McConnellv.Federal Election Commission

United States District Court, District of Columbia.May 1, 2003
No. 02-582 CKK,KLH,RJL (D.D.C. 2003)

No. 02-582 CKK,KLH,RJL No. 02-581 CKK,KLH,RJL No. 02-633 CKK,KLH,RJL No. 02-751 CKK,KLH,RJL No. 02-753 CKK,KLH,RJL No. 02-754 CKK,KLH,RJL No. 02-781 CKK,KLH,RJL No. 02-874 CKK,KLH,RJL No. 02-875 CKK,KLH,RJL

05-01-2003

Senator Mitch McCONNELL, et al., Plaintiffs, v. FEDERAL ELECTION COMMISSION, et al., Defendants. National Rifle Association of America, et al., Plaintiffs, v. Federal Election Commission, et al., Defendants. Emily Echols, a minor child, by and through her next friends, Tim and Windy Echols, et al., Plaintiffs, v. Federal Election Commission, et al., Defendants. Chamber of Commerce of the United States, et al., Plaintiffs, v. Federal Election Commission, et al., Defendants. National Association Of Broadcasters, Plaintiff, v. Federal Election Commission, et al., Defendants. American Federation of Labor And Congress of Industrial Organizations, et al., Plaintiffs, v. Federal Election Commission, et al., Defendants. Congressman Ron Paul, et al., Plaintiffs, v. Federal Election Commission, et al., Defendants. Republican National Committee, et al., Plaintiffs, v. Federal Election Commission, et al. Defendants. California Democratic Party, et al., Plaintiffs, v. Federal Election Commission, et al., Defendants. Victoria Jackson Gray Adams, et al., Plaintiffs, v. Federal Election Commission, et al., Defendants. Representative Bennie G. Thompson, et al., Plaintiffs, v. Federal Election Commission, et al., Defendants.

Edward W. Warren, Kenneth W. Starr, Grant M. Dixton, Kirkland & Ellis, Washington, DC, L. Lynn Hogue, pro hac vice, Harry W. MacDougald, pro hac vice, Valle Simms Dutcher, Southeastern Legal Foundation, Atlanta, GA, G. Hunter Bates, Goshen, KY, for Mitch McConnell, Bob Barr. Kenneth W. Starr, Kirkland & Ellis, Washington, DC, for Mike Pence, Bill Pryor, Libertarian Nat. Committee, Inc., Alabama Republican Executive Committee, Libertarian Party of Ill., DuPage Politiocal Action Counsil, Jefferson County Republican Executive Committee, Associated Builders and Contractors, Inc., Indiana Family InstituteClub for Growth, Thomas Mclnerney, Martin Connors, Barret Austin O'Brock. Mark J. Lopez, Amer. Civ. Liberties Union Foundation, New York City, Kenneth W. Starr, Kirkland & Ellis, Washington, DC, for American Civil Liberties Union. Edward W. Warren, Kenneth W. Starr, Kannon Kumar Shanmugam, Grant M. Dixton, Kirkland & Ellis, Washington, DC, for Center for Individual Freedom, 60 Plus Ass'n, ProEnglish. Kenneth W. Starr, Grant M. Dixton, Kirkland & Ellis, Washington, DC, for National Right to Life Committee Educational Trust Fund. Cleta Deatherage Mitchell, Foley & Lardner, Washington, DC, Charles Justin Cooper, Cooper & Kirk, PLLC, Washington, DC, for National Rifle Ass'n of America, NRA Political Victory Fund. James Matthew Henderson, Sr., American Center for Law & Justice, Washington, DC, for Tim Echols, Windy Echols, Tim McDow, Donna McDow, Chuck Mitchell, Pam Mitchell, Kevin Solid, Bonnie Solid John White, Cynthia White, Patrick J. Mahoney. Jan W. Baran, Wiley Rein & Fielding, LLP, Washington, DC, for Chamber of Commerce of U.S., National Ass'n of Manufacturers, U.S. Chamber Political Action Committee, Nat. Ass'n of Wholesaler-Distributors, California Democratic Party, Shawn Steel, Timothy J, Morgan, Barbara Alby, Santa Cruz County Republican Central Committee, Douglas R. Boyd, Sr. Donald John Mulvihill, Cahill, Gordon & Reindel, Washington, DC, for National Ass'n of Broadcasters. Laurence Edward Gold, American Federation of Labor, Washington, DC, for American Federation of Labor and Congress of Industrial Organizations, AFCIO Committee on Political Educ. Political Contributions Committee. William J. Olson, William J. Olson, P.C., McLean, VA, Herbert W. Titus, pro hac vice, Troy A. Titus, P.C., Virginia Beach, VA, for Ron Paul, Gun Owners of America, Inc., Gun Owners of America Political Victory Fund, Realcampaignreform.org, Citizens United, Citizens United Political Victory Fund, Michael Cloud, Carla Howell. Bobby Roy Burchfield, Thomas Overton Barnett, Covington & Burling, Washington, DC, for Republican Nat. Committee, Mike Duncan, Republican Party of Colorado, Republican Party of Ohio, Republican Party of New Mexico, Dallas County (Iowa) Republican County Central Committee. Jan W. Baran, Wiley Rein & Fielding, LLP, Washington, DC, Deborah B. Caplan, pro hac vice, Lance Herman Olson, pro hac vice, Olson, Hagel, Waters & Fishburn, Sacramento, CA, for Art Torres, Yolo County Democratic Central Committee, California Republican Party. David A. Wilson, Hale & Dorr, Washington, DC, Brenda Wright, pro hac vice, John C. Bonifaz, pro hac vice, Bonita Tenneriello, pro hac vice, Lisa J. Danetz, pro hac vice, National Voting Rights Institute, Boston, MA, for Victoria Jackson Gray Adams, Carrie Bolton, Cynthia Brown, Derek Cressman, Victoria Fitzgerald, Anurada Joshi, Peter Kostmayer, Nancy Russell, Kate Seely-Kirk, Rose Taylor, Stephanie L. Wilson, California Public Interest Research Group, Massachusetts Public Interest Research Group, New Jersey Public Interest Research Group, U.S. Public Interest Research Group, Fannie Lou Hamer Project, Association of Community Organizers for Reform Now. Sherri Lynn Wyatt, Washington, DC, Cherlyn F. Freeman-Watkins, Washington, DC, for Bennie G. Thompson, Earl F. Hilliard. Lawrence H. Norton, Richard B. Bader, Stephen Hershkowitz, David Kolker, Acting Asst. Gen. Counsel, Robert W. Bonham III, Vivien Clair, Holly J. Baker, Colleen T. Sealander, Harry Summers, Benjamin A. Streeter III, Greg Mueller, William Shackelford, Kevin Deeley, Leigh G. Hildebrand, Brant Levine, Michelle Abellera, Mark Goodin, Federal Election Commission, Washington, DC, for Defendant Federal Election Commission. Roger M. Witten, Seth P. Waxman, Randolph D. Moss, Lynn Bregman, Eric J. Mogilnicki, Edward C. DuMont, Michael D. Leffel, Anja L. Manuel, Stacy E. Beck, A. Krisan Patterson, Jennifer L. Mueller, Wilmer, Cutler & Pickering, Washington, DC, Bradley S. Phillips, Michael R. Doyen, Stuart N. Senator, Deborah N. Pearlstein, Randall G. Sommer, Shont E. Miller, Munger, Tolles & Olson, LLP, Los Angeles, CA, David J. Harth, Charles G. Curtis, Jr., Monica P. Medina, Michelle M. Umberger, Sarah E. Reindl, Heller Ehrman White & McAuliffe LLP, Madison, WI, Frederick A.O. Schwarz, Jr., E. Joshua Rosenkranz, Prof. Burt Neuborne, Elizabeth Daniel, Laleh Ispahani, Adam H. Morse, Brennan Center for Justice, New York, NY, Fred Wetheimer, Alexandra Edsall, Democracy 21, Washington, DC, for Defendant-Intervenors: Senators John McCain, Russell Feingold, Olympia Snowe, James Jeffords, Representatives Christopher Shays, Martin Meehan, James Jeffrods. Theodore C. Hirt, Douglas N. Letter, James J. Gilligan, Terry M. Henry, Rupa Bhattacharyya, Michael S. Raab, Dana J. Martin, Andrea Gacki, Marc Kesselman, Serrin Turner, Irene M. Solet, Colette G. Matzzie, Ara B. Gershengorn, John Knepper, Robert D. McCallum, Jr., Shannen Coffin, Joseph H. Hunt, U.S. Dept. of Justice, Civ. Div., Washington, DC, for U.S., John Ashcroft, U.S. Dept. of Justice, Federal Communications Comm'n. Before KAREN LECRAFT HENDERSON, Circuit Judge, and KOLLAR-KOTELLY and LEON, District Judges.


Edward W. Warren, Kenneth W. Starr, Grant M. Dixton, Kirkland & Ellis, Washington, DC, L. Lynn Hogue, pro hac vice, Harry W. MacDougald, pro hac vice, Valle Simms Dutcher, Southeastern Legal Foundation, Atlanta, GA, G. Hunter Bates, Goshen, KY, for Mitch McConnell, Bob Barr.

Kenneth W. Starr, Kirkland & Ellis, Washington, DC, for Mike Pence, Bill Pryor, Libertarian Nat. Committee, Inc., Alabama Republican Executive Committee, Libertarian Party of Ill., DuPage Politiocal Action Counsil, Jefferson County Republican Executive Committee, Associated Builders and Contractors, Inc., Indiana Family InstituteClub for Growth, Thomas Mclnerney, Martin Connors, Barret Austin O'Brock.

Mark J. Lopez, Amer. Civ. Liberties Union Foundation, New York City, Kenneth W. Starr, Kirkland & Ellis, Washington, DC, for American Civil Liberties Union.

Edward W. Warren, Kenneth W. Starr, Kannon Kumar Shanmugam, Grant M. Dixton, Kirkland & Ellis, Washington, DC, for Center for Individual Freedom, 60 Plus Ass'n, ProEnglish.

Kenneth W. Starr, Grant M. Dixton, Kirkland & Ellis, Washington, DC, for National Right to Life Committee Educational Trust Fund.

Cleta Deatherage Mitchell, Foley & Lardner, Washington, DC, Charles Justin Cooper, Cooper & Kirk, PLLC, Washington, DC, for National Rifle Ass'n of America, NRA Political Victory Fund.

James Matthew Henderson, Sr., American Center for Law & Justice, Washington, DC, for Tim Echols, Windy Echols, Tim McDow, Donna McDow, Chuck Mitchell, Pam Mitchell, Kevin Solid, Bonnie Solid John White, Cynthia White, Patrick J. Mahoney.

Jan W. Baran, Wiley Rein & Fielding, LLP, Washington, DC, for Chamber of Commerce of U.S., National Ass'n of Manufacturers, U.S. Chamber Political Action Committee, Nat. Ass'n of Wholesaler-Distributors, California Democratic Party, Shawn Steel, Timothy J, Morgan, Barbara Alby, Santa Cruz County Republican Central Committee, Douglas R. Boyd, Sr.

Donald John Mulvihill, Cahill, Gordon & Reindel, Washington, DC, for National Ass'n of Broadcasters.

Laurence Edward Gold, American Federation of Labor, Washington, DC, for American Federation of Labor and Congress of Industrial Organizations, AFCIO Committee on Political Educ. Political Contributions Committee.

William J. Olson, William J. Olson, P.C., McLean, VA, Herbert W. Titus, pro hac vice, Troy A. Titus, P.C., Virginia Beach, VA, for Ron Paul, Gun Owners of America, Inc., Gun Owners of America Political Victory Fund, Realcampaignreform.org, Citizens United, Citizens United Political Victory Fund, Michael Cloud, Carla Howell.

Bobby Roy Burchfield, Thomas Overton Barnett, Covington & Burling, Washington, DC, for Republican Nat. Committee, Mike Duncan, Republican Party of Colorado, Republican Party of Ohio, Republican Party of New Mexico, Dallas County (Iowa) Republican County Central Committee.

Jan W. Baran, Wiley Rein & Fielding, LLP, Washington, DC, Deborah B. Caplan, pro hac vice, Lance Herman Olson, pro hac vice, Olson, Hagel, Waters & Fishburn, Sacramento, CA, for Art Torres, Yolo County Democratic Central Committee, California Republican Party.

David A. Wilson, Hale & Dorr, Washington, DC, Brenda Wright, pro hac vice, John C. Bonifaz, pro hac vice, Bonita Tenneriello, pro hac vice, Lisa J. Danetz, pro hac vice, National Voting Rights Institute, Boston, MA, for Victoria Jackson Gray Adams, Carrie Bolton, Cynthia Brown, Derek Cressman, Victoria Fitzgerald, Anurada Joshi, Peter Kostmayer, Nancy Russell, Kate Seely-Kirk, Rose Taylor, Stephanie L. Wilson, California Public Interest Research Group, Massachusetts Public Interest Research Group, New Jersey Public Interest Research Group, U.S. Public Interest Research Group, Fannie Lou Hamer Project, Association of Community Organizers for Reform Now. Sherri Lynn Wyatt, Washington, DC, Cherlyn F. Freeman-Watkins, Washington, DC, for Bennie G. Thompson, Earl F. Hilliard.

Lawrence H. Norton, Richard B. Bader, Stephen Hershkowitz, David Kolker, Acting Asst. Gen. Counsel, Robert W. Bonham III, Vivien Clair, Holly J. Baker, Colleen T. Sealander, Harry Summers, Benjamin A. Streeter III, Greg Mueller, William Shackelford, Kevin Deeley, Leigh G. Hildebrand, Brant Levine, Michelle Abellera, Mark Goodin, Federal Election Commission, Washington, DC, for Defendant Federal Election Commission.

Roger M. Witten, Seth P. Waxman, Randolph D. Moss, Lynn Bregman, Eric J. Mogilnicki, Edward C. DuMont, Michael D. Leffel, Anja L. Manuel, Stacy E. Beck, A. Krisan Patterson, Jennifer L. Mueller, Wilmer, Cutler & Pickering, Washington, DC, Bradley S. Phillips, Michael R. Doyen, Stuart N. Senator, Deborah N. Pearlstein, Randall G. Sommer, Shont E. Miller, Munger, Tolles & Olson, LLP, Los Angeles, CA, David J. Harth, Charles G. Curtis, Jr., Monica P. Medina, Michelle M. Umberger, Sarah E. Reindl, Heller Ehrman White & McAuliffe LLP, Madison, WI, Frederick A.O. Schwarz, Jr., E. Joshua Rosenkranz, Prof. Burt Neuborne, Elizabeth Daniel, Laleh Ispahani, Adam H. Morse, Brennan Center for Justice, New York, NY, Fred Wetheimer, Alexandra Edsall, Democracy 21, Washington, DC, for Defendant-Intervenors: Senators John McCain, Russell Feingold, Olympia Snowe, James Jeffords, Representatives Christopher Shays, Martin Meehan, James Jeffrods.

Theodore C. Hirt, Douglas N. Letter, James J. Gilligan, Terry M. Henry, Rupa Bhattacharyya, Michael S. Raab, Dana J. Martin, Andrea Gacki, Marc Kesselman, Serrin Turner, Irene M. Solet, Colette G. Matzzie, Ara B. Gershengorn, John Knepper, Robert D. McCallum, Jr., Shannen Coffin, Joseph H. Hunt, U.S. Dept. of Justice, Civ. Div., Washington, DC, for U.S., John Ashcroft, U.S. Dept. of Justice, Federal Communications Comm'n.

Before KAREN LECRAFT HENDERSON, Circuit Judge, and KOLLAR-KOTELLY and LEON, District Judges.

MEMORANDUM OPINION

PER CURIAM

Judge Henderson does not join this opinion.

To the extent this opinion overlaps with or is non-responsive to the other opinions, the disconnect is necessitated by the statute's mandate that we "advance on the docket and... expedite to the greatest possible extent the disposition of the action[s]." BCRA § 403(a)(4); FECA § 310 note; 2 U.S.C. § 437h note.
In light of that mandate, the panel held a status hearing on April 23, 2002-now over one year ago-at which the court and the parties discussed expedition and the significance of the statute's delayed effective date. Compare Status Hearing Tr. at 23, 39, 82 (counsel for plaintiffs suggesting parties "ought to do our best" to "put[ ] this court in a position where, if it can, it can resolve everything by the effective date of the statute"), with id. at 58-61 (counsel for defendants disagreeing with "assumption ... that section 403, the expedition section, requires some type of decision by this court by November 6th [of 2002]"); see also id. at 61 (court stating "I read [the statute] to mean that they want it to happen before [November 6th]" (Henderson, J.)). At that time, the parties differed somewhat as to the latest date on which the Supreme Court could receive the case and still decide it during the Court's October 2002 Term. Compare, e.g., id. at 60, 69-70, 73-74 (counsel for government and intervenors proposing that "this court ... resolve all the issues by early February" so that "the Supreme Court of the United States could in the ordinary course resolve this [case] by the end of the 2002 [T]erm"), with id. at 76, 82 (counsel for plaintiffs suggesting "the schedule that is being proposed by the government does place an extraordinary burden on the Supreme Court" and that "things should be done before November 6th if at all possible"); see also id. at 60 (court stating "[tjhat's putting an awful lot on the Supreme Court to decide this if we don't hear it until February.... As far as I'm concerned, I'd rather put the burden somewhere [other than on the Supreme Court] [as] an inferior court." (Henderson, J.)). All agreed, however, that the Supreme Court had to receive the case no later than the first week of February. See id. at 23, 39-40, 58, 60, 69-71, 73-74, 82.

Although campaign finance reform was considered during the 104th Congress, see, e.g., Campaign Reform Act of 1996, H.R. 3820, 104th Cong. (1996) (considered on the House floor, but failed by a vote of 162-259, 142 Cong. Rec. H8.516 (daily ed. July 25, 1996)), deliberations on BCRA's precursors did not begin until the One Hundred and Fifth Congress. The bills introduced in the One Hundred and Fifth Congress, One Hundred and Sixth Congress, and One Hundred and Seventh Congress, relating to campaign finance, include, but are not limited to: "Bipartisan Campaign Reform Act of 1997," H.R. 493 (105th Cong.); "Campaign Reform and Election Integrity Act of 1998," H.R. 3485 (105th Cong.); "Campaign Finance Improvement Act of 1998," H.R. 3476 (105th Cong.); "Bipartisan Campaign Integrity Act of 1997," H.R. 2183 (105th Cong.); "Campaign Reporting and Disclosure Act of 1998," H.R. 3582 (105th Cong.); "Bipartisan Campaign Reform Act of 1997," S. 25 (105th Cong.); "Senate Campaign Financing and Spending Reform Act," S. 57 (105th Cong.); "Campaign Finance Reform and Disclosure Act of 1997," S. 179 (105th Cong.); "Clean Money, Clean Elections Act," S. 918 (105th Cong.); "Grassroots Campaign and Common Sense Federal Election Reform Act of 1998," S. 1689 (105th Cong.); "Voter Empowerment Act of 1999," H.R. 32 (106th Cong.); "Bipartisan Campaign Reform Act of 1999," H.R. 417 (106th Cong); "Clean Money, Clean Elections Act," H.R. 1739 (106th Cong.); "FEC Reform and Authorization Act of 1999," H.R. 1818 (106th Cong.); "Campaign Integrity Act of 1999," H.R. 1867 (106th Cong.); "Citizen Legislature and Political Freedom Act," H.R. 1922 (106th Cong.); "Campaign Reform and Election Integrity Act of 1999," H.R. 2668 (106th Cong.); "PAC Limitation Act of 1999," H.R. 2866 (106th Cong.); "Open and Accountable Campaign Financing Act of 2000," H.R. 3243 (106th Cong.); "FEC Reform and Authorization Act of 2000," H.R. 4037 (106th Cong.); "Campaign Finance Improvement Act of 2000," H.R. 4685 (106th Cong.); "Campaign Finance Disclosure on Sales of Personal Assets Act of 2000," H.R. 4989 (106th Cong.); "Informed Voter Act of 2000," H.R. 5507 (106th Cong.); "Campaign Finance Improvement Act of 2000," H.R. 5596 (106th Cong.); "Bipartisan Campaign Reform Act of 1999," S. 26 (106th Cong.); "Federal Election Enforcement and Disclosure Reform Act," S. 504 (106th Cong.); "Clean Money, Clean Elections Act," S. 982 (106th Cong.); "Bipartisan Campaign Reform Act of 1999," S. 1593 (106th Cong.); "Campaign Finance Integrity Act of 1999," S. 1671 (106th Cong.); "Open and Accountable Campaign Financing Act of 2000," S. 1816 (106th Cong.); "Campaign Finance Reform and Disclosure Act of 2000," S. 2565 (106th Cong.); "Bipartisan Campaign Reform Act of 2001," H.R. 2356 (107th Cong.); "Campaign Reform and Citizen Participation Act of 2001," H.R. 2360 (107th Cong.); and "Bipartisan Campaign Finance Reform Act of 2001," S. 27 (107th Cong.)

Pub.L. No. 107-155, 116 Stat. 81 (2002).

Presently before this three-judge District Court are eleven consolidated actions challenging as unconstitutional the Bipartisan Campaign Reform Act of 2002, Pub.L. No. 107-155, 116 Stat. 81 (2002) ("BCRA") and seeking declaratory and injunctive relief to prohibit its enforcement. The wide range of legal challenges raised by this litigation are highly complex, interrelated, and raise issues of fundamental importance not only to the conduct and financing of federal election campaigns but to the other rights involved that we enjoy under the Constitution. Because of the complexity of our positions, this per curiam opinion, by Judge Kollar-Kotelly and Judge Leon, includes a schematic description of the three-judge panel's conclusions in regard to each of BCRA's challenged provisions and a chart as to the rulings on each provision's constitutionality. The per curiam opinion also includes: (1) a brief history of campaign finance regulation in the United States (pp. 188-201); (2) the legislative history behind BCRA's enactment (pp. 201-206); (3) a procedural history of the litigation in this case (pp. 206-209); (4) a description of the specific provisions in BCRA at issue in these lawsuits (pp. 209-220); (5) certain Findings of Fact relating to the identities of the parties and BCRA's disclosure provisions (pp. 220-227); and (6) conclusions of law relating to claims of the Paul Plaintiffs and most of BCRA's disclosure provisions (pp. 227-233). The separate opinions of each judge hearing this matter follow thereafter.

I. DESCRIPTION AND CHART OF THE COURT'S RULINGS

In light of the number of provisions in BCRA being challenged, the complexity of the issues presented by each challenge, and the variety of positions and voting combinations taken by the three judges on this District Court, we set forth a brief description and a chart, on a section by section basis, of the various rulings.

A. Title I

Section 323(a) of BCRA bans national parties from soliciting, receiving, directing, transferring, and spending nonfederal funds (i.e., soft money). Judge Henderson strikes this section down as unconstitutional in its entirety. Judge Leon, for different reasons, files a concurrence, joining with Judge Henderson, except with respect to the ban on national parties from using (i.e., "directing," "transferring," and "spending") nonfederal funds (ie., soft money) for "federal election activity" of the type defined in Section 301(20)(A)(iii). As to that type of conduct, Judge Leon upholds the constitutionality of Congress's ban on the use of nonfederal funds by national parties for Section 301(20)(A)(iii) communications. Judge Kollar-Kotelly upholds Section 323(a) in its entirety. Accordingly, Judge Leon's decision regarding Section 323(a) controls.

Section 323(b) prohibits state parties from using nonfederal money for "federal election activities" as defined in Section 301(20)(A) of BCRA. Judge Henderson strikes these sections down as unconstitutional in their entirety. Judge Leon, for different reasons, joins Judge Henderson in a separate concurrence, but only with respect to those party activities set forth in Subsections (i), (ii), and (iv) of Section 301(20)(A). As to Section 301(20)(A)(iii), Judge Leon upholds the constitutionality of Congress's prohibition on state and local parties from spending nonfederal funds for communications that promote, oppose, attack or support a specific federal candidate. In a separate opinion, Judge Kollar Kotelly finds Section 323(b) constitutional and concurs with Judge Leon's discussion of Section 301(20)(A)(iii).

Section 323(d) prohibits national, state, and local parties from soliciting funds for, or making donations to, § 501(c) organizations that make expenditures, or disbursements, in connection with federal elections, or to § 527 national organizations. Judge Henderson strikes this section down as unconstitutional in its entirety. Judge Leon, for different reasons, joins in that conclusion in a separate concurrence. Judge Kollar-Kotelly files a separate dissent in which she finds the entire section constitutional.

Section 323(e) prohibits, but for certain enumerated exceptions, federal officeholders and candidates from soliciting, receiving, directing, transferring, or spending, nonfederal money in connection with any local, state, or federal election. Judge Henderson and Judge Kollar-Kotelly, for different reasons, in separate opinions uphold the constitutionality of this section in its entirety. Judge Leon concurs with respect to the restriction on federal officeholders and candidates receiving, directing, transferring or spending any nonfederal funds in connection with any federal or state election, but files a separate dissent with regard to any prohibitions on a federal candidate, or officeholder, from soliciting funds for the national parties.

Section 323(f) prohibits state officeholders and candidates from using nonfederal funds for public communications that refer to a clearly identified candidate for federal office and that promote, oppose, attack, or support a candidate for this office. Judge Leon upholds this section in its entirety. Judge Kollar-Kotelly concurs with Judge Leon's opinion. Judge Henderson, dissents and finds the entire section unconstitutional.

B. Title II

Section 201 of BCRA sets forth a primary, and "backup" definition, of an "electioneering communication" (i.e., so-called "issue ads"). In addition, it sets forth certain disclosure requirements for those who fund these electioneering communications. Judge Henderson strikes down both the primary and backup definition as unconstitutional. Judge Leon, for different reasons, concurs in her judgment with respect to the primary definition. Judge Kollar-Kotelly dissents and upholds the primary definition as constitutional as discussed in her separate opinion. With respect to the backup definition, Judge Leon, who writes a separate opinion, upholds its constitutionality with its final clause severed. Judge Kollar-Kotelly, as expressed in her opinion, concurs in that conclusion solely as an alternative to this Court's finding that the primary definition is unconstitutional. Finally, with regard to Section 201 `s disclosure requirements, Judge Kollar-Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion, uphold their constitutionality with one exception. Judge Henderson strikes down the disclosures requirements in a separate dissent.

Section 202 provides that disbursements by persons for electioneering communications, or contracts to purchase the same, that are coordinated with either a federal candidate or a candidate committee, or a political party committee will be treated as contributions to that candidate's campaign or political party committee. Judge Kollar-Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion, find this section constitutional. Judge Henderson, in a separate dissent concludes that this Section is unconstitutionally overbroad.

Section 203 of Title II prohibits labor unions, corporations and national banks from using money from their general treasury to fund "electioneering communications," as defined by Section 201. Instead, under Section 203, such communications must be paid from a separately segregated fund ("SSF"). Section 203 also includes an exception from the SSF requirement for certain nonprofit corporations (i.e., the "Snowe-Jeffords exception"). Judge Kollar-Kotelly upholds this section as constitutional. Judge Leon joins Judge Kollar-Kotelly's opinion upholding the constitutionality of this section as it applies to the backup definition in Section 201. Judge Henderson strikes down this Section as unconstitutional in its entirety. Judge Kollar-Kotelly and Judge Leon additionally uphold the disclosure and SSF requirements as well as the Snowe-Jeffords exemption provision for certain nonprofit corporations organized under Sections 501(c)(4) and 527 of the Internal Revenue Code in their respective opinions.

Section 204 ("The Wellstone Amendment"), in effect, withdraws the Snowe-Jeffords exception of Section 203. Judge Henderson strikes down Section 204 in its entirety. Judge Leon concurs in her result as it applies to MCFL exempt organizations only. As to nonprofit corporations that do not qualify for the MCFL exemption, Judge Leon concurs with Judge Kollar-Kotelly's conclusion, but for different reasons, in upholding Section 204 as it applies to non MCFL organizations.

Section 212 provides certain reporting requirements for independent expenditures. Judge Kollar-Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion, conclude that challenge to this provision is not ripe for review, and therefore hold that the Court does not have jurisdiction to resolve the plaintiffs' challenges at this time. Judge Henderson dissents from this view and finds Section 212 unconstitutional in its entirety.

Section 213 requires national parties, in essence, to choose between making coordinated expenditures under the Party Expenditures Provision or unlimited independent expenditures on behalf of their federal candidates. All three judges concur that this section is unconstitutional. Judge Henderson's opinion includes a discussion of her separate reasons. Judge Kollar-Kotelly concurs in Judge Leon's separate opinion on this section.

Section 214 addresses coordinated expenditures paid for by persons other than party committees and candidate committees. Section 214 repeals the current FEC regulations on coordinated expenditures, and directs the FEC to promulgate new regulations that do not require "an agreement or formal collaboration to establish coordination." Judge Kollar-Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion, find that the plaintiffs' challenge under Section 214(b) and Section 214(c) is nonjusticiable and the Court therefore lacks jurisdiction to consider their challenge. As to Sections 214(a) and 214(d), however, they find those sections constitutional for the reasons set forth in the per curiam opinion. Judge Henderson dissents, finding the Section unconstitutional in its entirety.

C. Title III and V

Sections 304, 316, & 319, collectively known as the "Millionaire Provisions," allow opponents of self-financed candidates, and in certain circumstances, to raise money in larger increments and accept unlimited coordinated party expenditures. All three judges conclude, for the reasons set forth in Judge Henderson's opinion, that this Court lacks standing to entertain challenges to these provisions.

Section 305 denies a candidate the "lowest unit charge" for broadcast advertisements on radio and television unless the candidate promises not to refer to another candidate in his or her advertisements. For the reasons set forth in Judge Henderson's opinion, all three judges conclude that this Court lacks standing to entertain the plaintiffs' challenge at this time.

As explained in Judge Henderson's opinion, the Court similarly finds that the plaintiffs do not have standing to challenge Section 307, which increases and indexes contribution limits.

Section 311 establishes certain disclosure requirements for the sponsors of electioneering communications. Judge Kollar-Kotelly and Judge Leon, for the reasons set forth in the per curiam opinion, uphold this provision as constitutional. Judge Henderson, dissents, and finds this section unconstitutional for the reasons set forth in her opinion.

Section 318 prohibits donations by minors to federal candidates, or to a committee of a political party. All three judges agree that this section is unconstitutional. Each judge writes a separate concurrence setting forth his/her reasoning as to this section.

Section 504 requires broadcast licensees to collect and disclose records of any request to purchase broadcast time for communications that "is made by or on behalf of a legally qualified candidate for public office" or that relates "to any political matter of national importance," including communications relating to "a legally qualified candidate," "any election to federal office," and "a national legislative issue of public importance." Judge Henderson finds this section unconstitutional. Judge Leon and Judge Kollar-Kotelly, concur in that result, but not in her reasoning. Judge Kollar-Kotelly concurs in Judge Leon's separate opinion on this section.

Chart of the Court's Rulings -------------------------------------------------------------------------------------------------------------------------------------- BCRA Provision Constitutional Unconstitutional Nonjusticiable -------------------------------------------------------------------------------------------------------------------------------------- 323(a): nonfederal fund Judge Kollar-Kotelly Judge Henderson restrictions on national Judge Leon (only as to Judge Leon (except as parties using nonfederal funds to using nonfederal for 301(20)(A)(iii) activi- funds for 301(20)(A)(iii) ties) activities) -------------------------------------------------------------------------------------------------------------------------------------- 323(b): nonfederal fund Judge Kollar-Kotelly Judge Henderson restrictions on "federal Judge Leon (only as to Judge Leon (only as to election activity" by 301(20)(A)(iii) activities) 301(20)(A)(i), (ii), (iv) state and local parties activities) -------------------------------------------------------------------------------------------------------------------------------------- 301(20): definition of Judge Kollar-Kotelly Judge Henderson "federal election activi- Judge Leon (only as to Judge Leon (only as to ty" 301(20)(A)(iii)) 301(20)(A)(i), (ii), (iv)) -------------------------------------------------------------------------------------------------------------------------------------- 323(d): nonfederal fund Judge Kollar-Kotelly Judge Henderson restrictions on tax-ex- Judge Leon empt organizations -------------------------------------------------------------------------------------------------------------------------------------- 323(e): nonfederal fund Judge Henderson Judge Leon (only as to restrictions on federal Judge Kollar-Kotelly solicitation of nonfederal candidates Judge Leon (except so- funds) licitation of nonfederal funds) -------------------------------------------------------------------------------------------------------------------------------------- 323(f): nonfederal fund Judge Kollar-Kotelly Judge Henderson restrictions on state Judge Leon candidates -------------------------------------------------------------------------------------------------------------------------------------- 201: "electioneering Judge Kollar-Kotelly Judge Henderson (primary comraunication" defini- (primary definition and, and backup def- tion in the alternative, back- initions) Judge Leon up definition) Judge (only as to primary def- Leon (backup definition inition) only) -------------------------------------------------------------------------------------------------------------------------------------- 201: disclosure of "elec- Judge Kollar-Kotelly Judge Henderson tioneering communica- (severing subsection Judge Kollar-Kotelly tions" (5)) Judge Leon (sever- (subsection (5) only) ing subsection (5)) Judge Leon (subsection (5) only) -------------------------------------------------------------------------------------------------------------------------------------- 202: coordinated "elec- Judge Kollar-Kotelly Judge Henderson tioneering communica- Judge Leon tions" as contributions -------------------------------------------------------------------------------------------------------------------------------------- 203: prohibition of Judge Kollar-Kotelly Judge Henderson "electioneering commu- Judge Leon (as to nications" by corpora- backup definition) tions and unions -------------------------------------------------------------------------------------------------------------------------------------- 204: nonprofit organi- Judge Kollar-Kotelly Judge Henderson zation exception ("Well- Judge Leon (as to non- Judge Leon (as to stone Amendment") MCFL groups) MCFL groups) -------------------------------------------------------------------------------------------------------------------------------------- 212: disclosure of inde- Judge Henderson Judge Kollar-Kotelly pendent expenditures Judge Leon -------------------------------------------------------------------------------------------------------------------------------------- 213: choice between in- Judge Henderson dependent and coordi- Judge Kollar-Kotelly nated expenditures Judge Leon -------------------------------------------------------------------------------------------------------------------------------------- 214: definition of coor- Judge Kollar-Kotelly Judge Henderson Judge Kollar-Kotelly dinated communications (as to 214(a) and (as to remainder of 214) 214(d))) Judge Leon (as Judge Leon (as to re- to 214(a) and 214(d)) mainder of 214)

304, 316, & 319: "Mil- Judge Henderson lionaire Provisions" Judge Kollar-Kotelly Judge Leon -------------------------------------------------------------------------------------------------------------------------------------- 305: limitation on low- Judge Henderson est unit charge for can- Judge Kollar-Kotelly didates referring to oth- Judge Leon er candidates -------------------------------------------------------------------------------------------------------------------------------------- 307: increased contri- Judge Henderson bution limits and index- Judge Kollar-Kotelly ing of limits Judge Leon -------------------------------------------------------------------------------------------------------------------------------------- 311: identification of Judge Kollar-Kotelly Judge Henderson sponsors Judge Leon -------------------------------------------------------------------------------------------------------------------------------------- 318: prohibition of do- Judge Henderson nations by minors Judge Kollar-Kotelly Judge Leon -------------------------------------------------------------------------------------------------------------------------------------- 504: disclosure of Judge Henderson broadcasting records Judge Kollar-Kotelly Judge Leon

II. BACKGROUND

It is necessary to canvass the history of federal campaign finance regulation in order to provide the appropriate context for understanding the structure and practices of federal campaign finance that Congress confronted when it enacted BCRA. See United States v. UAW-CIO, 352 U.S. 567, 570, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957) ("UAW") ("Appreciation of the circumstances that begot this statute is necessary for its understanding, and understanding of it is necessary for adjudication of the legal problems before us."). Following this overview, the Court will move to a discussion of the legislation enacted by Congress to resolve the perceived shortcomings of the pre-BCRA campaign finance structure and a procedural history of the litigation in this case.

A. The Framework of Federal Campaign Finance Regulation

One might be tempted to agree with Plaintiffs' assertion that the history of federal campaign finance regulation is "relatively short," McConnell Br. at 9, if one were comparing it to the history of Western civilization. In the judgment of Judge Kollar-Kotelly and Judge Leon, however, the history of federal campaign finance regulation, having its origins in the Administration of President Theodore Roosevelt, is a long-standing and recurring problem that has challenged our government for nearly half of the life of our Republic.

At the close of the nineteenth century, the concentration of the nation's wealth in the hands of a "small portion of the population" began to threaten the stability and integrity of the political system. UAW, 352 U.S. at 570, 77 S.Ct. 529 (quoting 2 Morrison and Commager, The Growth of the American Republic at 355 (4th ed.1950)). At the time, the widely accepted view was that "aggregated capital unduly influenced politics, an influence not stopping short of corruption." Id. To that end, many states began experimenting with disclosure laws requiring candidates and their political committees to make public the sources and amounts of contributions to their campaigns and the amounts of their campaign expenditures. Id. at 570-571, 77 S.Ct. 529. These laws proved to be largely futile. Id. at 571, 77 S.Ct. 529. Concern with both the size and source of campaign funds relating to the 1904 presidential campaign "crystallized popular sentiment for federal action to purge national politics of what was conceived to be the pernicious influence of `big money' campaign contributions." Id. at 571-72, 77 S.Ct. 529. President Roosevelt's presidential messages to Congress in both 1905 and 1906, strongly encouraged Congress to enact a law prohibiting political contributions by corporations. 40 Cong. Rec. 96 (1905); 41 Cong. Rec. 22 (1906). In response to these concerns, Congress enacted the Tillman Act, Ch. 420, 34 Stat. 864, which prohibited corporations from making any contribution in connection with any election for federal office and which represented "the first concrete manifestation of a continuing congressional concern for elections free from the power of money." UAW, 352 U.S. at 575, 77 S.Ct. 529 (internal quotation marks and citation omitted). The Tillman Act demarcates the beginning of the "modern era" of federal campaign finance regulation and is the predecessor of the prohibition on corporate and labor union contributions and expenditures in connection with any federal election from their general treasuries that appears in the Federal Election Campaign Act ("FECA"). Buckley v. Valeo, 519 F.2d 821, 904 (D.C.Cir.1975), affd in part, rev'd in part, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The "underlying philosophy" of the Tillman Act was "to sustain the active, alert responsibility of the individual citizen in a democracy for the wise conduct of government." UAW, 352 U.S. at 575, 77 S.Ct. 529.

The ban on corporate and labor union contributions and expenditures was eventually codified at 18 U.S.C. § 610, and later transferred to the Federal Election Campaign Act, 2 U.S.C. 441b, when Congress re-evaluated the Act in the aftermath of the Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Federal Election Campaign Act Amendments of 1976, P.L. 94-283, 90 Stat. 475. See also S.Rep. No. 677, 94th Cong., 2d Sess. 2-3 (1976), reprinted in 1976 U.S.C.C.A.N. 929, 930-31.

A full copy of the statute is available online at http ://www. fee. gov/pages/bcra/maj or_resources_bcra.htm.

As Senator Fritz Hollings wryly observed during the Senate debate on BCRA: It amused me the other day when they said we finally had some debate going on in the Senate. The reason we have a debate is because this is the first subject we know anything about. All the rest of it is canned speeches that the staff gives you, and you come out and you talk about Kosovo, you talk about the defense budget, or you talk about the environment, and you read scientific statements and everything-but we know about money. Oh boy, do we know. 147 Cong Rec. S2852-53 (daily ed. March 26, 2001) (statement of Senator Fritz Hollings).

