & Dep. port”). 1) monitor local does not CMAG Data Set CMAG markets it in the 75 advertising cable is the basis data set The CMAG 314. 8; at Report Expert covers. Gibson well as studies as Buying Time 24. Report Rebuttal at Gibson Goldstein, Dr. Kenneth report expert sets 2) data and 2000 CMAG The 1998 for the defendants. produced was which broadcast cover advertisements did not political television tracks CMAG mar- media 140 smallest in the nation’s markets, top 75 media advertising in than the 75 kets, more rural are of U.S. percent than containing more (Vol. Dep. by CMAG. Goldstein captured 18; 6-7; at at BT 2000 BT residents. Vol. 2) 16 [JDT Exhibit at 9-10 & 7; Gold- see also Report Expert Gibson covered, evi- markets For those 8]. 1) (Vol. 8] at 47-49 Vol. [JDT Dep. stein are not all advertisements dence shows data). its compiles CMAG (describing how par- Dr. by CMAG. Goldstein captured dis- geographically markets These 75 study of validity ticipated 23; Report at Rebuttal Goldstein persed. comparing CMAG CMAG data App. G Expert Report see also Goldstein invoices from sampling of with a data markets monitored the 75 (listing at 1-2 Exhibit 9 Id. stations. eight television CMAG). New York was In 1998-99 that for seven show The results at 16. 6,812,540 market with largest media stations, more of percent or representing 6.854 households television their invoices listed on advertisements Gib- households. all television percent of data. Id. at the CMAG correlated with (listing 2 at 1 Report Exhibit Rebuttal son station, (tbl.2). one & 28 For 16-17 mar- media Nielson estimates of 1998-99 however, percent of the advertise- size). Shreveport was the in order of kets in- station’s ments accounted market, with media largest seventy-fifth in the CMAG voices could not found households, per- 370,990 or 0.373 television Id. data. Id. at households. cent of all television 3) shortcoming of the CMAG market, the four Another monitors CMAG For each *649 100 (ABC, CBS, provides although it data is that networks major broadcast audio, it Fox), the advertisements’ NBC, percent 42 national of as well as snapshots at four second Expert Report only provides networks. Goldstein cable video. data sets of the advertisements’ 2-3. The CMAG intervals App. G at First, every such, advertisement percent of types of data. As the include two aired, do not pro- data set CMAG for the 1998 storyboards advertisement portion of sponsor- of the audio transcript group name of the display vides the storyboard Dep. con- and a advertisement Goldstein ing the advertisement. 8]; fourth capture every (Vol. 2) Gibson Ex- sisting of Vol. [JDT still at adver- portion of the of the video Report second at 8. pert Expert Report at 6. tisement. Goldstein 4) shortcoming of perceived Another Second, air- provides on each data CMAG not markets is that tracks CMAG time, advertisement, including ing of an districts, unable to dis- electoral show, station, cost. and estimated length, versions of different tinguish between Id. exception identical with ads that are name or officeholder’s of the candidate data is underinclusive CMAG (also “cookie advertise- cutter” known every political in that it not track does merits). 7; Expert Report Gibson at son to believe that ... including advertise- 7; Report Gibson Rebuttal at Goldstein ments from the markets not covered would (Vol.2) Dep. at 113 [JDT Vol. 8]. change results [the] [of studies based on 5) The CMAG Data Set does not mea- Lupia data].” Report 28; Rebuttal sure in 30-day advertisements aired see also Goldstein Rebuttal Report at 24 period preceding primary elections. See (“Moreover, Professor Gibson does not of- Krasno Rebuttal Report at 13. any fer reason to believe that the ads run regard gaps to the local station cable advertising are significantly compared invoices when to the number of different than the broadcast captured ads CMAG, captured by advertisements CMAG.”). by According Goldstein, to Dr. supra Finding Dr. Goldstein believes Dr. Gibson did not suggest that “CMAG’s it could be the result inadequate record inability capture local spots cable intro- keeping by the station as well as CMAG any duced systematic bias into the data.” omissions. See Goldstein Dep. Exhibit 9 Goldstein Report Rebuttal at 24. Accord- Gibson, however, n. 3. Dr. finds this ing Goldstein, to Dr. “snapshot” style major abe shortcoming of the CMAG of the storyboards CMAG does not com- data. Gibson Report Rebuttal at 5-6. He promise “ability to accurately analyze deduces these missed advertisements ads, the content of especially because 1,764 “likely ads,” that CMAG missed provides CMAG a complete transcription percent 5.04 eight of these stations’ air- of the portion audio along ad ings, using figures these estimates captures.” the video Goldstein Rebuttal 48,864 “that airings that in fact were Report Furthermore, at 24-25. Dr. Gold- broadcast cap- [nationwide]... were not states, stein “there is no reason to believe by tured methodology.” CMAG Id. systematic there any [sic] bias asso- (applying percent the 5.04 figure to the ciated with the terminology captur- CMAG total number of captured advertisements ing only one every video frame four sec- CMAG). by Dr. Gibson assumes that onds.” Id. at 25. percent As the 25 CMAG has missed the percentage same storyboards which did not indicate advertisements all the covered media sponsor, advertisement’s the Buying Moreover, markets. although “we do not Time 1998 authors were able to remedy any know of the characteristics of these problem by referring to the “CMAG’s ... missing airings,” Dr. Gibson believes (which original coding accurately provides airing those were missed because “did sponsor the ad well over have a ‘political clear purpose’ that cases), percent of examining the content could discerned ana- CMAG ad, 6; and, cases, lysts.” Id. at in a but see few Dep. Goldstein phoning (Vol. 2) at 12 *650 (stating [JDT Vol. television 8] stations.” BT1998 at 8. provided commercials to CMAG Com- Buying Findings Time
petitive Reporting211 Media “overly in- clusive,” including Cross, “ads for the Red 319.Buying 1998 Time drew a number ads for companies”). [and] electric of regard conclusions with to the nature political and effect advertising
318. While of acknowledging CMAG’s un- the derinclusiveness, Lupia study’s Dr. United States. The findings believes that main Gibson, “presents Dr. no evidence or rea- include: gets
211. CMAG Competitive [its] data advertising but now top tracks Reporting, company Media a that tracked ad- (Vol. 1) 100 Dep. markets. Goldstein at 47 vertising top in the 75 markets 1998 and 894 election- didate, constituted percent 99.4 advertise- of candidate 1) percent Four advertisements, percent 0.6 while eering advocacy” terms. “express used
ments Id. advertisements. genuine issue were at 9. BT 1998 (fig.8-2). at 72 issue advertise- of 2) proportion The rises as a candidate mentioning ments L. expert, Dr. James Plaintiffs’ approaches. election the date criticism at Gibson, leveling various while percent of 61 August July and studies, dis- does not Buying Time both candi- a mentioned advertisements issue “are advocacy words express pute percentage September, By date. or that advertising, political rarely used the remain- and for 82 percent reached mention candi- ads that sponsored group at remained campaign der concentrated before to be tended dates peak of 97 reaching higher, percent at 38- Report Expert election.” Goldstein Id. half of October. first in the percent 9; at Report 39; Lupia Rebuttal also see 87,103 (fig.4.15). at (“En- at 11 Expert Report also Gibson advertise- 3) percent issue Forty-one ads objective characteristics tirely information provided ments reliability.”). few threats to present ... days of appeared within action urged findings that challenge the does he Neither adver- election, 2 of those only but parties and sponsored by advertisements tisements, referred percent, or seven and comprise significant groups interest at 109. Id. a candidate. advertising political portion of increasing key findings 320.Buying Time 2000’s Rebut- Lupia in federal races. broadcast cycle included: 2000 election from the Report at 9. tal adver- 1) of all percent Seven Time 1998 Buying Criticism of advocacy express contained tisements objec- several raises Dr. Gibson used BT at 73. Candidates terms. Buying Time 1998 Buying tions terminology per- in 10 advocacy express ultimately con- reports, Time 2000 15, 29, ads, at while id. cent of their accepted “be report can that neither cludes used groups and interest political parties descriptions of the valid as accurate percent approximately two terms such in the 1998 advertising nature time, id. at 73. Re- Expert Gibson elections.” (those 2) urging ac- ads” issue “Genuine objec- listing every at 66. port While bill) legislative policy or public on a tion are as tion, objections chief Dr. Gibson’s through- evenly dispersed were “rather (1) product not a Buying Time follows: group-sponsored while year, out principles inquiry as scientific of scientific promote electioneering [which ads to, see were not adhered objectivity candidate] of a federal election or defeat (2) 3, 45; n. Report at 3 & Expert Gibson ap- overwhelming make sudden subject study was Buying Time neither immediately elections.” pearance before (3) 45; results of review, id. peer Id. at 56. not be studies could Buying Time 3) had study found that if BCRA demand[s] social science replicated, and gen- three applied campaign, replicable, id. at analysis be that statistical times) (which uine aired issue ads (4) 47-48; the statistical also id. 5. See defini- Act’s would have within the fallen *651 Buying Time employed by techniques the “electioneering tion communication.” of (5) 5; at the questionable, id. authors were ad- way, of the Id. at another 73. Put pre- database the shortcomings of CMAG the days of run within 60 vertisements results, Time Buying the clude rebanee depicted a can- also election (6) 5-9; policy id. the student coders were not perspective Buying of the Time trained, steps and were not taken to en- 1998 authors “may have undermined the (7) 9-10; impartiality, sure their id. at the integrity” study of the pure specula- “is reliability of the coded data due to the lack tion,” and that a “person’s political or ideo- guidelines answering ques- coders logical prevent beliefs need not them from and the coding subjective tions charac- being scientist,” an effective and that he advertisements, teristics of the 11- id. at knows of no “conventional canons of scien- (8) 12; the upon results cannot be relied objectivity”); tific Goldstein Rebuttal Re- because the miscoding single of a docu- port at 8 (denying the charge that he or ment can have “quite large consequences anyone supervision under his “perverted” (9) results,” 22-23; for the statistical id. at databases, the results of the and maintain- coding inaccurate questions, even if the ing approach that his coding was (10) consistent, 17; coding was id. at based on nothing other than spirit “the Question wording coding 6 in Buy- scientific inquiry and objectivity”). flawed, ing Time Question 1998 is Second, I find that while the (11) sub- superior, 32-34; is id. at “no mission of statistical single peer studies to review Buying Time 1998 Data Set exists” Goldstein, processes due to continual changes by preferable, Dr. it does not “seri- id. at 11. Defendants’ ously witnesses Dr. Ken- place limit[ ] confidence one can Goldstein, neth Dr. Jonathan Krasno and in Report,” as Dr. alleges. Gibson Sorauf, Dr. Frank and Dr. Lupia Arthur Expert 45; Gibson Report at Lupia but see each counter Dr. allegations Gibson’s Report Rebuttal at 13 (stating that expert reports reports. and rebuttal significance of the lack peer-review generally Expert Report; Goldstein best”). “doubtful ... at Goldstein Rebuttal Report; Krasno & So- Third, while Dr. Gibson maintains Expert Report; rauf Krasno Rebuttal Re- inability replicate his Buying port; Lupia Report. Rebuttal After re- Time Buying 1998 and Time 2000 results viewing the expert reports, I find that any “undermines ... confidence one although Buying Time studies contain place should findings,” Gibson Ex- some flaws shortcomings, pointed pert Report inability his seems attrib- Gibson, out Dr. those shortcomings do utable to using his the incorrect data set. not detract from the credibility studies’ Report See Krasno Rebuttal at 6-7 & n. reliability. I make the following find- 8 n. (attributing Dr. Gibson’s failure to ings regard objections: to Dr. Gibson’s replicate the results to Dr. Gibson’s not 323.First, agree while I pri- that the using original “the command files used to mary purpose Buying of the Time studies produce the numbers in Buying Time was reform, to further campaign finance I 1998,” and maintaining original do not find that this fact has skewed the replicate command files the Buying Time study. results of the See Krasno Rebuttal results); see also Goldstein Rebuttal Report at (admitting Buying Time Report at 19-20 (stating that the rea- document, 1998 is an advocacy but stating son Dr. replicate Gibson could not rarely “[s]cholars upon embark re- results of Buying Time 2000 was because expectations search without some as to its set); using he was the wrong data id. at 20 scholars, results. But more than most we (using the produced “federahsav” data set compelling had a reason to insure that our Center, by the Brennan results Dr. Goldstein was could withstand allegations of bias”); Lupia Report replicate key Rebuttal “able to findings Buy- at 10-11 (stating that Dr. Gibson’s claim that ing study,” Time [2000] and correlate oth- *652 “appar- that the concluding airings, but ing percentage aof fraction “within ers on relying (“It against errors caution ent[]” at 17 Report Rebuttal Lupia point”); on drawing conclusions and the CMAG data Plaintiffs that the noting worth is also communications); opportunity to the nature up the passed experts their Report at Rebuttal the by replicating see also Goldstein concerns their resolve itself.”)- not even “does Repli- that Dr. Gibson (stating procedure collection data limi- alleged admits, how these attempt “is a core to explain cation, Dr. Krasno the con- “over- science,” validity Dr. the but Gibson undermine tations precept of ”); Time repli- Buying on ‘exact’ forth by insisting clusions set case states the Report at 6. at Report 5. Rebuttal Rebuttal Krasno Krasno cation.” the the between Notwithstanding debate 328.Sixth, failure to I find that the finds, Krasno Dr. replication, experts on justified given coders is student train the between discrepancy the I that agree, and “training pro- that a concerns Dr. Krasno’s set using one data findings Dr. Gibson’s complaints that caused gram would Time 1998 Buying findings of the and the attempting to I and were Dr. Goldstein are statisti- Time 2000 studies Buying the coders” impose our standards Krasno Rebuttal See cally insignificant. hoping for a “were researchers that the Expert (referring to Gibson Report at 7-8 informed) ordinary viewer’s (reasonably Expert 24); see also Goldstein Report at Rebuttal the ads.” Krasno impression of that the vari- (stating n. 10 Report at 18 4; (explaining also at 5 n. id. Report “are so small results ances Dr. Gibson’s “[ljimited coding of the pre-testing that triviality”); Lupia own suggest as to un- training was that instrument showed “the demon- (stating at 43 Report Rebuttal apparently coders were necessary because and the are small” discrepancies strated ques- the and answer to understand able “provides no evi- Expert Report Gibson Gold- explanation.”); without further tions any Buy- affect changes that dence such that (stating Report at 32 Rebuttal stein claims”). major ing Time’s “a deliberate training was lack of Fourth, alleges Gibson sci- well-supported by social that is choice Buying by the techniques used statistical getting .... aimed principles at ence despite questionable; authors Time impression of untutored common-sense specifical- does not charge, Dr. Gibson coders, minimizing possibility while was procedure statistical ly identify how no- any preconceived with biasing coders at Lupia Report misapplied. See Rebuttal implicit in a set have been might tions that 18-19; (characterizing at id. see also training instructions,” and that formal critique as a “difference Dr. Gibson’s independence only undermine “would certain categorize how to point-of-view on possibly assessments of the coders’ nothing to do with statisti- that has events the sur- into systematic bias introduce se.”). techniques per cal the lack of (contending that vey.”); id. to “simulate made it easier training also Fifth, although I find that typical viewer experience of a ... shortcomings, has some CMAG database home.”). Further- watching the ads has not Dr. Gibson demonstrated more, is concerned Dr. Gibson although the conclu- shortcomings undermine these coders, his con- of the training Buying Time studies. sions are, specu- explains, as Dr. Goldstein cerns he Report (stating Rebuttal 5-7 Gibson not “conduct Dr. did lative because Gibson verifying CMAG has no basis coders survey, using his own his own accurate, way is no data base is there compare techniques, training own his the miss- knowing characteristics of *653 897 it to the results reached the undergrad- candidate” and does not ask the coder to Report uate coders.” Goldstein Rebuttal Questions. skip Expert Goldstein Re- 31; Lupia at also Report Rebuttal at port App. F [DEV Dr. 7]. 