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C:\Documents and Settings\Jim\Desktop\Amicusbrief Nos. 06-969 & 06-970 IN THE Supreme Court of the United States EDERAL LECTION OMMISSION, F E C Appellant, v. ISCONSIN IGHT TO IFE W R L , Appellee ______ ENATOR OHN C AIN ET AL S J M C , ., Appellant, v. ISCONSIN IGHT TO IFE W R L , Appellee On Appeals from the United States District Court for the District of Columbia BRIEF AMICI CURIAE OF THE AMERICAN CENTER FOR LAW AND JUSTICE AND OF FOCUS ON THE FAMILY IN SUPPORT OF APPELLEE STEPHEN W. REED JAY ALAN SEKULOW REED & BROWN, LLP Counsel of Record 35 North Lake Avenue STUART J. ROTH Suite 960 JAMES M. HENDERSON, SR. Pasadena, California 91101 AMERICAN CENTER FOR LAW (626) 449-4521 & JUSTICE Counsel for Focus on the 201 Maryland Avenue, N.E. Family Washington, DC 20002 (202) 546-8890 Counsel for the American Center for Law and Justice i TABLE OF CONTENTS Page Table of Authorities .............................. iii Interest of Amicus................................1 Summary of Argument ............................2 Argument.......................................3 I. The Prohibition of Genuine Issue Advertisements by Grassroots Lobbying Groups During the Period Prior to Primaries and General Elections Directly Affronts the Right of the People to Petition for a Redress of Grievances .............................................3 A. The Right to Petition for a Redress of Grievances . 4 1. The English Antecedents to the Right to Petition for a Redress of Grievances ......................4 2.The American Experience.....................8 B. To Survive Constitutional Scrutiny, the Prohibition on Issue Advertisements by Grassroots Lobbying Organizations must Be Limited by an Appropriately Crafted Rule Leaving Unabridged Those Genuine Issue Advertisements That Are Protected by the Right of the People to Petition for Redress of Grievances................................11 1. The Noerr-Pennington Doctrine: Drawing Limits to Antitrust Law from the First Amendment ........11 2. The Noerr-Pennington Doctrine Reflects the Constitutional Right of the People to Petition under the First Amendment........................14 II. Significant Acts of Legislative or Executive Power During the Blackout Period Are Shielded from Critical Analysis and from Calls for Redress.......19 Conclusion.....................................24 ii TABLE OF CONTENTS–cont’d Page Appendices Appendix A: Actions of the President of the United States During the Sixty Days Prior to the General Election 2004 and 2006 ....................... Appdx. A-1 Appendix B: Floor Votes in the House of Representatives and the Senate During the Sixty Days Prior to the General Election 2004 and 2006 ........ Appdx. B-1 Appendix C: Committee Hearings of the House of Representatives and the Senate During the Sixty Day Period Prior to the General Election 2004 and 2006 .................................. Appdx. C-1 Appendix D: Committee Reports of the House of Representatives and the Senate Issued During the Sixty Day Period Prior to the General Election 2004 and 2006 .................................. Appdx. D-1 Appendix E: Issues Discussed on the Floor of the House of Representatives and the Senate During the Sixty Days Prior to the General Election 2004 and 2006 .............................. Appdx. E-1 iii TABLE OF AUTHORITIES Page Cases Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988) ............................11 BE & K Construction Company v. NLRB, 536 U.S. 516 (2002) .................................... 17-18 California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972) ..................... 11, passim City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365 (1991) ..................... 11, passim Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) .......... 11, passim FEC v. McConnell, 540 U.S. 93 (2003) ................1 Parker v. Brown, 317 U.S. 341 (1943) ...............11 Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993) ............. 16-17 United Mine Workers of America v. Pennington, 381 U.S. 657 (1965) ..................... 11, passim United States v. Cruikshank, 92 U.S. 542 (1875) .......19 Statutes, Constitutions, and Other Laws 1628 Petition of Right, 3 Chas.1 c.1 (http://www.nationalarchives.gov.uk/pathways/citizensh ip/rise_parliament/transcripts/petition_right.htm ..... 6-7 1689 Bill of Rights, 1 W. & M., Sess. 2, ch. (1689) (http://www.nationalarchives.gov.uk/pathways/citizensh ip/rise_parliament/transcripts/bill_rights.htm) ....... 