In Roberts v. United States Jaycees, the Supreme Court declared that "[a]n individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed." 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (citing Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 294, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981)).

In 1909, Congress endeavored to broaden the Tillman Act by including within the Act's scope, state legislative races and inkind contributions. See id. While this effort ended in failure, in 1910, Congress "translated popular demand for further curbs upon the political power of wealth into a publicity law that required committees operating to influence the results of congressional elections in two or more States to report all contributions and disbursements and to identify contributors and recipients of substantial sums." Id. (citing Act of June 25, 1910, ch. 392, §§ 5-6, 36 Stat. 822, 823) (disclosure required of all transactions greater than $100). The 1910 law further directed the reporting of expenditures exceeding $50, made independently of a political committee for the purpose of influencing congressional elections in more than one State. Act of June 25, 1910, ch. 392, §§ 7, 36 Stat. 824. In 1911, Congress further amended the 1910 Act, and for the first time, included overall expenditure ceilings on campaigns for the House ($5,000) and for the Senate ($10,000). Buckley, 519 F.2d at 904-905 (citing Act of Aug. 19, 1911, ch. 33, § 2, 37 Stat. 26). Additionally, the 1911 provisions required all candidates for the Senate and the House of Representatives to make detailed reports with respect to their nominating and election campaigns. UAW, 352 U.S. at 576, 77 S.Ct. 529. Hence, candidate disclosures included primary, convention, and other pre-nomination periods. Buckley, 519 F.2d at 905. The 1911 law also prohibited candidates from promising employment for the purpose of securing an individual's support. UAW, 352 U.S. at 576, 77 S.Ct. 529 (citing 37 Stat. 25). In 1918, Congress again amended the law and added criminal penalties for offering anything of value to influence voting. Id. (citing Act of Oct. 16, 1918, ch. 187, 40 Stat. 1013).

In the only instance of a criminal prosecution under the Act, Truman Newberry was convicted in Michigan of violating the expenditure ceiling in his 1918 primary campaign for the United States Senate. Newberry's conviction was overturned by the Supreme Court in 1921. The Court invalidated the law insofar as it extended to Senate primary elections. Newberry v. United States, 256 U.S. 232, 258, 41 S.Ct. 469, 65 L.Ed. 913 (1921) ("We cannot conclude that authority to control party primaries or conventions for designating candidates was bestowed on Congress by the grant of power to regulate the manner of holding elections."). Four Justices of the Court held that primaries were intra-party affairs not amenable to congressional regulation under the Elections Clause. Id. Justice Joseph McKenna, who provided the crucial fifth vote for judgment, limited the reach of the decision to the facts by concluding that the statute under consideration was enacted prior to the Seventeenth Amendment and, therefore, left open the question of whether that Amendment gave Congress authority to regulate Senate primary elections. Id.

In 1925, in the wake of Newberry, Congress passed the Federal Corrupt Practices Act of 1925, ch. 368, tit. Ill, 43 Stat. 1070, which was a comprehensive amalgamation of the surviving provisions of the existing campaign finance laws. UAW, 352 U.S. at 576, 77 S.Ct. 529. The Federal Corrupt Practices Act strengthened the Tillman Act by broadening the definition of contribution, extending the ban on corporate contributions to Delegates and Resident Commissioners that were elected to Congress, and punishing the recipient of any illegal contribution in addition to the contributor. Id. at 577, 77 S.Ct. 529. The law also generally broadened disclosure provisions. Buckley, 519 F.2d at 905.

The Supreme Court upheld the Federal Corrupt Practices Act in the Burroughs case of 1934:

The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted, and the end to be attained, are matters for congressional determination alone. Congress reached the conclusion that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent the corrupt use of money to affect elections. The verity of this conclusion reasonably cannot be denied. When to this is added the requirement contained in section 244, that the treasurer's statement shall include full particulars in respect of expenditures, it seems plain that the statute as a whole is calculated to discourage the making and use of contributions for purposes of corruption.

Burroughs v. United States, 290 U.S. 534, 547-48, 54 S.Ct. 287, 78 L.Ed. 484 (1934) (internal citation omitted). As is obvious from this language, the Burroughs opinion provided Congress with broad discretion to regulate federal elections including the financing of campaigns.

The next instance of congressional action in the area of campaign finance was in 1940 when Congress amended the Hatch Act, a law which placed restrictions on the political activities of the civil service, by making it unlawful for any political committee to receive contributions totaling more than $3,000,000 or to make expenditures of more than that amount in any calendar year. UAW, 352 U.S. at 577, 77 S.Ct. 529 (citing Act of July 19, 1940, ch. 640, 54 Stat. 767). The Hatch Act amendments also limited gifts to candidates or political committees to $5,000 in any calendar year. Buckley, 519 F.2d at 905 (citing Act of July 19, 1940, ch. 640, 54 Stat. 767).

One year later, the Supreme Court again returned to the question it had squarely addressed in Newberry: namely whether congressional power under the Elections Clause extended to the pre-election period. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). This time, the Court upheld the congressional enactment holding that "the authority of Congress, given by [Article I, section 4], includes the authority to regulate primary elections when, as in this case, they are a step in the exercise by the people of their choice of representatives in Congress." Id. at 317, 61 S.Ct. 1031. The case involved a Louisiana Democratic primary for the House of Representatives, which history showed was the determinant of who would win the general election. Id. at 314, 61 S.Ct. 1031. The Supreme Court in Classic disregarded Newberry because only four Justices in Newberry had adopted the view that the Elections Clause forbade congressional regulation of primary elections. Consequently, as the issue had never "been prejudged by any decision of [the Supreme] Court," Classic overruled the Newberry plurality. Id. at 317, 61 S.Ct. 1031; see also id. at 325 n. 8, 61 S.Ct. 1031 ("No conclusion is to be drawn from the failure of the Hatch Act, to enlarge § 19 by provisions specifically applicable to primaries. Its failure to deal with the subject seems to be attributable to constitutional doubts, stimulated by Newberry v. United States , which are here resolved.") (internal citations omitted). Under Classic, Congress was given authority to impose criminal penalties for activities of state officials conducting a primary election for federal candidates under the auspices of state law. See id. at 307, 61 S.Ct. 1031.

Following the rise of organized labor during World War II, in 1943, Congress passed the Smith-Connally Act which included a section that extended the Federal Corrupt Practices Act to organized labor. UAW, 352 U.S. at 578, 77 S.Ct. 529 (citing War Labor Disputes Act (Smith-Connally Act), ch. 144, § 9, 57 Stat. 163, 167) ("Wartime strikes gave rise to fears of the new concentration of power represented by the gains of trade unionism. And so the belief grew that, just as the great corporations had made huge political contributions to influence governmental action or inaction, whether consciously or unconsciously, the powerful unions were pursuing a similar course, and with the same untoward consequences for the democratic process."). Congressman Gerald Landis, the author of this provision in the Smith-Connally Act observed that "[t]he public was aroused by many rumors of huge war chests being maintained by labor unions, of enormous fees and dues being extorted from war workers, of political contributions to parties and candidates which later were held as clubs over the head of high Federal officials." Id. at 579, 77 S.Ct. 529 (quoting Hearings before a Subcommittee of the House Committee on Labor on H.R. 804 and H.R. 1483, 78th Cong., 1st Sess. 1, 2, 4).

Despite the provision in the Smith-Connally Act tightening the reins on political activity of labor unions, Congress was prompted to investigate "enormous" financial outlays by some unions in connection with the 1944 national elections. Id. The Senate's Special Committee on Campaign Expenditures investigated and concluded that while there was "`no clear-cut violation of the Corrupt Practices Act,'" id. at 580, 77 S.Ct. 529 (quoting S.Rep. No. 101, 79th Cong., 1st Sess. 23), the law was being evaded by large scale spending by labor unions on expenditures (as opposed to contributions), which were not explicitly prohibited by the Federal Corrupt Practices Act, id. Congress, it appears, considered a prohibition on contributions to be equally applicable to expenditures. Id. at 582, 77 S.Ct. 529 ("`The committee is firmly convinced, after a thorough study of the provisions of the act, the legislative history of the same, and the debates on the said provisions when it was pending before the House, that the act was intended to prohibit such expenditures.'") (quoting H.R.Rep. No. 2739, 79th Cong., 2d Sess. 40). In commenting on how this exception threatened to eviscerate the Federal Corrupt Practices Act, the House Committee studying this problem stated that "`[t]he intent and purpose of the provision of the act prohibiting any corporation or labor organization making any contribution in connection with any election would be wholly defeated if it were assumed that the term `making any contribution' related only to the donating of money directly to a candidate, and excluded the vast expenditures of money in the activities herein shown to be engaged in extensively. Of what avail would a law be to prohibit [directly] contributing to a candidate and yet permit the expenditure of large sums in his behalf?'" Id. at 581, 77 S.Ct. 529 (quoting H.R.Rep. No. 2739, 79th Cong., 2d Sess. 40).

A sampling of the extraordinary size of the expenditures by labor on federal elections demonstrates that "One [labor organization] was found to have an annual budget for `educational' work approximating $1,500,000, and among other things regularly supplies over 500 radio stations with `briefs for broadcasters.' Another, with an annual budget of over $300,000 for political `education,' has distributed some 80,000,000 pieces of literature, including a quarter million copies of one article. Another, representing an organized labor membership of 5,000,000, has raised $700,000 for its national organizations in union contributions for political `education' in a few months, and a great deal more has been raised for the same purpose and expended by its local organizations.'" UAW, 352 U.S. at 580-81, 77 S.Ct. 529 (quoting H.R.Rep. No.2093, 78th Cong., 2d Sess. 3).

As of the May 7, 2002 deadline for amendment of pleadings, intervention or joinder of additional parties and consolidation of additional cases, see Scheduling Order of 4/24/02, 84 plaintiffs were parties to the consolidated actions. Since then seven plaintiffs-the Alabama Republican Executive Committee, Martin J. Connors, the Jefferson County Republican Executive Committee, the Christian Coalition of America, Inc., the Libertarian Party of Illinois, Inc., the DuPage Political Action Council, Inc. and the National Association of Wholesaler-Distributors-have been dismissed from the suit without prejudice. See generally Orders of 8/15/02, 9/13/02, 9/18/02 and 9/30/02 Dismissing Pis. Without Prejudice.
Remaining in the suit are 77 plaintiffs in 11 actions: in No. 02-CV-0582 are Senator McConnell, former Representative Bob Barr, Representative Mike Pence, Alabama Attorney General Bill Pryor, the Libertarian National Committee, Inc. (LNC), the American Civil Liberties Union (ACLU), Associated Builders and Contractors, Inc. (ABCI), Associated Builders and Contractors Political Action Committee (ABC PAC), the Center for Individual Freedom, Club for Growth, Inc., Indiana Family Institute, Inc., the National Right to Life Committee, Inc. (NRLC), National Right to Life Educational Trust Fund (NRL ETF), National Right to Life Political Action Committee (NRL PAC), the National Right to Work Committee, 60 Plus Association, Inc., the Southeastern Legal Foundation, Inc., U.S. d/b/a ProEnglish, Thomas Mclnerney, Barret Austin O'Brock and Trevor M. Southerland (collectively, the McConnell plaintiffs); in No. 02-CV-0581 are the NRA and the National Rifle Association Political Victory Fund (NRA PVF) (collectively, the NRA plaintiffs); in No. 02-CV-0633 are Emily Echols, Hannah McDow, Isaac McDow, Jessica Mitchell, Daniel Solid and Zachary C. White (collectively, the Echols plaintiffs); in No. 02-CV-0751 are the Chamber of Commerce of the United States (Chamber of Commerce), the National Association of Manufacturers (NAM) and U.S. Chamber Political Action Committee (collectively, the Chamber of Commerce plaintiffs); in No. 02-CV-0753 is the National Association of Broadcasters (NAB); in No. 02-CV-0754 are the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the AFL-CIO Committee on Political Education Political Contributions Committee (COPE PCC) (collectively, the AFLCIO plaintiffs); in No. 02-CV-0781 are Congressman Ron Paul, Gun Owners of America, Inc., Gun Owners of America Political Victory Fund, RealCampaignReform.org, Citizens United, Citizens United Political Victory Fund, Michael Cloud and Carla Howell (collectively, the Paul plaintiffs); in No. 02-CV-0874 are the Republican National Committee (RNC), Mike Duncan, the Republican Party of Colorado, the Republican Party of Ohio, the Republican Party of New Mexico and the Dallas County (Iowa) Republican County Central Committee (collectively, the RNC plaintiffs); in No. 02-CV-0875 are the California Democratic Party (CDP), Art Torres, the Yolo County Democratic Central Committee, the California Republican Party (CRP), Shawn Steel, Timothy J. Morgan, Barbara Alby, the Santa Cruz County Republican Central Committee and Douglas R. Boyd, Sr. (collectively, the CDP plaintiffs); in No. 02-CV-0877 are Victoria Jackson Gray Adams, Carrie Bolton, Cynthia Brown, Derek Cressman, Victoria Fitzgerald, Anurada Joshi, Nancy Russell, Kate Seely-Kirk, Peter Kostmayer, Rose Taylor, Stephanie L. Wilson, the California Public Interest Research Group, the Massachusetts Public Interest Research Group, the New Jersey Public Interest Research Group, the United States Public Interest Research Group, the Fannie Lou Hamer Project and the Association of Community Organizers for Reform Now (collectively, the Adams plaintiffs); and in No. 02-CV-0881 are Representative Bennie G. Thompson and Representative Earl F. Hilliard (collectively, the Thompson plaintiffs).

I cannot agree with Judge Henderson, who appears to characterize my opinion, along with the per curiam opinion, and Judge Leon's opinion, as "upholding a portion [of BCRA] here and striking down a fragment [of BCRA] there until they [Judge Leon and Judge Kotelly] have drafted legislation the Congress would never have enacted-all in the name of deference to that body." Henderson Op. at 5 (first emphasis added, second emphasis in original). I would observe that my opinion does not sift through various sections of BCRA that have been challenged, adopting some and rejecting others. Rather, my decision is predicated on lengthy discussions of both the record and the governing caselaw. In undertaking this analysis, I have only found three sections unconstitutional in their entirety; the same three sections that Judge Henderson and Judge Leon have each found unconstitutional. I have also, with Judge Leon, severed one section from a disclosure provision in Section 201; but this is no different from Judge Henderson severing a phrase from Section 323(e). Henderson Op. at Part IV.D.4. It is also important to note that I have not "drafted legislation." Id. Nothing in my opinion rewrites BCRA in any manner whatsoever. I have accepted the statute on its face, finding its core provisions constitutional, with exceptions noted above as to some ancillary rovisions.

See FEC v. Colorado Republican Fed. Campaign Comm. ("Colorado I"), 518 U.S. 604, 618, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (noting that political parties play an "important and legitimate role ... in American elections"); Davis v. Bandemer, 478 U.S. 109, 144-45, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (O'Connor, J., concurring in judgment) ("There can be little doubt that the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government."); see also Findings of Fact ("Findings") 20-26.

Therefore, in order to prevent further "evasion" and to "plug the existing loophole," Congress "again acted to protect the political process from what it deemed to be the corroding effect of money employed in elections by aggregated power." Id. at 582, 77 S.Ct. 529 (internal quotation and citations omitted). Accordingly, in 1947, Congress passed the Taft-Hartley Act of 1947, ch. 120, 61 Stat. 136, which amended the Federal Corrupt Practices Act "to proscribe any `expenditure' as well as `any contribution' [and] to make permanent [its] application to labor organizations" in addition to corporations. Id. at 582-83, 77 S.Ct. 529. The Taft-Hartley Act implemented Classic by applying its provisions to primary elections. Buckley, 519 F.2d at 906.

Following the Taft-Hartley Act, from the late 1940's through the end of the 1950's, Congress sought unsuccessfully to amend the dollar expenditure limits to reflect more "realistic" costs, but no action was taken. Id. In 1960, the Senate passed a bill that strengthened reporting requirements for candidates and political committees, adopted individual contribution limits, rationalized current expenditure limits, and placed ceilings on Presidential campaigns. Id. The bill, however, died for lack of a companion in the House of Representatives. Id. In 1962, President Kennedy's Commission on Campaign Costs recommended "tax incentives and credits for small political contributions, realistic ceilings, and suspension of the equal time provision as to media debates." Id. In 1966, Congress passed a one dollar tax checkoff to provide public funding for Presidential general elections, which was later repealed in 1967. Id.

Late in 1971, Congress reinstituted the tax form checkoff to finance Presidential general elections and, in early 1972, passed the Federal Elections Campaign Act of 1971, Pub.L. No. 92-255, 86 Stat. 3 ("FECA"), requiring disclosure of all contributions in excess of $100 and disclosure of expenditures by all candidates and political committees spending more than $1000 per year. Id. The 1971 law also expressly provided corporations and unions with the ability to establish and administer separate, segregated funds for the purpose of making political contributions and expenditures. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385, 410, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972).

Despite passage of FECA, the "infinite ability" to "evisceratef ] statutory limitations on contributions and expenditures," which amounted to "wholesale circumvention" became a source of further congressional concern. Buckley, 519 F.2d at 837. Congress concluded that costs for federal elections had increased at an "`alarming'" rate. Id. (quoting H.R.Rep. No.93-1239, 93d Cong., 2d Sess. 3 (1974), U.S.Code Cong. & Admin. News 1974, p. 5587). Congress was further troubled by the "interaction" between large-scale campaign expenditures and a reliance "on large contributions from monied and special interests." Id. In Buckley, it was undisputed that "one percent of the people accounted for 90 percent of the dollars contributed to federal candidates, political parties and committees." Id. (citing agreed to Findings of Fact). It was also undisputed that illegal contributions to both parties were made in 1972 by Gulf Oil and by American Milk Producers, Inc., a large dairy cooperative. Id. at 838. Notably, the circuit court in Buckley concluded:

Large contributions are intended to, and do, gain access to the elected official after the campaign for consideration of the contributor's particular concerns. Senator Mathias not only describes this but also the corollary, that the feeling that big contributors gain special treatment produces a reaction that the average American has no significant role in the political process.

Id.; see also id. at 872 n. 32 ("Congress found and the District Court confirmed that such contributions were often made for the purpose of furthering business or private interests by facilitating access to government officials or influencing governmental decisions, and that, conversely, elected officials have tended to afford special treatment to large contributors.") (citations omitted). Indeed, the lower Buckley court documented the "lavish contributions by groups or individuals with special interests to legislators from both parties." Id. at 840 n. 37.

In 1974, in direct response to the 1972 elections which were a "watershed for public confidence in the electoral system," id. at 840, and the "shock of its aftermath," id. at 837, Congress enacted and President Gerald Ford signed the sweeping FECA Amendments of 1974. Id. Broadly speaking, the amendments imposed dollar limitations on contributions by individuals and by political committees to candidates for federal office, to political party committees, and to independent political committees. 2 U.S.C. § 441a(a). The 1974 amendments also imposed limits on expenditures that individuals, candidates, political committees, and political parties could spend to help federal candidates win elections. Moreover, the law treated expenditures that were "coordinated" with a candidate as contributions. 2 U.S.C. 441a(a)(7)(B)(i) ("[Expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate."). The amendments also included a variety of recordkeeping and disclosure requirements. See 2 U.S.C. §§ 432-434. The Federal Election Commission was also created by the amendments and tasked with monitoring and enforcing the campaign finance laws. See generally 2 U.S.C. §§ 437c(b)(1), 437d(a), 437g. Finally the law, as amended, provided public funding primarily for qualified presidential candidates and some public funding for nominating conventions of major political parties.

The first day after the FECA amendments went into effect, the law was challenged. Buckley, 519 F.2d at 901. In a lengthy opinion, the United States Court of Appeals for the District of Columbia Circuit found all but one of the provisions of FECA constitutional. Id. at 843^4 (striking down disclosure provision 2 U.S.C. § 437a). In 1976, the Supreme Court affirmed in part and reversed in part the D.C. Circuit's ruling in its decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Generally speaking, in examining FECA's provisions against the free speech and association provisions of the First Amendment the Supreme Court found constitutional FECA's contribution limitations, Buckley, 424 U.S. at 23-38, 96 S.Ct. 612, and unconstitutional those provisions of FECA that imposed expenditure limitations, id. at 39-59, 96 S.Ct. 612. The contribution-expenditure dichotomy first developed in Buckley was grounded in the Supreme Court's view that "[a] contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support." Id. at 21, 96 S.Ct. 612 (observing that "[t]he quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing."). Expenditure restrictions, on the other hand, "while neutral as to the ideas expressed, limit political expression at the core of our electoral process and of the First Amendment freedoms." Id. at 39, 96 S.Ct. 612 (internal quotation marks and citation omitted).

In Buckley, the Supreme Court upheld as well the general disclosure provisions contained in FECA. Id. at 60-84, 96 S.Ct. 612. The Supreme Court likewise found constitutional the public funding scheme for presidential candidates. Id. at 85-109, 96 S.Ct. 612. Finally, the Supreme Court struck down the structure of the FEC as it was constituted under FECA in violation of the Appointments Clause of the Constitution. Id. at 109-143, 96 S.Ct. 612.

The D.C. Circuit's decision striking down 2 U.S.C. § 437a was not appealed to the Supreme Court. Buckley, 424 U.S. at 11 n. 7, 96 S.Ct. 612.

The defendants in these consolidated actions are the FEC; the United States of America (United States); the United States Department of Justice (DOJ); the Federal Communications Commission (FCC); John Ashcroft, in his official capacity as Attorney General of the United States of America; Ellen L. Weintraub, Bradley A. Smith, David M. Mason, Danny L. McDonald, Scott E. Thomas and Michael E. Toner, in their official capacities as Commissioners of the FEC; and Senators John McCain, Russell Feingold, Olympia Snowe and James Jeffords and Representatives Christopher Shays and Martin Meehan (collectively, the intervenors), as intervening defendants.

Almost exclusive reliance on the litigants' proposed findings of fact, which I have already indicated is a method of fact finding that I do not employ, should lead to a careful examination by the reviewing Court of the adopted findings. See Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1404 (D.C.Cir.1988) (per curiam) ("While `the fact that the trial judge has adopted proposed findings does not, by itself, warrant reversal,' `it does raise the possibility that there was insufficient independent evaluation of the evidence and may cause the losing party to believe that his position has not been given the consideration it deserves.'") (quoting Photo Elecs. Corp. v. England, 581 F.2d 772, 777 (9th Cir. 1978)); id at 1408.

See California Democratic Party v. Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) ("Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself." (citing Noble E. Cunningham, Jr., The Jeffersonian Republican Party, in 1 History of U.S. Political Parties 239, 241 (Arthur M. Schlesinger, Jr. ed., 1973)))

Hence, in the aftermath of Buckley, it was FECA's contribution restrictions that remained intact, while its expenditure provisions were vitiated. Under FECA, as it emerged from Buckley, no "person" was permitted to contribute in excess of $1,000 to a candidate for federal office, 2 U.S.C. § 441a(a)(1)(A); no person could contribute to the political committees established and maintained by a national political party, in any calendar year which, in the aggregate, exceed $20,000, 2 U.S.C. § 441a(1)(B); and no person could contribute to any other political committee in any calendar year which, in the aggregate, exceed $5,000,2 U.S.C. § 441a(a)(1)(C). In addition, no multicandidate political committee could contribute in excess of $5,000 to a candidate for federal office, 2 U.S.C. § 441a(a)(2)(A); no multicandidate political committee could contribute in excess of $15,000 to the political committees established and maintained by a national political party, 2 U.S.C. § 441a(a)(2)(B); and finally, no multicandidate political committee could contribute to any other political committee in any calendar year which, in the aggregate, exceeded $5,000, 2 U.S.C. § 441a(a)(2)(C). In order to "prevent evasion" of these limitations Buckley upheld the Act's $25,000 limitation on total contributions during any calendar year. Buckley, 424 U.S. at 38, 96 S.Ct. 612. As a result, under 2 U.S.C. § 441a(a)(3), no individual was permitted to make contributions aggregating more than $25,000 in any calendar year. 2 U.S.C. § 441a(a)(3). In addition, under 2 U.S.C. § 441b, corporations and labor unions are prohibited from using their general treasury funds to "make a contribution or expenditure in connection with any election to any political office." 2 U.S.C. § 441b(a). In sum, the Supreme Court found that:

Following Buckley, there have been a number of important Supreme Court opinions that have addressed application of Buckley in other contexts. It is more appropriate to discuss these cases in the context of each Judge's separate opinion.

I believe that no plaintiff who challenges BCRA section 305 has standing to do so. See infra Part IV.F. Likewise, I am convinced that no plaintiff has standing to challenge the increased contribution limits set out in BCRA sections 304, 307, 316 and 319. See infra Part IV.G. Therefore, I would not decide the constitutionality of those provisions even though upon examination of the record and despite BCRA's severability provision, see BCRA § 401, I doubt that the Congress, upon elimination of the numerous provisions I believe are invalid, would have been "satisfied" with the contribution limit increases. Champlin Ref. Co. v. Corp. Comm'n, 286 U.S. 210, 235, 52 S.Ct. 559, 76 L.Ed. 1062 (1932) (severability clause "discloses an intention to make [a statute] divisible and creates a presumption that, eliminating invalid parts, the legislature would have been satisfied with what remained"); see Buckley v. Valeo, 424 U.S. 1, 255, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (Burger, C.J., concurring in part and dissenting in part) ("To invoke a severability clause to salvage parts of a comprehensive, integrated statutory scheme ... exalts a formula at the expense of the broad objectives of Congress.").

I am compelled to respond to Judge Henderson, who, without any elaboration, has criticized three of my Findings in particular as leaving her "`with the definite and firm conviction that a mistake has been committed.' " Henderson Op. at 67 n.55 (quoting Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001)) (citing my Findings 2.13; 1.82-1.83). In the examples Judge Henderson cites, she points to two summaries and an introduction; ignoring the surrounding Findings in support of the evidentiary record. I have in my Findings discussed in great detail the foundation and basis for the particular Findings she cites. See infra Findings ¶¶ 2.8, 2.8.1-2.8.3.5; 1.73-1.81; 1.83.1-1.83.7. Judge Henderson does not assail that analysis nor does she in any way indicate a reasoned basis for her disagreement. As such, I must respectfully disagree with her view that a "mistake has been committed" in regard to these three Findings of Fact.
In addition, although Judge Henderson determines that the record is largely superfluous to her legal conclusions, see Henderson Op. at 7 n. 1 ("[a]lthough the actions before us have produced a large (but probably unnecessary) record") (emphasis added), she seemingly urges the Supreme Court to adopt her "Alternative Findings of Fact" "as an alternative to those of the majority," id. at 67, and in conclusory fashion alleges mistakes in the Findings of Fact of the "majority," without any specificity. Id. Given that Judge Henderson's findings are "an alternative to those in the majority," I have not found it prudent to catalogue each instance where I disagree with her factual conclusions. I would simply observe that I respectfully disagree that Judge Henderson's "Alternative Findings of Fact" are a more appropriate and accurate "alternative to those [Findings of Fact] of the majority." Id.

See, e.g., Findings 14-19.

FECA defines "person" as "an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons, but such term does not include the Federal Government or any authority of the Federal Government." 2 U.S.C. § 431(11).

In the interest of rendering an opinion that reads as a coherent whole-and, again, for the sake of expedition-I have retained introductory sections that overlap (but only somewhat) with scattered portions of the per curiam opinion. Compare infra Part I with Per Curiam Op. at Part II.A; compare also infra Part II with Per Curiam Op. at Part II.B.

Thomas Mann is one of Defendants' experts. I note that neither Plaintiffs nor Defendants have challenged the qualifications of any of the designated experts in this case.

For a discussion of the distinction between genuine issue advertisements and "sham" issue ads designed to directly affect a federal candidate's election, see Findings 288-89 and infra Parts I.A.3 & I.B.2.

Under BCRA, these contribution limits have been raised. Persons can now contribute $2,000 to candidates and $25,000 to national political party committees. BCRA §§ 307(a)(1), 307(a)(2); FECA § 315(a)(1); 2 U.S.C. § 441a(a)(1). Also under BCRA, Congress has carved state party committees out of § 441a(a)(1)(C) and increased the contribution limit for state party committees from $5,000 to $10,000. BCRA § 102; FECA § 315(a)(1); 2 U.S.C. § 441a(a)(1). Moreover, the contribution limits applicable to candidates and national party committees have been indexed to the consumer price index and will increase with inflation. BCRA § 307(d); FECA § 315(c); 2 U.S.C. § 441a(c).

See Ex parte Curtis, 106 U.S. 371, 375, 1 S.Ct. 381, 27 L.Ed. 323 (1882) (upholding constitutionality of Act of Aug. 15, 1876, 19 Stat. 169, which prohibited non-appointed federal employees from requesting or receiving anything of value for political purposes); see also id. at 376-77, 1 S.Ct. 381 (Bradley, J., dissenting) (voting to strike down statute on First Amendment grounds because "deny[ing] to a man the privilege of associating and making joint contributions with such other citizens as he may choose, is an unjust restraint of his right to propagate and promote his views on public affairs").

Donald Green is one of Defendants' experts.

See Colorado II, 533 U.S. at 453, 121 S.Ct. 2351 ("[A] party combines its members' power to speak by aggregating contributions and broadcasting messages more widely than individual contributors generally could afford to do."); FEC v. Massachusetts Citizens for Life ("MCFL"), 479 U.S. 238, 261, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) ("[individuals contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction."); Citizens Against Rent Control, 454 U.S. at 294, 102 S.Ct. 434 ("[B]y collective effort individuals can make their views known, when, individually, their voices would be faint or lost."); id. at 296, 102 S.Ct. 434 (citing Buckley, 424 U.S. at 65-66, 96 S.Ct. 612); Buckley, 424 U.S. at 15, 22, 96 S.Ct. 612. Alexis de Toqueville observed:
As soon as several of the inhabitants of the United States have conceived a sentiment or an idea that they want to produce in the world, they seek each other out; and when they have found each other, they unite. From then on, they are no longer isolated men, but a power one sees from afar, whose actions serve as an example; a power that speaks, and to which one listens. 2 Alexis de Tocqueville, Democracy in America 492 (Harvey C. Mansfield & Delba Winthrop eds., 2000).

BCRA has increased the aggregate limit on individual contributions from $25,000 per year to $95,000 per two-year election cycle, of which $37,500 may be contributed to candidates. BCRA § 307(b); FECA § 315(a)(3); 2 U.S.C. § 441a(a)(3).

Under FECA, the term "contribution" includes
(i) any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office; or

David Magleby is an expert for Defendants.

Federal Election Campaign Act of 1971 ("FECA"), Pub.L. No. 92-225, 86 Stat. 3 (1971 provisions) (codified as amended at 2 U.S.C. §§ 431 etseq.).

The overall effect of the Act's contribution ceilings is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression.

Buckley, 424 U.S. at 21-22, 96 S.Ct. 612. Indeed, what emerged from Buckley was a tightly focused regime whereby contributions (and coordinated expenditures) to candidates and political parties and committees were limited or even banned (in the case of corporate and union treasury funds) and independent political advocacy was left unimpeded.

Contribution is defined in FECA as including, "any gift, subscription, loan, advance, or deposit of money or anything of value made by any person for the purpose of influencing any election for Federal office." 2 U.S.C. § 431(8)(A)(i).

Since the adoption of FECA, it is clear that the Commission has struggled with interpreting the phrase "for the purpose of influencing any election for Federal office." 2 U.S.C. § 431(8)(A)(i). In 1975, the FEC examined the case of a local party committee that had established separate accounts for federal funds and for corporate contributions which were permitted under state law, but which were prohibited by federal law for use in connection with federal elections. In Advisory Opinion 1975-21, the Commission determined that the appropriate course was to have the local party allocate both its administrative expenses and its voter registration drives between the two accounts, given that these expenses had an impact on both state and federal elections. FEC Advisory Op.1975-21 (allocation based on the ratio of "the total amount which the [local party] directly contributes to and expends on behalf of Federal candidates, to ... the total of all direct contributions to and expenditures on behalf of all candidates-Federal, State, and local"). The FEC slightly reversed course, in Informational Letter 1976-72, where it determined that voter registration efforts could not be paid for from an account containing funds raised from corporate and union general treasuries. FEC Informational Letter 1976-72 ("Thus, even though the Illinois law apparently permits corporate contributions for State elections, corporate/union treasury funds may not be used to fund any portion of a registration or get-out-the-vote drive conducted by a political party.").

However, in its 1977 rulemakings implementing FECA, the Commission permitted any political committee to make a choice between creating a separate federal account for its federal election activities, or to establish a single account containing only funds subject to the federal contribution limits to finance all of its activities with respect to both state and federal elections. 11 C.F.R. § 102.6(a)(2) (1977). To the extent that segregated accounts were created, the committees were required to "allocate administrative expenses on a reasonable basis between their Federal and non-Federal accounts in proportion to the amount of funds expended on Federal and non-Federal elections, or on another reasonable basis." 11 C.F.R. § 106.1(e)(1977) (emphasis added). The following year, the Commission essentially reversed its 1976 advisory opinion and in Advisory Opinion 1978-10, determined that "the costs of [voter] registration and get-out-the-vote drives" by a state party committee "should be allocated between" federal and nonfederal accounts "in the same manner as other general party expenditures" under the Commission's 1977 regulations. FEC Advisory Op.1978-10. In Advisory Opinion 1979-17, the Commission extended the conclusions reached in Advisory Opinion 1978-10 regarding separate accounts to the national party committees. FEC Advisory Op.1979-17 ("[Regulations] thus would permit the RNC to establish and administer separate, segregated bank accounts through an auxiliary organization of the national party which accounts could be used for the deposit and disbursement of funds designated specifically and exclusively to finance national party activity limited to influencing the nomination or election of candidates for public office other than elective `Federal office.'") (citation omitted).

Accordingly, by the middle of 1979, the FEC permitted national and state party committees to solicit and accept donations outside of FECA's source and amount limitations ("nonfederal money") provided that these monies were placed in separate accounts from the federal funds. In other words, political committees were permitted to establish two sets of accounts-one for federally-regulated money (federal accounts) and one for non-federally regulated money (nonfederal accounts).

There is a degree of skirmishing in the briefs over the appropriate terminology for "nonfederal money." Defendants use the phrase "soft money." Plaintiffs refer to "soft money" as "state-regulated" or "nonfederal" money. The Court has, for the most part, adopted the nomenclature "nonfederal" money because that is the term that the FEC has used during the rulemaking process implementing BCRA, Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 Fed.Reg. 49064 (July 29, 2002) ("Because the term `soft money' is used by different people to refer to a wide variety of funds under different circumstances, the Commission is using the term non-Federal funds' in the final rules rather than the term `soft money.'"), even though BCRA uses the term "soft money," BCRA § 101 (entitled "Soft money of political parties") (emphasis added) and even though on occasion the Supreme Court has also used the phrase "soft money," see, e.g., Colorado Republican Federal Campaign Committee v. FEC ("Colorado I"), 518 U.S. 604, 616, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) ("Unregulated `soft money' contributions may not be used to influence a federal campaign, except when used in the limited, party-building activities specifically designated in the statute."). Despite the references in the case law and the statute to the term "soft money," for the sake of clarity in an area of law that demands absolute precision, the Court generally eschews the phraseology "hard money" or "soft money" in favor of "federal funds" or "nonfederal funds." Federal funds are those monies regulated under FECA, as amended, and nonfederal funds are those monies that may or may not be regulated under state law, but not federal law.

Under FECA, the term "expenditure" includes
(i) any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office; and

Since January 2001, Joe Lamson has served as the Communications Director for the Office of Public Instruction of the State of Montna, a post he also held from early 1997 until January 2000. During 2000, Lamson managed Nancy Keenan's campaign to represent Montana's Congressional district. During 1996, Lamson managed Bill Yellowtail's campaign to represent Montana's Congressional district. From 1983 through 1996, Lamson served as the state director for United States Representative Pat Williams' Congressional office in Montana. During this same period, Lamson also managed Congressman Williams' election campaigns in Montana. From 1981 to 1983, Lamson was Executive Director of the Montana Democratic Party. Lamson provided a sworn declaration in FEC v. Colorado Republican Fed. Campaign Comm., 41 F.Supp.2d 1197 (D.Colo. 1999), affd, 213 F.3d 1221 (10th Cir.2000), rev'd, 533 U.S. 431, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001). Lamson Decl. ¶¶ 2-3 [DEV 7-Tab 26].

See Buckley, 424 U.S. at 23-35, 96 S.Ct. 612 (upholding contribution limitations to candidates and their political committees); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 390-98, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (same); see also California Medical Ass'n v. FEC ("California Medical"), 453 U.S. 182, 197-99, 101 S.Ct. 2712, 69 L.Ed.2d 567 (1981) (upholding contribution limitations to PACs). The Supreme Court has never explicitly addressed limitations on contributions to political parties. The $20,000, now $25,000, limit on contributions to national parties was not even added to FECA until the post-Buckley 1976 amendments. See Pub.L. No. 94-283 § 320, 90 Stat. 475 (codified as amended at 2 U.S.C. § 441a(a)(1)(B)); see also California Medical, 453 U.S. at 194 n. 15, 101 S.Ct. 2712; BCRA § 307(a)(2) (raising amount individuals can contribute to national parties from $20,000 to $25,000); BCRA § 102 (raising amount individuals can donate to state parties from $5,000 to $10,000); FECA § 315(a)(1); 2 U.S.C. § 441a(a)(1)(D). Contribution limitations to parties, however, have been upheld indirectly, see Buckley, 424 U.S. at 38, 96 S.Ct. 612 (upholding FECA's $25,000 limitation on total contributions, which included "huge contributions to the candidate's political party"), and in dictum, see Colorado I, 518 U.S. at 617, 116 S.Ct. 2309 (recognizing $20,000 contribution limit to political parties and citing 2 U.S.C. § 441a(a)).

In 1979 Congress again amended FECA to exempt two new sets of activities from the definition of contribution and expenditure. First, state and local party disbursements for campaign materials such as pins, bumper stickers, and yard signs used in connection with volunteer activities on behalf of the party's nominees were exempted from FECA's contribution limits provided that the activity was paid for with federal money. 2 U.S.C. §§ 431(8)(B)(ix), 9(B)(viii). The second exemption related to a state party's payment for "the costs of voter registration and [GOTV] activities" conducted on behalf of the party's presidential ticket. 2 U.S.C. §§ 431(8)(B)(xi), (9)(B)(ix). This exemption was also conditioned on the use of federal money for the activity. Hence, for both of these activities unlimited federal money could be used to pay for them because they were exempted from the definition of "contribution" and "expenditure." For state and local parties that opted to use nonfederal funds to pay for these activities, allocation was still permitted.

Previous disclosure requirements, which FECA replaced entirely, can be found in the Act of June 25, 1910, 36 Stat. 822, see United States v. UAW, 352 U.S. 567, 575, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957) (describing how 1910 Act "translated popular demand for ... curbs upon the political power of wealth into a publicity law that required [political] committees... to report all contributions and disbursements and to identify contributors and recipients of substantial sums"), and in the Federal Corrupt Practices Act of 1925, 43 Stat. 1070, see Burroughs v. United States, 290 U.S. 534, 540-42, 545, 54 S.Ct. 287, 78 L.Ed. 484 (1934) (upholding requirement that political committees accepting contributions or making expenditures "for the purpose of influencing" presidential and vice-presidential elections report totals donated and spent as well as names of donors contributing $100 or more).