3-Tab Gibson (“In case, replication such a this would believes that it is not always readily appar- simple relatively been to conduct ... ent sponsor who the of the advertisement and would have allowed the re- [Gibson] is, making it difficult for the coder to know port rely speculation less on when alleg- purpose whose he supposed or she is to be ing that measurable attributes of Gold- evaluating. Expert Report Gibson at 12. stein’s coders affected the data collection Gibson, According problem to Dr. this analysis”). Finally, I also find that exacerbated the lack “explicit guide- presented evidence has not been to sub- lines for how to pur- ascertain an ‘ad’s ” stantiate Dr. Gibson’s concern and, pose,’ given subjective nature of unrepresentative student coders were task, procedures “certain are essential general population, thereby threaten- so that the reliability of the data collected ing accuracy Buying Time re- can be assessed.” Expert Report Gibson Lupia Report sults. See Rebuttal at 35 Further, at 16. Dr. Gibson states that (stating “only if we had evidence that there is “no assessment whatsoever of in- inway undergraduates which the were tercoder reliability Buying [for Time unrepresentative caused Buying Time’s Thus, 1998 ]. unlike academic research claims to differ from what representative based subjective on coding, empirical no population produced” would have would evidence exists to indicate that the coders’ there be a basis believe the coders’ subjective assessments of these ads were unrepresentativeness threatened the quali- accurate.” Id. at 18. Lupia responds Dr. data, ty of the “report but the Gibson arguing “practice that the an- treating presents evidence.”); no such Holman opinion swers to questions objective as Dep. 241^42 (noting at prac- “it’s common phenomena is common in Lupia science.” tice to survey respondents use students as Rebuttal Report at 38 (describing an arti- work”). especially Gibson, cle co-authored by Dr. the main Seventh, 329. I find that Dr. Gibson’s conclusion of which is survey based objections regarding reliability, or ac- where participants were asked about how curacy, of the coded data coding due to the identities). they described their own He “subjective judgmental” character- Question notes that begins with “In your prevent istics do not rely- this Court from opinion,” and seeks to understand how the ing on these studies as the Buying Time perceived. advertisements are Id. at 37. authors seeking were to measure the co- Eighth, 330. I acknowledge while opinions ders’ perceptions. Gibson impact Buying on the Time Expert 1998 re- Report 12. Dr. Gibson uses sults due miscoding hypothetically Question Question could example.212 as an have, Gibson, appears in Buying Question “quite Time 2000 words Dr. as 11, except the Buying large consequences Time 2000 for the statistical re- sults,” version “particular does not bold the words Expert Report 22-23, Gibson Dr. Question 212. Buying (If The text of urge Time 1. Provide information or action Question so, #19) 1998 is follows: skip to your opinion support/opposition Generate purpose for can- is the of this ad to provide didate urge information about or action issue, generate sup- on a bill or or is it Unsure/unclear port opposition particular Expert Report (citing Buying for a candi- Gibson at 12 1998) date? (emphasis Time original). coders, question, sought by were only an ex- providing he is admits Gibson *654 2) (Vol Dep. the could affect Goldstein error were overruled. one ample of how 8], if that Adver- (explaining Vol. [JDT id. 208-209 results. See promoting is- as # 11 was coded tisement Tenth, argu- Dr. reject I Gibson’s 332. candidate, percent- the rather than sues Buying Time Question of ment in the advertisements pure of issue age 6, Question and that superior to 1998 is rise six set would Time 1998 data Buying Ques- Question 6 coding the of where re- the evidence points). As percentage inconsistent, Question tion are hypo- is miscoding impact of the garding text of both upon. The should be relied it does thetical, I find that speculative, or is listed questions below: of the the conclusions undermine purpose of opinion is the your 6. In study. or about provide ad to information this Ninth, that Dr. I find Gibsons’ 331. issue, or is it on a or urge action bill may though the coders that even argument for a support opposition generate coding, coding in their consistent particular candidate? incorrect, misrepresents the still be could action urge 1. Provide information Time studies Buying the of purpose 19) (If so, # skip Question to do. were asked Gibson the coders what support/opposition 2. Generate that: contends candidate easily discernable must seek coders 3. Unsure/unclear a means ‘cues’ in the advertisements required judgment. primary making your judgement, 22. political figure presence of a personal Since charac- focus of this ad on readily is a seems to be candidate who policy on either candidate or teristics of cue, develop coders then accessible matters? says: rule that’ implicit decision characteristics Personal depicted in the figure is ‘when a Policy matters ad, electioneering.’ Un- the ad involves 3. Both rule, reli- might be the variable der 4. Neither not mean that But this does ably coded. Expert Report (citing Buying at 12 Gibson valid, political figures
the data since 1998) 31-32. (emphasis original), Time doing well be in ads appearing could that, Ques- according to Dr. Gibson notes electioneering. other than something the advertisements percent tion 55.6 Report (emphasis at 17 Expert Gibson “promoting coded as candidates.” were may be cor- Dr. Gibson original). While that, Dr. also notes Id. at 31. Gibson may doing “be that an advertisement rect Question percent response 98.1 electioneering,” than something other days the advertisements “aired within per- seeking the coders’ study instead is a candidate depicting the election and purpose of the advertise- ceptions of the “primary focus” having were coded as ments, pur- true not the advertisements’ (emphasis at 32 policy matters.” Id. on Report at 39. Lupia Rebuttal pose. See Dr. finds these original). While Gibson may not coders’ perceptions because Just expect, contrary might one results what not threaten the comport reality does that coders finds it he also “reasonable” data, survey validity of the because (98.1 per- almost all conclude that would Id. impressions. the coders’ mental seeks cent) “primary have a fo- advertisements However, changed were codings when that half policy, but conclude impressions of the cus” on also Question the mental of those same advertisements have the
reasonable.” Id. at Although 35. I primary focus as wild times.” Id. at 48. acknowledge Question that pro- 6 does not Further, I find that the supports evidence vide coders the option finding the that Lupia’s Dr. argument that individuals can promotes advertisement both issues make the same distinction for campaign candidates, and “does not ask the coder to advertisements, i.e., that purpose their is discern the ‘primary’ purpose of the ad” get person the X, vote for candidate but instead asks provide coders to but their focus is on issue Y. See id. opinion on the “purpose,” advertisement’s addition, I do not Question believe that 33-34, id. at I find that coding the of must include a qualifier, such as the word Question 6 can upon by be relied this “primary” Question 22, in in order to be out, Court. As Dr. points Krasno “coders valid. A study co-authored Dr. Gibson (and percent rated 99 of candidate ads survey based on a question on social iden- ads) percent of party sup- as generating tity does not mention the word “primary,” port or opposition for a candidate.” Kras- but concludes that responses the initial Report no Rebuttal at 10 (citing BT 1998 given primary revealed social identities. 41). at This conclusion is bolstered in Dr. Lupia Report Rebuttal at 51 (quoting opinion by Krasno’s the fact the coders Gouws, James L. Gibson & Amanda Social were not asked determine the sponsor Identities Political Intolerance: Link- of the advertisement and that the disclaim- South@ ages within the African Mass ers on storyboards the provided to the Public, American Journal Political Sci- coders were often difficult to read. Id. at (2000)). ence 278-92 Dr. report Gibson’s 10 n. 14. An electioneering advertisement “provides no tangible scholarly evidence or does not have to primarily per- focus on suggests Question reference” that 6’s candidate; sonal characteristics of a in failure include a qualifier is “inconsis- fact, “political routinely scientists take the tent with standard practice.” scientific politicians view that frequently adopt and Lupia Report, Rebuttal at 52. Similarly, advertise policy positions in order to ap- Dr. Gibson “offers no direct evidence on peal to voters.” Id. at 10-11 (citing as an how questions answers the would have example Downs, Anthony An Economic changed had we responses allowed the Theory (1957)); Democracy see also ‘both’ and Question ‘neither’ in 6 or the (cit- Goldstein Report Rebuttal at 29 n. 16 response Question in 22.” ‘unsure/unclear’ ing four articles for proposition the Id. at 50. “policy issues in electioneering ads is wide- Finally, 333. I ly do not find noted in the literature”); science updating and Dep. changing Buying Seitz at [JDT Vol. 28]. More- over, Time Data Lupia as Dr. Set explains, invalidates data- advertise- base, (the purpose ment’s such that question posed Buying reliance in 6) Question (the Time primary its 1998 conclusions is unfounded. As focus question posed 22) Question in Dr. explained, do not have Krasno the short time to be the same. Lupia Rebuttal frame of Report study “inevitably meant that Dr., 46-48. To point, Lupia illustrate small changes to the data set would contin- under communications electioneering Time Buying the release after ue even disputed. Fur- Report at 4. BCRA Rebuttal Krasno 1998.” re- in the database thermore, changes sev- 1998 found Buying Time missing data in of filling gradual “the flect advertisements issue pure of all percent en contradic- internal discovery of candidate a federal identified in 1998 aired Dr. all no evidence at There tions. cam- days of the sixty within appeared changes any of report that Gibson’s Report Rebuttal paign. Krasno he data that of the versions successive dividing the was determined figure This im- than trivial any had more examined adver- issue genuine airings of number reported on those results his pact on candidate a federal mentioning tisements Dr. Goldstein 1998.” Id. Time Buying total by election days within in the changes database attributes advertisements issue genuine number of database, in a inevitable error random Dep. at Id.; also Seitz in 1998. run Buying Time that used such *656 Kras- to Dr. Jonathan According 115-16. points, million data of 40 which consists 1998, ques- the Time no, Buying of author 37; at “routine Report Rebuttal Goldstein this formula to answer sought he tion 10; and sets,” at id. the data of ‘cleaning’ issue impact pure on “what is BCRA’s was of practice” science social the “standard Center Brennan at 12. The ads?” Id. appar- correcting by data set cleaning “a al- figure, percent the seven stands en- have been codes after ent errors it had in 2001 time period of though for database,” (citing Herbert id. in the tered Dep. at accuracy. Holman its questioned Bruce D. A. Krosnick & Weisberg, Jon F. time, the of period During that 142^13. Re- Survey Bowen, An Introduction analyses additional ran Center Brennan (3d Analysis search, Data Polling, and of percent seven that and determined ed.1996)). the multi- Lupia reviewed Dr. ... in other words ads—or “unique issue that concludes ple databases ads” issue placing groups special interest no finds transparent and he changes captured un- in 1998 would produced has that Dr. Goldstein conclude reason to 123, 144, that BCRA, id. at fairly by Rebut- Lupia anything. hide attempted to air- advertisement of all issue percent 13.8 Dr. Lupia agrees that 22. Report at tal and broadcast a candidate mentioning ings one; how- legitimate concern is Gibson’s were election the 1998 days of within 60 for change ever, databases large academic advertisements, at 154- id. issue genuine reasons, mere existence so the legitimate in rebuttal his contends Dr. Gibson 55. in the changes cited the relative small of genuine issue of the number report negate no basis report provide [Gibson] would in aired advertisements Lupia, the To credibility. Id. project’s represents by BCRA captured have been “why how is important question stag- awith “communications affects made,” and Dr. Gibson’s were changes household^] of number gering are, Lupia’s — illegitimacy of suggestions ... Thus, prohibited, ads were these cred- varying questionable opinion, “of communica- group-citizen over 30 million ibility.” Id. Rebuttal Gibson be affected.” tions would Calculation Buying Time 1998’.s do not experts 25. Defendants’ Report at Advocacy Issue Percentage Genuine and re- expert point in their address this Captured by BCRA reports. buttal claim 1998’s 334.Buying Time the use object 336. Plaintiffs ads” issue only “genuine percent seven advertise- issue genuine number total constitute would campaign the (“The run in ment 1998 as the denominator. Dr. at 62 data from which these esti- finds: Gibson mates are derived cover broadcasting only using a denominator of all during issue ads the 1998 and years, 2000 calendar broadcast in these calculations not thirteen-plus months preceding arbitrary is and makes little sense. them. Were we able to factor in the total Why 1,1998, use January as the starting number pure issue that appeared ads pool (i.e., date for the total of issue ads elections, between the percentage pure denominator)? Why not include ads issue ads affected BCRA would de- from December or even the entire cline.”). cycle election beginning in November 338. Dr. Gibson suggests the better de- Why 1996? not limit the denominator to nominator, and one that not arbitrary, ads shown last half of 1998? The that used in 2000; Buying Time namely, ... selected ... denominator ... has no all airings of issue advertisements during theoretical meaning. sixty last days of the campaign which Expert 38; Gibson Report see also id. also depict candidate. Gibson Expert (“I at 41 justification can see no mak- Report The Buying Time 2000 for- ing the equal denominator to all issue ads mula question: answers the If one were to 1998.”). Furthermore, aired in argues he assume all issue advertisements mention- given his people conclusion that more ing a candidate days last of an are concentrating issues as election campaign had an electioneering near, elections draw discussed Find- *657 infra purpose, what ing of Buying denominator, percentage the time Time 1998’s would by using assumption all issue be advertisements run dur- erroneous? Id. ing the course of the at year, By contrast, “the 38-39. Buying makes the Time assumption that ads anytime aired 1998 formula question: answers the “What throughout year the equally valu- as percentage of total ads run throughout the as able ads aired in proximity to the elec- year that mentioned a by candidate name tion.” Gibson Rebuttal Report at 27. and were coded as providing information Thus, Dr. Gibson concludes that the “dam- urging appeared action within days 60 age of prohibiting an ad within days 60 of election, of the rather than earlier than 60 an election cannot by be ameliorated allow- days (em- before the election?” Id. at 39 ing that ad to be at broadcast some other phasis original). Dr. Krasno believes point throughout year.” the Id. at 27-28. that Dr. Gibson’s denominator would vary explains 337.Dr. Krasno Buy- the in size “with the amount of candidate- ing Time 1998 denominator only reflects oriented issue advertising before an elec- advertisements run in 1998 because “we tion. particularly This is relevant because had no data from 1997 or the last of weeks of the volume of candidate-oriented issue 1996 to include in the denominator.” ads presidential devoted to campaigns. Krasno Report Rebuttal at 14. Dr. Kras- highly result ... is unstable estimates no believes that the addition of such data of impact BCRA’s year year.” into the denominator would simply “de- Report Krasno Rebuttal at 15. crease the percentage pure ads issue 339. The effect using the Buying affected BCRA” because all of those Time per- 1998 denominator is that the advertisements would have aired more centage only by than is affected not days 60 the amount before the election and would genuine therefore not increase the issue run size of num- advertisements within the erator. Id. (emphasis election, at 60 days 14-15 of the original); but also the num- see also Krasno Expert Report & Sorauf ber of electioneering run advertisements im- the determining way” of justifiable “a n. 26. When at 16 Id. time. during that advertise- issue genuine of BORA pact denomina- Dr. Gibson’s applied
