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Brief Amicus Curiae of Norman Ornstein, Thomas Mann

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Brief Amicus Curiae of Norman Ornstein, Thomas Mann No. 08-205 IN THE Supreme Court of the United States _________ CITIZENS UNITED, Appellant, v. FEDERAL ELECTION COMMISSION, Appellee. _________ On Appeal from the United States District Court for the District of Columbia _________ BRIEF AMICI CURIAE OF NORMAN ORNSTEIN, THOMAS MANN, ANTHONY CORRADO, AND DANIEL ORTIZ IN SUPPORT OF APPELLEE _________ H. CHRISTOPHER BARTOLOMUCCI Counsel of Record PAUL A. WERNER HOGAN & HARTSON L.L.P. 555 Thirteenth Street, N.W. Washington, D.C. 20004 (202) 637-5810 Counsel for Amici Curiae TABLE OF CONTENTS Page TABLE OF AUTHORITIES................................... ii STATEMENT OF INTEREST OF AMICI CURIAE ............................................................ 1 SUMMARY OF ARGUMENT................................ 2 ARGUMENT........................................................... 4 I. THE COURT SHOULD NOT REOPEN THE ISSUE ADVOCACY LOOPHOLE THAT BCRA SECTION 203 CLOSED. ...................... 4 CONCLUSION ....................................................... 16 (i) ii TABLE OF AUTHORITIES Page CASES: Arizona v. Rumsey, 467 U.S. 203 (1984) ............ 16 Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) .......................................... passim Buckley v. Valeo, 424 U.S. 1 (1976) .................... passim FEC v. Beaumont, 539 U.S. 146 (2003)............. passim FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001)............................. 1 FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986) .......................................... 6, 7, 9 FEC v. National Right to Work Comm., 459 U.S. 197 (1982) ................................................. 5, 6 FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) ....................................................... 2, 4, 16 McConnell v. FEC, 540 U.S. 93 (2003) ............... passim McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C.), aff’d in part & rev’d in part, 540 U.S. 93 (2003) ............................................ passim Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000). ............................................................... 2 United States v. International Union United Auto., Aircraft & Agric. Implement Workers of Am., 352 U.S. 567 (1957).............................. 5 Vieth v. Jubelirer, 541 U.S. 267 (2004) .............. 2 Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) ......................................................... 2 iii TABLE OF AUTHORITIES—Continued Page STATUTORY AND REGULATORY PROVISIONS: Bipartisan Campaign Finance Reform Act of 2002, Pub. L. No. 107-155, § 203, 116 Stat. 91-92.................................................................. passim Corrupt Practices Act, 1925, §§ 301, 313, 43 Stat. 1070, 1074................................................ 6 Federal Election Campaign Act of 1971, 2 U.S.C. § 431 et seq. ........................................... 2 2 U.S.C. § 431(9)(A)(i) ......................................... 6 2 U.S.C. § 441b .................................................... 6, 7, 9 2 U.S.C. § 441b(a)................................................ 6 2 U.S.C. § 441b(b)(2)............................................ 3, 14 RULES: S. Ct. R. 37.3(a).................................................... 2 S. Ct. R. 37.6 ........................................................ 1 OTHER AUTHORITIES: 144 Cong. Rec.: p. H6802 (daily ed. July 30, 1998) ................... 10 pp. S1048-49 (daily ed. Feb. 26, 1998)............. 13 147 Cong. Rec. S2455-56 (daily ed. Mar. 19, 2001).................................................................. 8 148 Cong. Rec. S2104 (daily ed. Mar. 20, 2002). 13 Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns, S. Rep. No. 105-167 (1998).......... passim iv TABLE OF AUTHORITIES—Continued Page Report of Thomas E. Mann, at http://www.campaignlegalcenter.org/McCon nell-31.html ...................................................... 8, 9, 10 S. Rep. No. 1, pt. 2, 80th Cong., 1st Sess. (1947) ................................................................ 