Nos. 06-969 & 06-970 IN THE …

                 Nos. 06-969 & 06-970

                       IN THE
  Supreme Court of the United States
                 ____________________

      FEDERAL ELECTION COMMISSION, Appellant
                        v.
       WISCONSIN RIGHT TO LIFE, INC., Appellee.
               ___________________

    SEN. JOHN MCCAIN, et al., Intervenor-Appellants,
                         v.
      WISCONSIN RIGHT TO LIFE, INC., Appellee.
               ___________________

On Appeal from the United States District Court for the
                District of Columbia
               ___________________

     BRIEF OF THE REPUBLICAN NATIONAL
 COMMITTEE AS AMICUS CURIAE SUPPORTING
               APPELLEES
           ___________________

                              THOMAS J. JOSEFIAK
                                 Counsel of Record
                              SEAN CAIRNCROSS
                              REPUBLICAN NATIONAL
                                 COMMITTEE
                              310 FIRST STREET, S.E.
                              WASHINGTON, D.C. 20003
                              (202) 863-8500

March 23, 2007                Counsel for Amicus Curiae
                               i

                  TABLE OF CONTENTS

                                                           Page
TABLE OF AUTHORITIES......................................ii

INTEREST OF THE AMICUS CURIAE.......................1

SUMMARY OF ARGUMENT..................................1

ARGUMENT.......................................................3

I.     Issue Advocacy Should Be Exempt From Federal
       Campaign Finance Regulation...........................3

II.    The FEC's Expanding Interpretation of Express
       Advocacy Threatens Any Issue Ad Exemption.......4

III.   Simply Affirming the District Court Opinion
       Unconstitutionally Elevates Corporate and Union
       Speech Above Political Party Speech..................7
CONCLUSION...................................................11
                                   ii

                 TABLE OF AUTHORITIES

                                                              Page(s)
CASES:

Buckley v. Valeo, 424 U.S. 1 (1976)....................2, 3, 6, 9

Colo. Republican Fed. Campaign Comm. v. Federal Election
Comm'n, 518 U.S. 604 (1996)....................................9

Federal Election Comm'n v. Colo. Republican Fed.
Campaign Comm., 533 U.S. 431 (2001)........................9

Federal Election Comm'n v. Mass. Citizens for Life, Inc.,
479 U.S. 238 (1986).............................................2, 6

McConnell v. Federal Election Comm'n, 540 U.S. 93
(2003)..........................................................2, 4, 5

McConnell v. Federal Election Comm'n, 251 F.Supp. 2d 176
(D.C. Dist. Ct. 2003)...............................................5

Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377 (2000)........9

Randall v. Sorrell, 126 S.Ct. 2479 (2006).......................9

Shays v. Federal Election Comm'n, 1:06-cv-01247 (D.C.
Dist. Ct.).............................................................6

Thomas v. Collins, 323 U.S. 516 (1945)........................3

Wisc. Right To Life, Inc. v. Federal Election Comm'n, 04-
1260 (D.C. Dist. Ct.)..........................................1, 3, 6
                                   iii

                Table of Authorities (continued)

                                                               Page(s)
FEDERAL STATUTES AND REGULATIONS:

Federal Elections Campaign Act, 2 U.S.C. § 431 et
seq.....................................................................8

Bipartisan Campaign Reform Act, Pub. Law No. 107-155
116 Stat. 81....................................................passim

The   Tillman        Act      of       1907,    34       Stat.    864
(1907)................................................................8

11 C.F.R. § 100.22........................................2, 4, 5, 6

11 C.F.R. § 109 et seq...........................................7, 10


ADMINISTRATIVE MATERIALS:

League of Conservation Voters 527, MUR 5753 (2006)......5

MoveOn.org Voter Fund, MUR 5754 (2006)..................6

Swift Boat Vets and POWs for Truth et al, MUR 5525
(2006)................................................................6
          INTEREST OF THE AMICUS CURIAE

        Amicus Republican National Committee ("RNC") is
an unincorporated association that actively and extensively
participates in campaigns and elections and public policy
debate.1 The RNC is the national organization of the
Republican Party, and exists in large part to aid in fostering
political debate and the exchange of ideas among its
members and the public, and in expressing, promoting, and
supporting its members' political beliefs and ideals with
respect to public policy issues. In doing so, the RNC is
subject to and complies with all applicable laws, regulations,
and rules imposed by the federal government, including
federal campaign finance law. The RNC will continue to
engage vigorously in campaigns, elections, and public policy
debate.