Dr. Krasno use the same ments, did not although he data he found Time 1998 Buying tor to Dep. Holman 2000. Buying Time one for advertise- issue genuine percent 14.7 Holman, Buying Time Id.; For at 140. unfairly captured.213 ments would It’s a “not incorrect. is 1998 calculation Report Expert & Sorauf Krasno see also assigning number way of different (providing 143; App. at 3 id. n. at 60 Id; see id. but phenomenon.” measure distinct three airings of calculation: Buying that the text (stating 153-54 mention- advertisements214 genuine issue percent to the seven relating Time 1998 days of aired within a candidate ing “ambiguous” “[m]isleading” numerator; figure constitutes an election identify clearly to what that it did not airings of issue denominator referred). mentioning a candidate advertisements election). days of the within experts and Defendants’ Plaintiffs’ appropriate what the disagree although also Lupia concludes 340. Dr. rejected Dr. Gibson be. should Time numerator Buying 1998 and Time Buying because Time 1998 numerator Buying ques- answer different 2000 denominators he provided was he on the data “If I based tions, reasonable. formula is either aired advertisements eight concluded regula- proposed to assess the were asked days 2,405 in the last times restrictiveness, report’s [Gibson] tion’s promot- coded as campaign originally were about provide information could fraction is- action urging (genuine ing issue period, particular time during a impact advertisements) overruled but were sue fraction could Buying Time 1998’s while electioneer- and recoded as Dr. regula- Goldstein better measure provide a Re- Expert Gibson ing gen- advertisements. advocacy on issue more tion’s impact added Dr. Gibson at 42. When port Report Lupia erally.” Rebuttal “nearly he found that advertisements these Dr. Gibson’s denomina- Lupia states *658 aired ads group of the that Buying two-thirds arbitrary than that of tor is no less were the 1998 election days 60 within comments at 26. Holman Time 1998. Id. issue ‘genuine by the students coded Time 1998 denominator Buying that percent. Krasno figure to be 6.1 Gibson, than the correct using a data set different 213. Dr. Krasno, Buying Appendix 1- by taking Report [DEV Time & that at 19 found Dr. Rebuttal using 2]; Expert numerator and “flawed & 1998's see also Krasno Sorauf Tab calculating figures for own Center’s Brennan with problems Dr. Gibson’s Report at 60. (airings within proper denominator Findings 340- are discussed numerator infra election]), group of the days 16.5% [of 341. (as ‘genuine ads’ defined issue ads were ” Center).... Expert Re- Gibson the Brennan advertisements, said "HMO these 214. One of figure reject goes on to this port at He 42. (118 times times No” was aired total accept the numerator.” "does not because he Greensboro, Raleigh-Durham, times in using set he the data Id. He also finds Louis). & So- Krasno times in St. percent "flnal" version 25.7 was the believed App. We were Report 20. Expert rauf during 1998 advertisements aired of issue about information to find additional unable were a candidate and broadcast mentioned advertisements, Mat- two the other "CCS/No "genuine” days were of the election within 60 In Id. Who” and ter “CENT/Breaux.” at 37. Dr. Id. Krasno issue advertisements. households, 1,110,290 television St. Louis had figure is incorrect because states that 834,260, Greens- Raleigh-Durham had incorrect, resulting in num- data set used is 584,900. Report Gibson Rebuttal had boro large,” and based times too erator "four Sorauf, Exhibit study he now calculates on his ” ads.’ Id. at 43. Dr. Gibson in his Rebut- purpose ment’s “provide was to informa- Report tal figure revises this (in based on urge tion or words, action” other was a provided information during the course of genuine advertisement) issue in Question litigation, which indicated that over a 6, the coder supposed was skip the next quarter of the advertisements he added 12 questions. 2; Id. at Supplemen- Gibson the numerator candidates, did mention re- tal Report Exhibit 7. For five of these sulting in figure percent. of 50.5 Gibson advertisements, student coders found the Report 23; Rebuttal see also Krasno provided advertisement information or Report Rebuttal at 17-18 (describing this action, urged but went on to answer the error). Dr. Gibson concludes “this next 12 questions. Response Krasno at 2. figure represents 50.5% the statistical floor addition, Dr. Krasno states that “all of ... figure 64% cited in my report ... these ads were scored a parallel process provides ceiling.” Gibson Rebuttal variable, ‘favcan,’ another as favoring a Report Gibson, at 24. Dr. in his Supple- Republican Democratic candidate. Report, ment states that Dr. had Krasno Again, potential conflict ques- between produced data additional files in- tion 6 and favcan should have attracted cluded an earlier version of the data set attention as the data set was being pre- upon which he had relied. Supple- Gibson pared.” Id. Dr. Krasno contends that a ment to Expert Report Rebuttal of Octo- review of storyboards for these five (“Gibson ber 2002: Data Supple- advertisements, as well as other contextual Report”) mental at 1. The data showed factors such as where and they when were that one eight advertisements Dr. aired, makes it clear should be alleged (from Gibson had been recoded coded as “electioneering.” Id. at 2-4. Dr. “genuine issue” to had “electioneering”) Krasno believes that the “notion that a originally been coded as promoting the small handful of mistakes must be perpet- candidate, election or defeat of a and that uated because they were once made is another missing was data as to the nature both ludicrous and an extraordinary depar- of the commercial. Id. at 4. As a result of ture practice from the usual of compiling excluding the airings of these two commer- data Dr. sets. Gibson’s argument would cials, Dr. Gibson calculates that his “ceil- be more credible if he any explana- offered ing” percent, fell to 60 and his “floor” tion for why these commercials really are remained unchanged. Id. at 5-6. pure issue ads.” Response Krasno at 5. 342. Dr. rejects Krasno the inclusion of Lupia weighs Dr. in on the frac- any of the airings of these eight advertise- *659 debate, tion contending that the Gibson ments in the numerator. See Re- Krasno and Buying reports Time “are reasonable sponse to Professor Gibson’s Supplemental conceptualizations of the question about (Nov. 13, 2002) (“Krasno Rebuttal Re- proposed how the regulations will affect sponse”). objects He to the notion that groups present in the and future if groups recoding the “reflects a deliberate effort to act exactly as they past. If, did in the manipulate some of reported the results however, we want to the regula- evaluate 1998,” Buying Time stating that the re- tions’ likely impact future we should con- coding aimed to “make the data set as sider the possibility groups that adapt sensible and will possible.” accurate as Id. at to the regulations 2. Dr. new explains ways.” Krasno that different the decision Lupia to Report recode five Rebuttal at of the 26. Both sides advertisements was based on their contradictory predict seek to impact the codings. Id. BCRA will have at 2. The survey was if constructed that no so one alters their Lupia behavior. when a coder found that an advertise- that concludes to “the extent that affected
904 states Dr. Goldstein at changes, id. 53. alter [to choose to able are groups ‘changes’ [Gibson] of 62 the that “most in the denomina- behavior], both estimates not in the 2000 database identifies the extent exaggerate may tion debate all, original student rather but changes at will regulation the new aspect of this which storyboards CMAG additional coding of express abilities groups’ the restrict all, at coded been previously not that had extent To the future.... in the themselves used of the database part not and were adapt will groups such that agree we that Gold- 2000.” Buying Time of authors the high- credibility of the ways, the in various problem at 4. The Report Rebuttal stein future likely of the estimates percentage wrong use Dr. Gibson’s from stems in- regulations proposed the impact of Buying analyze the database; he not does severely undermined.” groups terest later database, “a rather but 2000 Time Id. at 27. of own version Goldstein’s] [Dr. of iteration Time Buying Criticism of after- own containing [his] the database of criticisms Dr. Gibson’s Many of 344. re-codes, including updates the-fact those are similar Time 2000 Buying received later ads additional ad- and are Time 1998 Buying made of ever re-coding of this [N]one CMAG.... dressed, supra. Buying Time the way into made its Buying that states Dr. Dr. Gibson Goldstein 345. Id. at 14-15. report.”216 errors he numerous charge base data “has exception Time 2000 also takes it,” comments in order the data deliberately changed and inconsistencies re- him from adver- preclude pure issue changes of the number that these decrease Time at 4. Buying tisements, Id. findings of it “baseless.” calling plicating he 47- Report addition, at notes that Expert Dr. Goldstein Gibson 2000. Dr. 30 advertise- coding the fact He is troubled reevaluated 48.215 post- in his database “purpose” the 2000 the coded ments in changed Goldstein hav- research advertisements, academic Time 2000 Buying id. 62 out finance campaign do with nothing ing behind the motivation questions “[i]n studies Time Buying Dr. standards what changes, asks coding instances, changed [] these making employed Goldstein times, but aired only were nine ments he does testifies Goldstein Dr. airings and reported 331 Buying Time authors coding for original student deter- Dr. Gibson base that data a different "political science his study, explaining that version” "original, coded student is the big mines mistakenly deleted department ... 1,082 Question airings.. Id. at files, shows including data- our access of out chunk confidence "has that he He declares (Vol. 2) 61-62. [JDT at 129 Dep. Goldstein base.” Dr. figures. Id. these” in none 8], Vol. used Dr. Gibson had that if claims Goldstein "federal.sav,” database, would he correct challenges the example, Dr. Gibson 216. For advertise- identify the three able to have been thaj. all the finding "[o]f Buying Time 2000 airings. comprise Goldstein ments depicted a issue' ads group-sponsored *660 (finding advertisements Report at 21 election, Rebuttal days of the 60 candidate within (81 airings), and (172 airings), # 1389 # 627 electioneering issue to be were found 99.4% data- (78 airings)). He used also 2862 numbers, # genuine only three ads. In absolute groups by interest identify "all ads run base to (which times total 331 aired a issue ads within and aired candidate a that mentioned elections) as have been the 2000 would defined election,” using that as days 60 ....” Gibson electioneering communications percentage the same at arrived denominator at 73 BT (quoting Expert Report at 61 by (dividing 331 Id. Buying Time 2000. as finds that Gibson (emphasis original)). Dr. 53,840). advertise- the three according database to the from electioneering genuine issue.” Id. ing. Id. Dr. Goldstein believes that Lupia 14-15. Dr. comments that Dr. “is clearly advertisement electioneering.” Gibson fails to connect his bias concerns Id. As infra, noted Finding Dr. Gold- changes with actual in the database or stein recently discovered that the six cor- demonstrate the effects directly. Lupia responding versions of Advertisement Report such, Rebuttal at 58. Lupia As # 1269 were originally “genuine coded as finds the charge that the investigators issue by advertisements” the students and were committed to reaching particular later changed by the Buying Time 2000 best, outcome to be premature and, “at authors to “electioneering” commercials. certainty, proven in the [Gibson] (Vol. 2) Goldstein Dep. at 158-59 [JDT report.” Id. Vol. When 8]. these six advertisements are 346. Dr. Goldstein does find that three added to the analysis, which Dr. Goldstein advertisements in the Buying Time 2000 terms “the most conservative standard es- Question database re-coded on “were 11 timate,” one finds that 17 percent of the ‘promoting candidate’ to ‘providing advertisements aired within days ” urging information or action on an issue.’ election which identified a candidate were Report Goldstein Rebuttal at 16. One “genuine issue advertisements.” Id. at awas version of a “cookie cutter” adver- experts Defendants’ personally dis- (numbered tisement run 1269), CBM agree that all of these commercials are was “extremely similar” to a num- “genuine issue advertisements.” See Hol- CBM-sponsored ber other advertise- Dep. man at 82-83 (stating he considers (Goldstein ments that thought) had all Advertisement # 1367 to “poster be his coded been as “electioneering.” Id. This child of sham issue advocacy”); Goldstein was brought fact to Dr. Goldstein’s atten- Expert Report at 26 n. 21 (noting that he tion the Buying and, Time authors considers all the commercials with the ex- concluding that it was not “meaningfully ception of Advertisement #2107 “were distinguishable ads, from the other CBM clearly intended support oppose ... recoded [he] it as electioneering.” Id. candidate”). election of a The second was a National Pro- (numbered Life Alliance advertisement 347. Dr. Gibson raises essentially the 2107) which mentioned Wisconsin Sena- same Question concerns about 11 in Buy- tors Kohl and Feingold. Again, Buy- ing Time as he practical- does ing Time told authors Dr. Goldstein that ly Question identical 6 in Buying Time “virtually advertisement was identical” supra. discussed Expert Gibson Re- to another advertisement in Virginia run port at 54-55. Dr. Goldstein states that mentioning then-Senator Charles Robb. percent “79.8 group-sponsored ads Id. Dr. Goldstein reviewed the story- classified as electioneering were coded as boards of the two advertisements having run within days election, found them “not meaningfully distinguish- compared only percent 18.7 of non-elec- able, and resolved the inconsistency by re- tioneering Id. at 28. ads.” As one “would coding [the commercial] electioneer- expect ... designed promote that ads ing.” Id. The final advertisement oppose a candidate would air relatively changed sponsored was was by the Rhode close to Day,” data, Election (numbered objective 1367). Island Women Voters in Dr. opinion, Goldstein’s advertisement was corroborates the originally coded as “genuine coding Question issue advertisement” but and demonstrates changed by Dr. Goldstein Buy- after the Dr. theory Gibson’s is incorrect. Id. *661 ing Time disagreed authors with the cod- at 28-29.