5 STATEMENT OF INTEREST OF AMICI CURIAE Amici curiae are three political scientists who have dedicated much of their careers to studying, analyz- ing and writing extensively on Congress, federal elections, campaign finance, and American politics, and a law professor expert in election law.1 Anthony J. Corrado, Jr. is a Professor of Govern- ment at Colby College and Chair of the Board of Trustees of the Campaign Finance Institute. He served as an expert witness in FEC v. Colorado Republican Fed. Campaign Comm., 533 U.S. 431 (2001), and this Court cited and quoted his expert statement in its opinion in that case. Thomas E. Mann is a Senior Fellow in Governance Studies at the Brookings Institution. He served as an expert witness in McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C.), aff’d in part & rev’d in part, 540 U.S. 93 (2003), and this Court cited and quoted his expert report in its opinion in that case. See 540 U.S. at 124 nn.8, 9, 11 & 12; id. at 148 & 155. Norman J. Ornstein is a Resident Scholar at the American Enterprise Institute for Public Policy Research. He is the founder and director of the Campaign Finance Working Group, a group of schol- ars and practitioners that helped craft the McCain- Feingold legislation. Stemming from their expertise and interest in fed- eral elections and campaign finance reform, Profes- sor Corrado, Dr. Ornstein, and Dr. Mann have filed 1 Pursuant to this Court’s Rule 37.6, we note that no part of this brief was authored by counsel for any party, and no person or entity other than amici curiae and their counsel made a monetary contribution to the preparation or submission of the brief. 2 amici briefs in previous cases before this Court involving election-law issues.2 Daniel R. Ortiz is John Allan Love Professor of Law at the University of Virginia. He teaches and writes in the area of election law and served as coordinator of the Task Force on Legal and Constitutional Issues for the National Commission on Federal Election Reform chaired by Presidents Carter and Ford. The amici have a great interest in seeing to the success of the reforms that they helped bring to fruition and that have strengthened our federal campaign finance system, and offer their views to aid the Court in this case. Their brief is filed with the written consent of all parties pursuant to this Court’s Rule 37.3(a); the requisite consent letters have been filed with the Clerk. SUMMARY OF ARGUMENT This case involves another as-applied challenge to Section 203 of the Bipartisan Campaign Finance Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 91-92. See FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (WRTL II). BCRA overhauled our federal election laws by amending, inter alia, the Federal Election Campaign Act of 1971 (FECA), 2 U.S.C. § 431 et seq. See McConnell, 540 U.S. at 114. Section 203 of BCRA amended FECA by prohibiting corporations and unions from financing, with their general treasury funds, “electioneering communica- tion[s]”—i.e., communications referring to a federal 2 See FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 2652 (2007) (Corrado, Mann & Ornstein); Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) (per curiam) (Corrado, Mann & Ornstein); Vieth v. Jubelirer, 541 U.S. 267 (2004) (Mann & Ornstein); McConnell v. FEC, supra (Ornstein); FEC v. Colorado Republican Fed. Campaign Comm., supra (Mann); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) (Mann). 3 office candidate and broadcast within 30 days of a primary or 60 days of a general election in the candi- date’s jurisdiction. See 2 U.S.C. § 441b(b)(2). Citizens United argues that Section 203 could not, consistent with the First Amendment, bar it from using general treasury funds to make its documen- tary about then-Senator Hillary Clinton—Hillary: The Movie—available to cable subscribers “on de- mand” as she vied for the Democratic Party’s 2008 presidential nomination. The Court has asked for supplemental briefing on the question whether it should overrule Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)—which upheld a state statute requiring corporations and unions to use segregated funds for campaign advocacy—or McConnell—which, in the context of a facial chal- lenge, held that Section 203 survived strict scrutiny. See 540 U.S. at 207-208. The answer to the Court’s question is no. Prevent- ing corporations and unions from using their general treasury funds to influence federal elections is not a novel congressional objective; it is one that Congress has pursued for more than a century with this Court’s approval. BCRA is only Congress’s most recent effort “to purge national politics of what was conceived to be the pernicious influence of ‘big money’ campaign contributions.” Id. at 115 (quota- tion marks & citation omitted). Section 203 advances that goal by extending a longstanding prohibition against the use of corporate and union treasury funds for ads that expressly advocate the election or defeat of a federal candidate to cover a newly-defined form of communication—i.e., electioneering communications. Based on over- whelming evidence, Congress concluded that this extension was necessary to prevent corporations and unions from circumventing the pre-existing FECA prohibition by funding with treasury revenues ads 4 that, while falling short of prohibited “express advo- cacy,” were no less calculated to influence federal elections and likely had that effect. Section 203 thus
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