7-8 “An Act Prohibiting Trade and Intercourse with America,” 16 Geo. III., c. 5................................9 iv TABLE OF AUTHORITIES–cont’d Page Declaration and Resolves, First Continental Congress, 14 October 1774 ................................9 DECL. OF INDEP. .................................10 Magna Carta (http://www.bl.uk/treasures/ magnacarta/translation.html) ......................5 Massachusetts Body of Liberties of 1641 ..............8 Petition to the King, Second Continental Congress, 8 July 1775 . ...................................9 Legislative Materials Annals of Congress, House of Representatives, 1st Congress, 1st Sess., 451 (June 8, 1789) .....................10 House of Commons Journal Volume 1: 27 May 1628, Journal of the House of Commons: volume 1: 1547-1629 (1802) ........................................6 House of Commons Journal Volume 10: 16 December 1689, Journal of the House of Commons: volume 10: 1688-1693 (1802) ........................................7 House of Lords Journal Volume 3: 27 May 1628, Journal of the House of Lords: volume 3: 1620-1628 (1802) ......6 House of Lords Journal Volume 14: 16 December 1689, Journal of the House of Lords: volume 14: 1685-1691 . 7 Nominations: Hearing Before the S. Comm. on the Judiciary, 108th Cong. (Sept. 22, 2004) .....................20 Administrative Materials 40 Weekly Comp. Pres. Doc. 2034-35 (Sept. 15, 2004) . 20 v TABLE OF AUTHORITIES–cont’d Page Journals, Treatises and Other Authorities Epps, “The Antebellum Political Background of the Fourteenth Amendment.” 67 LAW AND CONTEMP. PROB. 175 (2004) . ..................................10 SELECT CHARTERS AND OTHER DOCUMENTS ILLUSTRATIVE OF AMERICAN HISTORY 1606-1775 (Wm. MacDonald ed. 1899) . ...................................8 G. SMITH, A CONSTITUTIONAL AND LEGAL HISTORY OF ENGLAND (Charles Scribner’s Sons 1955) ..... 5, passim CHARLES C. TANSILL, AND LIBRARY OF CONGRESS LEGISLATIVE REFERENCE SERVICE, DOCUMENTS ILLUSTRATIVE OF THE FORMATION OF THE UNION OF THE AMERICAN STATES (Washington: Govt. Print. Office, 1927) .................................. 8, passim Spanbauer, “The First Amendment Right to Petition Government for a Redress of Grievances: Cut From A Different Cloth,” 21 HASTINGS CONST. LAW QUARTERLY 15 (Fall 1993) . ........................... 4, 8-9 1 INTEREST OF AMICUS1 The American Center for Law and Justice (“ACLJ”) is a not-for-profit legal and educational organization dedicated to, inter alia, the defense of rights guaranteed under the First Amendment to the United States Constitution. ACLJ attorneys have appeared frequently before the Court as counsel for parties or for amici. In particular, Counsel of Record for amicus was Counsel of Record and presented oral argument for appellees Emily Echols et al. (minors) in FEC v. McConnell, 540 U.S. 93, 231-32 (2003). Focus on the Family is a California non-profit religious corporation committed to strengthening the family in the United States and abroad. One of its express purposes is to propagate and spread the Gospel of Jesus Christ. Focus on the Family’s interest in this case stems from the fact that it is actively involved in the promotion of the freedom of speech and expression and actively opposes restriction on private speech. Focus on the Family distributes a daily radio broadcast about family issues that reaches approximately 1.7 million listeners each day in the United States, Canada and around the world. Focus on the Family publishes and distributes Focus on the Family magazine and other literature that is received by more than 2 million households each month. Topics addressed in the daily radio broadcast and in printed literature published 1. The parties in this case have consented to the filing of this brief. Letters of consent to the filing of this brief have been filed with the Court. No counsel for any party authored this brief in whole or in part. No person or entity aside from the ACLJ, its members, or its counsel made a monetary contribution to the preparation or submission of this brief. The ACLJ has no parent corporation, and no publicly held company owns 10% or more of its stock. 2 and distributed by Focus on the Family frequently concern religious expression, freedom of speech, and the right of individuals, privately, to express their opinions, whether religious or otherwise. Focus on the Family has, over the past twenty years, frequently urged its constituents to write or call their elected representatives to make their views known on issues associated with pending legislation. SUMMARY OF ARGUMENT This Court should take the opportunity presented by these consolidated appeals to confirm the constitutional warrant, under the First Amendment Right to Petition for Redress of Grievances, for genuine issue advertisements by grassroots lobbying organizations. The storied right to petition for redress of grievances is more than a historical artifact of history. That right, both in its exercise and in the charters and proclamations affirming it, is inextricably
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