906 Buying either writing of the ticipate in Buying the criticizes NRA The 348. the “selecting in play a role study or Time two 30- including not study for Time re- of these authors that the conclusions in the data magazines” “news minute database,” from the draw to ports adver- chose issue “genuine it claims His at Report 3-4. Rebuttal Fact of Findings of Goldstein Proposed tisements.” therefore, separate ¶ constitutes “If these report, 9. PVF NRA the the NRA the for collected considered, the the data 34% of of assessment airings had been he The database in 2000 Time studies. Buying that BCRA speech of total volume to provided prior to from from differs days in the 60 works covered have would authors, has as it genu- have been Time 2000 Buying the election would general of errors discovered One Id. omissions corrected advertisements.” ine issue completed. “Cali- was was titled Time 2000 Buying magazines” after these “news ¶ App. study produces 12 [NRA Dr. Decl. 4-5. Goldstein’s LaPierre Id. at fornia.” times aired 800 was conclusions. principal “California” nine 5]. at 2002, 29, No- to August from California Advertising. Political 350.Scope of ¶ “During 14. 5, 2000. Id. vember (from January cycle election the 2000 there program, the 30-minute entirety of day), interest through election a federal fleeting reference only one was all percent of for groups accounted during Specifically, office. for candidate at an es- advertisements political television join the viewers to urging segment short Goldstein million.218 timated cost $93 mem- the benefits describing NRA and ac- parties Political Report at 8. Expert NRA’s issue of an bership, cover com- percent counted for depicting Vice ‘First Freedom’ magazine mil- cost of $162 estimated mercials at presiden- image, then a Gore’s President accounted lion, candidates while candidate, on the screen flashed tial at percent of advertisements remaining 52 NRA The Id. 13.217 seconds.” several Id. million. cost of $338 an estimated included study allege that not does in- campaign, to the 1998 Compared advertisements, or that minute other 30 was spending group in interest crease commercial monitors such the CMAG dramatic, approximately “rising most how other indicate It does not broadcasts. an estimated $93 in 1998 million $11 during it ran magazines” “news 30 minute at 9; id. see also Id. million 2000.” results of affected 2000 would in can- (tbl.lA-B) the increase (showing Findings of Proposed Buying Time. (from approximately spending didate PVF NRA NRA and Fact of the mil- approximately $338.4 million $136.6 ¶¶ 3-7. (from lion) spending political party and in Report Expert The Goldstein mil- million $162.3 approximately $25.6 ad- lion)). group majority of interest in- was Dr. Although Goldstein 349. sponsored “not in 2000 was vertising used the data sets assembling volved regulation.” PACs, FECA fell outside studies, par- he did Buying Time both only markets cover maga- cause estimates CMAG 30 minute "news other NRA One population the nation's "captured” serving percent of similarly would be zine” would Free- the in- the "First attempt measure BCRA to the inclusion no due and make 917, 920, App. peak advertising during dom” NRA cover. creased cost Here”) (also referring once ("It Happen the de- campaigns Can't when seasons of ban”). weapons assault the "Clinton-Gore advertising pushes time television mand for Report at Expert up spot Goldstein prices.” figures ... "[t]hese 218. Dr. Goldstein notes be- expenditures television underestimate *662 Id. at 8. According figures, to his interest that 35 interest groups broadcast commer- group spent PACs roughly million on $2 cials on television during the days last 60 3,688 political advertisements in federal of the 2000 election that mentioned a can- races in while group interest non- didate. Goldstein Expert Report at 13. expenditures PAC constituted million $90 These electioneering advertisements were 129,647 spent on commercials. Id. at 10 59,632 aired times at an estimated cost of (tbl.lB). approximately 14; $40.5 million. Id. at (tbl.3).221 361. The Role also id. at Interest 14-15 Groups top The ten of of Political Parties groups these Political Television accounted percent for 87 of Advertising the 2000 expenditures. Presidential these at Id. 13. for Campaign: In terms of the presidential 353. “Magic Words” Test: The so- campaign, political parties purchased 41 called “magic words” test derives from percent of television advertisements aimed Buckley’s legal standard for determining presidential race, the 2000 while candi- whether an advertisement is designed to dates percent accounted for 38 of the com- persuade citizens to vote for or against a mercials, and groups interest eight per- particular candidate. Such advertisements cent. Expert Report Goldstein at 11 & n. were termed “express characterized advo- (the remaining advertisements were cacy” by Supreme Court, and defined expenditures). coordinated group Interest as containing “elect,” words such as “de- advertising in certain “battleground” feat” or “support.” supra Finding states,219however, “rivaled that of the can- ¶ 272 n. 57. Dr. Goldstein finds that 11.4 Id; parties.” didates or see also id. at 12 percent 433,811 of the advertisements (tbl.2). elections, In House group interest by aired candidates met express advo- advertisements identifying a candidate and cacy test. Goldstein Expert Report at 16. running in the days last 60 of the cam- Conversely, percent 88.6 of candidate ad- paign accounted 17 percent “for of total vertisements 2000 “were technically un- House ad during broadcasts the 2000 elec- by detected the Buckley magic words cycle,” tion parties while provided 22 per- test.” Id. This result demonstrates to Dr. cent of races, advertisements these Goldstein “that magic words are not an percent. candidates 60.6 Id. 13. Dr. way effective of distinguishing po- between Goldstein finds that percent 99.8 politi- litical ads that have the main purpose cal party-financed television advertising citizens to persuading vote for against or or depicted candidate, mentioned while particular only candidate percent 1.8 and ads that ads “even men- purpose tioned seeking the name of the party support for or many urging promoted fewer some on particular candidate action policy virtue of legis- his or her affiliation.” Id.220 lative issue.” Id. 352.The BCRA Universe Temporal Interest Distribution Interest
Group Electioneering: Dr. Goldstein Group-Financed finds Television Advertise- 219. Dr. Goldstein determined what states clude party’s name. Expert Goldstein Re- “battleground constituted states’’ port “based on a at 13 n. professional review of various media sources,” such as Expert CNN.com. Goldstein only 221.This result percent reflects Report at 12 n. 12. CMAG, households covered according to Dr. comprehensive "[n]o Goldstein infor- 220. This assessment does not "tag include the mation is available balance of the lines” included in most advertisements identi- markets airing ads on local cable sta- fying sponsor the commercial’s that can in- tions.”
908 Interest Perceptions 356. Coders’ Dr. a Candidate: of Mention Which ments Dr. Advertisements: Television Group da- that the “CMAG determines Goldstein interest each had students code a Goldstein of evidence empirical provides tabase advertisement television political group [adver- between correlation strong positive could They campaign. 2000 in the the aired and to a candidate reference tisements’ as either purpose the commercials’ code “ the broadcast their in time of proximity for candi- opposition or support ‘generate validity consequently of and election] urge information or date,’ to ‘provide or television political identifying as a test ” option the given also action,’ “were or effect purpose with advertisements ” Expert Goldstein of candidate ‘unsure/unclear.’ a opposing or supporting of found coders n. 20. The 24 & at Report Report at Expert Goldstein office." public 60,623 group interest percent of 97.7 adver- group interest finds that 17. He advertisements sponsored television depict candi- or that “mention tisements broadcast and were candidate mentioned of days 60 within broadcast to be date tend as “election- an election days of 60 not within do which election,” those while candi- opposing a eering,” supporting evenly over more spread to be “tend (tbl.7). Dr. 25 Id; at also id. date. addition, also Dr. Goldstein Id. In year.” per- particularly this result finds Goldstein advertise- of those distribution finds the the students fact that given suasive for federal mentioning candidates ments televi- group interest of all one-third coded the dis- correlated “closely be office to of over the course run advertisements sion electioneering communications tribution issue genuine campaign be 2000 par- political by candidates broadcast Id. advertisements. ties.” Id. 45,001 advertisements 357. Of Inter- Distribution 355.Geographic issue advertise “genuine to be deemed Advertisements Group-Sponsored est coders, would percent 3.1 by the ments” and are a Candidate Mention Which in that by BCRA Dr. have been covered Election: Days an
Aired within of the election days run within were group adver- interest finds that Goldstein Expert Goldstein a candidate. and identified candidate mentioned tisements acknowl at 27.222 Dr. Goldstein Report days within were broadcast Buying Time in that in edges highly concentrated “were election Dr. Jonathan co-authored with he with article districts and congressional states than six advertisements fewer Expert Re- Krasno Goldstein competitive races.” captured unfairly said to races, percent were 89.2 For port Senate those other In 26 n. 21. Id. at BCRA. competitive in ran these commercials ads-par six of these “certain publications, concentrated parties Political Id. races. dis there was ticularly as to those competitive ads of their percent 90.6 coders-were among the student agreement races demon- House at 21. states. Id. electioneering. ultimately treated percent 85.3 pattern, the same strated is that judgment fact, own Goldstein’s] [Dr. “electioneering” adver- group of interest clearly intended ads were of these six par- five tisements, percent and 98.2 aof election oppose the support or broad- advertisements ty “electioneering” However, report, this .... candidate Id. at districts. competitive cast in Congres- single during a years non-eleclion “percent- contends that 222. Dr. Goldstein Term, Ex- 1999.” Goldstein such as all Genuine age proportion of sional overstates BCRA, does Report 27 n. 22. pert because Ads covered Issue unregulated run ads into account take [Dr. Goldstein] chose[] to take the most (emphasis original).223 Dr. Goldstein approach conservative all count six as notes that since last two months of an However, Genuine Issue Ads.” Id. Dr. election campaign is when most Goldstein now acknowledges that a “most (64.2 advertisements are percent aired conservative” estimate would include 6 all political advertisements run in 2000 *664 more advertisements listed in footnote 8 of run in were campaign’s final 60 days), (Vol. his Report. Rebuttal Dep. Goldstein “an individual group’s interest message on 2) at 160 [JDT Vol. Adding 8]. these six public policy issue is likely to become advertisements results the finding that lost” if aired during period. that Dr. Id. percent of the advertisements run dur Goldstein also posits “partisan that attach- ing the days last 60 of the 2000 campaign ments ... harden during the last two which identified genuine candidates were months of a campaign” which makes it issue 169; advertisements. Id. at see also “more persuade difficult to otherwise Finding supra. Dr. objects Gibson to open-minded viewers of the merits of an Dr. Goldstein’s reliance “on highly sub group’s interest policy stance.” Id. at 32- jective coding” of the student to coders 33 (citing Zaller, John Nature and Origins purpose determine the of the issue adver (1992)). Opinion Mass According to Dr. (i.e., promote tisements to candidate Goldstein’s Expert Report, 17.7 issue). urge to action on an Gibson Rebut percent of such advertisements were aired 20; tal Report at see also Holman at Dep. in the final 60 days of the election cam- 73 (noting that question asks for a paign, slightly more than the 16.4 percent assessment). subjective “which would have run if the ads had been 358. The Broadcasting Effectiveness of equally distributed throughout the year.” Issue Ads Close an to Election: Dr. Gold- 33; Id. at see (tbl.9). also id. at stein’s final finding is that if an interest contrast, during the months of April group is genuinely in promoting interested through June 45 percent of such issue, an the least desireable time to air issue aired, advertisements were “as such an advertisement is in the final 60 against expected percent if the ads days anof campaign. electoral Goldstein spread evenly were throughout the year.” Expert Report at 32. finding This runs Id. Dr. Goldstein believes this concentra- to counter argument Plaintiffs’ that BCRA tion likely is “a of groups result turning on “may harm groups interest by preventing pass the heat or defeat bills before them from advertising on their issues aat adjourned Congress for the summer.” Id. time when citizens are supposedly paying Dr. Gibson is critical of Dr. Goldstein’s most politics.” attention to Id. Dr. finding. Gibson Report Rebuttal Goldstein first 26. comments that “while there According Gibson, is to Dr. political evidence politics psychol- interest ogists, (whose elections rises like as Election William Day approaches, McGuire work there is cites), no Dr. absolutely Goldstein evidence to support have concluded “that position public persuade interest policy someone steps. involves two issues rises as during well First, time.” Id. one get must the attention of the Finding But Huard, Edward Mon- Senior Vice President for infra. Finance and roe, Director Political Affairs for the Asso- Administration of the National Association of Contractors, ciated Builders and testified that ("NAM”) Manufacturers testified that "[i]n public "members of the are generally more broad terms ... tend Americans to have receptive engaged to and in considering gov- greater political interest in matters as an elec- policy ernment ideas and issues as elections approaches.” tion Huard Decl. 10. ¶¶ near ...Monroe Decl. 18-19. R. Paul About Advertisements Issue Genuine persuade. attempting one
person Policy Issues and Public Legislation strength Second, overcome must one Days A Sixty Before During the Are Run persua- attempt if the attitudes existing Notwithstanding the Election in attitude Federal to result communication sive With Candi- Air Time with Competition “those Given Id. change.” Advertisements attention pay date-Centered tend strong attitudes those while communications disadvan- Notwithstanding ignore tend attitudes weak advertise- issue running genuine tages are easily reached [tjhose most .... them leading period day the 60 during ments easily most those changed; easily least election,224plaintiffs general up to to reach.” difficult those most changed effective can be that it demonstrated *665 tend attitudes” “weak with Id. those Since legislation-cen- run them to necessary for most extreme during “the attention pay to before in the weeks advertisements tered up to leading circumstances,” period the ¶¶ [10 18-19 Decl. Monroe election. an which in the window provides the election proceeding (“The in this defendants PCS] to difficult these to communication time run the near that ads argued individuals. easily persuaded reach, but asso- the that are evidence election of an the rejects also Dr. at Gibson Id. the advocate to intent is actual ciation’s an to advertising close issue that argument another. or one candidate election partisan because unproductive is election valid, ex- other, However, more are there approach. as elections harden allegiances advertis- of our timing the planations reasoning this line that states Id. He initia- legislative that serious is ing. One “candi- that conclusion strange the to leads are proposals often regulatory tives the as advertising abandon should dates elections. time of the near considered hardened since these approaches election members that Also, clear it is also Dr. Id. to convert.” difficult attitudes are receptive more are public generally hap- does not “that that out points Gibson government considering engaged can- approaches, since, election pen, near. as elections and issues policy ideas per- greater an even to reach try didates listen, will people time when If that is voters, little who have marginal centage of an And once speak. time to is the that relatively pliable politics, interest peri- to be a occurs, seems there election Id. views.” issue fact, ads; likely the ads' it is of those is there believe political consultants 224. Some addi- ... In actually decreases. ad- running effectiveness genuine issue utility in limited conveying their days being before a less effective tion in the vertisement ¶ 7 9-Tab to an election [DEV Decl. close messages, issue ads See Strother run election. cost-effective, run price were 40], ("[Tjhese advertisements issue since also less are For pending elections. higher were no there time is when and radio air scarce television ads, avoided specifically we issue true these during the rest than an election near because the election right before months Report at 32-33 Expert year.” Goldstein (b) expensive; (a) more would be air time 7]; Report at 20 Expert Magleby 3-Tab [DEV elec- part of the just become each ad would contrast, (“In genuine issue 8] 4-Tab [DEV assume would gumbo viewers season tion rates since likely run earlier ads are more ad.”); election-related just another it was an election proximity to cheaper are Exam, 70-71; Bailey Decl. Strother Cross ¶ Expert Sorauf & important.”); Krasno less also be- Dr. Goldstein 2]. 