                 SUMMARY OF ARGUMENT

    1. The District Court opinion, establishing an objective
test for determining whether a communication constitutes an
"electioneering communication" under the Bipartisan
Campaign Reform Act ("BCRA") section 203 and
recognizing an exemption for genuine issue advertisements,
should be affirmed. D.C. Dist. Ct. Op., (04-1260, 2006).
Issue advocacy constitutes core political speech, does not
constitute federal election activity under BCRA, and thus
rightly falls outside of BCRA's regulatory scope. Any test
other than an objective, "bright line" standard used to
distinguish issue advertisements from electioneering


1
  The parties have consented to the filing of this brief. Their letters are
on file with the Clerk of the Court. Pursuant to Rule 37.6, amicus states
that no counsel for any party has authored this brief in whole or in part,
and no person or entity other than amicus made a financial contribution
to the preparation or submission of this brief.
                               2
communications would unconstitutionally chill political
speech in violation of the First Amendment.

    2. Absent a bright line standard, any exemption to the
electioneering communications regulation based upon the
District Court's opinion will be subsumed, or fatally
undermined, by the Federal Election Commission's ("FEC")
increasingly broad, contextual, and subjective interpretation
of express advocacy under 11 C.F.R. § 100.22(b). This
expansive interpretation reaches far beyond the Court's First
Amendment jurisprudence in this area. See Buckley v.
Valeo, 424 U.S. 1 (1976); Federal Election Comm'n v. Mass.
Citizens for Life, Inc., 479 U.S. 238 (1986); see also
McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003).
Groups engaging in issue advocacy will risk being caught
between the FEC's expanding reading of express advocacy
and its narrow reading of any issue ad exemption. The
result: erratic enforcement and ambiguity for the speaker,
chilling political speech.

    3. Simply affirming the District Court's decision
unconstitutionally elevates corporate and union speech above
political party speech. Unaddressed in that decision is
whether the issue ad exemption the court recognized for
corporations and unions extends equally, or at all, to political
parties. This Court has been clear that political parties may
not be consigned to second-class status in the free speech
arena. This Court should expressly extend any issue ad
exemption equally to political parties.
                               3
                        ARGUMENT

I. Issue Advocacy Should Be Exempt From Federal
Campaign Finance Regulation.

    The RNC agrees with the District Court that Wisconsin
Right To Life, Inc.'s ("WRTL") communications do not
constitute either express advocacy or its functional
equivalent and that no compelling governmental interest is
served by regulating genuine issue advocacy. D.C. Dist. Ct.
Op., (04-1260). Further, with respect to determining what
constitutes express advocacy in this context, the RNC agrees
with the District Court's reasoning that an objective test must
be utilized to distinguish issue ads from regulated
electioneering communications ­ or, in the District Court's
words, that the "judiciary, in conducting First Amendment
analysis, should not be in the business of trying to read any
speaker's mind," and that anything less than an objective
bright line standard in the speech context is "dangerous and
undesirable," Id. at 18-20. Indeed, bright lines foster
political debate because they allow speakers to fully engage
in debate without being forced to "hedge and trim" out of
fear. See Buckley, 424 U.S. at 43 (internal citations omitted).