Senator William Brock he served as United States Representative from Tennessee from 1963 until 1971. From 1971 until 1977, he served as a United States Senator from the State of Tennessee. From 1977 until 1981, he served as Chairman of the Republican National Committee. Brock Decl. 112 [DEV 6-Tabl3].

If a contribution limitation survives a claim that it infringes associational rights, then it also survives a speech challenge. See Shrink Missouri, 528 U.S. at 388, 120 S.Ct. 897. Note also that the challenge based on the donor's associational right is "correlative" to an overbreadth challenge. See id. at 388 n. 3, 120 S.Ct. 897.

Essentially, the FEC's opinions and rulemakings permitted state and national party committees to pay for the nonfederal portion of their administrative costs and voter registration and turnout programs with monies raised under relevant state laws (not FECA), even if those state laws were in direct contravention of FECA, such as permitting contributions from corporate and labor union general treasury funds. As a result, national and state parties began to raise so-called "soft money," which described these nonfederal funds, not subject to FECA limits and restrictions, that were used to pay for these administrative and generic voter drive expenses.

With these developments, nonfederal funds became an increasingly important means of party financing. During the 1980 election, the RNC spent approximately $15 million in nonfederal funds and the DNC spent roughly $4 million, constituting 9% of the national parties total spending. Mann Expert Rep. at 12. In 1984, the national parties spent collectively an estimated $21.6 million in nonfederal money, which accounted for 5% of their total spending. Id. By 1988, national party nonfederal money had increased to an approximate $45 million, or 11% of national party spending. Id.

As Defense Expert Mann plainly concedes, "Just what amount of soft money activity the parties pursued in the 1980s is less certain [because] `[nonfederal' funds were not subject to federal disclosure requirements, only to the disclosure laws in states where soft money was spent." Mann Expert Report at 12. It was not until 1992 that the FEC began collecting official data on national parties use of nonfederal funds, so any attempts at pinpointing the amount of nonfederal funds spent by the national parties before 1992 are estimates. Notably, Plaintiffs do not challenge any of the pre-1992 estimates (or any of the post-1992 data collected by the Commission). Therefore, the Court relies on these statistics.

FECA defines "person" broadly to include "an individual, partnership, committee, association, corporation, labor organization, or any other organization or group of persons." 2 U.S.C. § 431(11).

Senator David Boren served as a United States Senator from Oklahoma from 1979-1994. Boren Decl. ¶ 2 [DEV 6-Tab 8]

That is, Section 323(a) limits an individual, wishing to express his political agenda, to donations of hard money up to $25,000, the limitation on contributions to parties under FECA. 2 U.S.C. § 441a(a)(1)(B); see also BCRA § 307(a)(2) (raising how much individuals can contribute to national parties from $20,000 to $25,000).

In 1990, the FEC promulgated regulations to provide for some consistency in the methods used to determine the relative portions of federal and nonfederal money to be used in financing these generic party activities. Prior to 1990, the regulations specified that the allocation rate between nonfederal and federal accounts was to be done on a "reasonable basis." 11 C.F.R. § 106.1(e) (1977). The regulations promulgated by the Commission were designed to give certainty to this subjective standard and were in response to a district court's decision which held that the allocation rules required specific guidance from the Commission. Common Cause v. FEC, 692 F.Supp. 1391, 1396 (D.D.C.1987) ("Indeed, it is possible that the Commission may conclude that no method of allocation will effectuate the Congressional goal that all monies spent by state political committees on those activities permitted in the 1979 amendments be `hard money' under the FECA. That is an issue for the Commission to resolve on remand."). Under the new regulations, national party committees (other than Senate and House national party committees) were required to allocate at least 65% of their administrative and generic voter drive expenses to their federal accounts in presidential election years and 60% in non-presidential election years. 11 C.F.R. §§ 106.5(b)(2)®, (ii)(1991). Senate and House committees were to allocate these expenses on the basis of the ratio of federal expenditures to total federal and nonfederal disbursements made by the committee during the two-year federal election cycle. 11 C.F.R. § 106.5(c)®. For state and local parties, the allocation between the federal and nonfederal accounts for these expenses were determined by the proportion of federal offices to all offices on a state's general election ballot. 11 C.F.R. § 106.5(d) (1991). Generally, the state parties' allocation rate was substantially lower than the national party allocation rate. Mann Expert Rep. at 14. The new rules also mandated that the national party committees disclose the details of their nonfederal accounts. 11 C.F.R. §§ 104.8(e), (f) (1991) (requiring national parties to report for nonfederal and building fund accounts the donating individual's name, mailing address, occupation or type of business, and the date of receipt and amount of any such donation). State parties, however, were exempted from these disclosure requirements. 11 C.F.R. § 104.9(a) (1991) (reporting committees required to disclose information pertaining to "the committee's federal account(s) only"). The Commission's regulations, therefore, provided the national parties with an incentive to channel these expenditures through state party committees, since this approach generally permitted more nonfederal dollars to be spent than if a national party spent the money without disclosing the sources of the funds.

The Court observes that Common Cause v. FEC demonstrates that as early as 1984, before any official statistics on nonfederal funds were kept by the Commission, there was concern over the influence of these monies on federal elections. However, the Commission in 1984 determined that, "Common Cause has not presented evidence of instances in which `soft money' has been used to influence federal elections sufficient to justify the stringent rules proposed in its petition." Common Cause, 692 F.Supp. at 1393 (citing the Commission's April 17, 1986, Notice of Disposition).

An "election" is, statutorily speaking, a "general, special, primary, or runoff election," a "convention or caucus of a political party which has authority to nominate a candidate," a "primary election held for the selection of delegates to a national nominating convention of a political party" or a "primary election held for the expression of a preference for the nomination of individuals for election to the office of President." 2 U.S.C. § 431(1).

Peter Buttenwieser is a large contributor to the Democratic Party. He estimates that from the 1996 election cycle through the 2002 cycle, he has donated over $2.8 million in non-federal funds to national committees of the Democratic Party, including over $1.2 million in the 2000 election cycle. Also from the 1996 election cycle through the current cycle, he estimates that he and his wife have contributed approximately $100,000 per cycle in federal funds to federal candidate committees and other federal political committees not affiliated with political parties. During this same period, he has also hosted many hard money fundraising events for federal candidates in Philadelphia. Buttenwieser Decl. ¶ 6 [DEV 6-Tab 11].

This standard of review applies to all donation restrictions under Title I of BCRA.

The Commission permitted, inter alia, the following expenses to be allocated: administrative expenses, which included rent, utilities, office supplies, and salaries, 11 C.F.R. § 106.5(a)(2)(i) (1991); the direct costs of a fundraising program or event, where federal and nonfederal funds are collected by one committee, 11 C.F.R. § 106.5(a)(2)(h) (1991); and "generic voter drives," which included voter identification, voter registration, and get-out-the-vote ("GOTV") drives where a specific candidate was not mentioned. 11 C.F.R. § 106.5(a)(2)(iv) (1991).

In order to qualify for the higher contribution ceiling as a "political committee," an entity (that would otherwise be a "person" subject to the lower limit) must register with the FEC and meet certain statutory requirements. See 2 U.S.C. § 433; see also infra note 17 (defining "political committee").

See Buckley v. Valeo, 424 U.S. 1, 44 n. 52, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).

Since the practical effect is that any restriction on solicitation is subsumed within the restriction on receipt of donations, which I maintain should be reviewed under closelydrawn scrutiny, there is no reason to apply a different standard of review for the solicitation restriction. In the end, if the political parties are restricted from receiving nonfederal donations for federal purposes, then they are restricted from soliciting funds for those purposes as well.EMB>

In 1992, spending of nonfederal money by the national parties reached $80 million, or 16% of the national parties total spending. Mann Expert Rep. at 15 (citing to official figures from the FEC). Of that total amount, the national parties contributed only $2 million directly to state and local candidates. Mann Expert Rep. at 16. In addition, the two national parties transferred over $15 million to state party committees-two thirds of which was transferred to presidential election battleground states. Id. Along these lines, the national parties expended $14 million in nonfederal funds for "generic" party advertising, consisting predominantly of television advertisements that did not mention candidates names, but urged viewers to simply vote for a particular party or stressed themes from the presidential campaigns. Id. Although the Commission had only approved the use of nonfederal funds by the national parties "for the exclusive and limited purpose of influencing the nomination or election of candidates for nonfederal office," by 1992, with the new allocation rules firmly in place, national parties were using nonfederal money to impact federal elections as permitted by the Commission. FEC Advisory Op.1979-17.

With the 1996 election cycle, the national parties' total nonfederal funds spending reached $272 million, which was 30% of the national party committees' total spending. Mann Expert Rep. at 21. Starting in the Fall of 1995 and continuing through 1996, Democratic party committees used soft money to fund advertisements that either promoted President William J. Clinton by name or criticized his opponent by name, while avoiding words that expressly advocated either candidate's election or defeat. Id. at 18. In May of 1996, the Republican National Committee announced its plans to spend $20 million on an "issue advocacy" campaign. Id. at 20.

The argument that such advertisements could be paid for with nonfederal funds had its origins in Buckley. The Supreme Court in Buckley, in an attempt to save from unconstitutional vagueness the independent expenditure prohibitions, narrowed them to apply "only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Buckley, 424 U.S. at 44, 96 S.Ct. 612. In a footnote, the Buckley Court found that "[t]his [narrowing] construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as `vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject.'" Id. at 44 n. 52, 96 S.Ct. 612. Even though the Supreme Court narrowed the provision of the law, it struck down the expenditure provision as unconstitutional as writtenand as narrowed by the Court. Id. at 44, 96 S.Ct. 612.
It was based on this language that the national parties in 1995 and 1996 argued that as long as they ran advertisements that did not mention "express words of advocacy of election or defeat," they could use nonfederal money to run advertisements that supported their presidential candidate or attacked his opponent.

Under FECA, the term "candidate" means an individual who seeks nomination for election, or election, to Federal office, and for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election- (A) if such individual has received contributions aggregating in excess of $5,000 or has made expenditures aggregating in excess of $5,000; or (B) if such individual has given his or her consent to another person to receive contributions or make expenditures on behalf of such individual and if such person has received such contributions aggregating in excess of $5,000 or has made such expenditures aggregating in excess of $5,000. 2 U.S.C. § 431(2).

Senator Warren Rudman was elected to the United States Senate from New Hampshire in 1980 where he served two terms. Rudman Decl. ¶¶ 1, 3 [DEV 8-Tab 34].

See McConnell Opp'n Br. at 17; see also J. Henderson Op. at Part IV.D.l.a.

Although many of the advertisements featured the presidential candidates, none of the costs of these advertisements were charged as coordinated expenditures on behalf of the candidate's campaign, which would have subjected the expenditure to FECA's contribution limits. Instead, the parties paid the full cost, with a mix of federal and nonfederal funds as permitted by FEC allocation rules. Often the advertisements were paid for by state party committees, where the allocation rules permitted greater spending of soft money. Mann Expert Report at 22 (noting over $115 million was transferred from the national parties to the state party committees). In fact, state party nonfederal funds for political communication/advertising went from $2 million in 1992 to $65 million in 1996. Id. at 22; see also La Raja Expert Report at 18. A similar strategy was also used by the parties to support their candidates for congressional office. Mann Expert Report at 20. Following the 1996 election, the FEC began a series of investigations over the parties' 1996 election practices. Statement of Reasons of Commissioner Scott E. Thomas for MURs 4553 and 4671, 4713, 4407 and 4544 at 2-5 [DEV 51]. In 2000, the FEC deadlocked over whether there was reason to believe that the national parties advertising program constituted an excessive in-kind contribution to the presidential campaigns. Id. at 5.

The FEC had previously ruled that party committees could sponsor issue advocacy advertisements that did not feature a federal candidate and pay for these advertisements with a combination of federal and nonfederal dollars as permitted under the allocation regulations. FEC Advisory Op. 1995-25 (discussing that allocation rules were permissible to allocate funding for "RNC plans to produce and air media advertisements on a series of legislative proposals being considered by the U.S. Congress, such as the balanced budget debate and welfare reform"). The national parties used this advisory opinion as justification for their issue advocacy campaigns featuring candidates for federal office and paid for with nonfederal money.

Under the 1974 Amendments, a candidate for the office of Representative from a State entitled to only one Representative was permitted to spend up to $35,000 in personal funds.

Since early 2001, Linda Chapin has been the Director of the Metropolitan Center for Regional Studies at the University of Central Florida. Chapin Decl. ¶ 2 [DEV 6-Tab 12] received about 49% of the votes cast. Id. ¶ 4. From 1998 to 2000, Chapin directed the Orange County (Florida) Clerk's Office. Id. ¶ 2. Prior to that, Chapin was elected to two successive four-year terms, in 1990 and 1994, as County Chairman of Orange County. Id. The County Chairman is a strong executive position roughly equivalent to a mayoral office. Id. In recognition of Chapin's work as County Chairman, she received a Public Service Excellence Award from then-President Bill Clinton in 1997, and an Alumni Achievement Award from the Kennedy School of Government at Harvard University in 1999. Id. Prior to her tenure as County Chairman, she was elected to a four-year term on the Orange County Commission in 1986.

Justice Marshall observed:
[T]his Court has always drawn a distinction between restrictions on contributions, and direct limitations on the amount an individual can expend for his own speech.... Because the Court's opinion is silent on the standard of review it is applying to this contributions limitations, I must assume that the Court is following our consistent position that this type of government action is subjected to less rigorous scrutiny than a direct restriction on expenditures. Citizens Against Rent Control, 454 U.S. at 301 102 S.Ct. 434 (Marshall, J., concurring).

The Senate and House also conducted extensive investigations into the 1996 federal elections. Both the majority and minority reports in the Senate investigation concluded that permitting nonfederal donations to political parties eviscerated FECA's longstanding ability to prevent corporate and labor union treasury funds from influencing federal elections. Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns, S.Rep. No. 105-167 (6 vols.), Mar. 10, 1998, ("Thompson Committee Report"); id. at 4468 (majority report) ("[S]oft money spending by political party committees eviscerates the ability of the FECA to limit the funds contributed by individuals, corporations, or unions for the defeat or benefit of specific candidates."); id. at 4572 (minority report) ("The soft money loophole undermines the campaign finance laws by enabling wealthy private interests to channel enormous amounts of money into political campaigns."). In the House, the Committee on Government Reform and Oversight conducted a wide ranging investigation, which culminated in public hearings during 1997, into, inter alia, campaign fundraising by political parties from foreign sources. See Campaign Finance Investigation: Hearings Before the House Committee on Government Reform and Oversight, 105th Cong. 6 (October 8, 1997) (statement of Chairman Dan Burton) ("This Committee's hearings will cover many subjects .... Our initial focus has been how political parties took or raised contributions from foreign sources. I am gravely concerned about foreign governments, foreign companies or foreign nationals trying to influence our electoral processes."); Conduit Payments to the Democratic National Committee: Hearings Before the House Committee on Government Reform and Oversight, 105th Cong. 6 (October 9, 1997) (statement of Chairman Dan Burton) ("Today, marks the first day of hearings into illegal foreign fundraising and other violations of law during recent campaigns.").

Nevertheless, without any congressional action, nonfederal funds emerged as a significant source of party resources. With these strategies firmly in place, the national parties spent $221 million of nonfederal money on the 1998 midterm elections, or 34% of their total spending, which was more than double the amount of nonfederal funds spent during the previous midterm election. Mann Expert Report at 23. With the 2000 elections, the national parties spent $498 million worth of nonfederal funds, which was 42% of their total spending. Id. at 24.

The use of nonfederal funds by the political parties was paralleled to some degree by a similar development in the rise of issue advocacy by corporations and labor unions. Aside from the political parties making advertisements that supported their candidates or attacked the opponent without using words of direct "express advocacy," unions and corporations began to mount "issue advocacy" campaigns, particularly beginning with the 1996 election, that were paid directly from their general treasuries. For example, in 1996 the AFL-CIO ran the following advertisement from September 26 to October 9 in the district of House Republican incumbent Steve Stockman:

[Narrator] What's important to America's families? [Middle-aged man] "My pension is very important because it will provide a significant amount of my income when I retire." [Narrator] And where do the candidates stand? Congressman Steve Stockman voted to make it easier for corporations to raid employee pension funds. Nick Lampson opposes that plan. He supports new safeguards to protect employee pension funds. When it comes to your pension, there is a difference. Call and find out.

AFL-CIO 000593; [DEV 124] (emphasis added); see also AFL-CIO 000602.

Advertisements such as the above illustration were permitted by the Supreme Court's ruling in FEC v. Massachusetts Citizens for Life, Inc . In that case, the Supreme Court found that the prohibition on corporate and union treasury spending on expenditures found in 2 U.S.C. § 441(b) needed to be narrowly construed to only apply to express advocacy. FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 249, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) ("MCFL") ("We therefore hold that an expenditure must constitute `express advocacy' in order to be subject to the prohibition of § 441b."). As a result, corporations and labor unions were free to use general treasury funds to finance issue advocacy campaigns. It does not appear that prior to 1996, the practice of using issue advertising to influence federal elections was a widespread practice.

In addition, the issue advocacy campaigns by corporations and labor unions were free from the disclosure provisions upheld in Buckley because they were considered outside of FECA's regulatory purview. This lack of disclosure permitted various interest groups to conceal the true identity of the source behind the advertisement. Thus, following both the 1996 and 2000 elections, corporations and unions used their general treasury funds to run advertisements apparently aimed at influencing federal elections and avoiding FECA's longstanding disclosure provisions.

With regard to both political party spending of nonfederal funds and political party, corporate, and labor union issue advocacy, there does not appear to be any dispute among the litigants to the fact that much of this behavior was not regulated or was permitted by the FEC. Rather, the dispute between the parties centers around the effect of engaging in these tactics, whether the measures needed addressing, and how Congress ultimately remedied what it perceived to be a problem. It is the congressional response to which the Court now turns.

B. The Bipartisan Campaign Reform Act of 2002

In response to what it perceived were burgeoning problems with federal campaign finance laws, Congress began to consider reform legislation over six years ago, during the 105th Congress. The overhaul of our Nation's existing campaign finance laws-culminating with the enactment of BCRA-would consume the attention of three separate Congresses and require navigation through atypical parliamentary procedures.

See Bipartisan Campaign Finance Reform Act of 1998, H.R. 2183, 105th Cong. (1998), available at http://thomas.loc.gov.

The senatorial ceilings applied to those candidates seeking nomination or election to the office of Representative from a State entitled to only one Representative.

Terry S. Beckett is a Democratic political consultant who has spent about 25 years working on political campaigns. Beckett Decl. It 2 [DEV 6-Tab 3]. Beckett worked on the 1976 and 1980 Presidential campaigns of Jimmy Carter, the 1978 Bill Nelson Congressional campaign, and she ran Dick Batchelor's 1982 Congressional campaign. Id. Beckett also endeavored to establish a House Democratic Caucus within the Alabama legislature in the mid 1980's. Id. Beckett ran Gary Hart's 1988 Presidential campaign in Florida and Louisiana, and Dick Gephardt's 1988 Presidential campaign in Florida. Id. In 1986, Beckett did the polling on Linda Chapin's campaign for Orange County (Florida) Commissioner, and ran Chapin's 1990 and 1994 campaigns for Orange County Chairman. Id. Beckett also served as general consultant on Ms. Chapin's 2000 campaign to represent Florida's Eighth Congressional district, overseeing the work of the campaign manager and the media and polling consultants. Id. Beckett has also been involved in government having worked on the Executive Staff for Bob Graham from 1981-82 when he was the Governor of Florida and also serving as Ms. Chapin's Chief of Staff from 1991 to 1994 when she was County Chairman. Id. In addition, Beckett worked for a polling firm during the 1980s. Id.

Although "exacting judicial scrutiny" is oft-cited, its parameters are loosely defined in other cases as well. The Supreme Court, for example, employed the phrase "exacting scrutiny" when reviewing FECA's disclosure requirements in Buckley, 424 U.S. at 64, 96 S.Ct. 612, explaining that the government interest must be "sufficiently important," id. at 66, 96 S.Ct. 612, and "substantial," id. at 80, 96 S.Ct. 612. To give another example: in First National Bank of Boston v. Bellotti , the Supreme Court applied "exacting scrutiny" to contribution and expenditures limitations on corporations; it stated that the government must show a "compelling" interest, 435 U.S. 765, 786, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (quoting Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960)), and that the interest must be "closely drawn to avoid unnecessary abridgment," Bellotti, 435 U.S. at 786, 98 S.Ct. 1407 (quoting Buckley, 424 U.S. at 25, 96 S.Ct. 612). In any event, since it is uncontroverted that preventing actual and apparent corruption is a "compelling" government interest, see, e.g., NCPAC, 470 U.S. at 496-97, 105 S.Ct. 1459, the only remaining dispute is whether any donation restriction need be "narrowly tailored" or "closely drawn" to serve the compelling government interest in combating corruption. And Buckley, coupled with the various opinions in Citizens Against Rent Control, seemingly foreclose that question in favor of Buckley's closely-drawn scrutiny.

See id.; Bipartisan Campaign Reform Act of 1999, H.R. 417, 106th (1999); Bipartisan Campaign Finance Reform Act of 2002, H.R. 2356, 116 Stat. 81 (2002).

Under FECA, a "political committee" is (A) any committee, club, association, or other group of persons which receives contributions aggregating in excess of $1,000 during a calendar year or which makes expenditures aggregating in excess of $1,000 during a calendar year; or (B) any separate segregated fund established under the provisions of section 441b(b) of this title; or (C) any local committee of a political party which receives contributions aggregating in excess of $5,000 during a calendar year, or makes payments exempted from the definition of contribution or expenditure... aggregating in excess of $5,000 during a calendar year, or makes contributions aggregating in excess of $1,000 during a calendar year or makes expenditures aggregating in excess of $1,000 during a calendar year.
2 U.S.C. § 431(4)
; see also Jennings, 366 F.Supp. at 1054 (explaining how "[c]ategorization as a political committee sets into motion certain detailed disclosure and reporting requirements").

Rocky Pennington is a Republican political consultant. Pennington Decl. ¶ 2 [DEV 8-Tab 31]. He is the owner and President of three Florida companies engaged in political activities: Southern Campaign Resources, Direct Mail Systems, Inc., and Summit Communications. Id. Southern Campaign Resources, which Pennington founded in 1982, does general consulting primarily for Florida state campaigns, but has also done Congressional races in Florida, including Congressman Cliff Steams' first race in 1988 in Ocala, Bill Sublette's 2000 campaign in the Eighth Congressional district, and Congressman Jeff Miller's 2001 special election in the Panhandle. Id. Direct Mail Systems, founded in 1981, is a direct mail company with roughly 100 employees that has done fundraising and has sent voter contact mail for candidates, parties and interest groups in Florida and elsewhere. Id. Direct Mail Systems has also sent voter contact mail for some of Florida's Republican Congressional delegation, as well as for state Republican parties in many other states. Finally, Summit Communications, which Pennington founded in 2000, creates political advertising for television and radio and buys airtime for various campaigns, such as Congressman Miller's 2001 general election campaign. Id.

If they had been intended by the donor to influence federal elections, they should have been treated, at the time they were received, as federal money. As stated earlier, the Supreme Court has, in effect, upheld limitations on contributions to political parties, see supra note 9, and a "contribution," as defined by FECA, is a donation "for the purpose of influencing any election for Federal office." 2 U.S.C. § 431(8)(A)(i).

During the 105th Congress, the House of Representatives considered House Bill 2183, the Bipartisan Campaign Integrity Act of 1997, offered by Representative Asa Hutchinson. The bill was first considered on May 22, 1998. 144 Cong. Rec. H3774 (daily ed. May 22, 1998). On August 3, 1998, during consideration of Representative Hutchinson's bill on the House floor, the Committee of the Whole adopted an amendment in the nature of a substitute offered by Representatives Christopher Shays and Martin Meehan. 144 Cong. Rec. H6947 (daily ed. Aug. 3, 1998). Finally, on August 6, 1998, the House passed House Bill 2183, as amended (the Bipartisan Campaign Reform Act of 1998), by a vote of 252-179. 144 Cong. Rec. H7330 (daily ed. Aug. 6, 1998). The bill was referred to the Senate on September 9, 1998, 144 Cong. Rec. S10,114 (daily ed. Sept. 9, 1998), but was not considered prior to adjournment, sine die, on October 21, 1998. As a result, the Bipartisan Campaign Reform Act of 1998 died in the Senate during the 105th Congress.

According to Congressional Quarterly reporter David Mark, the House Leadership only allowed floor consideration of House Bill 2183 after it appeared that supporters of the bill had nearly secured the requisite 218 signatures on a discharge petition to automatically bring the bill to the floor, which did not require the consent of the leadership. See David Mark, Campaign Finance Discharge Petition Off to Fast Start, Congressional Quarterly Daily Monitor (July 31, 2001).

The figure has been raised and is currently $50. See 2 U.S.C. § 432(c)(2).

Gail Stoltz has been employed as the Political Director of the DNC since May 2001. From 1998 through 2001, she worked for the Service Employees International Union as Government Affairs Director. Prior to this she worked as Political Director for the Democratic Senatorial Campaign Committee ("DSCC") and in various capacities for the Democratic National Committee ("DNC"). Stoltz Decl. ¶ 1.

This so-called "loophole" was created through Federal Election Commission ("FEC") advisory opinions. See McCain Dep. at 63 (stating that BCRA will "close certain loopholes that have been opened by the FEC, not through acts of Congress"); FEC Advisory Op. 1995-25; FEC Advisory Op. 1979-17; FEC Advisory Op. 1978-10.

When considering most major legislation, the House of Representatives typically adopts a rule, in the form of a House Resolution, that governs, and generally limits, debate on the underlining bill. In order to expedite consideration of the underlining bill, the rule suspends the proceedings of the House of Representatives, and the body operates as one large committee, the Committee of the Whole House on the State of the Union ("Committee of the Whole"). Walter J. Oleszek, Congressional Procedures and the Policy Process 151-53 (5th ed., CQ Press 2001). This parliamentary mechanism enables the House to act with a quorum less than the requisite 218 members; only 100 members are needed to constitute a quorum in the Committee of Whole. Id. at 152. (There are numerous other technical distinctions between the Committee of the Whole and the House of Representatives that enable expeditious consideration of legislation). Id. at 152-53. After the Committee of the Whole considers the underlining legislation, generally, the rule governing debate automatically dissolves the Committee of the Whole, and the House of Representatives reconvenes to vote on the underlining bill for final passage.

The figure has been raised and is currently $200. See 2 U.S.C. § 432(c)(3); see also id. § 431(13).

Senator Dale Bumpers served two terms as Governor of Arkansas, from 1971 to 1975. Bumpers Decl. ¶ 2 [DEV 6-Tab 10]. After his time as Governor, Bumpers served as a Member of the United States Senate, representing the State of Arkansas, from 1975 to 1999. Id. After he retired from the Senate, Senator Bumpers spent one year directing the Center for Defense Information, a nonprofit thinktank based in Washington, D.C. Id. He currently practices law in Washington D.C. at the law firm Arent Fox Kintner Plotkin & Kahn, PLLC. Id. ¶ 3.

See, e.g., McCain Dep. at 192-93 (explaining that grassroots activities are "the fundamentals of a democratic process" and that "it's the broadcast television and radio ads that we believe are what is the problem"); Meehan Dep. at 218-19 (explaining that voter mobilization efforts are "good for the system" and distinguishing those efforts from candidate advocacy).

Beyond making numerous substantive changes to the underling bill, the Shays-Meehan substitute amendment changed the title of the bill from the "Bipartisan Campaign Integrity Act of 1997," 144 Cong. Rec. H3774 (daily ed. May 22, 1998), to the "Bipartisan Campaign Reform Act of 1998," 144 Cong. Rec. H4790-96 (daily ed. June 18, 1998).

The figure has been raised and is currently $200. See 2 U.S.C. § 434(b)(3).

One advertisement run during the final 60 days of the election campaign, paid for by the DCCC through the Florida Democratic Party, attacked Chapin's challenger, stating the following:
Announcer: "I'm pro-gun." That's how he described himself to the Orlando Sentinel. Pro-gun. He wants to get rid of the Brady Bill, the common-sense law that says we should just wait 5 days before purchasing a handgun. Pro-gun. He even opposes mandatory trigger locks to keep children safe from harm. "I'm pro-gun." He's Ric Keller, and you should tell him to support sensible gun safety for a change. Chapin Decl. ¶ 9 & Ex. 1-2 [DEV 6-Tab 12]; Beckett Decl. ¶ 9 [DEV 6-Tab 3].

Even the plaintiffs acknowledged that "[i]f BCRA limited only party activities directly related to federal candidates, Defendants might have the better argument." California Democratic Party ("CDP")/California Republican Party ("CRP") Reply Br. at 9.

On January 19, 1999, during the 106th Congress, Representative Shays introduced House Bill 417, the Bipartisan Campaign Reform Act of 1999, which attracted the support of 96 original cosponsors. See H.R. 417, 106th Cong. (1999). Upon introduction, the bill was referred to the Committee on House Administration, where it received an unfavorable report. H.R. Rept. 106-297, pt. 1, at 17 (1999). Nonetheless, the proponents of campaign finance reform secured floor consideration through the threat of a discharge petition. See David Mark, Campaign Finance Discharge Petition Off to Fast Start, Congressional Quarterly Daily Monitor (July 31, 2001). When the Bipartisan Campaign Reform Act of 1999 reached the floor for a vote, it passed comfortably, by a vote of 252-177. 145 Cong. Rec. H8286 (daily ed. Sept. 14, 1999). On September 16, 1999, the Senate received House Bill 417, and on September 29, the Senate referred it to the Senate Committee on Rules and Administration, 145 Cong. Rec. SI 1,638 (daily ed. Sept. 29, 1999), where it would remain for the balance of the 106th Congress. The Senate responded to the House's action by considering Senate Bill 1593, also titled the Bipartisan Campaign Reform Act of 1999, which was introduced on September 16, 1999, by Senators McCain and Feingold, shortly after House Bill 417 secured passage. S. 1593; see also 145 Cong. Rec. H8286 (daily ed. Sept. 14, 1999). The Senate, however, failed to invoke cloture, thereby failing to limit debate on two separate amendments to Senate Bill 1593, and the bill floundered. 145 Cong. Rec. S12,800 (daily ed. Oct. 19, 1999); id. at S12,803. As a result, for the second time in as many years, the campaign finance reform bill died in the Senate.

While debate on the Senate floor does not always lead to an all-out filibuster, on controversial legislation, the Senate typically invokes cloture to end the threat of unlimited debate or simply to gauge support for the underlining bill. See Walter J. Oleszek, Congressional Procedures and the Policy Process 231-34 (5th ed., CQ Press 2001). Under Rule XXII of the Standing Rules of the Senate, if "three-fifths of the Senators duly chosen and sworn" (60 Senators if the Senate is at its full membership) vote in the affirmative on a motion for cloture, further debate on the question shall be limited to no more than one hour for each Senator, and the time for consideration of the matter shall be limited to 30 additional hours, unless increased by another three-fifths vote. See Standing Rules of the Senate, Rule XXII, available at http://rules.senate.gov/senaterules/rule22.htm.

The figure has been raised and is currently $250. See 2 U.S.C. § 434(c)(1).

One advertisement paid for by the NRCC ran within 60 days of the election and stated the following: Announcer: It was Tyson vs. McNeeley, the fight shown on Pay-Per-View, bought and paid for by the county jail system. Linda Chapin's county commission ran the jail system that paid for Cable TV for convicts at [its] work-release center. Under Chapin, Convicts also got new TVs and VCRs. The Sentinel wrote cells are carpeted. The day room has padded furniture, such is life for hundreds of Orange County Jail prisoners. Ask Chapin why convicts got Cable TV. Chapin Decl. ¶ 11 & Ex. 3-2 [DEV 6-Tab 12]; Beckett Decl. ¶ 11; Pennington Decl. ¶ 14.

See supra note 9.

Circumstances changed during the 107th Congress; this time it was the Senate that acted first and passed campaign finance reform legislation, Senate Bill 27, by a vote of 59-41. 147 Cong. Rec. S3258 (daily ed. Apr. 2, 2001). The bill was then transferred to the House of Representatives.

Bipartisan Campaign Reform Act of 2001, S. 27, 107th Cong. (2001).

The legal framework laid out by Buckley and its progeny is discussed in greater detail infra in Part IV.

Elaine Bloom is currently engaged in consulting, public speaking, and community activities. Bloom Decl. ¶ 2 [DEV 6-Tab 7]. In 2001, Bloom was a candidate for Mayor of Miami Beach, Florida. Id. In 2000, Bloom was the Democratic candidate in the general election to represent Florida's 22nd Congressional district, running against the incumbent Republican Clay Shaw, who had served in Congress for nearly 20 years. Id. (Shaw won the race by approximately 500 votes out of over 200,000 cast). Prior to the 2000 race, Bloom served as a member of the Florida House of Representatives for over 18 years, from 1974 to 1978 (representing Northeast Dade County) and from 1986-2000 (representing Miami Beach and Miami). Id. Bloom was Speaker Pro-Tempore of the Florida House from 1992 to 1994, and also served as chair of several legislative committees, including the Health Care Committee, the Joint Legislative Management Committee, the Joint Legislative Auditing Committee, and the Tourism and Cultural Affairs Committee. Id.

There is no disagreement that political parties use donations for federal purposes. See Findings 30-52; see also Colorado II, 533 U.S. at 449, 121 S.Ct. 2351 ("Parties are ... necessarily the instruments of some contributors whose object is ... to support a specific candidate for the sake of a position on one, narrow issue, or even to support any candidate who will be obliged to the contributors."). Political parties, inter alia, provide direct contributions to candidates, see 2 U.S.C. § 441a(a)(2)(A) (setting contribution limit by political committees to candidates at $5,000); Buckley, 424 U.S. at 35-36, 96 S.Ct. 612, make expenditures in coordination with a federal candidate, see § 441a(d) (setting party expenditure limits); Colorado II, 533 U.S. at 464, 121 S.Ct. 2351 (upholding § 441a(d) only as applied to coordinated expenditures), and spend money on uncoordinated candidate advocacy, both express and nonexpress.

Representatives Shays and Meehan had already introduced House Bill 380, the Bipartisan Campaign Reform Act of 2001, when the Senate secured passage of Senate Bill 27. See H.R. 380, 106th Cong. (1999). On June 28, 2001, in an effort to make their legislation conform with the Senate-passed bill, Representatives Shays and Meehan introduced new legislation, House Bill 2356, also titled the Bipartisan Campaign Reform Act of 2001. The House Leadership, which, through the Speaker of the House, controls access to the House floor, agreed to consider House Bill 2356. However, in a last minute effort to tweak the legislation, Representatives Shays and Meehan proposed several amendments. John Cochran, Not Victory but Vitriol for Campaign Finance Bill, Congressional Quarterly Weekly (July 13, 2001). The package of amendments offered by Shays and Meehan reflected the need for additional changes to ensure that House Bill 2356, if passed by the House, would be considered without amendment by the Senate, thereby eliminating the need for a conference committee. See id. In addition, Shays and Meehan requested that the Rules Committee write a rule for consideration and debate on the House floor that would treat this package as a single amendment, which could be considered in one vote. Id. The Rules Committee refused, drafting a resolution for consideration and debate that would treat each change, fourteen in total, as separate amendments. Id.; see also H.R. Res. 188, 107th Cong. (2001). Shays, Meehan, and their supporters opposed the rule, claiming that the House Leadership used "technicalities" to defeat the bill, and called upon their colleagues to reject the rule. 147 Cong. Rec. H3984 (daily ed. July 12, 2001) (statement of Rep. Meehan). The House voted and the rule failed. In the aftermath, however, the bill's proponents and the House Leadership were unable to come to an agreement over a compromise rule for the consideration and debate of House Bill 2356, John Cochran, Not Victory but Vitriol for Campaign Finance Bill, Congressional Quarterly Weekly (July 13, 2001), and the bill was pulled from the House Floor.

Faced with the fact that Senate Bill 27 was unlikely to garner the support of a majority of the House, and given the fact that House Bill 380 differed from Senate Bill 27, Representatives Shays and Meehan met with members of the Senate to work out a compromise bill. The agreement they reached was reflected in House Bill 2356. See David Mark & John Cochran, House Panel to Mark Up Dueling Campaign Finance Bills, Congressional Quarterly Daily Monitor (June 27, 2001) ("The revisions are designed to encourage the Democratic-controlled Senate to accept a Housepassed bill, thus avoiding the need for a conference committee. `We're trying to pre-conference with supporters of the bill, rather than going to conference with opponents,' Shays said.").

Cf. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 400, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (Shrink Missouri) (Breyer, J., concurring) (even "a decision to contribute money to a campaign is a matter of First Amendment concern-not because money is speech (it is not); but because it enables speech." (emphasis altered)); id. at 416 n. 4, 120 S.Ct. 897 (Thomas, J., dissenting) ("[T]he First Amendment protects the right to pay others to help get a message out."); but see id. at 398, 120 S.Ct. 897 (Stevens, J., concurring) ("Money is property; it is not speech.").

Jonathan Krasno and Frank Sorauf are experts for Defendants.

See infra Part I.B.2.

The Speaker of the House picks the 9 majority-party members that serve on the powerful House Committee on Rules-the gateway to the House floor. The Rules Committee writes the rules that govern debate and determines which amendments will be considered. The committee currently consists of 13 members, 9 majority-party members chosen by the Speaker of the House and 4 minority-party members chosen by the House Minority Leader. See Walter J. Olsezek, Congressional Procedures and the Policy Process 119 (5th ed., CQ Press 2001).

When faced with the task of enacting emergency amendments in response to Buckley, the Congress had little time to reevaluate the combination of provisions the decision left standing. As then Assistant Attorney General Antonin Scalia put it, the "whole purpose of our [amendments] is to submerge those issues that are controversial and to do the minimum amount necessary to enable the 1976 elections to proceed." Office of Legal Counsel Statement accompanying § 2911, Legislative History of FECA Amendments of 1976, at 142 (Feb. 18, 1976).

Terry Nelson is the RNC's Deputy Chief of Staff and Executive Director of Political Operations. Nelson Dep. at 8-9 [JDT Vol. 24]

See, e.g., RNC Opp'n Br. at 37 (conceding that Buckley and its progeny indicate that contributions to a party may be regulated and subjected to a federal contribution limit "only to the extent the entity uses the contributions for regulable activity," which includes "independent expenditures expressly advocating the election or defeat of federal candidates"); id. (stating that money political parties receive for express advocacy "may constitutionally be subjected to a federal contribution limit"); McConnell Opening Br. at 36, 37-38 (admitting that a contribution to be used for activities that exclusively serve to get a candidate elected, like express advocacy, can be corrupting).

Members of a conference committee are formally appointed by the Speaker of House and the presiding officer of the Senate. Walter J. Oleszek, Congressional Procedures and the Policy Process 252-54 (5th ed., CQ Press 2001). In the House, after initial appointment, the Speaker retains the authority to add and remove members. Id. at 254. Although the House rules provide that the Speaker shall "appoint no less than a majority [of conferees] who generally supported the House position [on the legislation] as determined by the Speaker," Rules of the House of Representatives, 108th Cong. (2003) available at http ://www.house.gov/rules/house rules.htm, in practice, the Speaker is vested with significant discretion to ensure that the House delegates are amicable to the leadership's position. See Walter J. Oleszek, Congressional Procedures and the Policy Process 252-54 (5th ed., CQ Press 2001).