6-Tab [DEV ("Pure ads issue 2] 1-Tab Report at 57 [DEV genuine issue to run is ineffective lieves that it congression- respond to likely more leading up an weeks in the advertisements strategy advertising unrelat- an al calendar or near genuine issue ads "Running election. election.”). to an ed effectiveness does not increase election an fatigue od of during ry mat- proposals often are considered near the interest, ters are of less making elections,” issue ads time of without providing actual ¶ effective.”); then less Huard Decl. 10 examples of advertisements run in re- (“NAM [10 PCS] has run issue ads at sponse legislative to the activity. Monroe times when election ¶ no was impending. PCS]; Decl. 18 [10 see also Huard Decl. terms, however, ¶ broad Americans tend (“[I]ssue 11 [10 PCS] ads supporting a greater to have in political interest mat- particular tax bill may well be needed as ters as an approaches. election At the approaches bill a vote. If it happens time, same elected officials are most at- primaries imminent, elections are tuned to the views of their constituents does diminish the need to able pre-election period. Thus, many speak right then.”); out Murphy Decl. purposes, pre-election ¶ season a crit- 12 [3 PCS] (commenting that “the black- ical time for issue ads. Conversely, after periods out imposed by the BCRA ... are public election public interest in policy periods often of intense legislative activi- fades, matters perhaps due to fatigue. ty,” noting consideration of the Homeland Then, few issue ads are run soon after an Security Department bill occurred within election.”); Murphy Decl. 12 [3 PCS] days election, the 2002 but fisting *666 (“Finally, important to emphasize activities that would not be affected that the periods blackout imposed by BCRA). Some deponents provide concrete days BCRA—60 general before a election examples of merging electoral and legisla- days before a primary often tive calendars and —are their actions during periods of intense legislative activity. periods. those The AFL-CIO aired ad- During years, election the candidates vertisements regarding an “upcoming bud- stake positions out on virtually all of the get fight over education programs” in controversial issues of the day. Much of September ¶ 1996. Mitchell Decl. 41 & this debate against occurs the backdrop (“No Exhibit 59 Two Way”). The labor of pending legislative action or executive group ran “genuine” another issue adver- branch initiatives. Some of the Presi- tisement September between 21 and dent’s or Attorney General’s boldest ini- 1998, in eight congressional op- districts tiatives are advanced during election posing “fast track” trade legislation which years-often within days general a was scheduled for a vote in the House election. year, instance, This for legisla- Representatives September 25, on 1998. tion creating a new federal department of ¶ Mitchell (“Bark- Decl. 52 & Exhibit Homeland Security is under consideration er”). During month, the same the AFL- during pre-election this period.”). Plain- CIO legislation-centered ran a advertise- expert tiffs’ Dr. agrees Gibson that run- ments aimed at a scheduled Senate vote ning issue advertisements proximity to on legislation HMO the AFL-CIO federal elections is effective. See Finding ¶ to be inadequate, considered id. &51 357, supra. Exhibits (“Deny”),225 105-07 and opposing
360. The legislative calendar the Taxpayer can ne- Relief Act which had been cessitate the running of issue recently advertise- marked up by the House Ways ments during the days final of an ¶ election and Committee, Means Mitchell Decl. 52 campaign. Edward Monroe states that & Exhibits (“Spearmint” [PCS 6] 108-09 “serious legislative regulato- initiatives or ¶43 “Spear”); 7], Shea Decl. [PCS Defendants, According "Deny" contin- Gov't Opp'n Br. at 93. The AFL-CIO denies ued to run "well legislative after the action point. Reply AFL-CIO Br. at 6 n. 6. the ad was supposedly timed to influence.” of Ceremonies announcer —Master Male advertisement a radio ran
2002, the GOA effect): ... now And sound (during days of within Hampshire in New Hampshire the New for election with primary Ends Roll Drum Effect: Sound nominee, which Senate U.S. Republican Crash Cymbal pilots allowing airline legislation supported Silence 2 Seconds Effect: Sound also 5. See Decl. Pratt armed. to be waiting. .We’re Announcer: Male Exam, (explaining Cross Mann Tympani/Drum Long near activity occurs Effect: Sound legislative flurry of a session, there- Again Roll Starts congressional of a the end pre- day period the 60 fore, often within Ends Roll Drum Effect: Sound election). ceding general Crash Cymbal to influence seeks ACLU The Silence 2 Seconds Effect: Sound legislation pending on vote members how waiting. .Still Announcer: Male concerns its about public by educating our Waiting Announcer: Female to communicate public using the (Sound Music Effect Congressman, representatives. their elected concerns or Circus the Weasel Goes Up Pop (“In- ¶8 9] — [3 Decl. PCS/ACLU Murphy every- Hastert, protect Music) Dennis statements ACLU’s many of evitably, job. discrimination branch one executive legislation involving broadcast print including policies, House, Representative speaker As identi- clearly communications, refer delays stop the power has Hastert or executive candidate, member fied Non-Dis- Employment bring as an official.”). cites ACLU branch vote ENDA—up crimination Act— campaign directed advertising example an *667 It’s It’s about Congress. fairness. Hastert, repre- who Dennis Speaker who all rights equal to ensure time Illinois, in of district the fourteenth sents men, gay and work, including lesbians bring the to him urging of 2002 March quality it’s make sure that of Act Non-Discrimination Employment nothing else. counts, and work our House. in the vote (“ENDA”) a full to Out.) (Music Advertisement, ¶ of 10; also Text Id. Has- Congressman Announcer: So Male broad- The ad was 14-17. 3 PCS/ACLU tert Aurora, Illi- Chicago multiple cast Roll Tympani/Drum Effect: Sound week- throughout radio nois stations 17, Id. 15-March of March end Ceremonies Announcer —Master Male within run was the advertisement Since effect): it be? will What (during sound election, com- primary thirty days of Ends Drum Roll effect: Sound elec- constituted an have would mercial Cymbal Crash under BCRA communication tioneering Protecting Workers Announcer: Male because BCRA violated would have discrimination, delays? more treasury general for with paid was now. action Take Announcer: Female (observing Id. corporation. aof funds urging a letter Hastert Speaker highlight Send hoped also the “ACLU bring BCRA”). fairness support him flaws constitutional to www. by going floor to the ENDA as ad the Hastert text of aclu.org'enda. follows: Amer- by the Paid Announcer: Male Long Tympani/Drum Effect: Sound Union. Liberties Civil ican Roll Murphy Decl. (script Exhibit 15 364. The ACLU asserts that it does ad, ACLU radio Delays”). engage “ENDA any federal election activity as defined A. FECA. Romero Decl. 363.The purpose ACLU’s in running ¶8, 3 2. The PCS/ACLU ACLU likewise the advertisement was to create a commer- asserts that it has never position taken a cial that would violate BCRA thereby partisan political election in its 82- provide standing to challenge the constitu- year history. A. Romero Decl. 3 PCS/ tionality of the Act. A March e- ACLU 2. mail from Murphy, Laura legislative di- 365. Krasno and Sorauf comment on ACLU, rector to colleagues ex- the ACLU’s Hastert advertisement: plained why the ACLU’s March 2002 Has- [T]he ACLU has demonstrated with a tert ad was run: commercial about gay rights, aired in Anthony wants the ACLU to be ain Speaker House Dennis Hastert’s district position challenge Shays-Meehan spring last before the GOP primary, that when it becomes law early as during possible it is to deliberately create a Easter recess. you As know the pure issue ad that runs afoul of BCRA. issue advocacy restrictions would select & Krasno Sorauf Expert Report at 62 groups like the if ACLU we want take 2]; [DEV 1-Tab see also ads, Text of out and ad days [sic] before a pri- 16-17 (noting script PCS/ACLU adver- mary or 60 days before a general elec- tisement that the ACLU ran print in the in broadcast, tion satellite or cable out- issue). media over this lets. These ads would reach 366. The AFL-CIO’s broadcast adver- 50,000 people or more and would have to tising campaigns focused, were in part, on mention name of a candidate. Steve issues importance to AFL-CIO mem- thinks that the ads that we ran during bers. In her testimony, Mitchell,226 Denise the 2000 cycle election would not qualify Special Assistant for Public Affairs to give us clear standing to challenge AFL-CIO President John J. Sweeney, ex- the law. plains how the AFL-CIO par- selected the Email Message Attached as Exhibit to ticular issues discussed the advertise- Resps. of American Civil Liberties Union ments: *668 to Defendant’s Second Set Requests of for In both election years, and non-election Production Documents, of B; Exhibit goal my in selecting the issues to (ital- USA-ACLU-00003 [DEV 4] 130-Tab addressed in the AFL-CIO’s broadcast added). ics advertising has been to focus attention 226. Denise appointed Mitchell po- was to the position, current her Mitchell has the primary Special sition of Assistant for Public Affairs to responsibility overseeing for public all rela- AFL-CIO President Sweeney John J. on No- tions of activities including AFL-CIO all 1, 1995, shortly vember Sweeney after was AFL-CIO use of broadcast and print media. elected President of the AFL-CIO. Mitchell ¶ Id. 2. responsible Mitchell is making ¶Decl. 1 [6 assuming PCS]. Prior to posi- operational decisions as to both the substance tion, Mitchell had worked Sweeney in a and the method of communication of the role similar for a years number of when he message AFL-CIO's to union members and to was President of the Employees Service Inter- general public. Id. Mitchell makes the national Union and she had assisted in his strategic logistical and regarding decisions campaign for position election of AFL- and, buys, AFL-CIO's media policy within CIO President. Id. Mitchell has worked in guidelines, makes the editorial decisions re- marketing and media relations for unions and garding the content of the AFL-CIO’s commu- nonprofit other organizations working on nications. family issues for years. more than 20 Id. In
914 (citing 10-11 Br. at Opening f AFL-CIO of issues policy national of a series on 40, 50, ¶¶ 37-39, 32, 34-36, Decl. Mitchell I have3 working families. importance to 58-59). cited The advertisements these issues selecting guided f been aimed “flights,” ran AFL-CIO the3 the of Council Executive input from time. at the pending legislation particular 3 discusses regularly AFL-CIO, which of consisted flights of these Practically all and policyi legislative aon and focuses - advertise “cookie-cutter” of variety the AFL- organization, for the agenda ments, advertisements meaning polling program, lobbying ongoing CIO’s l refer except virtually identical research, 1 conducted opinion other generally candidates. D.C., í different firm ence Washington, by the primarily Mitchell de Ms. Exhibit 1. Decl. Associates, s Mitchell the views Hart Peter of comprising campaigns advertising scribes 3 of issues unions. Most affiliated of advertise of cookie-cutter sets advertisements, i different 29 such in our addressed - 30 run within ments, which were some of fairness, Medi- tax priorities, budget elee primary candidate’s of a named days care, virtually recur care, and health 7 37-39, 34-36, ¶¶32, Decl. Mitchell others, l tion. such Congress; every session addition, 1 Exhibit 58-59.227 the3 legislation trade as fast-track advertisements four more shows China, t may be current status trade due by BCRA captured would been then become years period 3 identi days of the within 30 airing to their for awhile. inactive all but since primary, candidate’s fied ¶ PCS]; id. see also [610 Decl.
Mitchell commercials these three of airings of . ¶ elec- (“[The effect on indirect PCS] 70 [6 60 by BCRA’s captured have been would off point never been outcomes] has tion well.228 day-window as j program, within advertising our broadcast Is- Examples of Genuine . Representative 60-day periods.”). the 30-and outside B0 Within Aired Advertisements sue a l provided has Plaintiff AFL-CIO 367. Election, Days Primary or 60 Days of a ad- issue examples “genuine number Mentioning Election, and of a General leg- pending relate vertisements” which of a Federal Candidate Name 3 capture because would islation BCRA ad- aired a radio The AFL-CIO ra- ran television the commercials 60 within “Barker” entitled vertisement election. primary days of dio 30 within ’ ¶ "Stand,” 129; 57 Exhibit Far,” id. & Exhibit "Too are: 227. The advertisements 137; ¶ "Block,” 130; & 31; "1991," Exhibit id. ¶ id. 32 & Exhibit Decl. Mitchell 138; ¶ "Sky,” id. ¶ & "Help,” Exhibit "Raise,” id. 33; ¶ & Ex- id. 34 & Exhibit $ "Protect,” 139; 36; ¶ id. ¶ "Votes,” 59 & Exhibit 35; &35 Exhibit id. hibit 38; "No,” ¶ Exhibit id. & & "People,” id. Exhibit . 39; Wage,” id. "Minimum & Exhibit *669 “Job,” ¶ "$5.15,” 42; ¶ 36 & Ex- are: id. advertisements These 36 & Exhibit four 47; (at 102), ¶ ¶ 141 44; & & 1 37 Exhibit 61 Exhibits "Couple,” id. Decl. Mitchell hibit “Peace,” 48; days ¶ place 60 id. within (Allairings "Job” took "Lady,” & Exhibit id. 37 "Barker,” “Whither,” election); ¶ id. 49; ¶ & general 37 id. the 2000 37 & Exhibit of ¶ 53; (All ¶ "Another,” airings "Barker” 50; & 116 38 Exhibit & id. 53 Exhibit Exhibit "Pass,” 58; general days "Edith,” ¶ id. 2000 place within 60 40 & Exhibit took id. ¶ election); ¶ Exhibit 94; Way,” id. 41 & ¶50 & id. 50 "No Two "Support,” & Exhibit 98; 60 (All place ¶ within "Job” 95; "Call,” airings of took &50 Exhibit 59 id. Exhibit election); and "Liable,” 99; general 2000 "Failed,” days ¶ id. 50 & Exhibit id. 38-39, "Raiders,” Exhibit ¶ "Soon,” 1 at 100; ¶ Exhibit & Ex- id. 50 id. &50 Exhibit "Barker,” "Job,” "No Two 102; ¶ "Basic,” 100; at 10. & Exhibit id. hibit 60-day win- "Trust," captured by BCRA’s 127; Way" ¶ were "Label,” id. & Exhibit id. "Endure,” ¶ 128; &: dow. id. 57 & Exhibit days of the general elections.229 though “Barker” mentioned the name of a Mitchell Decl. 1 at Exhibit 86. The adver- candidate, Magleby determined that it was urged tisement the candidates to Fast genuine issue advertisement because Track trade legislation, and only mentions “doesn’t mention how [the candidate] vot- that candidate’s name respect to ask- ed. It doesn’t represent what [the candi- ing the viewer to tell the candidate to date] has said about the issue. The body “vote no on Fast Track.” The following is of the ad has no referent to [the candidate] the audio of the ad: whatsoever. only referent to [the
Paid for the Working candidate] Exam, Men and Wom- the call fine.” Magleby Cross en of the AFL-CIO. at 103-105; [Barker speaking]: see also id. at 106 Okay ladies and gents, step right up (explaining that “a generic your call Con- you see if gressman, can followthe ball. call your Is it Senator, here? when then Is it there? Where could linked to it be? a legislation [Voice your call Con- They’re over]: gressman playing games again Senator about this legislation Washington. Without discussion without de- referent position on the bate, they’re issue, planning another seems vote on me substantively different the controversial Fast than Track when spe- they are mentioned in view of law— cial powers to ram what their through position trade deals is on that Q. issue. like NAFTA. Fast When you Track say failed last substantively different, are year because you working referring families don’t ato difference with respect want more trade deals put whether cor- big advertisement communi- porations first; deals that cates an ignore our electioneering message? A. Yes.”). concerns about jobs; lost environmental problems borders, on our danger- 369. The paid AFL-CIO for the follow- ous, imported foods. But Newt Ging- ing television advertisement, entitled,
rich and sponsors of Fast Track “Call.” “Call” aired within 30 days of the hope they can it by fall, sneak while 1998 primary elections of Congressman public attention is focused on other is- Jim (TN-08) Tanner and Senator Kit Bond sues. [Barker speaking]: Keep your (MO). The urged ad candidates eyes on the ball now ... [Voice over]: support the Patient Bill of Rights Act.230 _ Call Representative at xxx-xxx- See Mitchell Exhibit 1 at 80. The follow- xxxx and tell him to vote no on Fast ing is the text of the advertisement: Track. Tell him we’re still paying atten- Nurse at station, nursing direet-to-cam- tion. And Fast Track is still bad idea. era: I love nursing. But it’s so much Mitchell Decl. Exhibit 116. Ex- Defense harder that it’s ever been. These bu- pert Magleby, examined “Barker” during reaucrats from the companies. insurance his cross examination and stated that he They routinely deny care, and they would rate it as a “genuine” issue ad. make decisions that only the doctors Exam, Magleby Cross at 108-109. Even should be making. Today the insurance “Barker" aired districts of Con- 230. According Mitchell, to Ms. “CaH” was gressman (LA-07); Chris John Congressman one flights of "several television radio Klug (WI-02); Scott Congresswoman designed advertisements generate Jo Ann support (MO-08); Emerson Congresswoman legislation” HMO reform spon- Anne that were *670 sored Northup (KY-03); the Congressman AFL-CIO. Mitchell Decl. King- Jack 50. (GA-01); Seventeen broadcast, ston versions of "Call" Congressman were Rick White two (WA-01). of which named federal candidates with- Mitchell Decl. 1 at Exhibit 86. days in 30 of primary. their Id. Exhibit 1 at 80-82.