    The District Court's five-factor test examining the text
and images of an ad is, insofar as it goes, an approach that
will assist in providing speakers engaging in issue advocacy
with a safe harbor. Clear, identifiable, and predictable
standards are the only constitutionally adequate means by
which to regulate in the free speech context. See Buckley,
424 U.S. 1; Thomas v. Collins, 323 U.S. 516 (1945).
Currently, the only sure security against the amorphous and
constantly-shifting regulatory scheme for such a speaker
within the electioneering timeframe is keeping quiet; the
District Court's test would be an improvement. Of course,
the brighter such a line is, the greater speakers' abilities are
                                   4
to engage in issue advocacy without fear. The District
Court's opinion is thus an encouraging step for advocates; it
does not, however, go far enough.

II. The FEC's Expanding Interpretation of Express
Advocacy Threatens Any Issue Ad Exemption.

     The FEC regulation defining express advocacy, 11
C.F.R. § 100.22, is two part. Section 100.22(a) identifies
specific campaign slogans or words "which in context can
have no other reasonable meaning than to urge the election
or defeat" of one or more clearly identified federal
candidates. Examples of such express advocacy are "Bill
McKay in '94," "support the Democratic nominee," and
"vote for the President" ­ straightforward words and/or
slogans advocating election or defeat.2     Id.   Section
100.22(b) defines express advocacy as any communication
that

        (b) When taken as a whole and with
        limited reference to external events, such
        as the proximity to the election, could
        only be interpreted by a reasonable person
        as containing advocacy of the election or
2
   Before the Court's decision in McConnell, 540 U.S. at 193, this was
commonly referred to as the "Magic Words Test" ­ words that, on their
face, clearly advocated the election or defeat of a federal candidate.
Before BCRA's definition and restriction of electioneering
communications, this test served as a constitutional bright line rule
against which a communication could be measured, and served as a safe
harbor for speakers conducting issue advocacy. Assuming "express
advocacy and its functional equivalent" leaves room for genuine issue
advocacy, it is incumbent upon this Court to tell speakers precisely when
constitutionally protected issue advocacy crosses the line into
"potentially corruptive" electioneering. Without such guidance, speakers
are caught between risking liability for their speech and being forced to
wait for a judicial or administrative approval of their speech, or both.
                                5
        defeat of one or more clearly identified
        candidate(s) because ­
        (1)     The electoral portion of the
        communication        is    unmistakable,
        unambiguous, and suggestive of only one
        meaning; and
        (2) Reasonable minds could not differ as
        to whether it encourages actions to elect
        or defeat one or more clearly identified
        candidate(s) or encourages some other
        kind of action.

    Section 100.22(b), although broader than 100.22(a),
mirrors the judicial interpretation of "functional
equivalency." That is, the section is designed to capture
non-"magic words" express advocacy in an objective
manner. See McConnell, 540 U.S. at 126-27, 194 n.78.
Logically, in order to pass constitutional muster, 100.22(b)
could not be any more expansive than this ­ and thus, a
finding of express advocacy under this provision should
require an objective link between the words and images
contained in an ad and an identified federal candidate's
fitness, or lack thereof, to hold public office.          See
McConnell, 540 U.S. 93; see also McConnell v. Federal
Election Comm'n, 251 F.Supp. 2d 176, 796 (2003). In
practice, however, 100.22(b) is expanding far beyond these
limits, and creating precisely the sort of subjective and
ambiguous test that the District Court in this case so clearly
found to fail constitutionally.

    The FEC has interpreted and applied section 100.22(b)
subjectively, and has made clear its intent to continue to do
so.3 Such an approach by the FEC is squarely at odds with

3
  The FEC recently began to deploy its subjective interpretation of
section 100.22(b) in enforcement proceedings.     See League of
Conservation Voters 527, MUR 5753 (2006); MoveOn.org Voter Fund,
                                    6
both the District Court's holding in this litigation and this
Court's own First Amendment jurisprudence. See Buckley,
424 U.S. 1; Mass. Citizens for Life, Inc., 479 U.S. 238; D.C.
Dist. Ct. Op., (04-1260). Moreover, in practical application
it destroys any issue ad exemption created here. That is, any
issue ad varying one iota from the text, image(s), or context
of the WRTL ads will be at risk of either (1) being deemed
by the FEC to contain express advocacy under 100.22(b); or
(2) failing to qualify for the genuine issue ad exemption.4
For example, there is no guarantee that an ad using the
precise WRTL language and images in a state that is deemed
to have a more contested campaign than existed in
Wisconsin; or a state that garners more national media
attention, or has media markets that cover a greater area or
reach a greater number of voters than Wisconsin's; or even a
state with different demographics, will not be found to either
constitute express advocacy or an electioneering
communication. As such, no entity can confidently conduct
issue advocacy without fear of incurring an enforcement
proceeding, and a finding of violation, by the FEC. Far from


