Nos. 06-969, 06-970 IN THE Supreme Court of the United States FEDERAL ELECTION COMMISSION, Appellant, v. WISCONSIN RIGHT TO LIFE, INC., et al., Appellees. McCAIN, Appellant, v. WISCONSIN RIGHT TO LIFE, INC., _______________________________ Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BRIEF AMICI CURIAE OF NORMAN DORSEN, ARYEH NEIER, BURT NEUBORNE, AND JOHN SHATTUCK IN SUPPORT OF APPELLANTS BURT NEUBORNE Counsel of Record DEBORAH GOLDBERG DAVID GANS BRENNAN CENTER FOR JUSTICE AT NYU LAW SCHOOL 161 Avenue of the Americas 12th Floor New York, New York 10013 (212) 998-6730 Attorneys for Amici Curiae TABLE OF CONTENTS Table of Authorities…..…………………………………….iii Statement of Interest……………………………………….. 1 Summary of Argument…………………………………….. 1 Argument…………………………………………………... 4 I. This Court Should End the Strategic Game Played by Both Sides in the Litigation Leading to this Appeal………………………………………. 4 II. WRTL’s Advertisements Do Not Qualify for an As-Applied Exemption from Section 203’s Ban on Corporate Funding of “Electioneering Communications”………………… 7 A. The District Court Plainly Erred in Refusing To Consider the Factual Context of the Advertisements………………….8 B. The District Court’s Refusal To Consider Factual Context Was Not Required by Administrative Necessity or a Concern with “Chilling” Corporate-Funded Political Speech………………………………..10 1. Courts Are Competent To Consider Context in Evaluating As-Applied Challenges…………………………..….11 ii 2. Consideration of the Factual Context Does Not Threaten Constitutionally Protected Issue Speech…………..………………..14 C. Viewed in Factual Context, WRTL’s Advertisements Do Not Qualify for an As-Applied Exemption from Section 203’s Ban on Corporate Electioneering………........…14 1. Precluding WRTL’s Ads Furthers the Compelling State Interests Recognized in McConnell………….…..15 2. Granting the As-Applied Exemption Sought by WRTL Would Undermine the Statutory Scheme Upheld in McConnell………..…...……………..…19 Conclusion…………………………………………………22 iii TABLE OF AUTHORITIES Cases Anderson v. Celebrezze, 460 U.S. 780 (1983)…..................12 Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)………………………………..............16 Batson v. Kentucky, 476 U.S. 79 (1986)…………………...13 Boy Scouts of America v. Dale, 530 U.S. 640 (2000)………………………………................8 Bowen v. Kendrick, 487 U.S. 589 (1988)…...........................8 Brown v. Socialist Workers’ ’74 Campaign Committee, 459 U.S. 87 (1982)…………………………………………11 Buckley v. Valeo, 424 U.S. 1 (1976)…………………...10, 11 Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996)………………………………..............14 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)………………………………............... 9 Edwards v. South Carolina, 372 U.S. 229 (1963)…………..8 FEC v. Beaumont, 539 U.S. 146 (2003)………….........14, 16 FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 (1986)……………………………………14, 16 FEC v. National Right to Work Comm., 459 U.S. 197 (1982)………………………………..............16 iv Hess v. Indiana, 414 U.S. 105 (1973)……………………….9 Lynch v. Donnelly, 465 U.S. 668 (1984)……………...10 n. 2 McConnell v. FEC, 540 U.S. 93 (2003)………………passim McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)…………………………….………….13 Milk Wagon Drivers of Chicago, Local 753 v. Meadowmoor Dairies, 312 U.S. 287 (1941)………………………………..9 Miller v. Johnson, 515 U.S. 900 (1995)…….……………..12 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000)………………………...……………...11 Rankin v. McPherson, 483 U.S. 378 (1987)………………...9 Sabri v. United States, 541 U.S. 600 (2004)………………...8 Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290 (2000)…………………….….. …….........9 n. 2 Spence v. Washington, 418 U.S. 405 (1974)…….……….....9 Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981)……………………………..…………13 Texas v. Johnson, 491 U.S. 397 (1989)…………..................9 United States v. American Library Ass’n, 539 U.S. 194 (2003)…………………………...…………….8 v United States v. Edge Broadcasting Co., 509 U.S. 418 (1993)………………………………..14, 20, 21 United States v. Lee, 455 U.S. 252 (1982)…….…….....15, 20 United States v. Raines, 362 U.S. 17 (1960)….….. ……...