916 number showing 1-800 [Chyron to block millions spending
industry call], to viewers our protect would Congress law in world new the lives—in 105. Exhibit our Deck rights Mitchell —and Con- Call care. managed of HMOs follow- for the paid AFL-CIO The to Tell her Chenowith. gresswoman entitled, advertisement, television ing the Patient support us and up stand 60 aired within “Spearmint” “Spearmint.” would Congress “If Act. Rights of Bill of the elections general 1998 of the days do I can then ... job just do Con- Congress: following Members mine.” (WA-01); Congress- Rick White gressman (while script the Exhibit (IA 01); Congressman Mitchell Leach man Jim — men- AFL-CIO by the produced “Call” (IA-02); Congresswoman Nussle Jim name, a Chenowith’s Congresswoman tions Jim (KY-03); Congressman Northup Anne July on broadcast was “Call” version Mike (KY-04); Congressman Bunning Tan- Congressman 15-21, using but Virgil (MS-04); Congressman Parker name). Bond’s and Senator name ner’s Klug Scott (VA-05); Congressman Goode the follow- paid for AFL-CIO Chabot Steve 370.The (WI-02); Congressman entitled, advertisement, 1 at 84- television ing Exhibit Deck (OH-01). Mitchell days of within “Deny” aired “Deny.” candi- urged The advertisement Bond Kit of Senator elections general protect and to cuts oppose tax to dates (IA), the Grassley Charles (MO), Senator mentioned only Security, and Social (GA), Sen- Coverdell Paul Senator late asking to respect name with candidate’s Decl. (NC). Mitchell Faircloth Lauch ator no “vote to candidate tell the viewer to The advertisement 83-84. 1 at Exhibit following is the The tax scheme.” on 2330, a S, oppose to candidates urges ad: of the audio bill, only mentioned rights patients’ deficits, politicians years After ask- respect to name candidate’s money. rolling in we’re say Washington vote to the candidate tell to the viewer ing saying. they’re something here’s But following is The legislation. “no” on budget sur- every Virtually dollar ad: of the audio Now Security. from Social plus comes an outside victim needs cancer young A spend to Congress wants Republican A says no. HMO But ... specialist eighty an Security surplus this Social the nearest to goes pains chest man with tax cut election-year dollar billion HMO his ... But room emergency cutting talk about as there’s .even needs elderly patient An pay. won’t Call retirees. for future Security Social her ... doctors time But hospital more _, him and tell Congressman by bureaucrats. [sic ] are over-ruled Tell_ scheme. this tax no on vote Washington Still, Republicans Security first! put Social proposal empty HMO pushing 108.231 Exhibit Deck Mitchell Tell Senator stop abuses. these won’t follow- paid for the AFL-CIO _to 372. The . no on S. vote entitled, “La- “Label.” ad, ing television law. protection patient a real demand Congressman John (ID-01); and Chenoweth advertise- aired another AFL-CIO 231. Neu- (NV-01); Congressman Mark Ensign virtually iden- “Spear” that was ment entitled Exhibit 1 (WI-01). Deck Mitchell mann within “Spear” aired "Spearmint.” tical urged the "Spear" "Spearmint," 85-86. Like elections general days of the only Security, and Social protect Congress- candidate Congress: following Members respect name with the candidate's mentioned (AL-04); Congressman Aderholt mem Robert the candidate to tell asking viewer (ID-02); Helen Congresswoman Crapo Mike
917 bel” aired within days pri- (NC-01). Eva Clayton Mitchell Ex- Decl. mary elections of following Members hibit 1 at 95-96. The advertisement urged of Congress: Congressman Silvestre the candidate to oppose a trade deal (TX-16) Reyes and Congressman Ron China. The following is the audio of the (TX-14). Paul Mitchell Decl. Exhibit 1 at ad: 92. The ad urged the candidates op- to “I voiced my opinion that China ought to
pose a trade to bill benefit China.232 The protect rights, worker’s people ought to following is the audio of the ad: have human rights .... that, For I Behind this label is a shameful story. spent 18 years in prison and was very Of millions herded into forced labor nearly executed.” Wei en- Jingsheng
camps, and average working wages of years dured of torture for challenging a just thirteen cents an hour. Of a nation system brutal of slave wages and sweat that routinely violates agreements; trade shops, through which Chinese workers flooding our markets with im- low-wage exploited, and Americans jobs. lose ports; undercutting jobs. American Yet But instead of pressuring stop China to Congress know poised Chi- reward practices, these Congress is set scrap na with permanent free status, trade its annual review of record, China’s and instead of a one-year deal. Call Con- reward Beijing with permanent trade gressman _, and tell him to keep deal, a permanent trade deal though China on probation. Until this label China’s broken every pact trade it’s stands for fairness. signed with the U.S. for past decade. you “If give permanent China trade sta- Mitchell Decl. Exhibit 127.233 tus, and don’t talk about it once a year, 373. The paid AFL-CIO for the follow- year, every and evaluate how they treat ing advertisement, television entitled, “En- people, Chinese they’ll feel they can dure.” “Endure” aired within days do want, whatever they however the primary elections of the following want. This will be incredibly detrimen- Members of Congress: Congressman Ed- tal to human rights in China.” Tell your ward (KY-01); Whitfield Congressman member of Congress to keep China on Steve Buyer(IN-05); Congresswoman probation ... until China earns our "vote no on election-year tax aired, scheme.” "Trust” were days two within 30 Mitchell Decl. Exhibit 109. primary Congressman elections of Steve Buyer (IN-05) Congresswoman Clay- Eva "Label,” as well as the advertisements (NC-01). ton Mitchell Decl. Exhibit 1 at 94- “Endure,” entitled "Trust” and n. infra "Trust,” "Label,” urged like the candi- 233, were run in February through June 2002 oppose dates bill, trade only China part flights of "several of ads ... in opposi- mentioned the candidate's respect name with tion to President proposal provide Clinton’s asking the viewer to tell the candidate to permanent normal trade relations to China.” "keep probation.” China on Mitchell Decl. Mitchell Decl. 57. AFL-CIO ran 14 ver- Exhibit 128. "Endure” also aired within "Label,” sions of days two within 30 of a days of the primary elections of Mem- primary. named candidate’s Id. Exhibit 1 at Congress bers (Congressman Edward Whit- 92-93. (KY-01), field Congressman (IN- Buyer Steve 233. 05), AFL-CIO also aired two other Congresswoman adver- (NC- Clayton Eva tisements that were 01)), similar urged "Label”: oppose candidates to a trade "Trust” and "Endure.” Sixteen versions of deal for China. Mitchell Decl. Exhibit 129.
918 easier it make to voted lie Bass Your Call reads: screen on [Text trust. pension employee to raid corporations 800-378-1844]. Congress of Member opposes Arnesen Arnie funds. 129. Exhibit Decl. Mitchell to safeguards supports new She plan. Candidate- Examples Representative of funds. When pension employee protect Aired Advertisements Issue Centered ais there pension, your it comes Primary Election a Days 30 Within of out. and find Call difference. Election a General Days 60 of Exhibit 63. Decl. follow- Mitchell paid for AFL-CIO The 374. Two “No entitled advertisement radio ing follow- for the paid AFL-CIO 376.The dis- congressional in 35 aired Way,” which “Job,” entitled advertisement ing television general 1996 of days 60 within tricts dis- congressional in fourteen aired which ¶ Two “No 41. Decl. Mitchell election. general the 2000 days of 60 within tricts who, as candidates those targeted Way” Exhibit and Decl. Mitchell election. cut “to voted had Congress, of Members targeted The advertisement at 101-102. October, program loan college “to had who voted Congress of Members Id. 1995.” in- regulation OSHA important prevent I both My husband CAROLYN: inju- motion repetitive prevent tended two we’ll have year, next And work. ¶at 61. Id. implemented.” being ries from very bewill And it college. children Depart- part of was regulation with through, even put them hard to Human and Health Labor Working ments [Announcer]: incomes. two Clin- bill, President which Congress- budget But struggling. Services families if included voted to veto Seastrand Andrea had threatened ton woman loans, while Id. college regulation. to cut Gingrich removing the OSHA Newt rider wealthy. She agreed breaks leadership tax had giving House Initially, the Department eliminate voted even out then “backed compromise, but ato again vote Congress will of Education. Id. 2000.” October Seastrand, don’t Tell budget. on the you’re when operator]: “Well [Machine future. CARO- children’s our off write castings pounds 70 thousand lifting all her, priorities are her Tell LYN: you’re years, do you this day wrong. on surgery I had yourself. hurt gonna 114. Exhibit Decl. Mitchell rest pain the but I’ll be hands both the follow- paid for The AFL-CIO of thousands Every year, tens life.” my “Re- entitled advertisement ing television crip- permanent suffer Americans days within tire,” aired injuries motion repetitive pling ¶ 42. Decl. Mitchell election. general “ Congressman_voted Yet job. voter ‘electronic was one “Retire” safety standards ” block run advertisements guide[ ]’ this workers help protect would September in late “beginning AFL-CIO _ his/her Tell risk. elec- the November until continuing opera- pain. [Machine causes politics Id. tion.” need beings we human all ‘We’re tor]: families? to America’s important What’s stuff so that help other each “My man, style]: interview [middle-aged us.” happen to doesn’t it will important because very pension is provide come candidates stand? when I significant retire.” Congressman amount And where in-my do Char- Mitchell Decl. Exhibit [*] [*] [*]
VI. Conclusion *673 Senator Mitch McCONNELL, For the reasons set forth my opinion, al., et Plaintiffs, with regard to BCRA, I of Title I find v. 323(a) constitutional: new Section FECA FEDERAL ELECTION COMMISSION, only to the extent that it bans national al., et Defendants. parties from using nonfederal funds for 301(20)(A)(iii) Section activities; new National Rifle America, Association of 323(b) FECA Section as applied to Section al., et Plaintiffs, 301(20)(A)(iii) only; new FECA Section v. 323(e) except to the extent prevents that it Federal Election Commission, federal candidates from soliciting funds for al., et Defendants. their national parties; and new FECA 323(f). Section I find unconstitutional: Emily Echols, a child, minor by and 323(a) new FECA Section except to the through friends, her next Tim and extent it bans parties national from using Windy Echols, al., et Plaintiffs, nonfederal funds for 301(20)(A)(iii) Section v. activities; 323(b) Section as applied to Sec- Federal Election Commission, 301(20)(A)(i), tions (ii), (iv); new al., et Defendants. 323(d); FECA Section and new FECA 323(e) Section to the extent pre- it Chamber of Commerce The United vents federal candidates from soliciting States, al., et Plaintiffs, funds for their parties. national With re- v. gard II, to Title for the reasons set forth Federal Commission, Election in my opinion, I find constitutional: Sec- al., et Defendants. tion backup 201’s definition of electioneer- ing communications as severed and Section National Association Broadcasters, 204 to the extent applies to non- Plaintiff, MCFL organizations. I find unconstitu- v. tional: Section 201’s primary definition; Federal Commission, Election Section 204 insofar applies as it to MCFL al., et Defendants. organizations; and Section 213. For the reasons forth in set opinion, I also find American Federation of Labor and unconstitutional Section 318 and and Sec- Congress of Organi Industrial tion 504. All of my other judgments are zations, al., Plaintiffs, et set forth in the Per opinion. Curiam v.
Federal Commission, Election al., et Defendants. Congressman Paul, Ron al., et Plaintiffs, v.
Federal Commission, Election al., et Defendants. Republican Committee, National al., et Plaintiffs, notes able were but federal election enced Reasons, of 4982, Statement FEC MUR the provisions disclosure FECA’s skirt McDonald, April and Thomas Comm’rs campaign. Air” Clean for “Republicans (“The 1] 133-Tab [DEV INT sponsored campaign advocacy The issue Tuesday’ prima- ‘Super the before week during the Air for Clean Republicans campaign advertising ries, million a $2 groups how highlights primary Republican George W. candidate presidential praising advocacy issue candidate-centered use can John opponent, attacking his Bush requirements. disclosure FECA’s avoid primary important McCain, in the ran Sorauf Krasno experts Defendants’ York, Ohio. California, New that: states testimony uncontroverted provided for paid they were stated ads sponsor- groups mysterious the [a]mong for ‘Republicans calling itself group donors mysterious the ads or ing issue apparently ads actuality, the InAir.’ Clean without organizations-all funding various brothers, by two mostly financed were public- the known making information sup- strong financial were of whom both for Clean “Republicans example the one Bush Governor then porters of sponsored group This out. stands Air” the for fundraiser an authorized was whom Bush then-Governor praising ads At issue campaign. presidential Bush before McCain Senator criticizing should there was whether MUR 4982 primaries presidential Republican public voting some disclosure been after Eventually, states. in three ads; whether really paid (South of who Car- primaries these first agent any were coordinated ads Repub- olina’s) uncovered reporters thus, and, should campaign two Bush consisted Air for Clean licans viewed in-kind contribution to A. Paul Plaintiffs’ Press Clause Chal- Bush campaign, and finally, whether lenge advertising effort have registered should Paul Plaintiffs57 focus their complaint on with the Federal Election Commission as a the guarantees of press free embodied ‘political subject committee’ report- to the the First Amendment. Paul Pis.’ Br. at ing requirements restraints.”). and funding Specifically, Paul Plaintiffs contend that Even expert Plaintiffs’ agrees that the can- imposes BCRA certain restrictions on didate-centered issue advocacy of the Re- their “press” activities, publicans which violate Clean Air highlights the fact basic tenets on which the this freedom of technique can be used to influ- press rests.58 See ence id. elections 13-18. without complying so, doing with FECA’s Plaintiffs provisions. new, disclosure advance a if La ¶ 25(b) (“We Raja novel, Deck challenge could not tack that deter- has not been —a mine sponsors used in ad report- campaign until finance realm. See ers in (“To Washington id. discovered date, broth- however, [campaign Texas, ers from who strongly supported finance challengers] that are engaged in George Bush, W. paid for the non-exempt advertise- press activities have not in- using ments Herndon, P.O. Box in Virgi- voked the freedom of the press in their
Notes
notes could be tioneering communication has made one regulations made that the FEC's do render disbursements, or more or has executed challenge unripe. Plaintiffs’ example, For un- one or more contracts to make disburse- ments, regulations, der the "electioneering to be an for the direct producing costs of communication” airing "pub- one the broadcast electioneering or more must be licly days distributed within aggregating gen- communications before excess of $10,000 BCRA, eral since most election.” FCC recent disclosure Database on during Communications; Rules, Electioneering date year. such calendar Final Reporting; BCRA (Oct. 2002) Indepen- Fed.Reg. (to Coordinated and Rules, Expenditures; dent Fed.Reg. 100.29(a)(2)). Final § be codified at 11 C.F.R.
notes above, Find- opponent McCain. attacking John his example, as mentioned 80. For spent Clean Air” was ings "Republicans Clean Air” "group” "Republicans for "Super Tues- week before the who had ties actually $2 million the two brothers front supporting day primaries” in advertisements campaign. Id. Bush to the
notes the Court that the 2) Agreement promul have now been regulations FEC’s next Plain The Court addresses possi in final It is therefore gated form. 214(a) that violates all, argument tiffs’ Section Plain many, perhaps that even ble not re it does the Constitution because been vagueness tiffs’ concerns as a “agreement” existence of an quire the by regulations’ contents. remedied the finding of coordination. predicate to the (stating Br. at 13 that See Chamber/NAM be- about the communication Although this Plaintiffs have not directed discussions 89. (it 214(a) clearly payor candidate specifically the and the argument at Section tween 214(c)), it which con- explicitly at Section in the communication directed more identified party com- a of the McConnell Plaintiffs’ candidate’s or is central theme cern the activities, briefing presumes plans, projects, campaign and the Court mittee’s 214(a) creation, applied Section as intend for it to be to the or needs that are material well. the communica- production or distribution regulation creates at 454. The also tion. Id. regulations promulgated by the FEC The responses inquiries about a safe harbor for 90. as those define communications coordinated policy at The legislative Id. or issues. paid by candidate or the the at 68 Fed. standards can found content party, one content and one conduct that meet 421, 3, 2003) (to (Jan. at Reg. be codified 453 Rules; and In- Coordinated standard. Final 109.21(c)). § 11 C.F.R. Fed.Reg. dependent Expenditures, 68 3, 2003) (to (Jan. C.F.R. be codified provides part: in 91.The statute 109.21). § standards include: The conduct days than 60 the Commission Not later after made, (1) produced, dis- or communications person complete written receives from suggestion request the or of the tributed at concerning application of request the request sug- party, at the or candidate or or pre- regulation ... a rule or or [FECA] gestion payor of a who receives candidate [FEC], respect assent; (2) scribed party’s or material involvement activity by per- specific or transaction regarding or in decisions the candidate son, content, audience, a written advi- [FEC] shall render or the mode, intended means used, relating or sory opinion to such transaction timing or fre- media outlet activity person. to the prominence quency, or the size added). 437f(a)(l) communication; (emphasis (3) § one or more U.S.C. substantial ‘independent expenditure constitute an support in to four cases Plaintiffs cite required under section agreement that an on behalf of a candidate’ theory 614(c) The to be coordinated. expenditure person making an The of the bill. turn, finding each addresses Court report expenditure would have argument. support Plaintiffs’ none as such.” “However, if was found the advertisement Supreme Court Buckley, In ex- cooperation limit coordinated with the candi- Congress placed could attempts to circum- “prevent penditures campaign organization, then the date’s prearranged through [FECA] vent gift by would constitute a amount amounting to expenditures coordinated by the supporter expenditure and an Buckley, contributions.” disguised just if had been a candidate there rejecting 96 S.Ct. U.S. candi- enabling direct contribution independent expen- limitation on FECA’s place date to the advertisement himself. ditures, distinguished Supreme Court reported by It would be so both.” expendi- from coordinated independent 93-689, p. S.Rep. No. (quoting Id. tures, expenditures “made to- noting that (1974), Cong. & Admin. News U.S.Code candidate and independently of the tally 5604) (alteration p. original). little may provide .... well campaign his Supreme guidance, Based campaign candidate’s assistance to the re- found that “the ‘authorized or Court Id. prove counterproductive.” may indeed operates of the Act quested’ standard added). Supreme Court (emphasis expenditures placed coopera- treat all prearrange- absence “[t]he noted of a candi- tion with or with the consent expenditure and coordination of ment date, commit- agents, his or an authorized under- only ... not with the candidate
notes
Preliminarily, the Court
arguments.
im-
sweeping and
susceptible of
statute
juris
this Court with
provides
that BCRA
proper application.
brought for
“any action
hear
diction to
course,
standing, an
challenge
to
to have
injunctive relief
order
declaratory or
Of
than alle-
more
present
of
must
any provision
of
individual
constitutionality
chill. There
subjective
a
made
this
of
gations
any
Act or
amendment
present ob-
specific
of
to the
be a claim
“expedite
it to
must
Act,” and instructs
specific fu-
of
jective
harm or
threat
disposition
extent the
possible
greatest
403;
ture harm.