MUR 5754 (2006); Swift Boat Vets and POWs for Truth et al, MUR
5525 (2006). Further, in the pending Shays v. Federal Election Comm'n,
D.C. Dist. Ct. (1:06-cv-01247) litigation, the FEC is using the "breadth
of section 100.22(b)" as a defense to plaintiffs' contention in that
litigation that the FEC's coordination regulations are insufficient. See
Def.'s Mem. in Supp. of Summ. J. and In Opp'n to Pl.'s Summ. J., at 48,
Id. This leaves speakers caught between the FEC and the courts, with the
inevitable result that speech will be curtailed out of caution and fear of
governmental sanction.
4
  With respect to the latter, the danger created by the District Court's
five-factor examination of the WRTL ads is that rather than creating a
safe harbor, the District Court's clear intent, the opinion will be applied
by the FEC in reverse ­ as the absolute furthest reach of the issue ad
exemption. In order to assure speakers that their issue advocacy will be
examined on its plain face, and thus extend full constitutional protection
to core speech, at a minimum this Court should expressly identify the
District Court's reasoning as a safe harbor for speakers.
                               7
being able to rely on a bright line standard or safe harbor,
entities wishing to engage in issue advocacy would be forced
to decide whether to seek an FEC advisory opinion blessing
the ad script (and visuals) before it is broadcast, or risk FEC
enforcement afterward (and perhaps mounting another as-
applied challenge to such a decision).

    Further, an issue ad exemption places such ads, by
definition, outside the scope of BCRA's "federal election
activity." As such, issue ads, at least with respect to national
political parties ­ which operate exclusively with federally
regulated dollars ­ should be exempted from the FEC's
regulations on coordinated communications. 11. C.F.R. §
109 et seq. Without such an exemption (and even without
any discussion taking place between a political party and the
candidate or officeholder identified in the issue ad) a
political party may be restricted from running an exempt
issue ad because it might be deemed to have coordinated the
communication with a federal candidate. Absent such a
ruling, the exemption created to advocate issues outside the
federal electoral context may be foreclosed by regulations
that are intended to apply only to the federal electoral
context.

    Speakers deserve a clear answer as to what constitutes
federally regulated activity. The sooner such guidance
exists, the sooner core speech will be extended its full
constitutional protection.

III. Simply Affirming the District Court Opinion
Unconstitutionally Elevates Corporate and Union Speech
Above Political Party Speech.

   Exempting issue ads from regulation allows corporations
and unions to speak freely on the public policy issues that
impact upon their organizations and memberships. Such an
                                   8
exemption would certainly come as welcome news to that
identified segment of the regulated community.
Unaddressed, however, is whether the RNC, any other
political party, or any other political organization would be
allowed to avail itself of such an exemption. This Court's
jurisprudence, and common sense, dictates that political
parties should be included in any such exemption.