…8 Van Orden v. Perry, 125 S. Ct. 2854 (2005)…………...9 n. 2 Virginia v. Black, 538 U.S. 343 (2003)……………………..9 Watts v. United States, 394 U.S. 705 (1969)………………..9 Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006)…………………………………..passim Wisconsin Right to Life, Inc. v. FEC, No. 04-1260, 2006 WL 3746669 (D.D.C. Dec. 21, 2006)……………………...passim Other Sources William Shakespeare, The Tragedy of Julius Caesar, act III, sc. ii (1623)………………………………………………...10 - 1 - STATEMENT OF INTEREST Amici are former officials of the American Civil Liberties Union (“the ACLU”), who are committed both to a robust First Amendment and to the effective restriction of corporate treasury funds in electoral campaigns.1 Norman Dorsen served as President of the ACLU from 1976-1991, and as its General Counsel from 1969-1976. He is currently Stokes Professor of Law at New York University School of Law. Aryeh Neier served as Executive Director of the ACLU from 1973-1981. He is currently President of the Open Society Institute. John Shattuck served as Director of the ACLU’s Washington, D.C., office, and as a National Staff Counsel from 1971-1984. He is currently Executive Director of the JFK Library Foundation. Burt Neuborne served on the legal staff of the ACLU for eleven years, serving as National Legal Director from 1981-1986. He is currently Inez Milholland Professor of Civil Liberties at New York University School of Law. Amici urge this Court to reaffirm the balance of constitutional interests that it struck in McConnell v. FEC, 540 U.S. 93 (2003), and Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) (“WRTL I”), by reversing the decision of the court below. SUMMARY OF ARGUMENT In recent years, the battle over whether corporations may use treasury funds to affect the outcome of federal elections has taken the form of a strategic game between challengers and defenders of the Bipartisan Campaign Reform Act of 2002 (“BCRA”). Both sides have sought to exploit an alleged 1 All parties have consented to the filing of this brief. Copies of their written consents have been filed with the Clerk of the Court. Pursuant to Supreme Court Rule 37.6, Amici Curiae state that no counsel for a party has authored any part of this brief, and no one other than Amici or their counsel has made a monetary contribution to its preparation or submission. - 2 - difficulty in distinguishing “electioneering speech” (subject to regulation) from “issue speech” (protected from regulation), in an effort to advance their polar views. Proponents of corporate-funded electioneering have argued that, in order to preserve constitutionally protected issue speech, a broad loophole must be opened in section 203 of BCRA (“Section 203”), insulating from regulation speech that qualifies as “electioneering communications” as long as the literal text of advertising avoids an explicit call to electoral action. Conversely, opponents of corporate-funded electoral speech have argued that, in order to preserve the effective prohibition of corporate-funded electioneering, it is necessary to tolerate the restriction of at least some corporate-funded issue speech. This Court has rejected both extremes. In McConnell, this Court upheld the facial constitutionality of Section 203, ruling that corporations do not enjoy a First Amendment right to expend treasury funds on electioneering speech. The ruling followed almost 30 years in which corporations enjoyed an unfettered de facto right to use treasury funds to influence federal campaigns, as long as their advertising avoided “magic words” of express advocacy. Congress enacted Section 203 to close that loophole, which had permitted an avalanche of corporate campaign spending, and the McConnell Court sustained the provision. But this Court recognized in WRTL I that an as-applied exemption from Section 203 might be constitutionally compelled in the context of genuine issue speech at the periphery of the electoral process. See infra Point I. In granting as-applied relief without a full review of the factual context, the District Court turned the law of as- applied challenges on its head. The decision below ignored the purpose of an as-applied challenge, which is designed to permit a fact-specific analysis of plaintiff’s particular circumstances. See infra Point II (A). The District Court’s - 3 - assertion that consideration of the facts would be administratively unworkable and might “chill” protected corporate speech ignores the fact that courts routinely consider context in First Amendment cases, and that a well- defined procedure exists for determining whether the presumption of coverage established by the probative weight of the criteria set forth in Section 203 has been rebutted. See infra Point II(B). Viewed in factual context, this is an easy case. Wisconsin Right to Life, Inc. (“WRTL”) used corporate treasury funds to finance three advertisements criticizing Senator Feingold’s position on President Bush’s judicial nominees, and broadcast the advertisements in the months leading up to Senator Feingold’s re-election bid. The advertisements directed listeners to a website explicitly opposed to Senator Feingold’s re-election and were part and parcel of a long campaign by WRTL to oust Senator Feingold. Regulating these ads under BCRA advances the compelling state interests recognized in McConnell. WRTL simply has no right to a First Amendment exemption that would enable