§
2 U.S.C.
action.” BCRA
does not extend
grant
§ 437h note. This
809, 816-17,
Virginia,
U.S.
Bigelow v.
regulations,
(cita-
of FEC
(1975)
the consideration
to
2222, 44
L.Ed.2d
95 S.Ct.
go
to
permit
omitted).
the Court
and it does not
marks
quotation
internal
tion and
powers
address
III
beyond its Article
prong,
“injury
fact”
it
In terms of
v.
nonjusticiable.
claims that are
Clark
alleged any
have “not
true that Plaintiffs
is
(D.C.Cir.
Valeo,
650 n.
559 F.2d
injury from
particularized
concrete
1977) (“To
lan
dissent’s]
[the
the extent
214(c)’s
to the Com-
instructions
[Section]
a view
suggesting
may be
guage
read
regulation.”
new
promulgate a
mission to
judicia
may ‘command’
Congress
However,
in-
Bigelow
Br. at 184.
Gov’t
contrary to the rules relative
ry
act
allege
not have to
that Plaintiffs do
structs
developed
Supreme Court has
ripeness the
only
injury,
they must
particularized
in the
con
governance
its own
cases
‘for
Bigelow,
objective harm.
specific
show a
respect
jurisdiction,’ we
fessedly within its
816-17,
2222. Plain-
95 S.Ct.
U.S.
(citations omitted). Cog
fully disagree.”)
requires
that the Constitution
allege
tiffs
now turns
authority,
of its
Court
nizant
expenditure may
before an
agreement
an
justiciability claims.
each of Defendants’
McConnell Br.
be
coordinated.
considered
84;
Opp’n at 8 n. 10
Chamber/NAM
1)
Standing
Article III
214(c)
read,
“fairly
that Section
(stating
have the burden
Plaintiffs
that the
holding”
rejects the constitutional
bring
their suit
establishing standing
a narrow
demanded
“First Amendment
(1)
they have:
demonstrating that
suffered
coordination”).
standard
agreement
(2)
fact;”
“fairly
is
“injury in
214(c) directs that
The fact that Section
of;”
complained
to the conduct
traceable
on coordination not
regulations
the FEC’s
(3)
Lu
judicial
capable
is
redress.
or formal collabora-
require “agreement
Wildlife, 504
jan v.
U.S.
tion,”
presents
perspective,
Plaintiffs’
Defenders
560-61,
our notes Rejecting the notion that decisions,” held, the Court weighty “the dependence “the of a communication on interests served restricting expenditure the size of operates money itself to financial contributions to ... candi- reduce exacting scrutiny required namely, “limit[ing] actuality Amendment,” First id. at dates” — appearance” quid pro quo corrup- S.Ct. the Court held that tion of federal candidates and officehold-
notes expenditures.” "coordinated 25-29. It generally bears emphasizing Coordinated and Independent Expenditures, any because corpora- (Jan. 3, Fed.Reg. 68 2003); tion organization or labor see also prohibited is from infra Finding ly, pages 57 at making 326-28. surprising- Not a expenditure "contribution or provides the rule that a disbursement connection any with election” for federal of- an electioneering communication is fice, "coordi- 441b(a), § U.S.C. it is likewise banned nated” with a political candidate or party under BCRA making "coordinated” dis- committee —"whether or not agree- there bursements. ment or formal collaboration” between single a to be mittee) be considered shall note; 315(a)(7) § 214(c); FECA § provision. under committee” political 441a(a)(7) note. § U.S.C. 315(d)(4)(B); 2 § 213; FECA § BCRA expenditure” “coordinated other The is, regard- 441a(d)(4)(B). That § U.S.C. section issue, BCRA at provision political related of the any less whether provide to the Act amends over, influence control any has committees political a on which the date after or [o]n deci- of the disbursement knowledge on candidate, commit- no nominates party others, disbursement the first of sions make— may party political of tee “single behalf on made decision under expenditure (i) coordinated any com- the other binds committee” political to respect with subsection this committees. ponent at cycle the election during candidate indepen- any it makes after any time Commerce, McConnell, Chamber (as defined expenditure dent chal- plaintiffs CDP AFL-CIO, RNC 301(17)) respect with section [FECA] expenditure” “coordinated BCRA’s lenge election during the the candidate two constitutional primarily provisions cycle; that sections First, allege grounds. (as expenditure (ii) independent any Amend- First infringe their 202 and 301(17)) section in [FECA] defined association speech, to free rights ment during candidate respect with by defin- grievances redress petition after any time cycle election See, e.g., broadly. too coordination ing expenditure any coordinated makes 82-85; Chamber Br. at McConnell respect subsection under 6-18; Br. AFL-CIO atBr. Commerce cy- the election during the candidate 7-9,19-20. Br. at 12-14; ACLU cle. 315(d)(4)(A); 2 § 213; FECA § plaintiffs BCRA party Second, words, 441a(d)(4)(A). In other § U.S.C. provision, choice binding claim com- compels section Amend- First 213, burdens section candidate party’s mittee, time at the speech, association freedoms ment be- choice binding nominated, make forgo “future them requiring petition expenditures independent tween ‘price’ as the expenditures coordinated support disbursements “coordinated” right constitutional exercising their
notes “[t]he content of ¶ Brock Decl. 9]; 6 [DEV 6-Tab see also such ads does nothing to foster in- ¶4 (“[S]oft Boren11 Decl. [DEV 6-Tab 8] frastructure. Those who make the ads money is not used purely ‘party build- and manage campaigns are consul- activities”); ¶ ing’ Buttenwieser12 Decl. 15 tants, who often do not even reside in the [DEV 6-Tab (explaining 11] that there is tana, post he early also held from 1997 until 10. Senator Brock William served he as Unit- January 2000, During Lamson man Representative ed States from Tennessee from aged Nancy campaign represent Keenan’s 1977, 1963 until 1971. From 1971 until he Congressional Montana's During district. served aas United States Senator from the 1996, managed Lamson Bill Yellowtail's cam 1981, State of Tennessee. From 1977 until he paign represent Congressional Montana's Republican served as Chairman of Nation- 1996, through From district. 1983 Lamson ¶ al Committee. Brock 2 Decl. 6- [DEV served as the state director United States Tabl3], Representative Congressional Pat Williams’ office in During Montana. period, same 11. Senator David Boren served as a United managed Lamson also Congressman States Senator from Oklahoma from 1979- campaigns Williams’ election in Montana. ¶ 1994. Boren Decl. 2 [DEV 6-Tab 8] From 1981 to Lamson was Executive Director of the Montana Party. Democratic 12. Peter large Buttenwieser is a provided contributor Lamson a sworn declaration in FEC Party. v. Democratic Republican Colorado He estimates that Campaign Fed. Comm., F.Supp.2d cycle from 1996 (D.Colo.1999), through 41 election the 2002 aff'd, (10th Cir.2000), rev’d, cycle, 213 F.3d he $2.8 has donated over million 533 U.S. 121 S.Ct. non-federal funds to L.Ed.2d national committees (2001). ¶¶ Lamson Decl. 2-3 Party, [DEV 7- including $1.2 Democratic over Tab 26]. cycle. million in the 2000 election Also just go it to out ey they did use and non- federal between difference little guide, they registration get a voter beyond the source money federal ads on TV that money for issue used that money, be- on federal limitations amount campaign at than full nothing less parties were political state national cause surveys Independent tack ads. federal money to influence nonfederal use those, quote, percent that 80 shown elections). ads.”); attack actually issue ads were Advocacy" Cam- “Issue Party National ¶¶ 7, 68-Tab [DEV in RNC Shays Decl. Money Funded With paigns Nonfederal (“The political parties ... use these 40] parties experts for both 1.12 As party- general not for funds [nonfederal] money fund- note, in nonfederal the rise activities, on television building instead but abil- by the new-found spurred raising was designed to influ that are advertisements designed advertisements” run “issue ity to elections and federal ence the outcome of elections. to affect from candidate- indistinguishable are often in the involved 1.13 Witnesses ads.”); Meehan Decl. sponsored campaign party “issue agree all process (“I 30] 68-Tab believe [DEV in RNC 13 communications, paid advocacy” includes by party committees are that ‘issue ads’ part with nonfederal mon- for whole to and do affect the outcomes designed a candidate support ey, that attack candidates, elections, defeat
notes feat.”); 41] 9-Tab [DEV Decl. 63 Vogel31 funds to of nonfederal allocation party (“In majority of large experience, the my candidates help parties is to state state transfers to the NRSC’s nonfederal elections, “impres- his close have been to committees party and local La primary goal. it is their is that sion” advo- share of issue support the nonfederal Exam, 15]; at 73-74 Vol. Raja [JDT Cross Frequently, these communications. cacy Expert Report at 39 Magleby see also Republican Sen- refer to communications (“[National money largely party s]oft oppo- or their Democratic ate candidates races.”). La competitive [federal] aimed any nents, expressly advocating while not highly “are parties Raja finds defeat.”); election candidate’s responsible. Rath- rather than functional (“In ¶55 30] Decl. 8-Tab [DEV McGahn32 money up weaker use soft to shore er than majority large my experience, the mem- party state organizations, or reward transfers to state nonfederal NRCC’s national moving closer to bers sup- have been to party committees local use organizations national ideology, the
draws La notes 1.83.7Plaintiffs and the amount that interested outcome that companies given money.... in soft central claim of ignore cannot [O]ne posi- supporting Even if a is Senator electoral reformers that the cash-based industry helps tion that an for reasons po mistrust of the environment fosters mil- industry gave other than that the the amounts system. Observing litical party, appear it does not that lions to his campaigns money spent raised and eye. inway public skeptical average makes the American 34], Deck 11 8-Tab [DEV Rudman fair. Such political process that the political le questions raise about doubts political contributors High-level 1.83.6 politicians if are not Even gitimacy. cor- testify large that nonfederal donations minimal corrupt there has been an rupt political system present —and See, prove this claim—there appearance corruption. e.g., Has- evidence Nonprofit Groups’ corrup- Involvement Feder- certainly appearance al Elections tion .... parties help matters It does parties 1.85 Political and federal can- the arms race cam- contribute to with nonprofit groups didates work money parties paigns. By using soft activities, campaign they have raised in elections. Candidates raise the ante for, money nonfederal and directed and parties and interest feel vulnerable money nonprofit transferred nonfederal sponsor issue ads so groups groups for use in activities affect fed- Campaign money raise more than ever. eral elections. fights each side to a costs increase as 1.85.1 The national committees Thus, for cam- foraging draw .... money direct donors to donate nonfederal perspec- contributes to the paign money groups to certain interest then use system. money corrupts tive that such funds for broadcast issue advertise- Raja La Exam. Ex. 3 at 144-45 Cross ments and other activities that influence Vol. [JDT 25]. example, federal elections. For Steve Summary Kirsch testifies that the national Demo- Party played important cratic role in large effect of 1.84 It is clear that the political process money on the has his decision to donate soft to “cer- contributions public. polling on the groups running not been lost tain interest that were ef-
notes Keller Plaintiffs’ them, represent.’” and whom funds
notes As one Member parties. po political supplying to the method the favored come it. it: “access is Access put access Congress “begets ... support,” which litical this That’s how is clout. power. Access any of the lack of because to law-makers” ¶ Id. 1.75.2. thing works...” Id. may be donated. how much limit on ¶ n. 37 519 F.2d Buckley, 1.75.1. been empirical study has no Although Cf. corporate con (“The illegal disclosures conclusively, point this able demonstrate testimony ¶ in 1972 included III, tributions testimony from those intimate- App. this before aside, if record particularly troublesome not find it I do not 162. As an testimo- study panel, not is rich with empirical three-judge has surprising this conclusively intimately demonstrate involved been ny able from individuals may be sub- point. officials Access to federal fundraising the un- who describe nonfederal verification, tle, open to therefore less con- given to who precedented those access by empirical review. likely captured less to be funds. large of nonfederal tribute sums Furthermore, the fact that FEC does difficulty being able to my judgment, the require to disclose nonfederal contributors little empirically is of study phenomenon feasibility of these makes contributions See Find- given this evidence. consequence inability study remote. such a even more 1.81-1.82; ¶ ¶App. III ings would assess this matter empirically of executives that were motivated litical contributions made or arranged by the perception ¶ that this was necessary as a his firm. Id. 1.75.1.2. Furthermore, lob- card, ‘calling something that get would us byists testify that traditional lobbying in the door and point make our of view alone is not in and of itself sufficient to heard,’ Hearings before the Senate Select achieve a goals client’s and that contribu- Comm, on Presidential Campaign Activi- tions are usually part of a lobbyist’s “legis- ties, (1973) (Ash- 93d Cong., 1st Sess. 5442 ¶ plan.” lative Id. 1.75.1.3. point This Atkins, Chairman).”) (ci- land Oil Co. Orin bolstered by the numerous internal docu- omitted). tation to Findings ments by employees authored of a Fortune point Plaintiffs out that one of these company’s internal lobbying depart- lobbyists claims that he is ment, hired because of requesting authorization to make ability his provide access to lawmakers nonfederal donations to national party regardless of whether or not the client has part committees efforts to “strength- donated money parties. to the Findings en relationship” [its] with various federal ¶ 1.75.1.2. Similarly, an RNC official ¶ lawmakers. Id. 1.74.3. In the words of states lobbying is a better way to expert, one “[i]t’s not either or .... achieve access to lawmakers than donating fact is most of the organizations and eco- campaigns parties, and Plain- nomic interests ... lobbying, inside tiffs note many individuals enti- outside lobbying, are also in- intimately ties who large donate sums of nonfederal volved in financing game and funds also devote substantial sums lob- making large contributions to par- efforts, bying which can dwarf their non- ties”. Id. 1.75.1.2. federal fund donations. Id. While these Numerous former and current Members merit, observations have it is clear from of Congress also testify that entities and lobbyists, such as Wright Andrews, that individuals that make large contributions the “amount of influence that a lobbyist