    Indeed, if any issue ad exemption exists at all, it ought to
apply first to political parties. The RNC, as a national
political party regulated by The Federal Election Campaign
Act ("FECA"), is already the subject of one of the most
extensive regimes of federal regulations in America. 2
U.S.C. § 431 et seq. Every dollar that the RNC raises or
spends is subject to FECA's source and amount restrictions,
disclosed on publicly available federal reports, and
compliant with FECA's rules and restrictions as to how,
when, and where it may be spent.5 No such restrictions
attach to the parties that expressly benefit from the issue ad
exemption under the District Court's opinion.              Yet,
campaign finance law first grew from concern over corporate
dollars flowing into federal elections, manifesting in the
Tillman Act of 1907, 34 Stat. 864 (1907). It is nonsensical
to argue that there exists a compelling governmental interest
in regulating national political party speech as it relates to
issue advocacy where no such interest exists with respect to
corporations or unions. This is only underscored by the
Court's own campaign finance jurisprudence, which has
always viewed restrictions on political expenditures as
5
  The RNC's dollars, already fully regulated by federal law, are also
subject to individual state law regulation where the RNC chooses to
expend any funds on elections that do not include any federal candidate.
For example, should the RNC participate in the upcoming 2007
Kentucky, Louisiana, or Mississippi gubernatorial races ­ elections in
which no federal candidate will appear on the ballot ­ the RNC's funds
will be subject to dual regulatory regimes.
                              9
deserving closer scrutiny than restrictions on contributions.
See Buckley, 424 U.S. at 14-23; Randall v. Sorrell, 126 S.Ct.
2479 (2006); Federal Election Comm'n v. Colo. Republican
Fed. Campaign Comm., 533 U.S. 431 (2001), 533 U.S. at
440-441; Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377,
386-388 (2000). Such scrutiny should only increase where,
as here, the speech is by definition unrelated to federal
election activity. This Court made clear in Colo. Republican
Fed. Campaign Comm. v. Federal Election Comm'n, 518
U.S. 604 (1996), that a political party may not be relegated
to second-class status with respect to political speech. Id. at
616. It simply cannot be the case that a genuine issue ad run
by a corporation or union is somehow transformed into an
electioneering communication merely because it is spoken
by the RNC, or any other political party.

    Political parties, unlike corporations and unions, exist to
further their constituents' political philosophy, ideals, and
goals. Participating in elections and supporting candidates is
only one way by which a political party fulfills this function
­ but it is only one way. Promoting its members' political
philosophy, and developing and evolving such philosophy
through active debate and exchange of ideals are other
equally important, if not more so, ways. A party's ability to
attract new members and further its philosophy is
fundamentally reliant on its ability to engage in issue
advocacy. It is difficult to imagine President Reagan's party
biting its nails over whether or not a communication
denouncing communism would fall within a technical
definition of electioneering. Under the FEC's ever-evolving
application of BCRA, however, this is the reality.

    Moreover, BCRA's absolute ban on national political
party involvement with any non-federal funds whatever
makes no allowance for either purely non-federal or even, as
is the case here, non-election related activity. Issue ads that
                                   10
fall wholly outside the scope of federal campaign finance
regulation ­ ads that may be funded by unlimited amounts of
corporate or union general treasury dollars ­ still must be
paid for by federal funds if they are run by a national
political party. Put simply, in the context of the speech at
issue here, there is neither reason nor constitutional
justification to treat national political parties differently than
any other speaker.6




6
  Further, outside the coordination timeframes set forth in 11 C.F.R. §
109 et seq., corporations and unions may coordinate with federal
candidates using such unregulated money. National political parties,
however, are absolutely prohibited from any such "non-coordination
coordination" due to BCRA's absolute ban on their "receiving, directing,
soliciting, or spending" any non-federal dollars. This places a further
limitation on political party speech relative to corporate and/or union
speech that bears no conceivable relation to eradicating corruption or the
appearance thereof ­ the only two governmental interests this Court has
found to be compelling enough to draw such a line.
                             11
                      CONCLUSION

        For the reasons set forth above, amicus RNC
respectfully urges this Court to affirm the District Court and
create an exemption for genuine issue ads from
electioneering communications; to establish a bright line
standard with respect to express advocacy; and expressly
include political parties' in any issue ad exemption.

                                  Respectfully submitted,

                                  THOMAS J. JOSEFIAK
                                     Counsel of Record
                                  SEAN CAIRNCROSS
                                  REPUBLICAN NATIONAL
                                     COMMITTEE
                                  310 FIRST STREET, S.E.
                                  WASHINGTON, D.C. 20003
                                  (202) 863-8500

March 23, 2007                    Counsel for Amicus Curiae