BCRA raises the limit to $2,000 per election. See BCRA § 307(a)(1); see also infra Part II.G.

Thomas Josefiak is Chief Counsel of the RNC. Josefiak Decl. ¶ 1 [RNC Vol. I].

See FEC Advisory Op. 1995-25 (not allowing use of nonfederal funds to pay for any portion of party express advocacy). One of the reasons that parties should not be able to fund uncoordinated express advocacy with nonfederal funds is that if such a restriction did not exist, corporations and labor unions could simply evade the limitations on their use of their general-treasury funds for express advocacy by funneling those funds through the parties. See 2 U.S.C. § 441b; MCFL, 479 U.S. at 241-64, 107 S.Ct. 616 (upholding prohibition against using corporate treasuries to fund uncoordinated expenditures for express advocacy).

This marked the first occasion in which Speaker J. Dennis Hastert lost a vote on a rule during his first two years as Speaker of the House. Karen Foerstel, A Bitter Day for the GOP, Congressional Quarterly Weekly (July 13, 2001).

BCRA raises the limit to $25,000 during any calendar year. See BCRA § 307(a)(2).

Pat Huyck was the RNC's Director of Accounting as of 1999. Huyck Decl. in Mariani v. United States, 3: CV-1701 (M.D.Pa) 11113, 5 [DEV 79-Tab 60],

Not surprisingly, the defendants rely on California Medical for the proposition that Congress can regulate all donations to political organizations, see, e.g., RNC Opp'n Br. at 36; the plaintiffs equally rely on Citizens Against Rent Control for their contention that Congress cannot regulate any donations to such organizations, see, e.g., Gov't Opening Br. at 65-66. Again, both positions sweep too far and cannot be reconciled without parsing the Supreme Court's rationales in the two cases.

On July 30, 2001, Representative Jim Turner filed a discharge petition to bring House Bill 2356 to the floor for consideration. H.R. Discharge Pet. No. 3, available at http://clerkweb. house.gov/107Arc/pd/Petitions/Dis3. htm. As congressional procedure scholar Walter J. Oleszek noted:

[t]he discharge procedure, adopted in 1910, provides that if a bill has been before a standing committee for thirty legislative ... days, any member can introduce a motion to relieve the panel of the measure.... If the requisite number of members (218) sign the petition, this procedure permits a majority of the House to bring a bill to the floor even if it is opposed by the committee that has jurisdiction over the measure, the majority leadership, and the Rules Committee.

Walter J. Oleszek, Congressional Procedures and the Policy Process 138 (5th ed., CQ Press 2001). While the discharge petition permits a majority of the House to circumvent a stacked committee or the House Leadership, it has not been a highly effective tool for passing legislation, let alone securing its enactment into law. As Walter Oleszek went on to observe:

Few measures are discharged from committee. From 1931 through 1994 (approximately the period during which the modern version of the rule has been in effect), more than five hundred discharge petitions were filed, but only forty-six attracted the required signatures and only nineteen bills were discharged and passed by the House. Of those, only two became law: the Fair Labor Standards Act of 1938 and the Federal Pay Raise Act of 1960.

Id. at 139. Despite this history of failure, on January 24, 2002, Representative Turner's petition attracted 218 signatures, the requisite number to achieve discharge. See H.R. Discharge Pet. No. 3. Consequently, the bill was sent to the floor and scheduled for debate. See H.R. Res. 203, 107th Cong. (2001); H.R. Res. 344, 107th Cong. (2002); 148 Cong. Rec. H266 (daily ed. Feb. 12, 2002). On February 13, 2002, the House began to consider House Bill 2356. During consideration, the House rejected three substitute amendments-one offered by House Majority Leader Dick Armey and two offered by House Administration Committee Chairman Robert Ney -before agreeing to Representative Shays' substitute amendment by a vote of 240-191, 148 Cong. Rec. H411 (daily ed. Feb. 13, 2002). Like the earlier amendment package, the Shays Substitute was designed to avoid a conference committee, where opponents would have another opportunity to scuttle the bill, by making changes likely to garner the support of a majority of the Senate without forcing them to alter the text of the House-passed bill. See 148 Congr. Rec. H402 (daily ed. Feb. 13, 2002) (statement of Rep. Shays) (observing that the Shays substitute amendment was drafted after having "met with Senators from both sides of the aisle to learn what was needed in that bill in order to pass [BCRA]"). After considering a series of amendments to the newly amended, underlining bill (House Bill 2356), the House passed BCRA by a vote of 240-189. 148 Cong. Rec. H465-66 (daily ed. Feb. 13, 2002). On March 20, 2002, the Senate followed suit, passing BCRA by a vote of 60-40. 148 Cong. Rec. S2160-61 (daily ed. Mar. 20, 2002).

The Armey Substitute, Amendment 415, failed by a vote of 179-249. 148 Cong. Rec. H376-77 (daily ed. Feb. 13, 2002).

BCRA amends the Act to permit a person to contribute up to $10,000 per year to a state political party committee. See BCRA § 102;

John Oliver is Deputy Chairman of the RNC.

One Republican National Committee ("RNC") official explained his party this way: The RNC achieves [its core principles] through three primary means: (1) promoting an issue agenda advocating Republican positions on issues of local, state, regional, national, and international importance; (2) electing candidates who espouse these views to local, state and national offices; and (3) governing in accord with these views.... [T]he RNC often seeks to promote Republican positions on important issues, even in contexts outside elections. Josefiak Decl. ¶ 22.

The first Ney Substitute, Amendment 416, failed by a vote of 53-377. 148 Cong. Rec. H392 (daily ed. Feb. 13, 2002). The second Ney Substitute, Amendment 430, failed by a vote of 181-248. Id. at H464-65.

National political party committees could not (and still cannot) make any expenditure "in connection with" the general election campaign of any candidate for President "which exceeds an amount equal to 2 cents multiplied by the voting age population of the United States." 2 U.S.C. § 441a(d)(2). National and state political party committees could not (and still cannot) make any expenditure "in connection with" the election campaign of any candidate for the office of Senator-or of Representative from a State which is entitled to only one Representative- "which exceeds ... the greater of ... 2 cents multiplied by the voting age population of the State ... or ... $20,000." Id. § 441a(d)(3)(A). And, finally, the national and state political party committees could not (and still cannot) make any expenditure "in connection with" the election campaign of any candidate for the office of Representative, Delegate or Resident Commissioner "which exceeds..$10,000," Id. § 441a(d)(3)(B).

Robert W Biersack served as the Supervisory Statistician for the FEC from 1983 to February 2002. As the Supervisory Statistician, he was responsible for evaluating the quality, reliability, and validity of information contained in the FEC disclosure databases. Currently, he is Deputy Press Officer for the FEC, a position he has held since February 2002. Biersack Decl. ¶ 1 [DEV 6-Tab 6].

See J. Henderson Op. at Part IV.D.l.c (arguing that "Congress cannot constitutionally regulate non-federal donations to political parties if the funds are then spent independently of a candidate").

The process of going to conference creates three additional hurdles to the enactment of legislation. First, the conferees must come to an agreement, and in addition, the Conference Report must pass both the House and the Senate. Moreover, the House and Senate Leadership appoint members to the conference committee and enjoy considerable discretion over its composition. See Walter J. Oleszek Congressional Procedures and the Policy Process 252-54 (5th ed., CQ Press 2001); see also supra note 25.

For brief history of the ban on corporate and labor funds, see Buckley, 519 F.2d at 904 07 (nothing Tillman Act of 1970, War Labor Disputes Act of 1943 and Taft-Hartley Act of 1947 barred corporate and labor contributions). See also Gov't Br. at 12-15 (citing, inter alia, WILLAM A. WHITE, THE OLD ORDER CHANGETH 11-15 (1910)).

Kathleen Bowler is the Executive Director of the CDP. Bowler Decl. ¶ 1.

The Supreme Court also noted that the opportunity for corruption posed by nonfederal contributions to a party for certain activities, such as supporting state candidates or voter mobilizations efforts, is "at best, attenuated" because "[u]nregulated `soft money' contributions may not be used to influence a federal campaign." Colorado I, 518 U.S. at 616, 116 S.Ct. 2309. That observation implies that if soft money were being used "to influence a federal campaign," the opportunities for corruption would be less attenuated, perhaps even palpable. Also, note that the Supreme Court's observation that "[u]nregulated `soft money' contributions may not be used to influence a federal campaign," id., preceded the 1996 explosion of party candidate advocacy financed with nonfederal funds. See Mann Expert Report at 17-21. From 1996 until the enactment of BCRA, the parties used nonfederal funds for the exact purpose that the Supreme Court stated those funds cannot be used for: "to influence a federal campaign." Colorado I, 518 U.S. at 616, 116 S.Ct. 2309.

The Shays Substitute, Amendment 417, also amended the title of the bill to its present form: the "Bipartisan Campaign Reform Act (BCRA) of 2002." 148 Cong. Rec. H393 (daily ed. Feb. 13, 2002).

As the FEC recently observed in regulations promulgated pursuant to BCRA, "the term `soft money' is used by different people to refer to a wide variety of funds under different circumstances." Prohibited and Excessive Contributions: NOn_Federal Funds or Soft Money, 67 Fed.Reg. 49064, 49064-65 (July 29, 2002). The Commission's Twently Year Report, see FED ELECTION COMM'N, TWENTY YEAR REPORT (1995) (hereinafter Twenty Year Report), available at http:// www.fec.gov/pages/20year.htm, provides a helpful, rough-and-ready definition of a commonly misunderstood term:
[S]oft money- n. (slang): funds raised and/or spent outside the limitations and prohibitions of the FECA. Sometimes called nonfederal funds, soft money often includes corporate and/or labor treasury funds, and individual contributions in excess of the federal limits, which cannot legally be used "in connection with" federal elections, but can be used for other purposes.

James Jordan is the Executive Director of the DSCC. Jordan Decl. ¶ 1 [DEV 7-Tab 21].

See Jacobus v. Alaska, 182 F.Supp.2d 881, 889 (D.Alaska 2001) (explaining that there is no appearance of corruption from political party "donations of time, money and services... not being made for nominating and electing candidates" and holding that "donations to political parties for purposes other than nominating or electing purposes (e.g., issue advocacy, voter registration) may not constitutionally be considered contributions subject to regulation ....").

On March 27, 2002, President George W. Bush signed BCRA into law; the first major overhaul of the Federal Election Campaign Act since the 1974 Amendments and their revision following Buckley. Broadly speaking, Title I attempts to regulate political party use of nonfederal funds, while Title II seeks to prohibit labor union and corporate treasury funds from being used to run issue advertisements that have an ostensible federal electioneering purpose.

C. Procedural History of the Litigation of this Case

On the morning of March 27, 2002, President Bush signed BCRA into law. Within hours, Senator McConnell and the National Rifle Association ("NRA") filed complaints challenging the constitutionality of various provisions in BCRA. On April 16, 2003, pursuant to Congress's directive, BCRA § 403(a)(1), those cases were assigned to a district court of three judges consisting of District Court Judge Colleen Kollar-Kotelly, District Court Judge Richard J. Leon, and Circuit Court Judge Karen LeCraft Henderson. A week later, on April 23, 2002, the three-judge court held a status conference, in which it heard the parties' proposals on consolidation, intervention, discovery, and the filing of motions.

BCRA § 403(a)(1) states: "The action shall be filed in the United States District Court for the District of Columbia and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States Code."

I discuss the statutory provisions here in the same sequence that I analyze them in Part IV. I address the "electioneering communications" provisions of Title II before analyzing Title I's restrictions on non-federal funds not simply because several plaintiffs initially raised their constitutional challenges in that order, see generally McConnell Compl., but because, under the Supreme Court's jurisprudence, any analysis of restrictions on nonfederal funds must take account of the case law (discussed in the context of Title II) holding that issue advocacy cannot constitutionally be restricted. See Bradley A. Smith, Soft Money, Hard Realities: The Constitutional Prohibition on a Soft Money Ban, 24 J. LEGIS. 179, 199 (1998) (hereinafter Smith, Hard Realities) ("[C]lear Supreme Court precedent instructs us that not only is party spending on issue advocacy protected, but so are donations, including corporate donations, to parties to engage in that advocacy."); see also infra Part III.C (courts are to apply "exacting" (i.e., strict) scrutiny to campaign finance restrictions on donations to political party committees that make independent expenditures in order to engage in collective issue advocacy).

Alexander Vogel is General Counsel for the NRSC. Vogel Decl. ¶ 1 [DEV 9-Tab 41].

As one RNC official testified: "The RNC's national focus should not be misunderstood as a federal focus. Rather, given the RNC's state-based structure, it is not surprising that the RNC actually focuses many of its resources on purely state and local election activity." Josefiak Decl. ¶ 19. I agree. In 1999 and 2001, the RNC contributed over $9.5 million dollars, using nonfederal funds, directly to state and local candidates. Banning Decl. ¶ 28(a); see also Findings 57-59 (explaining, inter alia, that five states hold elections in odd-numbered years). For example, the RNC contributed approximately $500,000 to the 1999 Republican gubernatorial candidate in Virginia. La Raja Decl. ¶ 14. In the last two off-year elections, the RNC also transferred over $10 million to state parties and made over $ 1 million dollars in direct expenditures, bringing the total to $21 million dollars, not including administrative overhead, spent on the two elections where no federal candidates appeared on the ballot. Banning Decl. 1128(a). In 2001 alone, the RNC spent $15.6 million on nonfederal activities (contributions to state and local candidates, transfers to state parties, and direct spending). That $15.6 million dollars represented 30 percent of all nonfederal money raised that year by the RNC. See Hearing Tr. (Dec. 4, 2002) at 43 (statement of Burchfield). Thus for elections in which there is no federal candidate on the ballot, the RNC contributes directly to state and local candidates, trains state and local candidates, and funds communications calling for election or defeat of state and local candidates. See id.; Josefiak Decl. ¶¶ 19, 41-59; La Raja Decl. ¶ 14; see also Bok Cross Exam, at 34-35. Even defendants' expert Thomas E. Mann agreed that donations to a gubernatorial candidate in an oddnumbered year is not something that is intended to affect a federal election. Cross Exam, of Def. Expert Mann at 71.
Of course, the RNC made direct contributions to state and local candidates during even-numbered years as well, see Josefiak Decl. 1161, and "sometimes devote[d] significant resources toward states with competitive gubernatorial races even though the races for federal offices [were] less competitive," Josefiak Decl. ¶ 62.

The primary issue confronting the Court at the status conference was the scope of discovery required to develop a satisfactory factual record. The defendants, in their pleading, argued that "wide-raging discovery" was necessary "even in the context of a facial challenge, ... [in order to] look to the record of the case for evidence substantiating the governmental interests asserted in support of legislation said to violate the First Amendment." Def.'s Report in Response to the Court's Order of April 16, 2002, at 9 (quoting Turner Broadcasting Sys. v. FCC, 512 U.S. 622, 664-68, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994); Colorado Republican Fed. Campaign Comm. v. FEC ("Colorado F'), 518 U.S. 604, 618-19, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (plurality opinion)). Mindful that the Supreme Court remanded a First Amendment case to a three-judge district court in Turner Broadcasting to "permit the parties to develop a more thorough factual record," 512 U.S. at 668, 114 S.Ct. 2445, this Court agreed with the defendants that extensive discovery was necessary to review the evidentiary grounds for BCRA, and in part, to avoid the "disaster" of remand. Status Conference Tr., April 23, 2002, at 51 (statement of James Gilligan). Notwithstanding Congress's directive "to expedite to the greatest possible extent the disposition of the action and appeal," BCRA § 403(a)(4), it was also clear from the legislative record that Congress did not want this Court to "compromise informed and deliberate judicial decisionmaking in the process." See Def.'s Report in Response to the Court's Order of April 16, 2002, at 8. Indeed, Senator Feingold, one of the principal Senate sponsors, explained during the Senate debate:

The plaintiffs did not disagree that some discovery was necessary:
JUDGE KOLLAR-KOTELLY: So, as I understand it, then, everybody wants to do depositions, everybody wants to do some exchange of expert reports, and everybody wants to have some sort of lay statement, affidavits or statements. Is that accurate?... If somebody disagrees with that, let me know.

It should come as no surprise, then, that "[t]he definition of `electioneering communication' at 11 C.F.R. 100.29(a)"-adopted by the FEC pursuant to BCRA-"largely tracks the definition in BCRA at 2 U.S.C. 434(0(3)." Electioneering Communications, 67 Fed.Reg. 65,190, 65,191 (October 23, 2002).

Donald McGahn is General Counsel for the NRCC. McGahn Decl. ¶ 1 [DEV 8-Tab 30].

Portions of RNC transfers to state and local parties were used for voter mobilization efforts. One RNC official testified that "RNC transfers of non-federal funds to the state parties play a critical role in subsidizing the activities of the state parties. The state parties depend on these funds to pay for everything from their own administrative overhead to voter mobilization, grass roots organizing, and media." Banning Decl. 1131; see also Duncan Decl. Ml 11-12. In 2000, for example, the RNC transferred approximately $25 million in nonfederal funds to the Republican's Victory Plans, which were plans tailored to each state's needs and designed to mobilize voters on behalf of all the candidates on the ticket. Josefiak Decl. Ill 25-40. Money for the Victory Plans was not spent on federal candidate "issue ads," Josefiak Decl. K 31, and was used primarily to benefit state and local candidates, see Peschong Decl. 11H 4, 8-9 (stating that "the RNC typically provides a very substantial share of the funding of state victory programs," which are "programs designed to support the entire Republican ticket, and frequently place more emphasis on high profile state-wide races than on federal races, especially when no federal candidate is running state-wide"). Other examples of mixed activities include party newsletters, administrative overhead, training seminars on getout-the-vote activities, and fundraising assistance to state and local parties. See Findings 71-99.
Considering the national parties' extensive involvement in so many nonfederal and mixed activities, it is not surprising that the Supreme Court has recognized that political parties do not use all of their donations to affect federal elections, explaining in Colorado I that FECA permits unregulated `soft money' contributions for certain nonfederal and mixed purposes. 518 U.S. at 616, 116 S.Ct. 2309 ("We also recognize that FECA permits unregulated "soft money" contributions to a party for certain activities, such as electing candidates for state office, or for voter registration and "get out the vote" drives.") (internal citations omitted).

At issue in Turner was a constitutional challenge to the "must-carry" provisions that required carriage of local broadcast stations on cable systems. The Supreme Court remanded the case to the three-judge district court, explaining that in order to assure that Congress drew "reasonable inferences based on substantial evidence" that a harm truly existed, the Court needed "substantial elaboration in the District Court of the predictive or historical evidence upon which Congress relied, or the introduction of some additional evidence." Id. at 667, 114 S.Ct. 2445 (emphasis added). Because of the "paucity of evidence" and "lacking" of findings on the effect of the regulations, the Court could also not undertake the narrow tailoring step: "unless we know the extent to which the mustcarry provisions in fact interfere with protected speech, we cannot say whether they suppress `substantially more speech ... than necessary' to ensure the viability of broadcast television." Id. at 667-68, 114 S.Ct. 2445. What followed was "another 18 months of factual development on remand" to the threejudge panel, Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 187, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997) (citation and internal quotations omitted), and, here, the defendants in this case warned that "[t]he factual inquiry... could be on a scale similar to that of Turner," Status Conference Tr., April 23, 2002, at 48 (statement of James Gilligan).

Under section 203's "special operating rules,"
[a] section 501(c)(4) organization that derives amounts from business activities or receives funds from [a national bank, corporation or labor union] shall be considered to have paid for any communication out of [prohibited funds] unless such organization paid for the communication out of a segregated account to which only individuals can contribute ....

Howard Wolfson is Executive Director of the DCCC. Wolfson Decl. ¶ 1 [DEV 9-Tab 44].

See, e.g., Buckley, 424 U.S. at 25, 96 S.Ct. 612; NCPAC, 470 U.S. at 497, 105 S.Ct. 1459; see also Black's Law Dictionary 1261 (7th ed. 1999) (translating quid pro quo as "something for something"). Defense expert Donald P. Green explained that corruption, whether quid pro quo or otherwise, "redound[s] to the personal benefit of the candidate seeking to win election." Green Expert Report at 20.
Judge Kollar-Kotelly's belief that, notwithstanding my statements to the contrary, I am narrowly construing the definition of corruption as "something akin to bribery" is, in my judgment, an inaccurate reading of my opinion. See J. Kollar-Kotelly Op. at Part III.II. B.2.a.i. That said, regardless of how you describe the acts by an officeholder that are "contrary to their obligations of office," NCPAC, 470 U.S. at 497, 105 S.Ct. 1459; see, e.g., Intervenors Opening Br. at 43 ("legislative effort") (quoting Green Expert Report at 23-24); Gov't Reply Br. at 15-16 ("access"); Shrink Missouri, 528 U.S. at 389, 120 S.Ct. 897 ("politicians too compliant with the wishes of large contributors"), the more telling portion of the corruption equation for the purpose of understanding my opinion is the Supreme Court's description of the prospective benefit to the officeholder that supposedly influences him to act: "the prospect of financial gain to themselves or infusions of money into their campaign." NCPAC, 470 U.S. at 497, 105 S.Ct. 1459. Only an actual or potential benefit of the kind described by the Supreme Court can lure an officeholder into conduct sufficiently corrupting to warrant Congress's regulation.

This Court recognizes that "we've got to have an adequate factual record." Status Conference Tr., April 23, 2002, at 10 (statement of Judge Henderson).

Under BCRA section 201, a communication is "targeted to the relevant electorate" if it "can be received by 50,000 or more persons... in the district the candidate seeks to represent, in the case of a candidate for Representative [or] ... in the State the candidate seeks to represent, in the case of a candidate for Senator." BCRA § 201(a); FECA § 304(f)(3)(C); 2 U.S.C. § 434(f)(3)(C).

Elizabeth Blaise Hazelwood is the RNC's political director. Hazelwood Dep. at 10.

Judge Kollar-Kotelly references in her opinion an identical statement by officials of the four national party congressional committees describing as "significant" the effect "that voter identification, voter registration and get out the vote efforts" have on the election of federal candidates. See J. Kollar-Kotelly Op. at Part III.II.B.2.b.ii. That "combined" statement is not in my judgment proof per se that such efforts (either individually or collectively) directly affect federal elections. Indeed, there is no quantitative evidence in the record demonstrating the extent to which voter registration, voter identification, and get-out-the-vote efforts assist federal candidates, as opposed to the far greater number of state and local candidates that appear on the ballot. Determining that, of course, is exacerbated by the practical reality that congressional races in many states are either noncompetitive, or uncontested. Simply stated, there is no way of knowing the election impact value of what is considered "significant" in the eyes of these party officials. Moreover, because these officials do not specify which, if any, of these were "generic" efforts, there is no way of knowing whether the activities to which they are referring were crafted in a way to specifically turn out voters for particular federal candidates. Of course, if they had been, they would not be permissible under this Court's ruling today. See supra Part I.A.2 & infra Part I.B.2. As a result, I accord limited probative value to these identical statements on this point.

In Colorado I, the Supreme Court remanded the issue of whether coordinated party expenditures are constitutional, Colorado I, 518 U.S. at 623-26, 116 S.Ct. 2309; see also 2 U.S.C. § 441a(d)(3), and the Tenth Circuit subsequently passed the case on to the district court, stating that
[T]he issues are too important to be resolved in haste. It seems inevitable that not only this court but the Supreme Court itself will have to address these issues. We will both benefit by the parties fleshing out the record with any evidence they and the district court deem relevant to the issues' resolution.

In a somewhat similar vein, the Paul plaintiffs claim that the ban violates the First Amendment's guarantee of a free press by imposing upon them "unconstitutional editorial control through discriminatory ... economic burdens and penalties" not placed upon certain media organizations. Paul Am. Compl. (Paul Compl.) at ¶ 53; see id. at UK 47, 50; Paul Br. at 17-18, 21-24.

Alan Philp testified on behalf of the Colorado Republican Party. Philp Dep. at 9 [JDT Vol. 26].

See Josefiak Decl. ¶ 91(e) ("The RNC seeks to educate the public about the positions for which the Republican Party stands."); La Raja Decl. ¶ 16 ("Political parties use nonfederal funds to develop and disseminate political messages."); Colorado I, 518 U.S. at 616, 116 S.Ct. 2309 (recognizing that "a political party's independent expression ... reflects its members' views about the philosophical and governmental matters that bind them together"); id. at 629, 116 S.Ct. 2309 (Kennedy, J., concurring in part and dissenting in part) (explaining that political parties "exist to advance their members' shared political beliefs").

Finally, and most importantly, although [Section 403(a)(4) ] provides for the expedition of these cases to the greatest possible extent, we do not intend to suggest that the courts should not take the time necessary to develop the factual record ... This case will be one of the most important that the Court has heard in decades, with ramifications for the future of our political system for years to come. By expediting the case, we in no way want to rush the Court into making its decision without the benefit of a full and adequate record.

147 Cong. Rec. S3189 (March 30, 2001) (statement of Sen. Feingold); see also id. at S3189-90 (statement of Sen. Dodd) (supporting the expedition provision, but stating "I do not want to suggest that the Court should not take adequate time to review any such challenge"). Accordingly, the next day, the Court issued a unanimous order outlining a discovery and briefing schedule, which allowed for over five months of discovery and almost an additional month for crossexamination of fact and expert witnesses; set May 7, 2002, as a deadline by which all other actions would be filed; and decided that briefing was to take place between November 4 and November 25, 2002. In a highly unusual accommodation to Congress's request for expedition, the Court set oral arguments to begin on December 4, 2002, just over a week after the parties submitted their final briefs. See Scheduling Order of April 24, 2002. By May 10, 2002, 101 parties were involved in the consolidated action, with the eighty-four plaintiffs challenging twenty-three provisions of BCRA. After the Court dismissed seven plaintiffs from the suit without prejudice, see infra note 55, seventy-seven plaintiffs and seventeen defendants remained. See id. (listing all plaintiffs and defendants).

Judge Henderson maintains that the Buckley case was handled with much greater efficiency than the three-judge panel here. Henderson Op. at 6 n. 1. In Buckley v. Valeo, the lawsuit was filed on January 2, 1975, but a decision was not issued by the D.C. Circuit until seven and a half months later on August 15, 1975. Buckley, 519 F.2d at 821, 901. While this case required thirteen months from filing to disposition, the parties also undertook six months of discovery-at least four months of discovery and fact-finding more than that undertaken in Buckley. Id. at 902-03. That four months of discovery alone accounts for most of the discrepancy in the two expedited, yet complicated, campaign finance cases. Moreover, given the vast record developed through the six months of discovery in this case, it is not surprising that this Court required a few more months than the Buckley court to arrive at a decision after the arguments-for only careful consideration of the record before us could reduce the risk of committing clear error in our findings. See Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001).

Under BCRA section 201, the term "disclosure date" means
(A) the first date during any calendar year by which a person has made disbursements for the direct costs of producing or airing electioneering communications aggregating in excess of $10,000; and (B) any other date during such calendar year by which a person has made disbursements for the direct costs of producing or airing electioneering communications aggregating in excess of $10,000 since the most recent disclosure date for such calendar year.

Jay Banning has served as the RNC's Director of Administration and Chief Financial Officer since 1983, and has been employed by the RNC in these and other capacities for twenty-six years. Banning Decl. ¶ 1 [RNC Vol. III].

See Buckley, 424 U.S. at 42-43, 43 n. 50, 96 S.Ct. 612 ("Public discussion of public issues ... tend naturally and inexorably to exert some influence on voting at elections." (quoting Buckley v. Valeo, 519 F.2d 821, 875 (D.C.Cir.1975))).

On May 10, 2002, the Court consolidated all cases that were not consolidated on April 24, 2002, see Order, May 10, 2002; Order Consolidating Cases, April 24, 2002, and also permitted Senator John McCain, Senator Russell Feingold, Representative Christopher Shays, Representative Martin Meehan, Senator Olympia Snowe, and Senator James Jeffords to intervene as defendants supporting the constitutionality of BCRA, see Order, May 10, 2002.

BCRA directs the FCC to "compile and maintain" the information filed with the FEC and to "make such information available to the public on the [FCC's] website." BCRA § 201(b); FECA § 304 note; 2 U.S.C. § 434 note.

Robert Duncan is a Member of the RNC from the State of Kentucky. At the time the RNC's Complaint in this case was filed, he served as Treasurer of the RNC, but as of July 2002 he became its General Counsel. Duncan Decl. ¶ 1 [RNC Vol. VI].

BCRA § 101; FECA § 323(b); 2 U.S.C. § 4411(b)(1); BCRA § 101; FECA § 301(20)(A); 2 U.S.C. § 431(20)(A). The state and local parties could also presumably use nonfederal funds for all other mixed activities not included within Section 301(20)(A)'s definition of "federal election activity."

During the discovery process, the parties filed a total of twenty-three motions with the Court, including motions to compel responses to document requests, motions to compel responses to interrogatories, and motions for protective orders. At a hearing on July 25, 2002, the Court heard arguments as to many of the discovery disputes. Thereafter, the Court resolved the disputes with memorandum opinions. See, e.g., Order Denying Federal Election Commission's Motion for Entry of Protective Orders, August 12, 2002; Order Denying in Part and Granting in Part Plaintiffs' Motions to Compel Interrogatory Responses, August 15, 2002; Order Denying Adams Plaintiffs' Motion to Compel Intervenors to Respond to Interrogatories and Produce Documents, September 10, 2002.

On October 7, 2002, the Court ordered the parties to meet and confer and to deliver a proposed format on the briefing and proposed findings of fact. See Order, October 7, 2002. In their joint response, the plaintiffs (absent the Adams and Thompson plaintiffs) requested 751 pages, the Adams Plaintiffs requested 115 pages, and the defendants requested 750 pages. See Joint Submission in Response to the Court's Order of October 7, 2002. The Court ordered that the plaintiffs, including the Adams and Paul plaintiffs, submit three rounds of briefs not to exceed 840 pages and that the defendants' briefs submit three rounds of briefs (ie., opening, opposition, and reply) not to exceed 820 pages. The Court also directed the plaintiffs collectively, and the defendants collectively, to each submit proposed findings of fact of no more than 300 pages. Briefing Order, October 15, 2002; Order, October 19, 2002.

Each side was originally given an aggregate of 820 pages, however, the Court, in an Order dated October 29, 2002, granted the Adams and Thompson Plaintiffs the ability to file their own independent briefing which increased the aggregate page amount for Plaintiffs.

Thus, in some circumstances (i.e., if a contract to disburse is not performed), BCRA mandates disclosure about planned disbursements for communications that never air.

Bruce Benson is Chairman of the Colorado Republican Party. Benson Decl. ¶ 1 [RNC Vol. VIII].

In United States v. National Treasury Employees Union ("NTEU"), 513 U.S. 454, 473-75, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), the Supreme Court rejected a complete ban on honoraria for government employees because, in part, Congress exempted certain speeches that had no nexus to the government employment, explaining that the exemption "cast serious doubt on the Government's submission" that the honoraria was so "threatening... as to render the ban a reasonable response to the threat." Id. at 473, 115 S.Ct. 1003. The Court thus found that Congress's exemption undermined application of the ban to speeches without a connection to government employment: "[a]bsent such a nexus, no corrupt bargain or even appearance of impropriety appears likely." Id. at 474, 115 S.Ct. 1003; see also City of Ladue v. Gilleo, 512 U.S. 43, 52, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) (observing that exemptions "may diminish the credibility of the government's rationale for restricting speech in the first place").
Further, Congress's decision to only restrict state and local parties from using nonfederal funds for candidate advocacy, see BCRA § 101; FECA § 301(20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii), reinforces the premise that actual or apparent corruption manifests only when there is a nexus to a federal candidate.

On November 25, 2002, a little over a week before oral arguments were scheduled to begin, the parties filed their last round of briefs, bringing the total briefing to 1,676 pages (not including amicus curiae briefs). A day later, the parties submitted 576 pages of proposed findings of fact. The evidentiary submissions themselves included forty-one boxes (plus thirteen additional binders), which, by a conservative estimation, comprised the testimony and declarations of over 200 fact and expert witnesses and over 100,000 pages of material. With the record and pleadings before it, the Court commenced oral arguments on December 4, 2002. The Court heard six hours of arguments that day, and three hours of oral arguments the following day, from a total of twenty-four attorneys.

See Joint Submission in Response to the Court's Order of October 7, 2002.

Under another Title (Title III), BCRA section 311 similarly amends the Act to provide that "whenever any person ... makes a disbursement for an electioneering communication," the communication itself (1) if authorized by a candidate or an authorized political committee of a candidate, "shall clearly state that the communication is paid for by [the] person[ ] and authorized by such authorized political committee," BCRA § 311; FECA § 318(a)(2); 2 U.S.C. § 441d(a)(2); or (2) if not authorized by a candidate or an authorized political committee of a candidate, "shall clearly state the name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication and state that the communication is not authorized by any candidate or candidate's committee," BCRA § 311; FECA § 318(a)(3); 2 U.S.C. § 441d(a)(3).

Ryan Erwin is the Chief Operating Officer of the CRP. Erwin Aff. ¶ 1.

See Intervenors Opp'n Br. at 26-27 (explaining that "without regard to how soft money is ultimately spent, ... the parties reward [federal candidates and officeholders] for raising it" and that "success in the party reinforces stature in the government because federal officeholders attain leadership positions in Congress partly as a result of their success as fundraisers" (citing Bumpers Decl. Hit 7-9)).

The record in this case was described by one advocate during the oral argument as "elephantine." Oral Argument Tr. at 152 (statement of Floyd Abrams); see also id. at 279-80. We agree. Both sides should be commended for their extraordinary efforts in gathering and organizing the evidence in such a short period of time. We agree with Seth Waxman, attorney for the Intervenor-Defendants, who urged us to carefully review the record before us:
I think it's very, very important for the court to look carefully at the record.... We have worked, all of us on both sides of this case have worked harder than I ever believed I could be made to work in order to give you this record.... I think the ads itself and the reports and affidavits that have been submitted I think are very, very important. I know everybody feels that way.

As amended by BCRA section 211, the Act states that the term "independent expenditure" means an expenditure by a person-
(A) expressly advocating the election or defeat of a clearly identified candidate; and

Art Torres is the elected chair of the CDP. Torres Decl. ¶ 1 [3 PCS].

Cf. Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L.Rev. 1281, 1313 (1994) ("If candidates did not stand to gain much for their own campaigns from the money so raised, one doubts that party loyalties (or pressure) would lead to excessive diversion of candidate time to [soft money] fund-raising.").

We disagree with Judge Henderson's statement that "there was a consensus [at the hearing] that the [Supreme] Court had to receive the case no later than early February." Henderson Op. at 6 n. 1. A fair reading of former Solicitor General Waxman's colloquy with Judge Henderson, prompted by her questions, in our judgment, would be that the Supreme Court has the ability to adjust the briefing and oral argument schedule, and has done so in the past, to hear cases exactly such as this one. In short, neither former Solicitor General stated his conclusion in categorical terms, and neither provided an estimate of how long after a hearing the Supreme Court would need to issue its opinion. See generally Tr. at 18-20; 277-280.

Thus, in some circumstances (i.e., if a contract to make expenditures is not performed), BCRA mandates disclosure about expenditures that are never made. Cf. supra note 38.

John Peschong is the RNC's Regional Political Director for the Western Region. Peschong Decl. Ii 1.

These advertisements clearly show who funds the advertisements, stating in no uncertain terms at the end of each advertisement: "Paid for by the Republican National Committee" or "Paid for by Republican Party of Florida." See, e.g., Findings 45 & 46.

D. Description of the Specific Provisions in BCRA At Issue in These Lawsuits

The Court briefly next sets forth the provision of the law that are at issue in the litigation.

1. Title I: Reduction of Special Interest Influence

a. The National Party Soft Money Ban: Sectioyi 323(a)

The first provision of Title I involves the addition of a new section to FECA, section 323, entitled "Soft Money Of Political Parties." Section 323(a) states that national party committees (including national congressional campaign committees) "may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act." BCRA § 101(a); FECA § 323(a)(1); 2 U.S.C. § 441i(a)(1). The law applies to "any ... national committee, any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee." BCRA § 101(a); FECA § 323(a)(2); 2 U.S.C. § 441i(a)(2). The clear import of this provision is that national party committees are banned from any involvement with nonfederal money.

b. The State and Local Party Soft Money Ban: Section 323(b)

In summary terms.-Section 323(b) provides, that subject to certain exceptions, a State, district, or local committee of a political party may not use nonfederal funds to pay for "Federal election activity." BCRA § 101(a); FECA § 323(b); 2 U.S.C. § 441i(b).

In general, section 323(b)(1) prohibits state and local political parties from spending any money not raised in accordance with FECA on "Federal election activity." BCRA § 101(a); FECA § 323(b)(1); 2 U.S.C. § 4411(b)(1). Federal election activity is defined by the Act as:

(i) voter registration activity during the period that begins on the date that is 120 days before the date a regularly scheduled Federal election is held and ends on the date of the election; (ii) voter identification, get-out-the-vote activity, or generic campaign activity conducted in connection with an election in which a candidate for Federal office appears on the ballot (regardless of whether a candidate for State or local office also appears on the ballot); (iii) a public communication that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate); or (iv) services provided during any month by an employee of a State, district, or local committee of a political party who spends more than 25 percent of that individual's compensated time during that month on activities in connection with a Federal election.

BCRA § 101(b); FECA § 301(20)(A); 2 U.S.C. § 431(20)(A). Federal election activity does not include:

(i) public communication that refers solely to a clearly identified state or local candidate (unless the communication otherwise qualifies as Federal election activity, for instance, as GOTV); (ii) a contribution to a state or local candidate (unless designated to pay for some other kind of Federal election activity); (iii) a state or local political convention; or (iv) grassroots campaign materials (stickers, buttons, etc.) that name only a state or local candidate.

BCRA § 101(b); FECA § 301(20)(B); 2 U.S.C. § 431(20)(B).