notes lobbyist who tributors, including one this only underscores parties political both $100,000corpo- channeled properly that “a point. to the national money donation rate soft Give to Funds Contributors congressional or Democratic Nonfederal Republican Special to Ensure Parties Both Political corpo- get the can committees campaign Access than benefit several more rate donor that contributions large to contributors hard dollar importance The smaller in or- Lobbyist Robert lawmakers Id. to federal PAC.” access gaining corporation’s leads agendas individual starkly: press their mentality to der Rozen describes witness, to of one words many, in the parties under- national to the Donors they ac- bets, get to ensure “hedge their is officeholder if a federal that stand that the issues are holders on to office cess “non- money supposedly raising soft — ¶ 1.79; see also Id. them.” important raising it for are money they federal” — ¶ way: “As put it CEO 1.80. One id. help that Mem- uses, namely to federal you if want to goals, with business a donor in their candidates or other ber your is- getting your chances enhance $100,000, giving Many donors elections. favorably re- paid attention sues million, that are doing $200,000,even $1 biparti- Congress, by Members viewed favor than bigger because lots Giving way go. right sanship is the would money contribution hard smaller right sides is money to both soft get helps you close donation be. That per- pragmatic the most go from way that making decisions who person ¶ parties The Id. 1.79. spective.” industry. your company your affect from view, one document of this aware inter- most economic the reason “Why That is party entitled Republican the Ohio certainly be- money, observation: soft includes the give ests People Give” candidates so help state to both sides give they “many people want cause is the to whoever access will have they they want rarely because ¶ 1.80.165 Id. money winner.” bigger soft to succeed.... they parties to both because provide support “estab- that the record claims RNC 165. The party. Id. may from each support and individuals members organizations some lishes suggest to be that donors because desire parties Although statements give to both these process.” Id. in the other actively parties for reasons "may” give involved to both statement, of this support access, the nu- 1.80.1. contradict they do not than repre- a PhRMA provides a statement RNC in the rec- documents statements merous gives conven- group to the that the sentative special access is that demonstrate ord "we are parties because both tion activities give many who donors primary motivation deposition good participants,” civic Moreover, interests parties. Id. to both experts of Defendants’ one statement process and in participating donors acknowledging possibility
notes labor tions, including Goldstein “political Dr. business, cycles, ions, Wiscon- 2002 election trade associations heads, spent Project, groups” he single-issue Advertising ideological sin journalists million million to data provided $150 CMAG $135 has estimated during time. advertising in real of issue advertisements covering political worth compared to report campaign, the data we Although 1995-1996 “[m]uch Id. advertising by spent on strategies particu- million can cast the election $400 An- office. running for groups candidates, or interest candidates parties lar 38 Tab- Report [DEV at 3 nenberg time .... at no light in an unfavorable adver- of these percent 86.9 accuracy Almost 21]. on the challenged have we been for office a candidate mentioned on the tisements reported data we have factual at 8. Id. by name. official public advertis- targeting content and “Most” of the groups running ad- these during debate, the Senate and are relied vertisements “declined make known-the on by Plaintiffs in litigation. See, e.g., identities of their donors.” Id. at 4. 147 Cong. Rec. S2456 (daily ed. March 2001) (statement 4. The Annenberg Center’s report Snowe) Sen. (citing estimates that at least 77 groups ran issue Annenberg Report 2001); Findings 2.2.1 advertisements during the 1997-1998 elec- (Lupia) tion cycle costing between $275 $340 C. The Expert Goldstein Report million.” Annenberg Report 1998 at 1 Goldstein, Dr. who was involved in as- Overall, [DEV 66-Tab 6]. 53.4 percent of sembling the data sets used in both Buy- these advertisements mentioned candi- ing studies, Time produced his expert own name, dates although 80.1 percent of report for the purpose of this litigation. those run advertisements in the final two See generally Goldstein Expert months the campaign Report. mentioned candi-
notes Dr. Goldstein Tab 3]. stu- classes, whether Dr. Goldstein’s speculative, regard is in this criticism son’s commit- policy ideological dents had and/or not to chose the fact “he given especially pro- in the outcome particular ments to own his survey, using his own conduct the fact also believes Id. He ject, etc.” techniques, training his own flaw coders “is trained were not coders student and compare it to the results reached Dr. Goldstein notes that if his involvement undergraduate coders.” Goldstein Re- in the project suggested anything to the Report buttal 4]; at 31 [DEV 5-Tab coders, it would have been project that the Lupia Expert also Report at 33 [DEV 5- was about the tone of advertising, (“In case, Tab 5] replication such a one of his primary scholarly interests. Id. would have been relatively simple to con- In terms of the representativeness of the duct ... and would have allowed the [Gib- coders, Lupia Dr. states that “only if we report son] speculation less rely had evidence that inway which the when alleging that measurable attributes undergraduates were unrepresentative of Goldstein’s coders affected data col- caused Buying Time’s claims to differ lection or analysis.”). Dr. Goldstein states representative what a population the lack of training was “a deliberate would produced” would there abe choice that is well-supported by social sci- basis to believe the coders’ unrepresenta- principles ence .... aimed at getting the tiveness threatened quality data, of the untutored impression common-sense but the “report Gibson presents no such coders, while minimizing the possibility of evidence.” Lupia Expert Report at 35 biasing with any preconceived coders no- [DEV 5-Tab Lupia 5]. also notes that “in tions that might have been implicit a set the field of psychology ... important dis- of instructions.” Goldstein Rebuttal Re- coveries about mental such states as atti- port at 32 [DEV 5-Tab 4]. Formal train- tudes are often generated from studies ing, asserts, Dr. Goldstein only “would un- undergraduates ask opinion answer dermine the independence of the coders’ questions after viewing paper-based stimu- assessments and possibly sys- introduce
notes 7], Dr. Gibson 3-Tab Gibson assessed.” can be collected data sponsor who apparent readily always PCS], According [1 at 16 Report Expert is, making it difficult the advertisement what- “no Gibson, assessment there he or Dr. purpose whose to know coder Buying reliability [for intercoder evaluating. Gibson soever to be supposed she re- prob- Thus, academic This unlike PCS]. 12 [1 Report ]. Time Expert “explicit em- coding, lack of no by the subjective on is exacerbated based lem search ‘ad’s an how ascertain to indicate guidelines exists evidence pirical ” the sub- To demonstrate Id. ads purpose.’ of these subjective assessments coders’ points Dr. Gibson question, jectivity Dr. at 18. Gibson Id. accurate.” were run Wisconsin advertisement Dr. flaw.” Id. be a “serious this to finds Kohl Herb Senators highlights “practice arguing Lupia responds partial positions Feingold’s Russell questions opinion answers treating call the viewer asks abortion birth sci- is common phenomena objective “it Dr. Gibson 12-13. To Id. them. Report [DEV at 38 Expert Lupia ence.” focus of central seems obvious co-authored article (describing an
notes He own scribed reasonable most Alliance. Pro-Life opin- your “In begins Question 6 that it is an is that ad of this overall assessment how understand ion,” seeks interest advocacy by an example issue 37. Id. at perceived. advertisements Holman, in an at 13-14. Id. group.” the basis addition, Lupia questions likeme ad “reads to email, wrote “the most reason- claim Dr. Gibson’s Hol- ad,” (citing at 14 id. genuine a issue the Wisconsin assessment” overall able 14), concludes Ex. but he Dep. man is that advertisement abortion partial birth advertisement, Hol- electioneering an is Dr. Gib- advocacy, because pure it is issue Buy- Both 10]. Vol. at 67 man Dep. [JDT judg- of this explanation no clear gives son advertisement treat studies ing Time advertisement, Id. at ment. but electioneering an as ¶ I.C.7; App. I.D.8.C. also diver- for this explanation infra Dr. Goldstein’s discussed, App. supra gence in treatment j. Dr. explains importance Gibson ments’ true purpose. Id. Just because reliability Buying Time context. perceptions coders’ may not comport with He maintains that miscoding of a sin- reality does not threaten the validity of the gle advertisement could have “quite data, large because survey seeks the coders’ consequences for the statistical results.” impressions. mental Id. However, when Gibson Expert Report at 22-23 [1 PCS]. codings were changed Question 6, the proposes He if # Advertisement impressions mental coders, was coded promoting issues rather than were sought by question, were over- candidate, the percentage pure issue (Vol ruled. 2) Dep. Goldstein at 208-209 advertisements Buying Time 1998 [JDT Vol. 8]. data set would rise six percentage points. 1.Dr. puts Gibson forth the theory that This, Id. Dr. Gibson argues, demonstrates “the confusion in the instructions regard- the volatility of the data set. Id. at 23. ing Questions 7 through 18 may have in- notes, As Dr. Gibson he is not claiming for degree troduced a of bias into how the purposes of argument that Advertise- students Question coded by6 suggesting #ment error; was coded in he is mere- that any advertisement that included the ly showing how hypothetical one error name of a candidate should be coded as could affect the data. Id. at 22 n. 24. having purpose of promoting or opposing k. Dr. Gibson also challenges the valid- a candidate.” Expert Gibson Report at 30 ity Buying Time 1998 data. Gibson [1 PCS]. Dr. Gibson states that Expert Report this, at 17 By [1 PCS]. Dr. analysis reveals that fully 97.7% of Gibson means that may coders be consis- [group-sponsored airings having ‘pur- tent in their coding, but their coding may pose’ of generating support or opposi- Id. incorrect. Specifically, suggests he tion to a candidate] were also coded as that: mentioning candidates. The im- most coders must seek easily discernable portant conclusion I draw from this ‘cues’ in the advertisements aas means analysis is that mentioning a candidate of making the required judgment. and promoting a candidate are virtually presence Since the of a political figure thing, same as these data were cod- who seems to be a candidate is a readily ed by the undergraduate students cue, accessible the coders then develop (and/or Goldstein). Professor It seems implicit decision rule that says: highly likely to me that the student co- ‘when a figure depicted in the coded ders these questions (6, 7, three ad, the ad involves electioneering.’ Us- 8) virtually simultaneously: A candi-
interest 5-Tab notes groups placing produced issue ads” in 1998 addition of such data into the denominator be captured would unfairly by BCRA, would simply id. “decrease the percentage of 123, 144, percent that 13.8 pure of all issue ads affected BCRA” because issue advertisement airings mentioning a all of those advertisements would have candidate and broadcast within days aired more than 60 days before the elec- days within appeared action urging increase therefore would tion than election, than earlier (em- rather of the at 14AL5 Id. numerator. size (em- Id. the election?” days before & So- Krasno see also original); phasis believes Dr. Krasno original). phasis 2] 1-Tab at 62 [DEV Report Expert rauf vary would denominator Dr. Gibson’s estimates these (“The data candidate- amount “with during in size broadcasting only cover derived an elec- before advertising issue oriented years, not calendar the 1998 because relevant particularly This is tion. them. preceding months thirteen-plus issue of candidate-oriented the volume num- the total factor in able we Were campaigns. presidential devoted ads be- appeared ads pure issue ber course, highly unstable result, pure elections, percentage tween year impact from of BCRA’s estimates would de- by BCRA ads affected issue
Dr. notes Goldstein ver- sampled (e.g., random advertise- these were ads for the 30 did as Dr. Gibson selection) who the BCRA- non-random of the sus ments, 100 percent “that novice),” ads, expert versus (e.g., issue coders were genuine group ads were related relia- “variable-by-variable notes that positive at a false arrive could then we set coding ad data full for the bility results Lupia Dr. Id. percent.” of 100 percentage this infor- Id. Without not presented.” are argument credibility of this questions whether mation, assess Dr. cannot Gibson on 30 advertisements it is based given that can methods be reliability counsel, the “inter-coder Dr. Gib- chosen Plaintiffs’ election, days before [60 three criteria adds report, Dr. Gibson his rebuttal mention, oppos- supporting or candidate additional set data four his 30 advertisement dependent wholly ing candidate] are Expert by Goldstein’s deemed commercials 'purpose' of in- of the subjective assessments genuine issue advertisements Report ads, reasonably that are assessments dividual adver- (Dr. genuine issue six Goldstein found subject debate.” Id. already and two were run tisements chosen). Re- Gibson 30 commercials of the inter- and results PCS], procedures running By 205. The Report at [2 buttal Appen- produced as reliability test coder analysis, Gibson concludes Dr. similar Expert Report. Goldstein dix I impact of Dr. "estimates Goldstein’s
notes the first ican support Conservative Union to an is- goal develop was “to a reliable source sue advertisement discussed Senate prob- of information on the nature of the Hillary residency candidate Clinton’s study phases, lem.” Id. at 7. The had two Keating Dep. New York. at 59 [JDT Vol. proceed and it would not even (“Q. to the sec- Hillary 12] Whether or not Clinton is phase “provide ond if it did not a suffi- a resident of really New York State powerful ciently doesn’t have boost to the reform move- anything to do with the Club 6; for Id. at Krasno Exam. pro-growth Growth’s interest in ment.” Cross conser- officials, 1, 3, Republican (explain- vative 4 at 6 [JDT 14] elected does it? Exhibit Vol. no.”). A. It directly, phase acquire doesn’t seem to that the first was to data ing develop “and use it to a strategy for re- 312. Dr. Kenneth provided Goldstein posed by to the threat sponding issue ad- assistance in processing and coding data vocacy,” and the phase was to “cre- Buying second for the Time studies. Goldstein policy ate reports, Report recommendations and Rebuttal at 6. In addition to assem- ... publicizing] as well as bling these activities data sets used in the Buying Time Capitol beyond”). studies, Hill and Dr. produced Goldstein also expert report for the purpose of litiga- April May 311.In Dr. Ken- tion. See Expert Amended Report of Goldstein University neth of Wis- (Oct. 2, 2002) Kenneth M. Goldstein consin, who had on the data worked set (“Goldstein Expert Report”). part As Buying Time indicated a re- processing coding studies, data for the quest the Pew grant Center another he merged CMAG’s two data pro- sets to purpose that the Buying Time stud- duce “a single, comprehensive data set.” ies was to further campaign finance re- (at Id. He also had university students (Vol. 1) Dep. form. Goldstein at 29 [JDT University of for Buying Arizona Time request 8]. Vol. Goldstein’s stated that he 1998 and University of Wisconsin for “happy was to work with others 2000) Buying Time content, “assess[ ] policy community to make sure that our tone, addressed, issues whether the ads study designed in ways executed mentioned a provided candidate or help move the reform ball forward.” call, a toll-free number to etc.... addi- (Vol. 1) Dep. Goldstein at 37 & Exhibit 6 tion to collecting specific certain informa- 8], Seitz, at 5 Vol. [JDT Mr. co-author of concerning reviewed, tion storyboard each Buying Time states that while there study also asked ‘In your opin- coders: purposes were number of behind the
notes many beer commercials do not “purpose” of promoting a candidate. Id. product, focus on the but rather people Nonetheless, at 32-33. Dr. argues Gibson “engaged in a range of activities that we ” coding Question “deeply 6 is can call ‘wild nights out.’ Id. at 47. It flawed,” Question Ques- and where 6 and would not be “perceive unreasonable to tion 22 Question “clash ... coding purpose get” ad 22 should be considered more valid and beer, viewer buy judge “but to its