1) The Levin Amendment

Section 323(b)(2)-commonly referred to as the "Levin Amendment"-carves out an exception to the general rule in section 323(b)(1). BCRA § 101(a); FECA § 323(b)(2); 2 U.S.C. § 441i(b)(2). Section 323(b)(2) permits state and local parties to use an allocation of nonfederal money ("Levin money" or "Levin funds") for voter registration, voter identification, and GOTV activities provided that certain specified conditions are met. First, the permitted activities may not refer to a clearly identified federal candidate. Second, those activities may not involve any broadcast communication except one that refers solely to a clearly identified state or local candidate. Third, no single donor may donate more than $10,000 to a state or local party annually for those activities. Finally, all money (federal and Levin money alike) spent on such activities must be "homegrown"-i.e., raised solely by the spending state or local party-and may not be transferred from or raised in conjunction with any national party committee, federal officeholder or candidate, or other state or local party. See BCRA § 101(a); FECA §§ 323(b)(2)(B), 323(b)(2)(C); 2 U.S.C. §§ 441i(b)(2)(B), 441i(b)(2)(C).

c. Fundraising Costs: Section 323(c)

Section 323(c) requires national, state, and local parties to use federally-regulated funds to raise any money that will be used on "federal election activities," as defined in the statute. BCRA § 101(a); FECA § 323(c); 2 U.S.C. § 441i(c). d. Tax Exempt Organization Soft Money Ban: Section 323(d)

Section 323(d) prohibits any political party committee-national, state, or local-or its agents from "solicitfing]" funds for or "mak[ing] or directfing]" any donations to either: (i) any tax-exempt section 501 organization, see 26 U.S.C. § 501(c), that spends any money "in connection with an election for Federal office (including expenditures or disbursements for Federal election activity)"; or (ii) any section 527 organization, see 26 U.S.C. § 527, (other than a state or local party or the authorized campaign committee of a candidate for state or local office). BCRA § 101(a); FECA §§ 323(d)(1), 323(d)(2); 2 U.S.C. §§ 441i(d)(1), 441i(d)(2). A section 501(c) organization is an organization that is tax exempt as described in that section of the tax code-a good example of which is a charity. A section 527 organization is a political committee that is exempt from taxation. See 26 U.S.C. § 527(a) ("A political organization shall be subject to taxation under this subtitle only to the extent provided in this section. A political organization shall be considered an organization exempt from income taxes for the purpose of any law which refers to organizations exempt from income taxes."); see also 26 U.S.C. §§ 527(e)(1) and (2) (defining a "political organization" as an organization that is "organized and operated primarily for the purpose of directly or indirectly accepting contributions or making expenditures, or both, for ... the function of influencing or attempting to influence the selection, nomination, election, or appointment of any individual to any Federal, State, or local public office or office in a political organization, or the election of Presidential or VicePresidential electors").

e. Federal Officeholder and Candidate Soft Money Ban: Section 323(e)

Section 323(e) generally prohibits federal officeholders and candidates from soliciting, receiving, directing, transferring, or spending any soft money (i) in connection with a federal election or (ii) in connection with a state or local election. BCRA § 101(a); FECA § 323(e)(1); 2 U.S.C. § 441(e)(1). There are, however, several exceptions to the general prohibition in section 323(e). First, a federal officeholder or candidate may solicit money for state and local candidates from sources and in amounts that would be allowed by Federal law. BCRA § 101(a); FECA §§ 323(e)(1)(B)®, 323(e)(1)(B)(ii); 2 U.S.C. §§ 441i(e)(1)(B)(i), 441i(e)(1)(B)(ii). Second, the federal officeholder or candidate ban on nonfederal funds does not apply to the solicitation, receipt, or spending of funds by an individual who is also a candidate for state or local office solely in connection with such election. BCRA § 101(a); FECA § 323(e)(2); 2 U.S.C. § 441i(e)(2). Third, a federal officeholder or candidate may attend or speak at a fundraising event for a state or local political party. BCRA § 101(a); FECA § 323(e)(3); 2 U.S.C. § 441i(e)(3). Fourth, a federal officeholder or candidate may solicit such funds on behalf of any taxexempt section 501 organization that spends money in connection with federal elections in either of two instances: (i) he or she may solicit unlimited funds for a section 501 organization whose "principal purpose" is not voter registration, voter identification, or GOTV activity, so long as the solicitation does not specify how the funds will be spent; and (ii) he or she may solicit up to $20,000 per person per year specifically for voter registration, voter identification, or GOTV activity, or for an organization whose "principal purpose" is to conduct any or all of those activities. See BCRA § 101(a); FECA §§ 323(e)(4); 2 U.S.C. § 441i(e)(4).

If the federal candidate or officeholder is soliciting, receiving, directing, transferring, or spending funds in connection with an election for federal office, the funds must "be subject to the limitations, prohibitions, and reporting requirements of this Act." 2 U.S.C. § 441(e)(1)(A). However, if the candidate is doing so in connection with a state or local election, then the funds must be "not in excess of the amounts permitted with respect to contributions to candidates and political committees" and "not from sources prohibited by the Act from making contributions in connection with an election for Federal office." 2 U.S.C. § 441(e)(1)(B).

Under section 504, a "political matter of national importance" includes any matter regarding "a legally qualified candidate," "any election to Federal office" or "a national legislative issue of public importance." BCRA § 504; FCA § 315(e)(1)(B); 47 U.S.C. § 315(e)(1)(B).

Janice Knopp is the RNC's Deputy Director of Finance/Marketing Director. Knopp Decl. ¶ 1 [RNC Vol. V],

See Findings 264-67.

f. State Candidate Soft Money Ban: Section 323(f)

Lastly, Section 323(f) generally prohibits state officeholders or candidates from spending soft money (that is, money not raised pursuant to FECA's regulations) on any public communication that "refers" to a clearly identified candidate for federal office and "promotes," "supports," "attacks," or "opposes" a candidate for that office. BCRA § 101(a); FECA § 323(f); 2 U.S.C. § 441i(f).

2. Title II: Noncandidate Campaign Expenditures

a. Definition of Electioneering Communication: Section 201

Section 201 of BCRA amends section 304 of FECA by adding the following definition of an "electioneering communication":

Section 201 also contains disclosure provisions which are discussed infra.

Because section 504's requirements are triggered not when the communication in question is broadcast but instead when any person makes "a request to purchase broadcast time," BCRA § 504; FCA§ 315(e)(1); 47 U.S.C. § 315(e)(1) (emphasis added), BCRA in some circumstances (i.e., if a request is denied) mandates disclosure about communications that never air. Cf. supra notes 38, 41.

Pat Brister is the Chairman of the Republican Party of Louisiana. Brister Decl. ¶ 1 [RNC Vol. VIII].

It has also been suggested by one of the defendants' witnesses that Members of Congress raising soft money donations receive the additional benefit of helping their parties retain control of Congress. See Hickmott Decl. Exhibit A ¶ 18. Even assuming, arguendo, that this benefit is not too attenuated to establish a sense of indebtedness to the large party donors, it is severely undercut if the parties cannot, as we have held, use large nonfederal donations to directly assist the election and re-election of their members. See supra Part I.A.2 & infra Part I.B.2.

(i) The term "electioneering communication" means any broadcast, cable, or satellite communication which.
(I) refers to a clearly identified candidate for Federal office;
(II) is made within.
(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.

BCRA § 201(a); FECA § 304(f)(3)(A); 2 U.S.C. § 434(f)(3)(A). Under this definition, in order to constitute an electioneering communication, therefore, the communication (a) must be disseminated by cable, broadcast, or satellite, (b) must refer to a clearly identified Federal candidate, (c) must be distributed within certain time periods before an election, and (d) must be targeted to the relevant electorate. Id. The fact that the communication must be "targeted to the relevant electorate," means that, in the case of House and Senate races, the communication will not constitute an "electioneering communication" unless 50,000 or more individuals in the relevant congressional district or state that the candidate for the House or Senate are seeking to represent can receive the communication. BCRA § 201; FECA § 304(f)(3)(C); 2 U.S.C. § 434(f)(3)(C). For example, if a broadcast advertisement refers to a federal House candidate within 60 days of the general election, but can only be received by 30,000 individuals, it is not an electioneering communication and permissibly could be made with funds from the general treasury of a corporation or labor union.

The regulations implementing this definition clarify that the operative event for making an electioneering communication is the "dissemination of the communication, rather than the disbursement of funds related to creating a communication." Electioneering Communications, 67 Fed.Reg. 65190, 65191 (Oct. 23, 2002).

For a recap of FECA's major source-andamount limitations, see supra Part I, especially the text accompanying notes 25-29. It bears emphasizing that because any corporation or labor organization is prohibited from making a "contribution or expenditure in connection with any election" for federal office, 2 U.S.C. § 441b(a), it is likewise banned under BCRA from making "coordinated" disbursements.

Senator Paul Simon served as a United States Senator for Illinois from 1985 to 1997, and was a Member of the House of Representatives from 1975 to 1985. Prior to being elected to Congress, Senator Simon served as Lieutenant Governor of Illinois from 1968 to 1972, and served in the Illinois House of Representatives from 1954 to 1962 and in the Illinois State Senate from 1962 to 1966. Simon Decl. ¶ 1 [DEV 9-Tab 37].

See also Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) ("[E]very reasonable construction must be resorted to, in order to save a statute from unconstitutionality." (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 39 L.Ed. 297 (1895))); Regan v. Time, Inc., 468 U.S. 641, 652, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) ("[A] court should refrain from invalidating more of the statute than is necessary."); Morse v. Republican Party of Va., 517 U.S. 186, 242, 116 S.Ct. 1186, 134 L.Ed.2d 347 (1996) (Scalia, J., dissenting) (explaining that a court is required to find a "limiting construction or partial invalidation" that will "remove the seeming threat or deterrence to constitutionally protected expression" (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973))); see also Brockett v. Spokane Arcades, Inc., All U.S. 491, 504, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985) (observing that a statute should be "declared invalid to the extent it reaches too far, but otherwise left intact").

In the event that a court of competent jurisdiction finds the definition of electioneering communication to be constitutionally infirm, the statute provides a backup definition:

(ii) If clause (i) is held to be constitutionally insufficient by final judicial decision to support the regulation provided herein, then the term "electioneering communication" means any broadcast, cable, or satellite communication which promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.

BCRA § 201(a); FECA § 304(f)(3)(A)(ii); 2 U.S.C. § 434(f)(3)(A)(ii). With the exception of the final clause, the fallback definition essentially tracks the language found in section 301(20)(A)(iii) of FECA which addresses one of the four activities which fall within the definition of the term Federal Election Activity. BCRA § 101(b); FECA § 301(20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii).

b. Prohibition of Corporate and Labor Union General Treasury Fund Disbursements for Electioneering Communications: Section 203 Rules Relating to Certain Targeted Electioneering Communications: Section 20k

Section 203 of BCRA extends the prohibition on corporate and labor union general treasury funds being used in connection with a federal election to cover electioneering communications. BCRA § 203; FECA § 316(b)(2); 2 U.S.C. § 441b(b)(2) ("[T]he term `contribution or expenditure' includes a contribution or expenditure, as those terms are defined in [FECA], and also includes any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value ... to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section or for any applicable electioneering communication. "Xemphasis added). The prohibition on electioneering communications only applies to the general treasury funds of national banks, corporations, and labor unions, or any other person using funds donated by these entities.

Like the original prohibition in section 441b, Section 203 of BCRA, is not an absolute ban on corporate and labor union spending on "electioneering communication." FECA expressly permits corporations and labor unions to create "separate segregated fund[s] to be utilized for political purposes." 2 U.S.C. § 441b(b)(2)(C). These segregated funds are known as political committees under the Act (or PACs). 2 U.S.C. § 431(4)(B) (A political committee is "any separate segregated fund established under the provisions of section 441b(b) of this title."). These segregated accounts are subject to the source and amount limitations contained in FECA. See, e.g., 2 U.S.C. § 441a(a)(1)(C) (providing that no person shall make contributions "to any other political committee in any calendar year which, in the aggregate, exceed $5,000"). To fund the segregated account, a corporation is permitted to solicit contributions from "its stockholders and their families and its executive or administrative personnel and their families." 2 U.S.C. § 441b(b)(4)(A)(i). Likewise, in establishing their segregated funds, labor unions are allowed to solicit contributions to the fund from their members and their families. 2 U.S.C. § 441b(b)(4)(A)(ii). From these accounts, corporations and labor unions are permitted to make contributions to federal candidates and spend unlimited amounts of segregated funds on electioneering communications and independent expenditures, provided that federal funds are used to pay for these activities.

For membership organizations, cooperatives, or corporations without capital stock, solicitations of the membership are permitted to fund the segregated account. 2 U.S.C. § 441b(b)(4)(C).

In accordance with that mandate, the FEC on January 3, 2003 promulgated a final rule on "coordinated expenditures." See generally Coordinated and Independent Expenditures, 68 Fed.Reg. 421 (Jan. 3, 2003); see also infra Finding 57 at pages 326-28. Not surprisingly, the rule provides that a disbursement for an electioneering communication is "coordinated" with a candidate or political party committee-"whether or not there is agreement or formal collaboration" between the disburser and the candidate or committee-if (1) "[t]he communication is created, produced, or distributed at the request or suggestion" of the candidate or committee; (2) the candidate or committee "is materially involved in decisions regarding" the communication; or (3) "[t]he communication is created, produced, or distributed after one or more substantial discussions about the communication" between the disburser and the candidate or committee. 68 Fed.Reg. at 453-55. Under the rule, "[a]greement means a mutual understanding or meeting of the minds on all or any part of the material aspects of the communication or its dissemination" and "(jfjormal collaboration means planned, or systematically organized, work on the communication." Id. at 455 (emphasis omitted).

Senator Alan Simpson served as United States Senator from Wyoming from 1979 to 1997. Simpson Decl. 112 [DEV 9-Tab 38],

The severability clause states: "If any provision of this Act or amendment made by this Act, or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the amendments made by this Act, and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding." BCRA § 401.

Snoive-Jeffords Provision

BCRA Section 203 provides an exception to certain types of nonprofit corporations from the requirement that corporations, labor unions, and national banks must use separately segregated funds -and not general treasury funds-to pay for electioneering communications. However, this exception, commonly known as the "Snowe-Jeffords Provision" after its sponsors, was later, in effect, withdrawn by Section 204, known as the "Wellstone Amendment," see infra at 69; compare BCRA § 203; FECA § 316(c)(2); 2 U.S.C. § 441b(c)(2) (Snowe-Jeffords Provision) with BCRA § 204; FECA § 316(c)(6)(a); 2 U.S.C. § 441b(c)(6)(A) (Wellstone Amendment).

As discussed supra, FECA section 304(f)(2)(E) refers to a segregated bank account made up of contributions for electioneering communications from United States citizens, nationals, or permanent residents where all the names and addresses of all contributors who contribute an aggregate amount of $1,000 or more to the account is disclosed. Also as discussed supra, FECA section 304(f)(2)(F) refers to electioneering communications paid from a general treasury. If an electioneering communication is paid for with general treasury funds under section 304(f)(2)(F), then all contributors of more than $1,000 in a calendar year have to disclose their name and address. Hence, under the Snowe-Jeffords Provision, 501(c)(4) organizations and 527(e)(1) organizations, who are permitted to make electioneering communications with money contributed by individuals, must disclose the names and addresses of those individuals who contributed the funds to pay for the electioneering communication. BCRA § 203; FECA § 316(c)(2); 2 U.S.C. § 441b(c)(2).

Notwithstanding the general ban on any federal candidate or officeholder's connection with non-federal funds, such a candidate or officeholder may "attend, speak, or be a featured guest at a fundraising event for a State, district, or local committee of a political party," BCRA § 101(a); FECA § 323(e)(3); 2 U.S.C. § 441i(e)(3), or "make a general solicitation of funds on behalf of any organization that is described in section 501(c) of the Internal Revenue Code of 1986 and exempt from taxation ... where such solicitation does not specify how the funds will or should be spent," BCRA § 101(a); FECA § 323(e)(4)(A); 2 U.S.C. § 441i(e)(4)(A); see also BCRA § 101(a); FECA § 323(e)(4)(B); 2 U.S.C.

Wade Randlett is Chief Executive Officer of Dashboard Technology, a World WideWeb technology consulting firm based in San Francisco, California. Prior to founding Dashboard Technology, Mr. Randlett served on the management teams of two other software companies. He was the Democratic political director at the Technology Network, also known as TechNet, a Palo Alto-based non-profit corporation and political service organization which he co-founded in 1996. Prior to starting TechNet, he spent many years as a political fundraiser and general political consultant, working primarily in the Silicon Valley area of Northern California, but also throughout California and to some extent in major metropolitan areas in other parts of the nation. Randlett Decl. ¶ 2 [DEV 8-Tab 32].

See Chapman v. United States, 500 U.S. 453, 464, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (Rehnquist, C.J.) ("The canon of construction that a court should strive to interpret a statute in a way that will avoid an unconstitutional construction is useful in close cases, but it is `not a license for the judiciary to rewrite language enacted by the legislature.'" (quoting U.S. v. Monsanto, 491 U.S. 600, 611, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989))); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) ("Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of statute... or judicially rewriting it." (quoting Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (internal quotations omitted))); United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) (explaining any attempt "to rewrite language enacted by the legislature... while purporting to be an exercise of judicial restraint, would trench upon the legislative powers vested in Congress by Article I, § 1, of the Constitution" (citing Heckler v. Mathews, 465 U.S. 728, 741-42, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984))); In re Espy, 80 F.3d 501, 505 (D.C.Cir.1996).

The Snowe-Jeffords Provision permits nonprofit organizations to use their general treasury funds to pay for electioneering communications if they are incorporated under Section 501(c)(4) and/or Section 527(e)(1) of the Internal Revenue Code. This exception for nonprofit corporations is an expansion of the law as it existed prior to BCRA. While FECA did not provide an exception from its separately segregated fund requirement for nonprofit corporations, the Supreme Court in FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238,107 S.Ct. 616, 93 L.Ed.2d 539 (1986)("MCFL") had provided an as-applied exception for nonprofit corporations which satisfied certain criteria set forth by the Supreme Court. Under BCRA, it is not necessary that a nonprofit corporation establish that it has met the three criteria of MCFL in order to use its general treasury funds to pay for electioneering communications; instead, it may do so under Snowe-Jeffords simply by virtue of being incorporated under Sections 501(c)(4) or 527(e)(1).

That is, 1) whether the corporation is "formed for the express purpose of promoting political ideas, and cannot engage in business activities"; 2) "has no shareholders or other persons affiliated," so that members have "no economic disincentive for disassociating with it if they disagree with its political activity"; and 3) the corporation "was not established by a business corporation," and has a policy of refusing "contributions from such entities." MCFL at 264.

Additionally, the Thompson plaintiffs contend that "[a]s Federal office holders and candidates" they are "unfairly prejudiced" by section 101-in violation of their rights to free speech, association and equal protection-to the extent that the provision has a "disproportionate effect on minority communities" in their districts. Thompson Compl. at ¶ 41; see Thompson Br. at 1-12. And the Paul plaintiffs claim that section 101 abridges their freedom of the press "by exercising editorial control of their press activities." E.g., Paul Br. at 18 (capitalization altered).

Robert Rozen worked as a lobbyist for various interests at the law firm Wunder, Diefenderfer, Cannon & Thelen from 1995 until 1997. For the last six years, he has been a partner in a lobbying firm called Washington Counsel; now Washington Council Ernst & Young. Mr. Rozen represents a variety of corporate, trade association, non-profit, and individual clients before both Congress and the Executive Branch. His work includes preparing strategic plans, writing lobbying papers, explaining difficult and complex issues to legislative staff, and drafting proposed legislation. He also organizes fundraisers for federal candidates and from time-to-time advises clients on their political contributions. Rozen Decl.¶ 4 [DEV 8-Tab 33]

See, e.g., Edenfield v. Fane, 507 U.S. 761, 763, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (rejecting a broad ban on solicitation only as applied to the business context); Brockett, 472 U.S. at 502-07, 105 S.Ct. 2794 (partially invalidating moral nuisance law "only insofar as the word `lust' is to be understood as reaching protected materials"); United States v. Grace, 461 U.S. 171, 175, 183, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) (invalidating prohibition of speech activities on Supreme Court grounds "as applied to the public sidewalks"); see also NTEU, 513 U.S. at 487, 115 S.Ct. 1003 (O'Connor, J., concurring in the judgment in part and dissenting in part) (citing examples).

While a nonprofit corporation under Snowe-Jeffords is permitted to use general treasury funds for electioneering communications, it is important to note that these corporations are not permitted to use funds donated by a corporation, labor union, or national bank to purchase them. Under Snowe-Jeffords, a nonprofit corporation may only use funds donated by individuals to pay for electioneering communications. If a nonprofit corporation, for example, has accepted corporate contributions and mixed those contributions with general treasury funds that contained individual donations, the nonprofit corporation would not be permitted to use their general treasury funds to engage in electioneering communications.

Finally, although Snowe-Jeffords exempts nonprofit corporations from the separately segregated fund requirement, they are not similarly exempted from the disclosure requirements set forth in Section 201. Nonprofit corporations, like any other entity engaging in electioneering communications, must make public the names and addresses of all contributors who contributed over $1,000 to the account from which the corporation paid for the communications.

The Wellstone Amendment

Despite drafting and including the Snowe-Jeffords' provision in the Act, an amendment offered by Senator Paul Wellstone and adopted by the Senate effectively eviscerates the Snowe-Jeffords' Provision from the Act. The "Wellstone Amendment," codified in section 204 of BCRA states that the exemption created by the Snowe-Jeffords Provision for section 501(c)(4) corporations and section 527(e)(1) corporations is inapplicable "in the case of a targeted communication." BCRA § 204; FECA § 316(c)(6)(A); 2 U.S.C. § 441b(c)(6)(A). The Wellstone Amendment describes a "targeted communication" as "an electioneering communication" that is "distributed from a television or radio broadcast station or provider of cable or satellite television service and, in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate." BCRA § 204; FECA § 316(c)(6)(B); 2 U.S.C. § 441b(c)(6)(B). The direct consequence of the Wellstone Amendment is that organizations organized under section 501(c)(4) and section 527(e)(1) of the Internal Revenue Code, or those entities who have received funds from corporations, are not permitted to use their general treasury funds for electioneering communications.

The Wellstone Amendment was codified in a separate section of BCRA in order to preserve severability: hence, if the Court finds the inclusion of section 501(c)(4) organizations and section 527 organizations within the ban on electioneering communications to be unconstitutional, the Wellstone Amendment can be cleanly struck from the law and the original Snowe-Jeffords exception for these groups will be restored. See BCRA § 401 (discussing that BCRA is subject to severability).

* * *

To briefly summarize, section 201 provides two definitions of "electioneering communication," a primary one and a backup definition in the event a court finds the main definition unconstitutional. Section 203, in conjunction with section 204, prohibits corporations and unions from using general treasury funds to pay for an electioneering communication. Corporations and unions need to establish political action committees if they want to engage in electioneering communication.

c. Disclosure of Electioneering Communications: Section 201

Section 201 amends Section 304 of FECA, 2 U.S.C. § 434, by requiring disclosures related to electioneering communications. Section 201's disclosure requirements mandate the reporting of "disbursements" for the "direct costs of producing and airing electioneering communications" aggregating more than $10,000 during any calendar year. BCRA 201(a); FECA § 304(f)(1); 2 U.S.C. § 434(f)(1). The reports must be made to the Commission within 24 hours of each "disclosure date." Id. The statute defines "disclosure date" as the first time during the calendar year a person's electioneering communication disbursements exceed $10,000, and each subsequent aggregation of $10,000 in electioneering communication disbursements made in the same calendar year. BCRA § 201(a); FECA § 304(f)(4); 2 U.S.C. § 434(f)(4). "Disbursements" under Section 201 include executed contracts to make disbursements for electioneering communications. BCRA 201(a); FECA § 304(f)(5); 2 U.S.C. § 434(f)(5).

The provision states, "For purposes of this subsection, a person shall be treated as having made a disbursement if the person has executed a contract to make the disbursement." BCRA 201(a); FECA § 304(0(5); 2 U.S.C. § 434(f)(5).

Similarly, one of the Thompson plaintiffs alleges that section 318 violates his First and Fifth Amendment rights to the extent that it prevents him from "protectfing] the rights" of one of his minor constituents. Thompson Compl. at H48; see Thompson Br. at 13-18.

Daniel Murray served as a government relations specialist for Sprint, GTE and Bell-South Corporations from 1982 until 1995. As Executive Director of those companies, he assisted them and their PACs in selecting candidates and political groups for financial support in both federal and nonfederal funds. During this period he also served on the Democratic Business Council of the DNC, the Advisory Council of the Democratic Leadership Council, the 1998 and 1992 DNC Convention Site Selection Committees, the DSCC Leadership Circle, the DCCC Annual Dinner Committee, the RSCC Annual Dinner Committee, and steering committees for many House and Senate campaigns. Since 1995, he has acted as a government relations consultant for business and other clients. Murray Aff. in Mariani ¶¶ 3-5 [DEV 79-Tab 59].

Specifically, Section 441a(d) states that political parties "may not make any expenditure in connection with the general election campaign of a candidate in Federal office in a State who is affiliated with such party which exceeds" $10,000 in a House campaign and, in a senatorial campaign, the greater of $20,000 or "2 cents multiplied by the voting age population of the State." 2 U.S.C. § 441a(d)(3).

The section requires the reports, made under penalty of perjury, to include the following information:

· the identities of the person making the disbursement, any person sharing or exercising direction or control over that person, and the custodian of the books and accounts of the person making the disbursement;
· the person's principal place of business, if, not an individual;
· the amount of each disbursement over $200 during the statement's period and the identity of the person who received the disbursement;
· the elections to which the electioneering communications pertain and the names of the candidates identified in the communications, if known;
· if the disbursements are made from a segregated account funded solely by direct contributions by individuals for the purpose of making electioneering communication disbursements, the names and addresses of all persons who contributed over $1,000 to the account during the calendar year; and
· if the disbursements are made from a different source, the names and addresses of all contributors to that source who contributed over $1,000 during the calendar year.

BCRA 201(a); FECA § 304(f)(2); 2 U.S.C. § 434(f)(2).

d. Coordinated Communications as Contributions: Section 202

Section 202 of BCRA amends Section 315(a)(7) of FECA, 2 U.S.C. 441a(a)(7) by adding the following language:

if-
(i) any person makes, or contracts to make, any disbursement for any electioneering communication ...; and
(ii) such disbursement is coordinated with a candidate or an authorized committee of such candidate, a Federal, State, or local political party or committee thereof, or an agent or official of any such candidate, party, or committee;
such disbursement or contracting shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate's party and as an expenditure by that candidate or that candidate's party

BCRA § 202; FECA § 315(a)(7)(C); 2 U.S.C. § 441a(a)(7)(C). Section 202 essentially makes clear the import of the definitions of "electioneering communication" and "coordination" in Sections 201 and 214; coordinated electioneering communications constitute contributions. e. Reporting Requirements for Certain Independent Expenditures: Section 212

Section 212 amends Section 304 of FECA (2 U.S.C. § 434) by adding certain disclosure requirements for independent expenditures. The provision requires persons, including political committees, to report independent expenditures, or contracts to make such expenditures, aggregating $1,000 or more after the twentieth day before the date of an election. BCRA § 212; FECA § 304(g)(1)(A); 2 U.S.C. § 434(g)(1)(A). These reports must be made within 24 hours of making the expenditure or the contract to make the expenditure. Id. Such reports must be supplemented within 24 hours of making additional expenditure contracts or expenditures aggregating an additional $1,000 toward the same election. BCRA § 212; FECA § 304(g)(1)(B); 2 U.S.C. § 434(g)(1)(B). For expenditure contracts or expenditures made more than twenty days before an election, persons must also file reports but only after the expenditures aggregate to $10,000 or more and they have 48 hours in which to file their disclosure. BCRA § 212; FECA § 304(g)(2)(A); 2 U.S.C. § 434(g)(2)(A). These reports must also be supplemented whenever additional expenditure contracts or expenditures aggregate an additional $10,000 toward the same election. BCRA § 212; FECA § 304(g)(2)(B); 2 U.S.C. § 434(g)(2)(B).

Section 211 defines "independent expenditure" as:
an expenditure by a person-

The Act now provides that "no person shall make contributions ... to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceed $2,000." 2 U.S.C. § 441a(a)(1)(A).

Steven T. Kirsch is founder and Chief Executive Officer of Propel Software Corporation. He has donated millions of dollars to the Democratic Party and to "progressive candidates and groups." Kirsch Decl. 11112, 4 [DEV 7-Tab 23].

The Court in NTEU shied away from a limiting construction, in part, because it could not be sure that it "would correctly identify the nexus Congress would have adopted in a more limited honoraria ban." 513 U.S. at 479, 115 S.Ct. 1003. "[D]rawing one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn, involves a far more serious invasion of the legislative domain." Id. at 479 n. 26, 115 S.Ct. 1003. The Court echoed this concern in Reno v. ACLU , where it refused to apply a tailoring construction to provisions seeking to protect minors from "indecent" and "patently offensive" internet communications. 521 U.S. 844, 883-88, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). It found that, in a facial challenge, a court "may impose a limiting construction on a statute only if it is `readily susceptible' to such a construction." Id. at 884, 117 S.Ct. 2329 (quoting Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)). The Supreme Court suggested that a statute is "readily susceptible" for a limiting construction when the statute provides "guidance ... for limiting its coverage" and "the text or other source of congressional intent identified a clear line that this Court could draw." Reno, 521 U.S. at 884, 117 S.Ct. 2329.
Justice O'Connor, in her dissent in NTEU, lamented that "a court should not [] throw up its hands and despair of delineating the area of unconstitutionality" and that it is "inconsistent with congressional intent to strike a greater portion of the statute than is necessary to remedy the problem at hand." 513 U.S. at 486-89, 115 S.Ct. 1003 (O'Connor, J., concurring in the judgment in part and dissenting in part); see also id. at 501-03, 115 S.Ct. 1003 (Rehnquist, C.J., dissenting) (describing the majority's remedy as an "O. Henry ending").

The reports must be filed with the FEC and must include "the name of each candidate whom an expenditure is intended to support or oppose," BCRA § 212; FECA § 304; 2 U.S.C. § 434(g)(3)(B), as well as the name and address of each
person who receives any disbursement during the reporting period in an aggregate amount or value in excess of $200 within the calendar year (or election cycle, in the case of an authorized committee of a candidate for Federal office), in connection with an independent expenditure by the reporting committee, together with the date, amount, and purpose of any such independent expenditure and a statement which indicates whether such independent expenditure is in support of, or in opposition to, a candidate, as well as the name and office sought by such candidate, and a certification, under penalty of perjury, whether such independent expenditure is made in cooperation, consultation, or concert, with, or at the request or suggestion of, any candidate or any authorized committee or agent of such committee 2 U.S.C. § 434(b)(6)(B)(iii).

The Act now provides that
[d]uring the period which begins on January 1 of an odd-numbered year and ends on December 31 of the next even-numbered year, no individual may make contributions aggregating more than-

Beverly Shea is the RNC's Finance Director. Shea Decl. ¶ 1 [RNC Vol. V].

See Reno, 521 U.S. at 884 n. 49, 117 S.Ct. 2329 (explaining that "[i]n part because of separation-of-powers concerns, we have held that a severability clause is `an aid merely; not an inexorable command'" (quoting Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 68 L.Ed. 686 (1924))); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987); Community for Creative Non-Violence v. Turner, 893 F.2d 1387, 1394 (D.C.Cir.1990) (agreeing that "`the ultimate determination of severability will rarely turn on the presence or absence'" of a severability clause (quoting United States v. Jackson, 390 U.S. 570, 585 n. 27, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968))).

f. Coordination with Candidates or Political Parties: Section 21b

The Supreme Court has found treating coordinated expenditures as contributions constitutionally justifiable under the rationale of preventing circumvention. Buckley, 424 U.S. at 47, 96 S.Ct. 612 ("[Contribution ceilings ... prevent attempts to circumvent [FECA] through prearranged or coordinated expenditures amounting to disguised contributions."). Section 214 makes changes to FECA's coordinated expenditure regime.

Section 214(a) amends Section 315(a)(7)(B) of FECA, 2 U.S.C. § 441a(a)(7)(B), by adding the following provision:

(ii) expenditures made by any person (other than a candidate or candidate's authorized committee) in cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party, shall be considered to be contributions made to such party committee

BCRA § 214(a); FECA § 315(a)(7)(B)(ii); 2 U.S.C. § 441a(a)(7)(B)(ii). This language is virtually identical to that in 2 U.S.C. § 441a(a)(7)(B)(i) , passed in 1976 as an amendment to FECA, which defines expenditures made in coordination with candidates.

In FEC v. Colorado Republican Federal Campaign Comm., 533 U.S. 431, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) ("Colorado II"), the Supreme Court considered the applicability of Section 441a(a)(7)(B)(i) to political party expenditures. Despite the fact that four Justices found the provision overbroad, Colorado II, 533 U.S. at 467, 121 S.Ct. 2351 (Thomas, J., dissenting), the majority found that Section 441a(a)(7)(B)(i) applied to political party expenditures coordinated with candidates, id aX465, 121 S.Ct. 2351.

The Act's indexing guidelines, as amended by BCRA section 307(d), appear at 2 U.S.C. § 441a(c).

Senator David Boren served as a United States Senator from Oklahoma from 1979-1994. Boren Decl. ¶ 2 [DEV 6-Tab 8]

See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999) ("Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." (quoting Champlin Refining Co. v. Corporation Comm'n of Okla., 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932))); Buckley, 424 U.S. at 108-09, 96 S.Ct. 612 (same).

As presently codified, the provision states: "expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate". 2 U.S.C. § 441a(a)(7)(B)(i).

In a similar vein, the Paul plaintiffs assert that by "failing to raise ... and to index [contribution] limits with respect to political committees functioning independently from candidates, their authorized campaign committees, or political parties," BCRA violates the First Amendment's guarantee of a free press. Paul Compl. at ¶ 57; see Paul Br. at 27 n. 11.

In 1980, during President Carter's re-election campaign, Robert Hickmott worked at the Democratic National Committee ("DNC") as an Associate Finance Director. Hickmott Decl. H2 [DEV 6-Tab 19]. Following the general election, Hickmott became the Executive Director of a new DNC entity, the Democratic Business Council ("DBC"), where he served until 1983. Id. During 1985-86, Hickmott served as National Finance Director for then-Congressman Timothy Wirth's Senate campaign, and from 1987 until early 1989, on Senator Wirth's Senate staff. Id. After that, Hickmott was in private practice as an attorney until January 1991, when he joined the Democratic Senatorial Campaign Committee ("DSCC") as Deputy Executive Director. Id. In 1993, Hickmott worked for four years as the Associate Administrator for Congressional Affairs at the Unites States Environmental Protection Agency, then for two years as a counselor to then-Secretary Andrew Cuomo at the United States Department of Housing and Urban Development ("HUD"). Id. In 1999, Hickmott left HUD and joined The Smith-Free Group ("Smith-Free"), a small governmental affairs firm located in Washington, D.C. Id. ¶ 3. Hickmott is currently a Senior Vice President at Smith-Free and one of the six principals in the firm. Id. Hickmott is a regular contributor to candidates for Congress, for President, and the national party committees, primarily to Democratic candidates, but also to several Republicans, as well. Id. In the 1999-2000 cycle, he contributed just over $7,000 and in the 2001-2002 cycle, he has contributed a little more than $10,000. Id. Hickmott provided a declaration in Federal Election Commission v. Colorado Republican Federal Campaign Committee, 41 F.Supp.2d 1197 (D.Colo. 1999), affd, 213 F.3d 1221 (10th Cir.2000), rev'd, 533 U.S. 431, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) ("Colorado If); See Colorado II, 533 U.S. at 458, 121 S.Ct. 2351.

See, e.g., 145 Cong. Rec. S2138 (Mar. 20, 2002) (statement of Sen. McCain) ("Closing the [state and local party] loophole is crucial to prevent evasion of the new federal rules."); 147 Cong. Rec. S2928 (Mar. 27, 2001) (Sen.Schumer) ("[R]egulating soft money without dealing with the soft money that goes to State parties is like the person who drinks a Diet Coke with his double cheeseburger and fries: It does not quite get the job done."); 145 Cong Rec. H8275 (Sept. 14, 1999) (statement of Rep. Kaptur) (stating that banning nonfederal funds for national parties but allowing it for state parties is "like bolting the front door to protect yourself from burglars while hanging a neon sign on the back door that says, `Come on in'"); 144 Cong. Rec. H7323 (Aug. 6, 1998) (statement of Rep. Roukema) (stating that allowing state parties to use federal funds creates a "loophole large enough to drive an armored car stuffed with campaign cash through."); Brock Decl. ¶ 8; Rudman Decl. It 19; see also Gov't Opening Br. at 53 ("Section 323 contains several interrelated provisions designed to eliminate solicitation contribution, and use of unregulated soft money by federal candidates, federal officeholders, and national political parties."); Gov't Opening Br. at 103 ("Any successful attempt to limit national party soft money activity must perforce prevent easy evasion through surrogates such as state and local parties.") (citing Mann Expert Report at 31).

Section 214 also repeals the FEC's regulations "on coordinated communications paid for by persons other than candidates, authorized committees of candidates, and party committees," and requires the FEC to promulgate new regulations. BCRA § 214(b), (c). Congress instructed that the new regulations "shall not require agreement or formal collaboration to establish coordination." BCRA § 214(c); 2 U.S.C. § 441a note. Congress also instructed that the regulations should address

(1) payments for the republication of campaign materials;
(2) payments for the use of a common vendor;
(3) payments for communications directed or made by persons who previously served as an employee of a candidate or a political party; and
(4) payments for communications made by a person after substantial discussion about the communication with a candidate or a political party.

Id.

Lastly, Section 214 amends Section 316(b)(2) of FECA, 2 U.S.C. 441b(b)(2), to include within the meaning of "contributions or expenditures by national banks, corporations, or labor organizations," the definitions of "contribution or expenditure" found in Section 301 of FECA, 2 U.S.C. § 431(8), (9). BCRA § 214(d).

3. Title III: Miscellaneous

a. Use of Contributed Amount for Certain Purposes: Section 301

Section 301 sets forth the permitted and prohibited uses of contributions. For example, a candidate can transfer contributions to political parties but cannot convert contributions to personal use. BCRA § 301; FECA § 313; 2 U.S.C. § 439a.

b. "The Millionaire Provisions": Sections 30A, 316, &319

In Sections 304, 316, and 319 of BCRA, Congress allowed opponents of self-financed candidates to raise money in larger increments and, in certain circumstances, to accept unlimited coordinated party expenditures. Specifically, the provisions state that if a self-financed candidate's "opposition personal fund amount" exceeds a threshold amount, then the candidate's opponent can raise funds through increased contribution limits. BCRA § 304(a); FECA § 315(i); 2 U.S.C. § 441a(i); BCRA § 319; FECA § 315A; 2 U.S.C. § 441a-l. Moreover, if the opposition personal fund amount is ten times the threshold amount in Senate races, or merely exceeds the $350,000 threshold for House races, the self-financed candidate's opponent can also be exempted from limits on coordinated party expenditures imposed by 2 U.S.C. § 441a(d). Any contributions or party expenditures under the increased limits is capped to the amount spent by the self-financed candidate: the enhanced contributions cannot exceed 110% and 100% of the opposition personal funds amount for Senate and House races respectively.

The "opposition personal funds amount" is not simply the amount of personal funds expended by a self-financed candidate. It also takes into account the gross receipts advantage of both candidate's authorized committees so that incumbents with large war chests will not be able to take advantage of the new law unless the self-financed candidate expends an even greater amount of personal funds. BCRA §§ 304(a)(ii); FECA § 315(i)(1)(D); 2 U.S.C. § 441a(i)(1)(D); BCRA § 316; FECA § 315(i)(1)(E); 2 U.S.C. § 441a(i)(D(E); see also BCRA § 319(a); FECA § 315A(a)(2); 2 U.S.C § 441a-l(a)(2).

The subparagraph pertaining to "threshold amount" provides as follows:
(i) STATE-BY-STATE COMPETITIVE AND FAIR CAMPAIGN FORMULA.-In this subsection, the threshold amount ... is an amount equal to the sum of-

Senator Timothy Wirth served in the U.S. House of Representatives from 1974 to 1986, representing the Second Congressional District of the State of Colorado. From 1987 through 1992 he served as Senator for the State of Colorado in the United States Senate. Wirth Decl. Ex. A ¶ 2 [DEV 9-Tab 43].

See NTEU, 513 U.S. at 479, 115 S.Ct. 1003 (refusing to adopt a limiting construction, in part, because its judicial obligation was to avoid "independent constitutional concerns"); see also Ashwander v. TV A, 297 U.S. 288, 346-47, 56 S.Ct. 466, 80 L.Ed. 688 (1936) ("The Court will not `anticipate a question of constitutional law in advance of the necessity of deciding it.'" (quoting Liverpool, N.Y. & Phila. Steamship Co. v. Emigration Comm'rs, 113 U.S. 33, 39, 5 S.Ct. 352, 28 L.Ed. 899 (1885))).

The threshold amount in Senate races is equal to the sum of $150,000 plus $.04 multiplied by the voting age population in the candidate's state, BCRA § 304(a)(2); FECA § 315(i)(1)(B); 2 U.S.C. § 441a(i)(1)(B), while in House races the threshold amount is simply $350,000. BCRA § 319(a)(1); FECA § 315A(a)(1); 2 U.S.C. § 441a-l(a)(1).

The "opposition personal funds" amount is "an amount equal to the excess (if any)" of
(i) the greatest aggregate amount of expenditures from personal funds (as defined in [FECA] section 304(a)(6)(B)) that an opposing candidate in the same election makes; over

Arnold Hiatt engaged in substantial political spending for a number of years. He estimates that from the 1992 election cycle through 1997, he donated approximately $60,000 in federal funds, mostly to federal candidates, with a few contributions to federal political action committees ("PACs"). In October of 1996, he gave a $500,000 nonfederal donation to the DNC. In February of 2001, he made a $5000 hard money donation to the League of Conservation Voters' PAC, and believes that is the only hard money donation he has given since 1997. Hiatt Dec). ¶ 5 [DEV 6-Tab 18].

Because I find these sections and Section 323(a) (aside from nonfederal funds used for federal activities) unconstitutional based on the First Amendment, I need not reach either the federalism or equal-protection claims.

c. Lowest Unit Charged: Section 305

In the 1972 FECA legislation, Congress added the "lowest unit charge" provision to the Communications Act of 1934. The provision states that, for forty-five days before a primary or sixty days before a general election, the broadcast stations have to sell a qualified candidate the "lowest unit charge of the station for the same class and amount of time for the same period." 47 U.S.C. 315(b)(1). BCRA Section 305, however, denies a candidate the lowest unit charge for broadcast advertisements on radio and television unless the candidate "provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office" in any broadcast. BCRA § 305; FCA § 315(b); 47 U.S.C. § 315(b). The candidate can be exempted from this provision, and thus be eligible for the lowest unit charge without such a promise, if the candidate clearly identifies himself at the end of the broadcast and states that he approves of the broadcast. In a television broadcast, this message must include the candidate's image for at least four seconds. Id.

d. Increased Limits for Contributions and Indexing of Limits: Section 307

Section 307(a)(1) increases the amount individuals can contribute to candidates per election from $1000 to $2000. BCRA § 307(a)(1); FECA § 315(a)(1)(A); 2 U.S.C. § 441a(a)(1)(A). It also changes the aggregate amount of contributions a donor can give to candidates and political committees (including parties) from $25,000 in a calendar year to $37,500 in a two-year period to candidates and $57,500 in a two-year period to political committees. BCRA § 307(b); FECA § 315(a)(3)(A); 2 U.S.C. § 441a(3)(A). Congress also increased the limits to a national party committee by $5,000 and doubled the amount of money individuals can donate to a state party committee, so that individuals may now contribute no more than $25,000 per calendar year to a national party committee, no more than $10,000 per calendar year to a state committee, and no more than $5,000 per calendar year to a local committee. BCRA §§ 102, 307(a)(2); FECA § 315(a)(1)(B), (D); 2 U.S.C. 441a(a)(1)(B), 441a(a)(1)(C), 441a(a)(1)(D). Finally, Congress also indexed all contributions for inflation, except for limits on contributions to state and local party committees. BCRA § 307(d); 2 U.S.C. § 441a(c).

e. Identification of Sponsors: Section 311

Section 311 requires that "whenever any person ... makes a disbursement for an electioneering communication," the communication, if it was authorized by a candidate or the candidate's political committee, must clearly identify the candidate or the candidate's political committee. If the communication was not authorized by the candidate or the candidate's political committee, then the communication "shall clearly state the name and permanent street address, telephone number, or World Wide Web address of the person who paid for the communication and state that the communication is not authorized by any candidate or candidate's committee." BCRA § 311; FECA § 318(a)(3); 2 U.S.C. § 441d(a)(3).

f. Prohibition of Donations by Minors: Section 318

In Section 318, Congress prohibited minors, defined as any children under eighteen years of age, from making donations, regardless of the amount, to candidates or political parties. BCRA § 318; FECA § 324; 2 U.S.C. § 441k.

4. Title V: Additional Disclosure Provisions

a. Public Access to Broadcasting Records: Section 50k

In Section 504, Congress requires broadcast licensees to collect and disclose records of any "request to purchase broadcast time" that "is made by or on behalf of a legally qualified candidate for public office" or that relates "to any political matter of national importance," including communications relating to "a legally qualified candidate," "any election to Federal office," and "a national legislative issue of public importance." BCRA § 504; FCA § 315(e)(1); 47 U.S.C. § 315(e)(1). The record must include whether the request to purchase was accepted or rejected; the rate charged for the broadcast; the date and time on which the communication aired; the class of time that is purchased; the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers; in the case of a request on behalf of a candidate, the name of the candidate, the authorized committee, and the treasurer of the committee; and in the case of any other request, the name of the person purchasing the time, the name and contact information for such person, and a list of chief executive officers or members of the executive committee or board of directors. Id.

III. FINDINGS OF FACT

The Findings of Fact include a description of the identities of the parties and include findings related to the disclosure provisions included in this per curiam opinion.

A. Parties to the Litigation

As of the May 7, 2002, deadline for amendment of pleadings, intervention or joinder of additional parties and consolidation of additional cases, see Scheduling Order of 4/24/02, 84 plaintiffs were parties to the consolidated actions. Since then, seven plaintiffs-the Alabama Republican Executive Committee, Martine J. Connors, the Jefferson County Republican Executive Committee, the Christian Coalition of America, Inc., the Libertarian Party of Illinois, Inc., the DuPage Political Action Council, Inc., and the National Association of Wholesaler-Distributorshave been dismissed from the suit without prejudice. See generally Orders of 8/15/02, 9/13/02, 9/18/02, and 9/30/02 Dismissing Pis. Without Prejudice.
Remaining in the suit are 77 plaintiffs in 11 actions: in No. 02-CV-0582 are Senator Mitch McConnell, Representative Bob Barr, Representative Mike Pence, Alabama Attorney General William H. Pryor, the Libertarian National Committee, Inc., the American Civil Liberties Union, Associated Builders and Contractors, Inc., Associated Builders and Contractors Political Action Committee, the Center for Individual Freedom, Club for Growth, Inc., Indiana Family Institute, Inc., the National Right to Life Committee, Inc., National Right to Life Educational Trust Fund, National Right to Life Political Action Committee, the National Right to Work Committee, 60 Plus Association, Inc., Southeastern Legal Foundation, Inc., U.S. d/b/a ProEnglish, Thomas Mclnerney, Barret Austin O'Brock and Trevor M. Southerland (collectively, the McConnell plaintiffs); in No. 02-CV-0581 are the NRA and National Rifle Association Political Victory Fund (collectively, the NRA plaintiffs); in No. 02-CV-0633 are Emily Echols, Hannah McDow, Isaac McDow, Jessica Mitchell, Daniel Solid and Zachary C. White (collectively, the Echols plaintiffs); in No. 02-CV-0751 are the Chamber of Commerce of the United States, the National Association of Manufacturers, National Association of Wholesaler-Distributors, and U.S. Chamber Political Action Committee (collectively, the Chamber of Commerce plaintiffs); in No. 02-CV-0753 is the National Association of Broadcasters; in No. 02-CV-0754 are the American Federation of Labor and Congress of Industrial Organizations and AFL-CIO Committee on Political Education Political Contributions Committee (collectively, the AFLCIO plaintiffs); in No. 02-CV-0781 are Congressman Ron Paul, Gun Owners of America, Inc., Gun Owners of America Political Victory Fund, RealCampaignReform.org, Citizens United, Citizens United Political Victory Fund, Michael Cloud and Carla Howell (collectively, the Paul plaintiffs); in No. 02-CV-0874 are the Republican National Committee, Mike Duncan, Republican Party of Colorado, Republican Party of Ohio, Republican Party of New Mexico, and Dallas County (Iowa), Republican Central Committee (collectively, the RNC plaintiffs); in No. 02-C0875 are the California Democratic Party, Art Torres, Yolo County Democratic Central Committee, California Republican Party, Shawn Steel, Timothy J. Morgan, Barbara Alby, Santa Cruz County Republican Central Committee, and Douglas R. Boyd, Sr., (collectively, the CDP plaintiffs); in No. 02-CV-0877 are Victoria Jackson Gray Adams, Carrie Bolton, Cynthia Brown, Derek Cressman, Victoria Fitzgerald, Anurada Joshi, Nancy Russell, Kate Seely-Kirk, Peter Kostmayer, Rose Taylor, Stephanie L. Wilson, California Public Interest Research Group, Massachusetts Public Interest Research Group, New Jersey Public Interest Research Group, United States Public Interest Research Group, the Fannie Lou Hamer Project, and Association of Community Organizers for Reform Now (collectively, the Adams plaintiffs); and in No. 02-CV-0881 are Representative Bennie G. Thompson and Representative Earl F. Hilliard (collectively, the Thompson plaintiffs).

To be clear, I do not join in the per curiam statement of facts, nor do I join the factual findings set forth in the other opinions. This does not mean, however, that the filing of an alternative set of findings is necessarily for naught. While the Supreme Court made clear as recently as two years ago that it will review a three-judge district court's factual findings for "clear error" only, it reversed the three-judge court's findings in that case because "on the entire evidence" it was "left with the definite and firm conviction that a mistake ha[d] been committed." Easley v. Cromartie, 532 U.S. 234, 242, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001) (quotation omitted).
The majority's view of the factual record- not to mention the record's legal significance-is quite different from mine, leaving me "with the definite and firm conviction that a mistake has been committed" with respect to several of its findings. See, e.g., Memo Op., CKK, Finding 2.13 ("[I]t is entirely possible to distinguish pure issue advocacy from candidate-centered issue advocacy ...."); Memo. Op., RJL, Finding 292 ("[G]enuine issue advertisements are less likely to refer to a federal candidate by name."); see also, e.g., Memo. Op., CKK, Findings 1.82-1.83 ("The immense quantity of testimonial and documentary evidence in the record demonstrates that large nonfederal contributions provide donors special access to influence federal lawmakers.... [I]t is clear that large donations, particularly unlimited nonfederal contributions, have corrupted the political system. The record [also] demonstrates that ... [IJarge donations made by groups or persons with an interest in pending legislative activity ... create an appearance of corruption."); Memo. Op., RJL, Finding 250 ("The defendants have offered substantial evidence that the public believes there is a direct correlation between the size of a donor's contribution to a political party and the amount of ... influence with... the officeholders of that party ...."). If the Supreme Court concludes as it did in Easley that the majority's "key findings are mistaken," Easley, 532 U.S. at 243, 121 S.Ct. 1452, it may be helpful for the Court to have an alternative set of findings that reads as a cohesive whole. I note that several factors common to Easley and the consolidated actions before us suggest the Court may be more willing here than in the normal case to undertake an "extensive review" of the record and to set aside findings with which it disagrees:

Alan G. Hassenfeld has served as Chairman of the Board and Chief Executive Officer of Hasbro, Inc. since 1989, a global company based in Rhode Island with annual revenues in excess of $3 billion. Hasbro designs, manufactures, and markets toys, games, interactive software, puzzles and infant products. He also sits on a number of civic and philanthropic boards. He is a member of the Board of Trustees of the University of Pennsylvania and Deerfield Academy, he serves on the Dean's Council of the Kennedy School of Government at Harvard, and sits on the board of Refugees International. He also run three charitable foundations: the Hasbro Charitable Trust, the Hasbro Children's Foundation, and a family foundation. Hassenfeld Decl. ¶¶ 2-3 [DEV 6-Tab 17].

Under the pre-BCRA regime, political parties could not use any nonfederal funds if the voter mobilization effort supported or opposed "a specific candidate." See 11 C.F.R. § 106.5(a)(2)(iv). And in BCRA, generic campaign activity is defined as "a public communication that promotes or opposes a political party and does not promote or oppose a clearly identified Federal candidate or a non-Federal candidate," BCRA § 101(b); 2 U.S.C. 431(21); 11 C.F.R. § 100.25 (67 Fed.Reg. 49,111 (July 29, 2002)), and "get-out-the-vote" is defined as "contacting registered voters ... to assist them in engaging in the act of voting," regardless of a reference to a federal candidate. See 11 C.F.R. § 100.24(a)(3). In any event, get-out-the-vote or voter registration activities employing a "public communication," which is defined broadly to include everything from telephone banks to mass mailings, see BCRA § 101(b); 2 U.S.C. 431(22); 11 C.F.R. § 100.26, that promotes or attacks a clearly identified federal candidate, see BCRA § 101; FECA § 301(20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii), would not be allowed if Section 301(20)(A)(iii) is upheld. See also Bowler Decl. 1120(b) (noting that California Democratic Party's ("CDP's") direct mail programs typically do not mention federal candidates); Erwin Aff. ¶ 9 (explaining that "[t]he overwhelming amount of [voter registration] activity is `generic' voter registration activity urging potential registrants to `Register Republican' ").

1. Senator Mitch McConnell is the senior United States Senator from the Commonwealth of Kentucky and is a member of the Republican Party. McConnell Aff. ¶ 1. He has long been active in the Republican Party at the national, state and local levels. Id. ¶ 2. Senator McConnell was first elected in 1984, was reelected in 1990, 1996, and was a candidate for election in 2002. Id. ¶ 7.

2. William H. Pryor, Jr. is Alabama Attorney General and was a candidate for reelection as Alabama Attorney General in 2002. Pryor Decl. ¶ 2. 3. The Libertarian National Committee, Inc. ("LNC") is the governing body of the Libertarian Party at the national level. Dasbach Decl. ¶ 4. The LNC is a nonprofit corporation incorporated in the District of Columbia and governed by section 527 of the Internal Revenue Code. Id. The LNC represents and advocates the principle that all individuals have the right to live in whatever manner they choose so long as they do not forcibly interfere with the right of others to do the same. Id.

4. The American Civil Liberties Union ("ACLU") is a tax-exempt corporation incorporated in the District of Columbia and is governed by section 501(c)(4) of the Internal Revenue Code. Romero Decl. ¶ 1. The ACLU is a nationwide, non-profit, non-partisan organization with approximately 300,000 members "dedicated to the principles of liberty and equality embodied in the Constitution." Id.

5. Associated Builders and Contractors, Inc. ("ABC") is a non-profit tax-exempt organization governed by section 501(c)(6) of the Internal Revenue code, incorporated in Maryland, and is funded primarily by membership dues. Monroe Direct Test. ¶ 3. It is a national trade association representing more than 23,000 contractors and related firms in the construction industry. Id. ABC's members, which include both unionized and non-union employers, "share the philosophy that construction work should be awarded and performed on the basis of merit, regardless of labor affiliation." Id.

6. Associated Builders and Contractors Political Action Committee ("ABC PAC") is a connected political committee governed by 2 U.S.C. § 431(4) and section 527 of the Internal Revenue Code and is a separate segregated fund of ABC pursuant to 2 U.S.C. § 441b(b). Id. ¶ 22. ABC PAC makes contributions to federal candidates who support the principles of ABC and funds independent expenditures for communications on their behalf. Id.

7. The Club for Growth, Inc. ("The Club") is a nationwide membership organization dedicated to advancing public policies that promote economic growth. Keating Decl. ¶ 5. The Club is a Virginia corporation organized under section 527 of the Internal Revenue Code. McConnell Second Am. Compl. ¶ 29. The Club "is dedicated to promoting the election of progrowth, pro-freedom candidates through the bundling of political contributions and issue advocacy campaigns." Keating Decl. ¶ 6. The Club for Growth advocates tax rate reduction, fundamental tax reform, tax simplification, capital gains tax reduction, estate tax repeal, overall reduction in government spending, school choice, and personal investment of Social Security. Id ¶ 5.

8. The National Right to Life Committee ("NRLC") is a tax-exempt corporation incorporated in the District of Columbia and is governed by section 501(c)(4) of the Internal Revenue Code. O'Steen Decl. ¶ 4. The NRLC is a nationwide, non-profit, non-partisan organization with approximately 3,000 local chapters and fifty state affiliates dedicated to "promoting respect for the worth and dignity of all human life from conception to natural death." Id. ¶¶ 5, 3.

9. The National Right to Life Educational Trust Fund ("NRL-ETF") is an organization governed by section 501(c)(3) of the Internal Revenue code. Id. ¶ 16. NRL-ETF sponsors educational advertising and develops materials detailing "fetal development, abortion's impact on America, and the threat of euthanasia." Id. ¶ 17.

10. The National Right to Life Political Action Committee ("NRL PAC"), organized in 1979, is an internal § 527 fund of NRLC that is registered with the FEC as a PAC subject to FECA. O'Steen Decl. ¶ 24.

11. Thomas E. Mclnerney is a U.S. citizen, a registered voter in the State of New York and a member of and contributor to various Republican Party organizations and committees at the national, state and local levels. Mclnerney Aff. ¶ 1.

12. Barret Austin O'Brock is a U.S. citizen and a resident of the State of Louisiana. O'Brock Decl. ¶ 1. He is fourteen years of age and intends to make contributions to federal candidates in future elections, including the 2004 election. Id. ¶¶ 2-3.

13. The National Rifle Association ("NRA") is a tax-exempt corporation governed by section 501(c)(4) of the Internal Revenue Code and incorporated in the State of New York. NRA Compl. ¶ 8. The primary purpose of the NRA is to preserve and protect the Second Amendment's guarantee that individuals shall have the right to "keep and bear arms." LaPierre Decl. ¶ 2. In addition, the NRA promotes public firearm safety, trains law enforcement agencies in the use of firearms, sponsors shooting competitions, and advances hunter safety. Id. The NRA has approximately four million members and represents their views on legislative and public policy issues before federal, state and local officials and the general public. NRA Compl. ¶ 8.

14. The National Rifle Association Political Victory Fund ("NRA PVF") is a connected political committee governed by 2 U.S.C. § 431(4) and section 527(e)(1) of the Internal Revenue Code and is a separate segregated fund of the NRA pursuant to 2 U.S.C. § 441b(b). NRA Compl. ¶ 9.

15. Emily Echols, Hannah and Isaac McDow, Zachary White, Daniel Solid and Jessica Mitchell are U.S. citizens who range in age from twelve to sixteen. Echols Pis.' Proposed Findings of Fact ¶ 45. They intend to seek out and contribute to federal candidates "who represent their views and beliefs on important questions like the right to life of children before birth, and on the size of government." Id. ¶ 44.

16. The Chamber of Commerce ("The Chamber") is a tax-exempt corporation governed by section 501(c)(6) of the Internal Revenue Code. Josten Direct Trial Test. ¶ 3. The Chamber is the world's largest not-for-profit business federation, representing over 3,000,000 businesses and business associations. Id.

17. The U.S. Chamber Political Action Committee ("U.S. Chamber PAC") is a connected political committee organized under section 527(e)(1) of the Internal Revenue Code and is registered with the FEC. Josten Direct Trial Test. ¶ 26. U.S. Chamber PAC is funded by contributions voluntarily made by individual Chamber of Commerce executives, administrative employees, members and their families. Id. ¶ 27.

18. The National Association of Manufacturers ("NAM") is a tax-exempt corporation governed by section 501(c)(6) of the Internal Revenue Code and is the oldest and largest broad-based industrial trade association in the United States. Huard Direct Trial Test. ¶ 2. Its membership comprises 14,000 companies and 350 member associations. Id.

19. The National Association of Broadcasters ("NAB") is a non-profit corporation that serves as a trade association of radio and television stations and broadcasting networks in the United States. Goodman Decl. ¶ 3. NAB serves and represents the American broadcasting industry, composed of approximately 7,300 member stations. Id. All of NAB's voting members are broadcast licensees within the meaning of the Communications Act. Id. 20. The American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO") is a national labor federation comprised of 66 national and international labor unions that, collectively, have a total of approximately 13 million members. G. Shea Decl. ¶ 3. The AFL-CIO is a taxexempt organization under Section 501(c)(5) of the Internal Revenue Code. Id. The AFL-CIO also includes 51 state labor federations, nearly 580 area and central labor councils and numerous trade and industrial departments. Id. ¶¶ 6,7, 9. One of the four major missions of the AFCIO is to provide "an effective political voice to workers on public issues that affect their lives." Id. ¶ 4b.

21. Congressman Ron Paul is a Member of the United States House of Representatives from the Fourteenth Congressional District of Texas and is a member of the Republican Party. Paul Decl. ¶ 1. He was first elected to represent the Fourteenth Congressional District of Texas in 1996, id., and also served as a Member of the House of Representatives for the Twenty-Second Congressional District of Texas, first elected in 1976 and to successive terms until 1984, id. ¶ 2. Congressman Paul is a registered voter in the state of Texas, a donor to the campaigns of candidates for federal office, and a fundraiser and recipient of campaign contributions. Paul Pis.' Compl. ¶ 11. He will face reelection in 2004. Paul Decl. ¶ 1.

22. Gun Owners of America, Inc. is a not-for-profit, tax-exempt corporation governed by section 501(c)(4) of the Internal Revenue Code. Pratt Decl. ¶ 2. It is dedicated primarily to defending the rights that its members believe are guaranteed by the Second Amendment to the Constitution; its principal function is the dissemination of information concerning such rights through educational programs and advocacy. Id. ¶ 3.

23. Gun Owners of America Political Victory Fund is a connected political committee governed by 2 U.S.C. § 431 and is a separate segregated fund of Gun Owners of America. Id. ¶ 4.

24. RealCampaignFinance.Org is a notfor-profit, tax exempt corporation governed by section 501(c)(4) of the Internal Revenue Code. Babka Decl. ¶ 2. It is dedicated to defending the campaign and election-related rights its members believe are guaranteed by the First Amendment to the Constitution through educational programs and advocacy. Id. ¶ 3.

25. Citizens United is a not-for-profit, tax exempt corporation governed by section 501(c)(4) of the Internal Revenue Code. Bossie Decl. ¶ 2. It is dedicated to the principles of limited government and national sovereignty and to defending the rights its members believe are secured in the United States Constitution; its principal function is the dissemination of information concerning such beliefs and advocacy. Id. ¶ 3.

26. Citizens United Political Victory Fund is a connected political committee governed by 2 U.S.C. § 431 and is a separate segregated fund of Citizens United. Id. ¶ 4.

27. Michael Cloud was the Libertarian Party's candidate for United States Senate from the Commonwealth of Massachusetts in the 2002 election and is a registered voter. Cloud Decl. ¶ 1.

28. Carla Howell was the Libertarian Party's candidate for Governor of the Commonwealth of Massachusetts in the 2002 election and is a registered voter. Howell Decl. ¶¶ 1-2. She was also the Libertarian Party's candidate for election to the United States Senate for the Commonwealth of Massachusetts in the 2000 election. Id. ¶¶ 2-3. 29. The Republican National Committee ("RNC") is an unincorporated association created and governed by The Rules of the Republican Party. Josefiak Decl. ¶ 13. It consists of three members from the Republican Party in each of the fifty States, the District of Columbia, Puerto Rico, American Somoa, Guam, and the U.S. Virgin Islands. Duncan Decl. ¶ 4; see also Josefiak Decl. ¶ 15. Each state and territorial Republican Party elects a national committeeman and a national committeewoman. Duncan Decl. ¶ 4; Josefiak Decl. ¶ 15. In addition, the state and territorial Republican Party chairmen serve as members of the RNC. Duncan Decl. at ¶ 4; Josefiak Decl. ¶ 15.

30. Mike Duncan is a member of the RNC from the State of Kentucky and currently serves as the General Counsel of the RNC. Duncan Decl. ¶ 5. Prior to becoming General Counsel, he was Treasurer of the RNC and in that capacity signed all RNC reports filed with the FEC. See id. In both his official capacity as an officer of the RNC and in his personal capacity, Duncan has participated in and (unless prohibited by BCRA) will continue to participate in national, state and local political party activities. Id. ¶¶ 6, 9. He will also (unless prohibited by BCRA) continue to solicit, receive, or direct non-federal funds to other persons. See id. ¶¶ 8-9.

31. The Republican Party of New Mexico is the state party committee of the Republican Party in New Mexico. See Dendahl Decl. ¶¶ 3-4. It supports federal, state and local candidates for office in New Mexico and promotes Republican positions on public policy issues. Id. Under New Mexico law, the Republican Party of New Mexico is permitted to raise and spend corporate, labor union and individual funds in unlimited amounts in support of state and local candidates. See N.M. Stat. Ann. §§ 1-19-25 to 1-19-36 (1978); Dendahl Decl. ¶¶ 5-7.

32. The Dallas County (Iowa) Republican County Central Committee is a local political party committee that the FEC has deemed independent of any state or national political party committee. Josefiak Decl. ¶ 21. It is actively involved in supporting state and local candidates for office in Iowa. Id.

33. The California Democratic Party ("CDP") is an unincorporated association of approximately seven million members and is the authorized Democratic Party of the State of California. Bowler Decl. ¶ 2. The CDP performs many functions, among them providing financial and material support to federal, state and local candidates; taking positions on public issues (including state and local ballot measures) and publicizing those positions; engaging in voter registration, get-out-the-vote and generic party-building activities; and maintaining an administrative staff and administrative structure to support these goals and activities and to comply with extensive federal and state regulation. Id. The CDP is required by state law to govern itself through the Democratic State Central Committee (DSCC). Id. ¶ 3. The DSCC is made up of approximately 2,710 members, about 849 of whom are elected by the 58 county central committees. Id. Other members serve on the DSCC because of their status as federal or state officials, as nominees of the CDP, as members of the Democratic National Committee (DNC) from California or as elected representatives of 80 Assembly District Committees (AD Committees). Id. CDP bylaws provide for local party AD Committees, which elect delegates to the DSCC and are the district level organizational blocks of the CDP. Id. ¶ 4. The AD Committees are primarily involved in local voter registration, get-out-the-vote and grassroots activities and they act as liaisons with the campaign organizations of Democratic candidates in their area. Id. 34. Art Torres is the elected Chair of the CDP. Torres Decl. ¶ 1. Torres also serves on the DNC and has been elected by the DNC to serve on the DNC Executive Committee. Id. ¶ 3. As Chair of the CDP, Torres assists the CDP and county central committees in fundraising efforts by meeting and talking regularly with potential donors and attending fundraising events. Id. ¶ 2; see also Bowler Decl. ¶ 5

35. The Yolo County Democratic Central Committee is one of the 58 county central committees authorized and governed by the California Elections Code. CDP Pis.' Compl. ¶ 11; see also Bowler Decl. ¶¶ 3-4. Members of the county central committees are elected at each statewide primary election. Bowler Decl. ¶ 4. All members of the CDP who are also state senators, members of the state assembly or Members of the Congress serve as ex officio members of their respective county central committees. Id. The county central committees are primarily involved in local voter registration, get-outthe-vote and grassroots activities and act as liaisons with the campaign organizations of Democratic candidates in their area. Id.

36. The California Republican Party ("CRP") is an association of over five million members and is the authorized Republican Party of the State of California. Morgan Aff. ¶¶ 3-4. The CRP performs many functions, among them providing financial and material support to federal, state and local candidates; taking positions on public issues (including state and local ballot measures) and publicizing those positions; engaging in voter registration, get-out-the-vote and generic party-building activities; and maintaining an administrative staff and administrative structure to support these goals and activities and to comply with extensive federal and state regulation. Id. ¶ 4. The CRP is governed by the Republican State Central Committee (RSCC). Id. ¶ 5. The RSCC consists of about 1,500 regular and appointive members. Id. The regular members include federal and state officeholders as well as the CRP's nominees for governor, seven other state constitutional offices, United States Senate, 52 congressional districts, 40 state senate districts, 80 state assembly districts and four State Board of Equalization districts. Id. The RSCC also includes the chairmen of the 58 county central committees and the chairmen of volunteer party organizations. Id. ¶ 6. The CRP operates as well through (1) a 100-member Executive Committee, which includes federal and state office holders and 16 representatives of county central committees; and (2) a 25-member Board of Directors, which includes a Member of Congress appointed by the delegation, three state elected officeholders and representatives from an association of Republican county central committee chairmen. Id. Under the CRP's bylaws and the RNC's rules, the CRP is part of the RNC. Id. ¶ 8. The CRP's elected chairman is a member of the RNC. Id. The CRP elects two other representatives to the RNC-a national committeeman and national committeewoman, each of whom is a member of the CRP Executive Committee and Board of Directors. Id.

37. Timothy J. Morgan is (1) a member of the RNC; (2) a member of the CRP Executive Committee; and (3) a member of the CRP Board of Directors; he also served as (4) Chairman of the Santa Cruz County Republican Central Committee. Morgan Aff. ¶ 1.

38. The Santa Cruz County Republican Central Committee is one of the 58 county central committees authorized and governed by the California Elections Code. CDP Pis.' Compl. ¶ 19; see also Morgan Aff. ¶ 6. Federal officials and candidates who were nominated as party nominees for partisan offices, including State constitutional and legislative offices, the Board of Equalization, and federal offices, including nominees for U.S. Senate and U.S. House of Representatives who represent all or a portion of the area within the county's jurisdiction are ex officio members of the Republican county central committee, and participate in its decision-making, either personally or through designated alternates or agents. Id.

39. The Federal Election Commission ("FEC") is a government agency headquartered in Washington, D.C., created pursuant to FECA, 2 U.S.C. § 437(c), and is charged with enforcing the Act as amended by BCRA. David M. Mason, Karl J. Sandstrom, Danny L. McDonald, Bradley A. Smith, Scott E. Thomas, and Michael E. Toner serve as the commissioners of the FEC.

40. The United States, through the Department of Justice ("DOJ"), is charged with enforcement of the criminal provisions of the Act as amended by BCRA, and has an interest in defending the constitutionality of duly enacted laws of the Nation. United States Mot. to Intervene at 5. John Ashcroft is Attorney General of the United States.

41. The Federal Communications Commission ("FCC") is a government agency headquartered in Washington, D.C., and is charged with enforcing the FECA as amended by BCRA.

42. The intervenors are Members of the Congress who were principal sponsors and authors of BCRA. Senator John McCain is a Republican United States Senator from the State of Arizona. Senator Russell Feingold is a Democratic United States Senator from the State of Wisconsin. Senators McCain and Feingold face reelection in 2004. Senator Olympia Snowe is a Republican United States Senator from the State of Maine. Senator James Jeffords is an Independent United States Senator from the State of Vermont. Senators Snowe and Jeffords face reelection in 2006. Congressman Christopher Shays is a Republican member of the House of Representatives from the Fourth Congressional District in Connecticut. Congressman Martin Meehan is a Democratic member of the House of Representatives from the Fifth Congressional District in Massachusetts.

B. Findings Regarding BCRA's Disclosure Provisions

43. The NRA presents evidence that some people have been reluctant to give money to the organization or the NRA PVF, the NRA's PAC, fearing that such contributions would be publicly reported. LaPierre Decl. ¶ 62 [NRA App. at 24-25] ("Throughout the years, hundreds, if not thousands, of NRA members have told me that they do not wish to disclose their contributions to the NRA.... If ... members are forced to disclose their identities, I firmly believe that many will not make contributions that trigger such disclosure."); Adkins Decl. ¶¶ 4-6 [NRA App. at 50] ("A conspicuous and disproportionate number of contributors" to the NRA PVF "contribute just below the $200 disclosure level."). Members who have expressed their desire to keep their contributions confidential have provided a variety of reasons. LaPierre Dep. at 306 ("A lot over the years have said, I donate to you, but gee, I just don't want my neighbors to know. I don't want my school board to know. I don't want my employer to know.... I might lose my job. I might not get my school board thing. I might have-I mean, they fearl mean, when you have as much hate as people have put out on this issue, it's natural for people to fear repercussions."); Adkins Dep. at 15-19 (testifying that notes received from individuals refusing to provide information for disclosure to the FEC did not give the reasons for their objections, or just stated they did not wish to have the information disclosed to the FEC); id. at 21-23 (testifying that she had received 3 telephone calls in the previous five or six years from individuals who feared their employer would find out that they donated to the NRA PVF). The NRA does not know the amount those who did protest disclosure gave to the organization. LaPierre Dep at 309; LaPierre Cross at 91; Adkins Dep. at 23. Of the between five and 50 persons estimated to have voiced disclosure concerns to LaPierre in 2000, LaPierre believes "not a lot" of those persons gave the NRA more than $1,000 in 2000 "[b]ecause we don't ... get a lot of contributions more than $1,000." LaPierre Dep. at 306-309. The average NRA donor donates approximately $30 per year. LaPierre Cross at 92. Beginning in 2003, the NRA's policy is to "pay for [their] television and broadcast programming exclusively out of funds provided by individual members." Id. at 93. Mr. LaPierre states that "NRA's position .... is that... it ought to be disclosed who is running those ads [run with funds from anonymous donors].... [a]nd who pays for the ads." LaPierre Dep. at 294-95 [JDT Vol. 14].

44. Edward Monroe, Director of Political Affairs for the Associated Builders and Contractors ("ABC") and the Treasurer of ABC's PAC, testifies that he had been told that a number of ABC contributors had suffered substantial vandalism after their names were disclosed and that the contributors believed the vandalism was the result of labor unions learning of their contributions. Monroe Cross at 86. He also testified that two corporations refused his solicitations due to their "policy of not supporting [ABC] based on previous incidents.... [T]hey did not elaborate." Id. at 87. Some contributors to ABC's PAC "specifically donate" less than $200. Id. at 88. Monroe believes this practice is the result of the contributors' desire to prevent public disclosure of the contributors' names. Id. Two corporations declined Mr. Monroe's solicitations because of "previous incidents," but did not elaborate. Id. at 87. Monroe also "believe[s]" that some companies do not contribute because they "do not trust [ABC's] ability to keep ... information confidential." Id. at 89.

45. Stephen Sandherr, Chief Executive Officer of Associated General Contractors of America ("AGC"), testifies in a deposition that between a dozen and two dozen members had expressed concerns to him about their contributions being publicly disclosed. Sandherr Dep. at 43^44. He believes that the number of members who share this concern is much higher but, because the AGC has made an effort to publicize the fact they do not disclose the names of contributors, concerned members do not feel the need to bring the issue up. Id. These members expressed two reasons for concern. Some were concerned that if their contributions were made known, "their local building trades would take offense and would threaten actions on the job site or would threaten to make life miserable for them." Id. at 45. Others were concerned that if their union became aware of their contribution, they would "cease bargaining over industry advancement funds," that local chapters depend on to support their activities. Id. at 46. The non-unionized members who expressed their concerns about disclosure to Sandherr did not express their reasons for wanting to remain anonymous. Id. at 48. No contributor to AGC's PAC ever told Sandherr that they planned to contribute less than $200 in order to prevent disclosure of its identity, and no contributor to the AGC's PAC ever reported being subjected to retaliation from unions for giving money to the PAC. Id. at 55-56.

46. Bruce Josten, Executive Vice President for Government Affairs, U.S. Chamber of Commerce, gave deposition testimony that some contributors to "Americans Working for a Real Change," a coalition established to respond to AFL-CIO issue advertisements, did not want to be publicly identified. Josten Dep. at 13-14, 27. The reason these entities gave for not wanting to be identified was that they feared becoming "targets or recipients of corporate campaigns or other types of what some would call union harassment activities." Id. at 28.

47. Mr. Romero, the ACLU's legislative director, attests that "[m]any ACLU members and contributors request explicit assurances that their membership will remain confidential and that their contributions will remain anonymous. The ACLU has consistently defended the First Amendment right of its members and donors to remain anonymous if they so choose." Declaration of A. Romero ¶ 5. Mr. Romero notes that "[o]nly 212 individuals contributed more than $1,000 to the organization. Id. ¶ 6."

48. A poll conducted by Mark Mellman and Richard Wirthlin, two reputable political pollsters, found that 61 percent of Americans want to know who is paying for political advertisements, while 24 percent say knowing such information does not matter to them. Mark Mellman & Richard Wirthlin, Research Findings of a Telephone Study Among 1300 Adult Americans (Sept. 23, 2002) at 20 [DEV 2-Tab 5].

49. At least one study has found that the public has a difficult time determining who is responsible for issue advertisements that identify candidates.

In response to the question asking who paid for an ad, just over 60 percent of survey participants correctly attributed the candidate ads and the pure issue ads to their actual sponsors. Identification of the sponsors of the candidate-oriented issue ads was much more scattered, with most people (38 to 48 percent) assuming in each case that they came from candidates and fewest (9 to 18 percent) assuming that they were paid for by an interest group. These results, of course, suggest that the disclaimers that appear on these ads are almost completely ineffective.

Krasno & Sorauf Expert Report at 78-79 (summarizing results from David B. Magleby, Dictum Without Data: The Myth of Issue Advocacy and Party Building, available at http://www.byu.edu/outsidemonev/dictum/index.html).

50. The problem of determining the true sponsors of issue advertisements is not only experienced by the general public; politicians and political strategists also have difficulty determining the source of these commercials. For example, former Senator Dale Bumpers, relates that

[o]ne of the most insidious things about soft money "issue ads" is that the ordinary viewer doesn't have a clue as to who paid for the ad. I first noticed this problem in 1996, when I saw several issue ads before it ever dawned on me that those ads were not being paid for by the candidate.... At first I just assumed that the ads were paid for by the opposing candidates' campaign funds, though I did think it was very strange that the opposing candidates' names were never mentioned. In those ads, everything is honed in on the candidate the ad is trying to defeat. At that time, I did not know that they were soft money spots.

Declaration of Senator Dale Bumpers ¶ 29 [DEV 6-Tab 10]. Democratic political consultant Terry S. Beckett testifies that

[t]he Republican Leadership Council ("RLC") also ran so-called "issue ads" on television in the 2000 Congressional campaign.... [Two of t]hese ads accuse [Republican Candidate Ric] Keller of acting "like a liberal." I found it [ ] ironic, not to mention unsettling, to learn of reports that the hundreds of thousands of dollars the RLC spent on these ads trying to defeat Mr. Keller were actually provided by the Florida sugar industry.....And the fact that I, a general consultant in this same race with long high-level experience in Florida politics, was not aware until earlier this year of whose money was behind these ads strongly underlines the need for disclosure of this kind of stealth electioneering financed with corporate funds.

Declaration of Terry S. Beckett ("Beckett Decl") ¶ 14 [DEV 6-Tab 3]. Similarly, political media consultant Raymond Strother comments that

The following is an audio transcript from one of these "Florida sugar industry-sponsored advertisements: Ric Keller has become an embarrassment. He claims to be a conservative but got caught getting help from liberal Democra Linda Chapin, and Keller's law fir coughed up campaign contributions for liberal Democrat Buddy McKay. Ric Keller even supported the Clinton-Gore billion dollar tax on food. Ric Keller, who proclaims to be a conservative but gets caught acting like a liberal. How embarrassing. How wrong. How Clinton. Beckett Decl. Ex. 5 [DEV 6-Tab 3].

I believe that we lack jurisdiction over the Adams plaintiffs' claims. See infra Part IV.G. Accordingly, I would make no findings with respect to any of the Adams plaintiffs. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514, 19 L.Ed. 264 (1869))). Moreover, in the interest of avoiding unnecessary or cumulative findings, I would not make findings of fact with respect to each and every litigant over whose claims the court does have jurisdiction.

CED is "an independent non-partisan research and policy organization of some 200 Trustees who are prominent business leaders and educators." Kolb Decl. I ¶ 1 [DEV-Tab 24].

See Bowler Decl. ¶¶ 13, 15 (explaining that in the 2002 cycle, where the only federal office on the California ballots was a congressional race, administrative expenses were required to be allocated 12.5 percent federal and 87.5 percent nonfederal based on the ballot composition formula). California holds elections for 120 legislative officers, eight statewide-elected officers, and four members of the State Board of Equalization. It also holds elections for judicial offices, local offices, and ballot measures at both the state and local levels. See id. ¶ 13; Erwin Aff. ¶ 5.

one of the biggest problems that a candidate's media consultant now faces is the lack of disclosure associated with third parties running these ads. A few years ago, Jill Docking ran for the United States Senate against Sam Brownback in Kansas.... In the last two weeks of a very tight election, an unidentifiable group came in and poured a million dollars into the race. They ran television, radio, direct mail, and push polls throughout Kansas telling voters that Jill wasn't a Christian, and all we could find was a fax machine. We had no idea where the money came from. I have had similar experiences in other races as well. Without knowing who is funding the groups that run these ads, we are often unable to correct the distortions.

Declaration of Raymond D. Strother ¶ 5 [DEV 9-Tab 40]. Joe Lamson, campaign manager for Bill Yellowtail's 1996 campaign, testified that

The Yellowtail campaign had trouble finding out who was running the 1996 Citizens for Reform ads in Montana [which portrayed Yellowtail in a negative light]. As I recall, a local television station pointed us to a group in New Orleans. That group said they didn't know anything, but gave us a telephone number in Oklahoma that turned out to be connected to the J.C. Watts campaign. I believe someone there then flipped us to a phone number in Washington, D.C., and we finally found Citizens for Reform. We later learned that Citizens for Reform was actually a front for Triad, a group that ran broadcast attack ads against many Democrats nationwide in the 1996 election cycle.

Declaration of Joe Lamson ¶ 12 [DEV 7-Tab 26]; see also Declaration of Larry LaRocco (former Member of Congress, stating he was never able to find the source of attack advertisements run against him in the 1994 campaign because none of the sponsoring organizations were registered with the FEC); Magleby Expert Report at 29 [DEV 4-Tab 8] (providing examples illustrating the point that "even candidates and their campaign managers are unable to ascertain who some of the groups running ads [in the 2000 campaign] were").

51. Krasno and Sorauf find that:

Secrecy is one of the outstanding characteristics of issue advertisements, especially those financed by interest groups. As a result, we-and regulators-are hampered by a remarkable paucity of information about them. The media tracking data we have referred to throughout our report fill in some of the blanks, but many key factual questions remain unanswered or may only be answered after painstaking investigation.... This secrecy, by itself, creates enormous opportunities for wrongdoing, for favors to be exchanged between issue advocates and public officials.... Among its various advantages, disclosure is thought to combat corruption by illuminating the dark corners in which undue influence may be exerted far from public view. The idea is that politicians eager for popularity and votes will be loath to enter into situations that cast doubt on their probity; thus, the more these situations are revealed, the stronger the politician's impulse to avoid them. One of the ironies of this litigation is that many of BCRA's opponents are otherwise champions of disclosure.... The public's interest in revealing these transactions is countered by the private interest of many groups and donors to keep them secret. Thus, the ability to route money to groups for candidate-oriented issue ads without disclosure has attracted an increasing amount of money to this activity. In the growing opaqueness of campaign financing, the opportunity for donors and officeholders to forge close relationships or strike deals without risk of detection increases, too.

Krasno & Sorauf Expert Report at 73-75 [DEV 1-Tab 2 at 146]. According to Plaintiffs' expert Sidney Milkis, a professor at the University of Virginia, "the names of these [issue advertising] groups did little to tell viewers who the sponsors of these messages were; indeed, in some cases they were misleading." Milkis Decl. ¶ 49.

52. Defendants' Expert Report, produced by Professor David Magleby, finds that

[t]he current system places an unreasonable burden on voters to ascertain who is attempting to persuade them in an election. Our focus groups and survey data from 2000 show that to voters, party and interest group electioneering advertisements are indistinguishable from candidate advertisements. (See Table 2.) Even the candidates and their campaign managers are unable to ascertain who some of the groups running ads were.... And in the CSED national survey, I found that respondents were often confused as to whether party ads were paid for by candidates or parties. More than 40 percent of the time, the respondents thought the party ads were paid for by a candidate.... Voters, when asked, have consistently indicated that they would like to know who it is that is conducting electioneering. In 2000 voters in Montana faced a competitive U.S. Senate and a competitive U.S. House race. A late October Montana State University-Billings Poll found that, "78 percent of the survey respondents reported that it was `very' or `somewhat important' for them to know who `pays for or sponsors a political ad.'" Our focus group participants in 2000 had very similar views on the question of the importance of their knowing who is paying for or sponsoring an ad. More than four-fifths (81%) said it was very or somewhat important to know the identity of the sponsor. In the national Knowledge Networks Survey in 2000, 78 percent said the same thing.

David B. Magleby, Report Concerning Interest Group Electioneering Advocacy and Party Soft Money Activity, at 29-30 [DEV 4-Tab 8].

53. The Annenberg Public Policy Center finds that

[b]ecause issue ads are not federally regulated, sponsors are not subject to disclosure requirements. As a result, who paid for an ad may not be apparent to viewers when they see it. Some organizations do identify themselves in the course of an advertisement, but their names may be unfamiliar to viewers and/or deliberately vague. For example, "Citizens for Better Medicare" is not a grass-roots generated group of citizens, but an arm of the Pharmaceutical Research and Manufacturers Association (PhRMA).

Annenberg Report 2001 at 18; see also id. at 3 (commenting that "[t]racking spending on issue advocacy is far from an exact science" because of the lack of disclosure). One of the conclusions the Center has reached after seven years of study is that "[i]ssue advocacy masks the identity of some key players and by so doing, it deprives citizens of information about source of messages which research tells us is a vital part of assessing message credibility." Id. at 2.

54. A prominent example of an organization running advertisements that influenced a federal election but were able to skirt FECA's disclosure provisions is the "Republicans for Clean Air" campaign. The issue advocacy campaign sponsored by Republicans for Clean Air during the 2000 Republican primary highlights how groups can use candidate-centered issue advocacy to avoid FECA's disclosure requirements. Defendants' experts Krasno and Sorauf provided uncontroverted testimony that:

[a]mong the mysterious groups sponsoring issue ads or the mysterious donors funding various organizations-all without making information known to the publicthe example of "Republicans for Clean Air" stands out. This group sponsored ads praising then-Governor Bush and criticizing Senator McCain before the 2000 Republican presidential primaries in three states. Eventually, after the first of these primaries (South Carolina's) reporters uncovered that Republicans for Clean Air consisted of two brothers, Charles and Sam Wyly, longtime friends and supporters of Governor Bush. Charles Wyly, in fact, was an authorized fundraiser for the Bush campaign.... According to press estimates, the Wylys spent $25 million on their ads for Governor Bush .... When the Wylys' involvement was later uncovered during the New York primary, the news qualified as a small bombshell and led to a wave of publicity critical of the brothers and the Bush campaign, which in turn distanced itself from "Republicans for Clean Air." ... In sum, we have a major campaign conducted in secrecy during a key part of the 2000 Republican primary campaign, and a marked change in the level of scrutiny once its sponsors became known. Much as we applaud the ingenuity of the reporters who eventually broke the story, we strongly believe that there is a compelling governmental interest in making these facts known to all from the start.

Krasno and Sorauf Report at 75-76 (footnotes omitted) [DEV 1-Tab 2]; see also FEC MUR 4982, Statement of Reasons, Comm'rs Thomas and McDonald, April 2002, INT 003684 [DEV 133-Tab 1] ("The week before the `Super Tuesday' primaries, a $2 million advertising campaign praising presidential candidate George W. Bush and attacking his opponent, John McCain, ran in the important primary states of California, New York, and Ohio. The ads stated that they were paid for by a group calling itself `Republicans for Clean Air.' In actuality, the ads apparently were financed mostly by two brothers, both of whom were strong financial supporters of then Governor Bush and one of whom was an authorized fundraiser for the Bush presidential campaign. At issue in MUR 4982 was whether there should have been some disclosure to the voting public of who really paid for the ads; whether the ads were coordinated with any agent of the Bush campaign and, thus, should be viewed as an in-kind contribution to the Bush campaign, and finally, whether the advertising effort should have registered with the Federal Election Commission as a `political committee' subject to the reporting requirements and funding restraints."). Even Plaintiffs' expert agrees that the candidate-centered issue advocacy of the Republicans for Clean Air highlights the fact that this technique can be used to influence federal elections without complying with FECA's disclosure provisions. La Raja Decl. 1125(b) ("We could not determine the sponsors of this ad until reporters in Washington discovered that brothers from Texas, who strongly supported George W. Bush, paid for the advertisements using a P.O. Box in Herndon, Virginia.... This direct personal experience trying to monitor outside electoral activity revealed to me the potential difficulties of identifying the source of interest group campaign activities, including issue ads.").

IV. CONCLUSIONS OF LAW

As part of the per curiam opinion, the Court resolves the Paul Plaintiffs' discrete claims and most of the new disclosure provisions of BCRA.

A. Paul Plaintiffs' Press Clause Challenge

Paul Plaintiffs focus their complaint on the guarantees of free press embodied in the First Amendment. Paul Pis.' Br. at 8. Specifically, Paul Plaintiffs contend that BCRA imposes certain restrictions on their "press" activities, which violate the basic tenets on which the freedom of the press rests. See id. at 10, 13-18. In doing so, Plaintiffs advance a new, if not novel, challenge-a tack that has not been used in the campaign finance realm. See id. at 11 ("To date, however, [campaign finance challengers] that are engaged in non-exempt press activities have not invoked the freedom of the press in their numerous challenges to the constitutionality of federal campaign finance regulations...."). While the Court recognizes the import of Paul Plaintiffs' innovative legal theory, it finds their arguments unpersuasive.

"Paul Plaintiffs" include: United States Representative Ron Paul, Gun Owners of America, Inc., Gun Owners of America Political Victory Fund, RealCampaignReform.Org, Citizens United, Citizens United Political Victory Fund, Michael Cloud, and Carla Howell.

Wayne LaPierre is the Executive Vice President of the NRA and is responsible for the organization's operations. See LaPierre Decl. at 1.

Charles Kolb is CED's president. Kolb Decl. I ¶ 1 [DEV 7-Tab 24].

See Findings 113-37, 150-54. The CDP spent more money for voter registration in 1998, a year with eight statewide elections, than in 2000, a presidential election year. Bowler Decl. ¶ 20.a; see also Erwin Aff. ¶ 14.a (stating that "voter registration activities are primarily driven by the desire to affect State and local races").

According to Paul Plaintiffs, BCRA imposes unconstitutional licensing restrictions, economically burdensome regulations, editorial control, and prior restraint on their "press" activities.

Stephen Dasbach is Senior Advisor and former National Chairman of the LNC. See Dasbach Decl. at 1.

Mr. Andrews is an attorney and lobbyist at the Washington, D.C. firm of Butera & Andrews, specializing in government relations and federal legislative representations. He has been an active lobbyist before Congress since 1975. Prior to that time, he served as Chief Legislative Assistant to then United States Senator Sam Nunn. Prior to forming Butera & Andrews, he worked in the government relations practice at the Washington office of the law firm of Sutherland, Asbill & Brennan. During his career, he has represented clients from throughout the nation and abroad, and they have included major corporations, trade associations, coalitions, and state governmental entities. He has worked with clients on a broad array of issues including environmental matters, federal taxation, banking, financial services, housing, and many others. He has served two terms as President of the American League of Lobbyists, and Washingtonian magazine named him as [sic] of "Washington's Top 50 Lobbyists." Andrews Decl. ¶ 1 [DEV 6-Tab 1]

See also Bowler Rebuttal Decl. Ml 3-4 (explaining that the CDP pays for much of its voter registration and get-out-the-vote activities with money raised by the state party); Bowler Decl. ¶ 12 (explaining that in the 1999-2000 election cycle, the CDP raised $15,617,002 in nonfederal funds, which it used to fund state and local activities). The amount of nonfederal money the California Republican Party ("CRP") and CDP raised themselves is much more than the nonfederal funds they received from national-party transfers. CDP/CRP 1171 (in the 1999-2000 election cycle, which was a presidential election cycle, only 19.1 percent of all CRP nonfederal money was from national-party transfers); CDP/CRP 35, 37, 39 (in 2000, only 36 percent of all CDP nonfederal money was from national-party transfers). While the state and local parties may spend most of their nonfederal national-party transfers on candidate advocacy, they spend very little of their overall nonfederal funds on such activities.

As discussed at oral argument:
MR. TITUS: Now, if that's true of the institutional press, that a prior restraint has to be tested by such a high standard, all the more true for the Paul plaintiffs who in this particular case are indicating to you, Your Honors, that what they are engaged in are press activities, they are entitled to the same immunity from prior restraint as the institutional press.

Anthony Romero is the Executive Director of the ACLU and is responsible for the organization's operations, including its legislative activities. See Romero Decl. at 1.

The donors were Philip Morris ($3,017,036 in nonfederal contributions to national political parties, $19,580,000 in lobbying expenditures), Joseph E. Seagram & Sons ($1,938,845 in nonfederal contributions to national political parties, $550,000 in lobbying expenditures), RJR Nabisco ($1,442,931 in nonfederal contributions to national political parties, $1,637,688 in lobbying expenditures), Walt Disney Co. ($1,359,500 in nonfederal contributions to national political parties, $980,000 in lobbying expenditures), and Atlantic Richfield ($1,250,843 in nonfederal contributions to national political parties, $4,360,000 in federal and state lobbying expenditures). Resp. of Intervenors to RNC's First and Second Reqs. for Admis. at 23-24.

For example, the CDP actively registered over 300,000 Democratic voters throughout California during 2002 even though there was only one competitive congressional race out of 52 races. See Bowler Decl. ¶ 20.a; Torres Decl. ¶ 8.

In essence, Paul Plaintiffs characterize their activities (for example, candidate press releases, broadcast and radio advertisements, and campaign literature) as falling under the constitutional protections afforded to the press. The freedom of the press, as Plaintiffs contend, "was never designed as a special privilege of the institutional media," Paul Pis.' Br. at 11; rather it extends to "every freeman," see id. at 12 (citing Near v. Minnesota, 283 U.S. 697, 713-14, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)). They argue further that while other First Amendment rights-of speech and association, for example-may be limited by a compelling governmental interest, the freedom of the press is insulated from such limitations. Id. at 9 n. 3. Under Plaintiffs' theory, the same governmental interests that survive a constitutional challenge in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), may not be used to justify any limitation on the general press, which includes all persons and organizations disseminating information. See id. at 28 ("[T]he Paul Plaintiffs urge this Court not to follow Buckley v. Valeo here, because the press guarantee lays down a different and more stringent standard ....").

The vast majority of activities cited by Paul Plaintiffs fall well-outside the scope of BCRA's prohibition on "electioneering communications." See BCRA § 201(a); FECA § 304(f)(3)(A); 2 U.S.C. § 434(f)(3)(A) (not applying to press releases or campaign literature). Moreover, Paul Plaintiffs bring a facial challenge to the constitutionality of this statute, and have clearly not met their burden of demonstrating that the law is substantially overbroad.

David Keating is the Executive Director of Club for Growth and is familiar with the dayto-day operation of the organization. See Keating Decl. at 1.

The donors were Philip Morris ($2,446,316 in nonfederal contributions to national political parties, $38,800,000 in lobbying expenditures), Communications Workers of America ($1,464,250 in nonfederal contributions to national political parties, $460,000 in lobbying expenditures), AFSCME ($1,340,954 in nonfederal contributions to national political parties, $2,460,000 in lobbying expenditures), Amway Corp. ($1,312,500 in nonfederal contributions to national political parties, $240,000 in lobbying expenditures), American Financial Group ($1,210,000 in nonfederal contributions to national political parties, $20,000 to $40,000 in lobbying expenditures)

Cf. Robert Post, Regulating Election Speech Under the First Amendment, 11 Tex. L.Rev. 1837, 1842 (1999) ("It is surely the case that election speech affects elections, but so does all public discourse. If all that were necessary to bring speech within the authority of a managerial domain were that the speech produce effects on the domain, nothing much would be left of public discourse.").

Paul Plaintiffs fail to provide the Court with a standard to apply where the government obstructs "press" activities, nor do they delineate the additional, substantive rights provided under the First Amendment Freedom of the Press Clause. Plaintiffs contend that "[t]he freedom of the press provides guarantees that are distinct from, and significantly greater than, the guarantees of free speech and association, and of equal protection...." Paul Pis.' Br. at 9 n. 3. Moreover, they note that "[w]hile the compelling government interest test has been applied to free speech, association, and equal protection claims, it is not applicable to the freedom of the press." Id. Plaintiffs do not, however, explicitly state instances where the freedom of the press has been found to be superior to the other guarantees provided under the First Amendment. Nonetheless, Paul Plaintiffs ask-although not explicitly-that the Court review any government interference with "press" activities under a more stringent standard than "exacting scrutiny," which would normally be applied where a law burdens core political speech. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (holding that state restrictions on political speech are subject to "exacting scrutiny"). Without guidance from the parties, the Court, therefore, assumes that Paul Plaintiffs request the application of a standard on par with strict scrutiny.

David O'Steen is the Executive Director of the NRLC and is familiar with the day-to-day operation of the organization. See O'Steen Decl. at 1.

Mr. Greenwald is currently Chairman Emeritus of United Airlines, the largest employee majority-owned company in the United States. From 1994 through his retirement in 2000, he served as the Chairman and CEO of United. Prior to that, he was vice chairman at Chrysler Corporation and worked at Ford Motor Company. Greenwald Decl. ¶ 2 [DEV 6-Tab 16]

This analysis of Section 301(20)(A)(iii) is equally applicable to national, state, and local parties. Considering the coordination and financial transfers between the various party levels and that parties at all levels work on behalf of national, state, and local candidates, it is unrealistic to view the parties differently simply based on the fact that one is labeled "national" and another "state." It is the nature of the activities they undertake rather than they label they assume that defines the type of allowable regulations.

In order for Paul Plaintiffs' arguments to prevail, however, they must demonstrate that the freedom of the press provides rights superior to those under the Speech and Association Clauses of the First Amendment. If Paul Plaintiffs cannot demonstrate that their claims warrant separate and unique guarantees-guarantees that are not provided under the other clauses of the First Amendment-then there is no need for the Court to treat their grievances separately.

The Supreme Court has not explicitly stated whether the freedom of the press affords greater protections than that of speech or association; two leading First Amendment scholars have observed, however, that the Press Clause provides no greater rights. 2 Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech, § 22:10 (2002) ("Does the Press Clause today have jurisdictional significance distinct from the Speech Clause? For the most part, the answer appears to be `no.'"); see also Laurence H. Tribe, American Constitutional Law § 12-1, at 785 n. 2 (2d ed.1988). Part of the problem as Professor Smolla has observed, is that "in modern First Amendment jurisprudence, the Press Clause has largely been subsumed into the Speech Clause." Id. at § 22:6.

Professor Tribe, in his chapter on "Rights of Communication and Expression," does not allude to any greater or distinct rights afforded by the First Amendment Freedom of the Press Clause. In fact, Tribe states: "Throughout this chapter, `freedom of speech' will be employed as shorthand for the entire collection of freedoms (other than those pertaining specifically to religion) secured from government interference by the first amendment." Laurence H. Tribe, American Constitutional Law § 12-1, at 785 n. 2 (2d ed.1988).

R. Bruce Josten is Executive Vice President for Government Affairs of the U.S. Chamber of Commerce and has supervisory responsibility for the organization's government affairs activities. See Josten Direct Test, at 1.

Mr. Donald Fowler from 1971 until 1980, he served as Chairman of the South Carolina Democratic Party and from January 1995 until January 1997 he served as Chairman of the Democratic National Committee. Fowler Decl. ¶ 2 [DEV 6-Tab 13].

See, e.g., J. Henderson Op. at Part IV.D.l.a & Part IV.D.l.b (referring repeatedly to "protected issue advocacy"). I do not believe we should assume that just because the party advertisements are currently funded with nonfederal money that they, by definition, have a nonfederal purpose. See J. Henderson Op. at Part IV.D.l.a

The Supreme Court's treatment of the First Amendment in First National Bank of Boston v. Bellotti 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978), illustrates this point. In Bellotti the Supreme Court considered a Massachusetts criminal statute that prohibited corporations "from making contributions or expenditures for the purpose of influencing or affecting the vote on any question submitted to the voters." Bellotti 435 U.S. at 768, 98 S.Ct. 1407 (internal quotations and ellipses omitted). The plaintiff-bank wanted to spend money to publicize its views on a proposed state constitutional amendment that was to be submitted to the voters as a ballot question in an upcoming election. Id. at 769, 98 S.Ct. 1407. After being informed that the state Attorney General would enforce the statute, the bank sought declaratory relief. Id. The case was not exclusively framed around the Press Clause, see id. at 779, 98 S.Ct. 1407, yet the Supreme Court engaged in a careful discussion of the freedom of the press and entertained whether media corporations enjoy superior rights as compared to those of general corporations. Id. at 781, 98 S.Ct. 1407. The majority deemed that the "institutional" media "does not have a monopoly on the First Amendment," id. at 781-82, 98 S.Ct. 1407, but went on to consider whether the state could "show[ ] a subordinating interest which is compelling" to justify the statute's impact on First Amendment rights, id. at 786, 98 S.Ct. 1407. The Supreme Court then determined that the state's concern failed to meet the compelling interest test. Id. at 788-91, 98 S.Ct. 1407.

The Supreme Court distinguished the statute in Bellotti from traditional campaign finance laws, which involve expenditures directed towards or otherwise contributed to candidates. Bellotti, 435 U.S. at 790, 98 S.Ct. 1407. "Referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involved in candidate elections simply is not present in a popular vote on a public issue." Id. (citation omitted).

Paul Huard is NAM's Senior Vice President for Finance and Administration and has served as the organization's chief lobbyist. See Huard Direct Test, at 1.

Mr. Charles Geschke is Chairman of the Board of Adobe Systems, Inc., which he cofounded in 1982. Geschke Decl. ¶ 1 [DEV 6-Tab 14]. Since 1994, Mr. Geschke estimates that he has donated over $150,000 in federal funds to federal political committees, and over $18,000 in nonfederal funds to national party committees. Id. ¶ 3 [DEV 6-Tab 14].

Any attempt to regulate communications that directly affect federal elections, like those regulated in Section 301(20)(A)(iii), does not exceed Congress's authority to regulate federal elections under the Elections Clause, see U.S. Const, art I., § 4. For this reason, I do not need to address further the plaintiffs' federalism claims in relation to Section 301(20)(A)(iii). I also reject the plaintiffs' equal-protection challenge because political parties are unique actors in the political system, see supra note 27 and accompanying text, such that Congress is warranted in treating contributions to them differently. See California Medical, 453 U.S. at 200-01, 101 S.Ct. 2712 (rejecting equal-protection challenge to contribution limits for multicandidate political committees, stating that "[t]he differing restrictions placed on [different entities] reflect a judgment by Congress that these entities have differing structures and purposes, and that they therefore may require different forms of regulation in order to protect the integrity of the electoral process"). Finally, I concur with Judge Henderson's discussion of the Thompson Plaintiffs' equal-protection claim. See J. Henderson Op. at Part IV.D.4.

Bellotti is significant because, despite considering rights under the Press Clause, the Supreme Court nonetheless applied the compelling interest test. Id. In other words, in the context of an election law statute, as it applied to a non-media corporation, the Supreme Court treated the Press and Speech Clauses as indistinct. What is more, the Supreme Court alluded to no rights under the Press Clause that are superior to or different than those under the other clauses of the First Amendment.

The Supreme Court did not, however, consider whether the media exemption under most campaign finance laws, see, e.g., BCRA § 201(a); FECA § 304(f)(3)(B)(i); 2 U.S.C. § 434(f)(3)(B)(i), violates the First Amendment or the Equal Protection Clause. That is, by exempting the "institutional" media, do such provisions unfavorably discriminate against the rights of the general press? The Supreme Court settled this question in Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), when it simply stated: "Although the [institutional] press' unique societal role may not entitle the [institutional] press to greater protection under the Constitution, it does provide a compelling reason for the State to exempt media corporations from the scope of political expenditure limitations." Austin, 494 U.S. at 668, 110 S.Ct. 1391.

Edward Monroe is Director of Political Affairs for ABCI and also serves as Treasurer of ABC PAC. See Monroe Direct Test, at 1.

Mr. Mclnerney's affidavit includes statements about his understanding of the legal effect of New York campaign laws which is irrelevant to the cases at bar. See Mclnerney Aff. I 8 [9 PCS]. His affidavit also contains statements which suggest an incomplete understanding of the impact BCRA will have on his campaign donations.

See, e.g., Colorado II, 533 U.S. at 458, 121 S.Ct. 2351 ("I understood that when I raised funds for the [Democratic Senatorial Campaign Committee ("DSCC") ], the donors expected that I would receive the amount of their donations multiplied by a certain number that the DSCC had determined in advance, assuming the DSCC has raised other funds." (quoting Senator Timothy Wirth)); Simpson Decl. ¶ 7 ("Members know that if they assist the party with fundraising, be it hard or soft money, the party will later assist their campaign.... Although soft money cannot be given directly to federal candidates, everyone knows that it is fairly easy to push the money through our tortured system to benefit specific candidates."); McCain Decl. H 7 ("[PJarties encourage Members of Congress to raise large amounts of soft money to benefit their own and others' re-election."); see also Findings 31-35.

Even if the Court were to find that the Press Clause provides greater or different protections than the other provisions of the First Amendment, Plaintiffs' arguments must fail. As noted above, Paul Plaintiffs have failed to identify any case that has applied "press" guarantees in the campaign finance context. Tr. at 341 (Titus); see also Paul Pis.' Br. at 11. To hold for Paul Plaintiffs would be to invite a new and wholly unsupported theory of First Amendment jurisprudence; litigants could besiege the courts with a host of challenges to laws previously upheld by the Supreme Court on First Amendment grounds, merely by characterizing themselves in their complaints as members of the "press" because their purpose is to disseminate information to the public. As Chief Justice William Rehnquist and Associate Justice Antonin Scalia observed in Mclntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995), "of course, if every partisan cry of `freedom of the press' were accepted as valid, our Constitution would be unrecognizable." Mclntyre, 514 U.S. at 373, 115 S.Ct. 1511 (Scalia, J., dissenting).

If the Press Clause affords greater or different rights, it might force the courts to make a distinction between the "institutional" and "general" press. The difficulty in making this distinction compelled Chief Justice Burger to write his concurring opinion in Bellotti. See Bellotti, 435 U.S. at 796, 98 S.Ct. 1407 (Burger C.J., concurring) (noting the "difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from [non-media] corporations"). Nonetheless, this Court refuses to resolve Plaintiffs' Press Clause claims in this context.

Jack Goodman is Senior Vice President and General Counsel of the NAB and is involved in developing the organization's regulatory and policy objectives. See Goodman Decl. at 1-2.

Professor Paul Herrnson is one of Defendant's experts.

In the 1998 election, $24.6 out of $25.6 million spent by political parties on advertisements were spent on advertisements that referred to a federal candidate. Out of 44,485 advertisements, 42,599 advertisements referred to a specific candidate. See Krasno & Sorauf Expert Report at tbl. 1.

In Mclntyre, the Supreme Court applied the Speech Clause to invalidate an Ohio statute that prohibited the anonymous distribution of campaign literature on general, referendum questions. Mclntyre, 514 U.S. at 336-37, 349-51, 115 S.Ct. 1511. Justice Thomas concurred in judgment, but "would [have applied]... a different methodology to [the] case." Id. at 358-59, 115 S.Ct. 1511. According to Justice Thomas, the "practices and beliefs held by the Founders" provided for an author's right to publish anonymously under the Press and Speech Clauses. Id. at 360, 115 S.Ct. 1511. Justice Scalia, with whom Chief Justice Rehnquist joined, was not persuaded by Justice Thomas's arguments. Id. at 373, 115 S.Ct. 1511. As Justice Scalia observed, "not every restriction upon expression that did not exist in 1791 or in 1868 is ipso facto unconstitutional, or else modern election laws such as those involved in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) would be prohibited, as would ... modern antinoise regulation ..., and modern parade permitting regulation." Id. (citations omitted).

Gerald Shea serves as Assistant for Government Affairs to the President of the AFCIO and, as such, is responsible for oversight and coordination of all of the AFL-CIO's policy-related activities. See G. Shea Decl. at 2.

Mann notes that where the variables of "[p]arty, ideology, constituency, mass public opinion and the president .... are less significant, there is evidence that interest group contributions, particularly to junior members of Congress, have influenced roll call votes- for example, on financial services regulation." Mann Expert Report at 32-33 [DEV 1-Tab 1] (citing Thomas Stratmann, Can Special Interests Buy Congressional Votes? Evidence from Financial Services Legislation). Paper (prepared for delivery at the 2002 Annual Meeting of the American Political Science Association, Boston, 29 August-1 September), available from the APSA Proceedings Web site: http://apsaproceedings.cup. org/Site/papers/022/022023 StratmannT.pdf.2002.

See Findings 36-52.

Paul Plaintiffs can cite no precedent in support of their claims. Since the Supreme Court has not affirmatively provided superior rights under the Press Clause, and has suggested that such claims fall under the general First Amendment compelling interest test, this Court rejects the argument that Paul Plaintiffs' claims under the Press Clause warrant a higher level of constitutional protection. Therefore, this Court will apply the same scrutiny to all First Amendment claims, whether presented under the Speech or Press Clauses, and subsumes all of Paul Plaintiffs' Title I, and essentially all of their Title II, arguments into the First Amendment challenges advanced by the other litigants in this case. B. BCRA's Disclosure Provisions

Given this conclusion, the Court holds that there is no reason to remand the Paul Plaintiffs' separate challenges to FECA's pre-BCRA provisions under this theory to a single-judge court. See Paul Pis.' Compl. ¶ 1 ("This is an action for declaratory and injunctive relief with respect to certain provisions of [BCRA] as it amends the [FECA], as well as certain related provisions of the FECA ... on the grounds that these integrally related provisions deprive the Plaintiffs of the Freedom of the Press in violation of the First Amendment of the Constitution of the United States.") (emphasis added) (citations omitted).

Thomas Josefiak is Chief Counsel of the RNC and is primarily responsible for the day-to-day legal operations of the RNC, including ensuring that all of the RNC's activities, officers and employees comply with applicable federal and state election laws. See Josefiak Decl. at 1-2.

Mark Mellman is "CEO of The Mellman Group, a polling and consulting firm.... Mellman has helped guide the campaigns of some fifteen U.S. Senators, over two dozen Members of Congress, and three Governors, as well as numerous state and local officials. In addition, Mellman works with a variety of public interest organizations ... and corporate clients ... He has served as a consultant on politics to CBS News, a presidential debate analyst for PBS, a contributing analyst for The Hotline, National Journal's daily briefing on politics, and is currently on the faculty of The George Washington University's Graduate School of Political Management." Mellman and Wirthlin Report at 2 [DEV 2-Tab 5].

145 Cong. Rec. S12747 (Oct. 18, 1999) (Sen.Levin); see also Memorandum from

Paul Plaintiffs briefly challenge the constitutionality of section 301 of Title III in their pleadings-most notably and independent of their Press argument, that section 301 discriminates against non-incumbent office holders by placing limitations on personal use expenditures. Paul Pis.' Br. at 25. However, the Court is not able to discern any basis for these arguments in their Amended Complaint. Accordingly, the Court does not address this issue.

John Dendahl is the State Chairman of the Republican Party of New Mexico and is responsible for recruiting and supporting federal, state and local candidates in the State and for raising funds to support the state committee's operations. See Dendahl Decl. at 1.

Richard Wirthlin is "Chairman of the Board of Wirthlin Worldwide", a strategic opinion research firm he founded in 1969, which now is one of the top companies in its field. Wirthin is perhaps best known as President Reagan's strategist and pollster.... Mellman and Wirthlin Report at 2-3 [DEV 2-Tab 5]. He is widely respected in the "field of social science research and one of this country's most respected political and business strategists." Id. Wirthlin "was chief strategist for two of the most sweeping presidential victories in the history of the United States. In 1981 he was acclaimed Adman of the Year by Advertising Age for his role in the 1980 campaign and in 2001 was one of four Republicans awarded American University's `outstanding contribution to campaign consulting.' In the same year, he was designated `Pollster of the Year' by the American Association of Political Consultants." Id. at 3. The Washington Post named Wirthlin "the prince of pollsters" and George Gallup, Jr. said Wirthlin is "one of the very best at our craft." Id.

Another example of negative candidate advocacy funded by parties: "We expect our public officials to be responsible, do their jobs and obey the law. But Corrine Brown missed an astonishing 187 votes in Congress.... Apparently, Corrine Brown thinks she's above the law. A government audit found extensive violations of federal law during her 1992 campaign. Call Corrine Brown .... Tell her public officials should act responsibly, do their job and obey the law." ODP0041-1024. For more examples, see Findings 41, 45, 46.

Section 201: Disclosure Provisions

1. Introduction

With one exception, the Court also finds the disclosure provisions relating to "electioneering communications" constitutional. The factual record demonstrates that the abuse of the present law not only permits corporations and labor unions to fund broadcast advertisements designed to influence federal elections, but permits them to do so while concealing their identities from the public. BCRA's disclosure provisions require these organizations to reveal their identities so that the public is able to identify the source of the funding behind broadcast advertisements influencing certain elections. Plaintiffs' disdain for BCRA's disclosure provisions is nothing short of surprising. Plaintiffs challenge BCRA's restrictions on electioneering communications on the premise that they should be permitted to spend corporate and labor union general treasury funds in the sixty days before the federal elections on broadcast advertisements, which refer to federal candidates, because speech needs to be "uninhibited, robust, and wideopen." McConnell Br. at 44 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). Curiously, Plaintiffs want to preserve the ability to run these advertisements while hiding behind dubious and misleading names like: "The Coalition-Americans Working for Real Change" (funded by business organizations opposed to organized labor), "Citizens for Better Medicare" (funded by the pharmaceutical industry), "Republicans for Clean Air" (funded by brothers Charles and Sam Wyly). Findings fH 44, 51, 52. Given these tactics, Plaintiffs never satisfactorily answer the question of how "uninhibited, robust, and wide-open" speech can occur when organizations hide themselves from the scrutiny of the voting public. McConnell Br. at 44. Plaintiffs' argument for striking down BCRA's disclosure provisions does not reinforce the precious First Amendment values that Plaintiffs argue are trampled by BCRA, but ignores the competing First Amendment interests of individual citizens seeking to make informed choices in the political marketplace. As a result, the Court finds Section 201 facially constitutional, with the exception of one subsection which the Court determines to be broader than necessary to achieve the legitimate governmental interest at stake.

2. Discussion

The provision's disclosure requirements are challenged by the McConnell, AFCIO, Chamber of Commerce, NAB, NRA, and Paul Plaintiffs. Plaintiffs' challenge to Section 201's disclosure provisions focuses on two aspects of the law: (1) its requirement of disclosure prior to the airing of electioneering communications; and (2) its requirement that disbursers disclose the names of contributors who gave over $1,000 to the disbursing fund. The Court addresses each in turn.

a. Prior Disclosure

The McConnell Plaintiffs, AFL-CIO, Chamber of Commerce, and NAM object to Section 201's disclosure requirements on the ground that they mandate disclosure of not only actually aired electioneering communications, but also contracts to make such communications. See McConnell Br. at 56 n. 22; AFL-CIO Br. at 14-17; Chamber/NAM at 20 n. 13. This advance disclosure, Plaintiffs argue, "serve[s] no governmental interest and will chill the exercise of free speech by forcing groups... to disclose ongoing and confidential political strategies and decision-making processes, and by giving adversaries the opportunity to try to thwart broadcasts or counter them with their own messages." AFL-CIO Br. at 16.

McConnell Plaintiffs, the Chamber of Commerce and NAM make a passing suggestion that Section 201 might constitute a "prior restraint" in violation of the First Amendment. McConnell Plaintiffs Br. at 55-56 ("But if this Court agrees that the electioneering communications provisions cannot stand, the attendant disclosure provisions should likewise fall, because the disclosure provisions constitute a regulation of-and in some cases a prior restraint onspeech that the government may not regulate in the first place."); Chamber/NAM Br. at 20 n. 13 ("The timing of the BCRA's electioneering communication disclosure requirement is an unconstitutional prior restraint.").
This argument cannot be squared with the Supreme Court's definition of "prior restraint." See Ward v. Rock Against Racism, 491 U.S. 781, 795 n. 5, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ("[T]he regulations we have found invalid as prior restraints have `had this in common: they gave public officials the power to deny use of a forum in advance of actual expression.'") (citing Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975)); see also Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123 (7th Cir. 2001) ("By `prior restraint' ... modern courts... mean censorship-an effort by administrative methods to prevent the dissemination of ideas or opinions thought dangerous or offensive. The censor's concern is with the content of speech, and the ordinary judicial safeguards are lacking. `Prior restraints' that do not have this character are reviewed under the much more permissive standard applicable to restrictions merely on the time, place, or manner of expression.") (citations omitted); Wisconsin Realtors Ass'n v. Ponto, 233 F.Supp.2d 1078, 1091 (W.D.Wis.2002) (subjecting Wisconsin statute's prior reporting requirements to "time, place, or manner of expression" analysis); FEC Opp'n at 112.

Kathleen Bowler is the Executive Director of the CDP and oversees the day-to-day administrative operations of the organization. See Bowler Decl. at 1-2.

The survey was conducted over a period of five days (August 28, 2002 through September 1, 2002), and the pollsters made an average of 4.58 dialings per telephone number in the sample set in order to ensure that the sample was representative. See Mellman and Wirthlin Report at 22-23 [DEV 2-Tab 5], The study's contact rate was 38 percent, more than double the industry average of 15 percent. Id. at 23. The rate of refusal of the respondents who refused to be polled was within the normal range for a random telephone survey conducted in the United States. Id. The pollsters took several steps to avoid bias. Id. at 24; see also Wirthlin Cross Exam, at 40 (explaining that the pollsters took steps to avoid bias by randomly ordering the questions, "so that there is no sequence developed where one question may, if always asked in the same order, affect[ ] the second question."). The statistical margin of sampling error, that is, the error due to sampling versus if the pollsters talked to every American in the United States, is 2.7 percentage points: the actual opinions of Americans will be within 2.7 percentage points of those reported in the study 95 percent of the time. Id. at 22.

See Findings 36-52, 138-47. The parties were clearly not using such advertisements for party building purposes since 92 percent of the advertisements did not even mention the name of the party in the body of the advertisement. Buying Time 2000 at 64 (stating that in the 2000 election, almost 92 percent of party advertisements never even identified the name of a political party in the body of the advertisement, let alone encouraged voters to register with or support the party or to volunteer with the local party organization).

Defendants argue that the then-pending (and now final) regulations interpret the notice requirements as not mandating disclosure until after the advertisements have been publicly distributed. Gov't Opp'n at Ill. The content of the regulations, argue Defendants, "moot plaintiffs' concerns, [make] plaintiffs' claims to injury ... wholly speculativef,] and their challenge to this aspect of BCRA's disclosure provisions is therefore unfit for judicial resolution." Id.

The Court cannot agree that Plaintiffs' challenge to the disclosure requirements in Section 201 is not ripe for review. Unlike the situation confronted by the Court in examining the disclosure requirement of Section 212, discussed infra at 250, the regulations promulgated for Section 201 do not eliminate Plaintiffs' prior disclosure concerns. The regulations, despite the FEC's explanation of the provision, appear to still require prior disclosure of electioneering communications that have not yet aired. Specifically, the definition of "disclosure date" leaves uncertain what must be disclosed after the airing of an electioneering communication when the disburser has executed contracts for electioneering communications aggregating over $10,000. The regulations suggest that if a person has executed $10,000 in electioneering communications contracts, 24 hours after the first such communication is aired, the disburser must make a disclosure encompassing all of the electioneering communications under the contracts). The Court notes that its jurisdiction does not extend to the FEC's BCRA regulations, see BCRA § 403 (providing this Court with jurisdiction to hear challenges to "the constitutionality of any provision of this Act or any amendment made by this Act"), and therefore it makes no determination on their validity or proper construction. However, given the uncertainty it finds with regard to the scope of the regulations, the Court cannot conclude that Plaintiffs' challenge is not ripe. "[T]he extent of the chill upon first amendment rights induced by vague or overbroad statutes is the most significant factor in determining whether an otherwise premature or abstract facial attack ... is ripe for decision." Martin Tractor Co. v. FEC, 627 F.2d 375, 384 (D.C.Cir.1980). Where other cases have found facial First Amendment challenges ripe for review, "either the activities in which the complainants wished to (or had) engaged or the enforcing authority's particular intent to enforce the statute, or both, were clear enough to show the adversarial posture assumed by the parties and the contours of their dispute." Id. at 387. Here, Plaintiffs have clearly engaged in "electioneering communications" in the past, and the FEC regulations promulgated on January 3, 2003, indicate that the agency intends to enforce BCRA Section 201, including its "contracts" provision. Given these facts, the Court finds that Plaintiffs "have alleged an actual and well-founded fear that the law will be enforced against them," which threatens the danger of "self-censorship; a harm that can be realized even without an actual prosecution." Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). Analysis of Section 201 commences with the guidance that disclosure provisions "in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption." Buckley, 424 U.S. at 68, 96 S.Ct. 612. However, disclosure provisions are subject to exacting scrutiny analysis "because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights." Id. at 66, 96 S.Ct. 612. The Supreme Court has found three categories of "governmental interests sufficiently important to outweigh the possibility of infringement." Id. The Supreme Court stated:

In issuing the final regulations, the FEC noted that
All of the commenters who addressed this issue ... advocated adopting a final rule that would define "disclosure date" as the date of the public distribution of the electioneering communication. They argued that there is no electioneering communication, and therefore no reporting requirement, until the communication is actually publicly distributed.... This [adopted definition of disclosure] date reflects the Commission's concerns that there are legal and practical issues associated with compelling disclosure of potential electioneering communications before they are finalized and publicly distributed, and premature disclosure may require reporting entities to divulge confidential strategic and political information about their possible future activities. Explanation and Justification of 11 C.F.R. 104.20, Reporting Electioneering Communications, 68 Fed.Reg. at 404, 409 (Jan. 3, 2003).

As it is used in these alternative findings and throughout this opinion, the term "Members of the Congress" includes both United States Representatives and United States Senators.

Frances Beinecke is the Executive Director of the NRDC. Beinecke Decl. ¶ 1 [RNC Vol. IX].

See Oliver Dep. at 148-49 (estimating that the RNC spent around $56-61 million dollars on "issue ads" during the 2000 campaign); Marshall Decl. 113 (stating that the largest portion of Democratic National Committee ("DNC") budget during the 2000 election cycle was used for "issue ads"). In 2000, the RNC raised $254 million, a majority of which was transferred down to the state parties mostly for "issue advertisements." Josefiak Dep. at 76; Vogel Decl. II 63; McGahn Decl. 1155.

The regulations provide in part: (1) Disclosure date means:
(i) The first date on which an electioneering communication is publicly distributed provided that the person making the electioneering communication has made one or more disbursements, or has executed one or more contracts to make disbursements, for the direct costs of producing or airing one or more electioneering communications aggregating in excess of $10,000; or

Defense expert Jonathan Krasno is a visiting fellow at Yale University's Institution for Social and Policy Studies.

Deborah Sease is the Legislative Director of the Sierra Club. Sease Decl. ¶ 1 [RNC Vol. XIX],

The donors themselves are not blind to the fact that donations to the parties are used to benefit the federal candidates. See, e.g., Rozen Decl. ¶ 12 ("Donors to the national parties understand that if a federal officeholder is raising soft money-supposedly `non-federal' money-they are raising it for federal uses, namely to help that Member or other federal candidates in their elections.").

In analyzing Section 212, infra at 140, the Court finds that the FEC's final regulations completely and unequivocally address Plaintiffs' concerns and therefore renders their challenge to that provision unripe for adjudication at this time. In the analysis of Section 214(c), infra at 250, the Court finds that the regulations related to Section 214, promulgated after briefing and oral argument in this case, have affected the contours of the dispute between the parties to such an extent that the challenge is not ripe for review.

Defense expert Frank Sorauf is Regents' Professor Emeritus at the University of Minnesota.

Morton Keller is an experts for the Plaintiffs.

See supra note 19.

The Court notes that arguments could be made that the FEC's regulations do render Plaintiffs' challenge unripe. For example, under the regulations, to be an "electioneering communication" the broadcast must be "publicly distributed within 60 days before a general election." BCRA, FCC Database on Electioneering Communications; Final Rules, 67 Fed.Reg. 65190, 65210 (Oct. 23, 2002) (to be codified at 11 C.F.R. § 100.29(a)(2)). Therefore, it could be argued that a broadcast is not an "electioneering communication" until it is aired, and therefore contracts to make broadcasts are not contracts to make electioneering communications unless and until the broadcasts have been publicly disseminated.
This reasoning leads to the conclusion that one cannot have $10,000 in electioneering communications contracts to disclose until $10,000 worth of advertisements have been publicly disseminated. However, as this analysis demonstrates, such a conclusion is not unequivocally apparent, and therefore could lead to the chilling of First Amendment rights. Again, had the FEC promulgated regulations which clearly addressed this issue as it did for Section 212, the Court's ripeness determination for Section 201 would likely have been different. Given the possibility of different interpretations of the regulations, the chilling effect of that uncertainty, and the fact this Court lacks jurisdiction to rule on the regulations, the Court has determined that Plaintiffs' challenge to Section 201's disclosure provisions is ripe.

Defense expert Kenneth Goldstein is an Associate Professor of Political Science at the University of Wisconsin-Madison, where he specializes in the study of interest groups and political advertising. See Goldstein Expert Report at 1.

John Dendahl is the State Chairman of the Republican Party of New Mexico. Dendahl Decl. ¶ 1 [RNC Vol. VIII].

One donor, and former political fundraiser, observed the following:
Information about what soft money donors have given travels among the Members in different ways. Obviously the Member who solicited the money knows. Members also know who is involved with the various major donor events which they attend, such as retreats, meetings and conference calls. And there is communication among Members about who has made soft money donations and at what level they have given, and this is widely known and understood by the Members and their staff. Randlett Decl. ¶ 10; see also Bumpers Decl. ¶¶ 18, 20 (testifying that "some Members even keep lists of big donors in their offices" and that "you cannot be a good Democratic or a good Republican Member and not be aware of who gave money to the party. If someone in Arkansas gave $50,000 to the DNC, for example, I would certainly know that."); Wirth Decl. Exhibit A ¶ 17 ("[Candidates were generally aware of the sources of the funds that enabled the party committee to support their campaigns.").

First, disclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.
Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return ....
Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above.

Id. at 66-68, 96 S.Ct. 612 (citations omitted). Buckley upheld the constitutionality of Section 434(e) of FECA, which required disclosure of independent expenditures, although the Supreme Court did limit the provision to only those expenditures used for "communications that expressly advocate the election or defeat of a clearly identified candidate." Id. at 80, 96 S.Ct. 612. The provision was found to be "part of Congress' effort to achieve total disclosure... in order to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to corruption and undue influence as possible." Id. at 76, 96 S.Ct. 612 (footnote and quotation marks omitted). The Supreme Court deemed the measure "responsive to the legitimate fear that efforts would be made, as they had been in the past, to avoid the disclosure requirements by routing financial support of candidates through avenues not explicitly covered by the general provisions of FECA." Id. at 76, 96 S.Ct. 612 (footnote omitted). The Supreme Court also determined that

it is not fatal that [section] 434(e) encompasses purely independent expenditures uncoordinated with a particular candidate or his agent. The corruption potential of these expenditures may be significantly different, but the informational interest can be as strong as it is in coordinated spending, for disclosure helps voters to define more of the candidates' constituencies.

Buckley, 424 U.S. at 81, 96 S.Ct. 612.

Addressing Plaintiffs' prior disclosure concerns, Defendant FEC maintains that even with the "contracts" language, Section 201 is constitutional because it "does not prevent anyone from speaking," and "[t]he reports themselves would not have to reveal the specific content of the advertisements, yet they would perform an important function in informing the public about various candidates' supporters before election day." FEC Opp'n at 112 (emphasis in original). Although the Court agrees that the function cited is a substantial one, see Buckley, 424 U.S. at 67, 96 S.Ct. 612 ("[F]ull disclosure during an election campaign tends to prevent the corrupt use of money to affect elections.") (citation and quotation marks omitted), the FEC does not explain how this goal is any less served by requiring disclosures only after the expenditures for electioneering communications have been publicly disseminated. Information concerning contracts that have not been performed, and may never be performed, may lead to confusion and an unclear record upon which the public will evaluate the forces operating in the political marketplace. By limiting disclosures to expenditures actually made, the government's legitimate interest is served without the constitutional and practical shortcomings implicated by requiring prior disclosures. This is so because Section 201 requires disclosure within 24 hours of the disbursement. The Court finds that Section 201, by including subsection 5 of Section 201, BCRA § 201(a); FECA § 304(f)(5); 2. U.S.C. § 434(f)(5), which equates contracts to make disbursements with actual disbursements requiring disclosure of contracts to make electioneering communications prior to their public dissemination, lacks a "relevant correlation" or "substantial relation," Buckley, 424 U.S. at 64, 96 S.Ct. 612, to a legitimate governmental interest.

The Court does not address the question of whether or not the 24-hour disclosure deadline included in Section 201 is constitutional, as this provision was not challenged nor its constitutionality briefed by Plaintiffs and consequently not responded to by Defendants. See McConnell Plaintiffs Br. at 56 n. 22; AFL-CIO Br. at 14-17; ACLU Br. at 17-19; Chamber/NAM Br. at 18-20; NRA Br. at 48-50; FEC Opp'n at 112 n. 116 ("In Citizens for Responsible Gov't State Political Action Comm... the court invalidated a 24-hour notice requirement because it believed `such immediate notice' was unduly burdensomec/aim [sic ] not raised by plaintiffs here ....") (emphasis added); McConnell v. FEC, No. 02-582 (D.D.C. Oct. 15, 2002) (Briefing Order) ("All legal arguments shall be presented on a titleby-title basis, with a discrete section of each brief devoted to each title.") (emphasis added); see also Tri-State Hosp. Supply Corp. v. United States, 142 F.Supp.2d 93, 101 n. 6 (D.D.C.2001) ("The court makes no ruling on such acts, however, because the United States has not briefed the issue."); Carter v. Cleland, 472 F.Supp. 985, 989 n. 4 (D.D.C.1979) ("This issue was not briefed by the parties. No decision will be rendered on it."); cf. Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C.Cir.1993) ("[T]his Court has recognized that a losing party may not use a Rule 59 motion to raise new issues that could have been raised previously."). Circuit Courts of Appeal routinely consider issues that are not briefed as "abandoned." United States v. Wade, 255 F.3d 833, 839 (D.C.Cir.2001) (citing Terry v. Reno, 101 F.3d 1412, 1415 (D.C.Cir.1996), cert, denied, 520 U.S. 1264, 117 S.Ct. 2431, 138 L.Ed.2d 193 (1997)).

As it is used in these alternative findings and throughout this opinion, the term "interest group" refers to any person or entity- whether a corporation, union, trade association, advocacy group or the like (but not a political party)-that (1) is interested in a particular issue; (2) participates in the political process; and (3) associates with others of like mind. See infra Finding 79 at pages 348-49.

Robert Bennett has served as Chair of the Ohio Republican Party since 1988. Bennett Decl. ¶ 1-2 [RNC Vol. VIII].

See Findings 169, 170, 172-79; Colorado II, 533 U.S. at 458, 121 S.Ct. 2351 ("[Y]ou are at the limit of what you can directly contribute to my campaign," but "you can further help my campaign by assisting the Colorado Republican Party." (quoting then-Congressman Wayne Allard)); see also Letter from Senator Mitch McConnell to Potential Donor at the Microsoft Corporation (August 17, 1998) (asking potential donor for an "immediate commitment" in support of the National Republican Senatorial Committee's ("NRSC's") issue advocacy campaign); see also Letter Senators Mitch McConnell and Bill Frist to Donor at Steel Service Center Institute (February 25, 1998) (thanking donor for a "nonfederal contribution of $25,000" to the NRSC).

This constitutional flaw, however, does not render Section 201 unconstitutional in its entirety. BCRA provides that "[i]f any provision of this Act ... or the application of a provision ... to any person or circumstance[ ] is held to be unconstitutional, the remainder of this Act ... and the application of the provisions ... to any person or circumstance, shall not be affected by the holding." BCRA § 401; 2 U.S.C. 454 note. As the Supreme Court noted in Buckley, "[u]nless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Buckley, 424 U.S. at 108-09, 96 S.Ct. 612 (quoting Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932)); see also Consumer Energy Council of America v. Federal Energy Regulatory Comm'n, 673 F.2d 425, 441 (D.C.Cir.1982) ("The presence of a severability clause, which expressly sets forth congressional intent that a statute stand in the event one of its provisions is struck down, makes it extremely difficult for a party to demonstrate inseverability."), affd, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1402, 77 L.Ed.2d 1403 (1983); Buckley, 42A U.S. at 108-09, 96 S.Ct. 612 (finding that unconstitutional provisions did not render all of Subtitle H of FECA unconstitutional); Carlin Communications, Inc. v. FCC, 837 F.2d 546, 560-61 (2d Cir.1988) (finding that "the words `or indecent' are separable so as to permit them to be struck and the statute otherwise upheld.... [T]he invalid part of section 223 may be dropped and ... the remainder of the statute is fully operative."), cert, denied 488 U.S. 924, 109 S.Ct. 305, 102 L.Ed.2d 324 (1988). Given this guidance and the clear import of Section 401 of BCRA, the Court holds that the remainder of Section 201 is severable from subsection (5). It is clear that the value of disclosing electioneering communications disbursements is not dependent on their disclosure prior to broadcast, and the Court cannot say that it is "evident that the legislature would not have enacted" the remaining disclosure provisions of Section 201 in the absence of subsection (5). Buckley, 42A U.S. at 108-09, 96 S.Ct. 612. The remainder of Section 201 adequately serves the purpose of "informing the public about various candidates' supporters before election day," FEC Opp'n at 112 (emphasis in original), without requiring advance disclosures that could potentially chill the exercise of free speech rights.

The Court therefore finds that Section 201's requirement that electioneering communications that have not yet aired but have been contracted for is unconstitutional, but that by severing subsection (5), the provision's prior disclosure concerns are remedied and the remainder of the section is constitutional.

b. Disclosure of $1,000 Contributors

Plaintiffs ACLU, Chamber of Commerce, NAM, and NRA challenge Section 201's requirement that electioneering communications disbursers disclose the names of persons who have given $1,000 or more to the disbursing fund. Plaintiffs argue that for "controversial groups, such threatened disclosure can have a deadly chilling effect on the group's advocacy." ACLU Br. at 19; see also Chamber/NAM Br. at 19; NRA Br. at 50. The NRA argues that the provision suffers from the same infirmities as those in FECA struck down by the D.C. Circuit, as BCRA's "disclosure requirements reach the very same outside `groups engaging in nonpartisan discussion.' " NRA Br. at 49-50 (quoting Buckley, 519 F.2d at 873). Finally, the Chamber of Commerce argues that Section 201's disclosure requirements are overbroad, because at least "[w]hen the advertiser is the Chamber [of Commerce], the interest served by the ad is reasonably clear." Chamber/NAM Br. at 20 (quoting Deborah Goldberg & Mark Kozlowski, Constitutional Issues in Disclosure of Interest Group Activities, 35 Ind. L.Rev. 755, 757 (2002)).

Defendants argue that the disclosure of individual contributors is necessary because many sponsors of issue advertisements conceal "their identity from the public by electioneering pseudonymously, through front organizations such as `The Coalition: Americans Working for Real Change,' [sic ] `Citizens for Reform.'" FEC Br. at 173. Indeed, the Supreme Court has observed that "when individuals or corporations speak through committees, they often adopt seductive names that may tend to conceal the true identity of the source." Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 298, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981) (rejecting the argument that a limit on contributions to committees formed to support or oppose ballot measures was necessary "to make known the identity of supporters and opponents" of such measures, given that another provision of the ordinance "requires publication of lists of contributors in advance of the voting"). This observation has been buttressed by the evidence presented in this case. See Findings ¶¶ 48-52. For example, PhRMA, a pharmaceutical industry trade group, the Chamber of Commerce, and two brothers from Texas, have produced issue adds under the names "Citizens for Better Medicare," "Americans Working for a Real Change," and "Republicans for Clean Air," respectively. Id. ¶¶ 51, 44, 52. A recent poll showed that 61 percent of Americans want to know who is behind these issue advertisement organizations. Id. ¶ 46. Plaintiffs' briefs provide no evidence to the contrary and do not attempt to argue that the government lacks a legitimate interest related to the disclosure requirements; in fact, many of their experts voice the same concerns. Id. ¶¶ 49 (Milkis), 52 (La Raja). The Court finds that the evidence presented establishes that a legitimate governmental interest is served by the donors disclosure requirement, and reaffirms the Buckley observation that "[t]he corruption potential of [independent uncoordinated] expenditures may be significantly different [than coordinated expenditures], but the informational interest can be as strong as it is in coordinated spending, for disclosure helps voters to define more of the candidates' constituencies." Buckley, 424 U.S. at 81, 96 S.Ct. 612. Without disclosure of donors, it is difficult, if not impossible for the voting public to know who is sponsoring political advertisements under amorphous and nondescript pseudonyms. See Findings ¶¶ 47, 50-51. Indeed, even those experienced in politics, political scientists, and members of the media find it difficult to know who is behind some political advertisements. Id. ¶¶ 48, 52. Without Section 201's disclosure requirements, it will continue to be extremely difficult for the public to learn that groups, such as PhRMA, or individuals, like the Wylys, are the true source of millions of dollars in potential advertisements run under banners such as "The Coalition" or "Citizens for Better Medicare." Id.

In justifying the provision, one Senator commented:
We deter the appearance of corruption by shining sunlight on the undisclosed expenditures for sham issue advertisements. Corruption will be deterred when the public and the media are able to see clearly who is trying to influence the election. In addition our provisions will inform the voting public of who is sponsoring and paying for an electioneering communication. 147 Cong. Rec. S3034 (daily ed. Mar. 28, 2001) (Sen. James Jeffords). In a similar vein, a Representative stated: No one is trying to gag anybody. If they want to do a political ad that essentially wants people to vote for or against, what they say is [sic ] fall within the independent expenditure and other provisions of the law, which has limits on what can be expended and has requirements for disclosure, which is not true of these ads that are clearly campaign ads, that are clearly political ads. But the people do not know who put the money up. They are hidden. They are endless. There is a flood of hidden, in terms of its support, of hidden money. That is what we say should not happen. 144 Cong. Rec. H4866 (daily ed. June 19, 1998) (statement of Rep. Sander Levin).

As they are used in these alternative findings and throughout this opinion, the terms "issue advertisement" and "issue ad" are interchangeable and refer to an advertisement that does not contain words of express advocacy. See Buckley, 424 U.S. at 44 n. 52, 96 S.Ct. 612 (express words of advocacy include "`vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject'").

As discussed, supra, independent expenditures differ from coordinated expenditures in that coordinated expenditures are treated as contributions under FECA.

See Findings 176, 208; see, e.g., McCain Decl. ¶ 6 ("Legislators of both parties often know who the large soft money contributors to their party are, particularly those legislators who have solicited soft money," and "[d]onors or their lobbyists often inform a particular Senator that they have made a large donation."); Simpson Decl. ¶ 5 ("Even if some Members did not attend these events, they all still knew which donors gave the large donations, as the party publicizes who gives what."); Boren Decl. ¶ 6 ("Each Senator knows who the biggest donors to his party are" because "[djonors often prefer to hand their [soft money contribution] checks to the Senator personally, or their lobbyist informs the Senator that a large donation was just made.").

This conclusion, however, does not end the inquiry. The Supreme Court has been mindful of the chilling effect disclosure can have on associational rights, and has declared that "state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 2 L.Ed.2d 1488(1958). "The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights." Buckley, 424 U.S. at 66, 96 S.Ct. 612. Although disclosure requirements are often "the least restrictive means" of regulating campaign finance practices, "[i]n some instances disclosure may even expose contributors to harassment or retaliation." Buckley, 424 U.S. at 68, 96 S.Ct. 612.

In Buckley, the Supreme Court considered the argument that contributions made to independent candidates and minor parties should be exempt from FECA's disclosure requirements. The Supreme Court rejected the challenge, concluding that the evidence presented was "not of the sort proffered in NAACP v. Alabama ." Buckley, 424 U.S. at 71, 96 S.Ct. 612. The evidence that was presented in Buckley was found by the Supreme Court to be "at best ... the testimony of several minorparty officials that one or two persons refused to make contributions because of the possibility of disclosure," and therefore failed to persuade the Supreme Court that "the substantial public interest ... outweighs the harm generally alleged." Id. Buckley instructs that when a legitimate government interest is served by a disclosure provision, constitutional challenges claiming the disclosure will chill associational rights must be accompanied by evidence which shows

In NAACP, the NAACP challenged a court order forcing the group "to reveal to the State's Attorney General the names and addresses of all of its Alabama members and agents." NAACP v. Alabama, 357 U.S. 449, 451, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). The State had obtained a restraining order, enjoined the group from operating in Alabama due to its failure to file a corporate charter with the Secretary of State. Id. In response, the NAACP sought to dissolve the restraining order, but refused to comply with Alabama's request for the production of documents including the NAACP's "records containing the names and addresses of all Alabama members and agents of the Association." Id. at 453, 78 S.Ct. 1163 (quotation marks omitted) (emphasis added). The court then ordered the NAACP to comply. Id. The evidentiary record before the Supreme Court consisted of uncontroverted evidence "showing that on past occasions revelation of the identity of [the NAACP's] rankand-file members has exposed these member to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility." Id. at 462, 78 S.Ct. 1163. Based on this evidence, the Court found that
compelled disclosure of [the NAACP's] membership is likely to affect adversely the ability of [the NAACP] and its members to pursue their collective effort to foster beliefs which, they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure. Id. at 462-63, 78 S.Ct. 1163. As such, the Supreme Court found that Alabama's interest in the information was insufficient to justify the disclosure. Id. at 466, 78 S.Ct. 1163.

Defense expert David Magleby is a Distinguished Professor of Political Science at Brigham Young University, where he also serves as Dean of the College of Family, Home and Social Sciences and as Director of the Center for the Study of Elections and Democracy. See Magleby Expert Report at 7.

Sidney Milkis is an expert for the Plaintiffs.

See Findings 201-06, 209-10. Although it is possible-though not established-that the appearance of increased access alone is synonymous in the public's mind with increased influence, there is no evidence in the record that increased access necessarily results in actual influence. Since the Supreme Court has never found that access in and of itself constitutes corruption, I believe there is no evidence of actual corruption.

a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient.

Buckley, 424 U.S. at 74, 96 S.Ct. 612; see also Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 103 S.Ct. 416, 74 L.Ed.2d 250 (1982) (finding Ohio disclosure provisions could not be constitutionally applied to the Socialist Workers Party ("SWP") due to the "substantial evidence of both governmental and private hostility toward and harassment of SWP members and supporters").

In Brown, the Supreme Court examined an Ohio election campaign law which required "every candidate for political office to file a statement identifying each contributor and each recipient of a disbursement of campaign funds." Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 89, 103 S.Ct. 416, 74 L.Ed.2d 250 (1982). The District Court in the case had found "substantial evidence of both governmental and private hostility toward and harassment of [Socialist Workers Party ("SWP")] members and supporters." Id. at 98-99, 103 S.Ct. 416. The evidence presented included specific incidents which took place within four years of the trial, and included "threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members' property, police harassment of a party candidate, and the firing of shots at an SWP office. There was also evidence that in the 12-month period before trial 22 SWP members, including four in Ohio, were fired because of their party membership." Id. at 99, 103 S.Ct. 416. This evidence was found to present a reasonable probability that disclosing the names of contributors and recipients will subject them to threats, harassment, and reprisals. Id. at 100, 103 S.Ct. 416. The Supreme Court concluded that "[i]n light of the substantial evidence of past and present hostility from private persons and government officials against the SWP, Ohio's campaign disclosure requirements cannot be constitutionally applied to the Ohio SWP." Id. at 102, 103 S.Ct. 416.

Timothy Ryan currently serves as Vice President for Advertising at Sawyer Miller Weber Shandwick, an advertising firm in Washington, D.C, and was formerly Executive Director of Citizens for Better Medicare. See Ryan Dep. at 6-7.

Other commentators have referred to two types of advertisements', candidate-centered (also called electioneering) issue advertisements and genuine issue advertisements. Advertisements designed to genuinely influence debate over a particular issue are known as "true" or "genuine" issue advertisements, while those issue advertisements designed to influence a federal elections are known as "electioneering" or "candidate-centered" issue advertisements. Krasno and Sorauf Expert Report at 65 [DEV 1-Tab 2] ("Advertising data show that there are two distinct types of issue ads, those that are basically candidate-oriented and electioneering in nature, and those that only present or urge action on an issue. The former are nearly identical in format, structure, and timing to ads produced by candidates, while the latter bear little or no resemblance to electioneering.").

See Buying Time 2000 at 62. In 2000, thirty-five of the top 50 nonfederal donors were corporations, and they gave a total of $29,447,350 to the Republican national committees in the 2000 election cycle which was 11.4 percent of all nonfederal money received by that national party. See Mann Expert Report at tbl. 6. Most of the other donors in the top 50 were unions and plaintiff attorneys. Id.

For this reason, the ACLU's facial challenge to Section 201 is unavailing. Neither NAACP nor Brown stand for the proposition that disclosure laws that apply to organizations "whose positions are often controversial and whose members and contributors frequently request assurances of anonymity" are facially unconstitutional. ACLU Opp'n at 10. Rather, as explained above, the statutes in those cases were held inapplicable to the groups in question based on the facts presented, not invalid on their face. See NAACP, 357 U.S. at 462-63, 78 S.Ct. 1163 ("[W]e think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its members to engage in their freedom to associate.") (emphasis added); Brown, 459 U.S. at 102, 103 S.Ct. 416 ("Ohio's campaign disclosure requirements cannot be constitutionally applied to the Ohio SWP.") (emphasis added). The Court is given no information as to why these donors wish to maintain their confidentiality and no indication is given that revelation of their affiliation with the group would result in harassment, threats or reprisals. Since the ACLU has presented the Court with no facts that place it in the same category of threatened associations such as the NAACP or the Socialist Workers Party ("SWP"), see Finding ¶ 45 the Court finds no basis for invalidating the statute on its face or as applied to the ACLU based on the present record.

The ACLU provides no information as to why ACLU's donors wish to maintain their confidentiality and no indication is given that revelation of their affiliation with the group would result in harassment, threats or reprisals. As an aside, the Court notes that acdating cording to the ACLU, "[o]nly 212 individuals contributed more than $1,000 to the organization. Findings II 45."

Joe Lamson managed Bill Yellowtail's 1996 campaign. See Lamson Decl. at 1.

The report the Annenberg Study produced following the 1997-1998 election cycle placed this estimate at between $275 million to $340 million. Annenberg Public Policy Center, Issue Advocacy Advertising During the 1997-1998 Election Cycle ("Annenberg Report 1998") at 1 [DEV 66-Tab 6].

Thus the Court reviews the evidence of actual or apparent corruption against the background of a plausible justification, and, as explained earlier, the more plausible the argument, the less evidence the defendants must marshal. See Shrink Missouri, 528 U.S. at 391-95, 120 S.Ct. 897.

Plaintiffs have also provided evidence regarding the effect disclosure under Section 201 would have on four other organizations. The Court considers each in turn.

The NRA provides testimony that some of its members do not wish to have their contributions to the group disclosed, and estimates that between five and 50 persons voiced their concerns in the year 2000. Id. ¶ 41. The group also provides testimony that a "conspicuous and disproportionate number of contributors" to its PAC contribute "just below the $200 disclosure level." Id. Although Mr. LaPierre testified that one reason given for members not wanting their contributions disclosed was fear of losing one's job, many other reasons were given as well, such as a desire not to have one's neighbors or school board know about their affiliation with the organization. Id. Some simply stated that they did not wish to have such information provided to the government. Id. No evidence of the basis for these fears is presented to the Court, only speculations. Nor is any evidence presented to the Court of actual instances of retaliation due to the disclosure of someone's membership in the NRA. These fears are the result of conjectures by those expressing them, but unless there is a reasonable probability that these fears will be realized as a result of disclosure, Buckley instructs that such worries do not overcome the state's legitimate interest in disclosure.

Edward Monroe, Director of Political Affairs for the Associated Builders and Contractors ("ABC") and the Treasurer of ABC's PAC, testified that he had been told that a number of ABC contributors had suffered substantial vandalism after their names were disclosed and that the contributors believed the vandalism was the result of labor unions learning of their contributions. Id. ¶ 42. This evidence is essentially hearsay and no evidence is presented showing that the vandalism was actually retaliation in response to the disclosure as opposed to speculation on the part of contributors. Although some contributors to ABC's PAC donate less than $200, the Court has no way of knowing why they donate at this level other than Mr. Monroe's belief that it is to prevent disclosure of their names. Id. The same is true for the two companies that declined Mr. Monroe's solicitations. Id. On the basis of this evidence alone, the Court cannot find that ABC meets the Buckley standard.

The Court also considers evidence regarding the membership of the Associated General Contractors of America ("AGC") and the Chamber of Commerce's coalition titled "Americans Working for a Real Change." Between a dozen and two dozen AGC members expressed concern to its Chief Executive Officer, Stephen Sandherr, that if their contributions to AGC are disclosed publicly they will be subjected to union action that "would threaten to make life miserable for them." Id. ¶ 43. Although this testimony demonstrates that AGC members may "fear" the potential consequences of their names being disclosed in connection with AGC, there is no evidence before the Court that these feared consequences have been, or would be, realized. Similarly, the Chamber of Commerce provides evidence that some contributors to its coalition, "Americans Working for a Real Change," did not want to be publicly identified due to fears of "what some would call union harassment activities." Id. ¶ 44. Once again, the Court was not presented with evidence of a reasonable basis for these fears. Furthermore, no member ever told Mr. Sandherr they were contributing $200 or less to AGC's PAC in order to avoid disclosure, and no contributor to AGC's PAC has reported union retaliation in response to their contribution to the PAC. Id. ¶ 43. Neither group's evidence meets the Buckley standard.

In sum, although many deponents relate what they believe, or have been told, were the reasons contributors did not want to have their names disclosed, that is union retaliation or employment termination, the lack of specific evidence about the basis for these concerns leaves the Court unable to find there exists "a reasonable probability that the compelled disclosure of [any of these organizations'] contributors' names will subject them to threats, harassment, or reprisals from either government officials or private parties." Buckley, 424 U.S. at 74, 96 S.Ct. 612. Furthermore, no Plaintiff cited to evidence, and the Court has found none, that their organization, as opposed to the organization's members or contributors, has been subjected to threats, harassment or reprisals. Although these groups take stands that are controversial to segments of the public, and may believe that they are targeted because of the positions they take, none has provided the Court with a basis for finding that their organization, and thereby their membership, faces the hardships that the NAACP and SWP were found to suffer by the Supreme Court. However, nothing in this Court's decision affects the ability of groups in the future from challenging, as the NAACP and the SWP did in the past, the application of Section 201's disclosure provisions to their organization.

The Court addresses next the NRA's argument that the D.C. Circuit's invalidation of FECA's Section 437a, Buckley, 519 F.2d at 878, renders Section 201's requirements invalid as well. In Buckley, the D.C. Circuit found FECA's independent expenditure disclosure provision unconstitutional. The Court of Appeals stated that "issue discussions unwedded to the cause of a particular candidate hardly threaten the purity of elections .... [and] are vital and indispensable to a free society and an informed electorate. Thus the interest of a group engaging in nonpartisan discussion ascends to a high plane, while the governmental interest in disclosure correspondingly diminishes." Buckley, 519 F.2d at 873. Even so, the D.C. Circuit rested its decision on the overbreadth of Section 437a's "crucial terms[:] `purpose of influencing the outcome of an election' and `design[ ] to influence' individuals in voting at an election." Buckley, 519 F.2d at 875. Unable to find a "readily available narrowing interpretation" of the crucial terms in light of Congress's manifested intent, Buckley, 519 F.2d at 877, the Court of Appeals held the section unconstitutional, id. at 878.

Section 437a's "demand for disclosure is activated-without any expending of any funds whatever-(1) by any act directed to the public for the purpose of influencing the outcome of an election; or (2) by any material published or broadcast to the public which refers to a candidate (by name, description, or other reference) and which (a) advocates the election or defeat of such candidate, or (b) sets forth the candidate's position on any public issue, his voting record, or other official acts (in the case of a candidate who holds or has held Federal office), or (c) is otherwise designed to influence individuals to cast their votes for or against such candidate or to withhold their votes from such candidate." Buckley, 519 F.2d at 870 (paraphrasing FECA § 437a) (internal punctuation and footnotes omitted).

Craig Holman was a senior policy analyst at the Brennan Center and the principal coauthor of Buying Time 2000. See Holman Dep. at 8; see also infra Finding 43c at page 307.

In 1968, Bailey founded Bailey, Deardourff & Associates, which was among the first national political consulting firms, working for Republican candidates for Governor, Congress, Senate, and President. The firm's clients included Gerald Ford's Presidential Campaign, and over fifty successful campaigns for Governor or the United States Senate in 17 states. Bailey Decl. ¶ [DEV 6-Tab 2]. As campaign consultant, Bailey's job was "to plan the campaign and then create broadcast advertisements that would shape its outcome." Id. 12. In 2000, Bailey was among the first eight recipients of the American University-Campaign Management Institute's "Outstanding Contribution to Campaign Consulting Award" given to the consultants "who have best represented the ideals of the profession and shown concern for the consequences of campaigns on public attitudes about our democratic process." Id. Bailey also has done work for political parties and issue advocacy groups. Id. ¶¶ 9-12.

Whether because of the endless examples of donors receiving access in return for donations to parties, see Findings 211-43, the many press reports that made public such exchanges, see infra note 81, or constituent complaints about them, see Finding 269, members of Congress were understandably troubled with the appearance of corruption created by large nonfederal donations to parties. See, e.g., 147 Cong. Rec. S2446 (Mar. 19, 2001) (Sen.Feingold) ("The appearance of corruption is rampant in our system, and it touches virtually every issue that comes before use."); 147 Cong. Rec. S3248-49 (April 2, 2001) (Sen.Levin) ("[P]ermitting the appearance of corruption undermines the very foundation of our democracy-the trust of the people in the system.").

Given that the basis for the D.C. Circuit's invalidation of Section 437a rested on the provision's language and legislative history, the Court does not accept the NRA's suggestion that the Court of Appeal's decision controls this Court's analysis of Section 201's disclosure requirements. NRA Br. at 50. Section 201 only requires disclosure of "electioneering communications," the definition of which this Court finds is constitutional. The disclosure trigger is much narrower and more definite than that of FECA Section 437a, and does not include its invalidating "crucial terms." In addition, the record before the Court clearly demonstrates that contrary to the situation facing the Court of Appeals in 1975, where "issue discussions" were indeed "unwedded to the cause of a particular candidate," the evolving present use of issue advertisements, specifically the use of "issues" to cloak supportive or negative advertisements clearly identifying a candidate for federal office, "threaten the purity of elections." Buckley, 519 F.2d at 873. For these reasons, the Court declines to find the Court of Appeals's decision on FECA Section 437a binding on this Court's disposition of the challenges to BCRA Section 201's disclosure requirements.

For example, as mentioned above, the "group" "Republicans for Clean Air" spent $2 million the week before the "Super Tuesday primaries" in advertisements supporting presidential candidate George W. Bush and attacking his opponent John McCain. Findings 1152. "Republicans for Clean Air" was actually a front for two brothers who had ties to the Bush campaign. Id.

Question 6 was not included in the original coding protocol that was pre-tested before the study began. See Goldstein Dep. (Vol.2) at 29, Exh. 11; Krasno Dep. at 115. Krasno added the question to the coding protocol in an attempt to help student coders "avoid confusion" on subsequent questions. Krasno Dep. at 116-17, 121.

Strother is a political consultant, and President and founder of Strother/Duffy/Strother. Strother Decl. ¶ 1 [DEV 9-Tab 40]. He is also Chairman of the Board of the American Association of Political Consultants, and last year served as its President. Id. Since 1967, he has worked for more than 300 campaigns. Id. Representative clients at the presidential, congressional, and gubernatorial levels have included Lloyd Bentsen, Paul Simon, Gary Hart, Bill Clinton, Al Gore, Mary Landrieu, and Zell Miller. Id. In the last two decades alone, his firm has "helped elect candidates in 44 states and five countries, including 13 Senators, 8 Governors, and scores of Congress members. [His firm has] won more Democratic Primaries than any other firm." Id.

See Findings 251-68; see, e.g., Mark Mellman & Richard Wirthlin, Research Findings of a Telephone Study Among 1300 Adult Americans 7 (Sept. 23, 2002) (poll result finding that 71 percent of Americans think that members of Congress sometimes decide how to vote on an issue based on what big contributors to their political party want, even if it is not what most people in the district want, or even if it is not what they think is best for the country); Robert Y. Shapiro, Public Opinion & Campaign Finance 13-14 (Sept. 18, 2002) (poll results showing that the public has been troubled by large donations to political parties).
Evidence, like these two reports, need not have been before Congress when it made its predictive judgment. See Turner I, 512 U.S. at 667, 114 S.Ct. 2445 (explaining that to ensure that Congress drew "reasonable inferences," the Supreme Court needed "substantial elaboration in the District Court of the predictive or historical evidence upon which Congress relied, or the introduction of some additional evidence." (emphasis added)); Turner Broadcasting Sys., Inc. v. FCC ("Turner II"), 520 U.S. 180, 185, 187, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997); cf. City of Erie v. Pap's A.M., 529 U.S. 277, 310-17, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (Souter, J., concurring in part and dissenting in part) (advocating a remand for development of the judicial record).

Finally, the Chamber of Commerce argues that Section 201 as applied to its electioneering communications, is overbroad because the public knows that the Chamber represents the interests of American business. Chamber/ NAM Br. at 20. The Court interprets the Chamber's position, encompassing all of three sentences, to mean that under BCRA it should be sufficient that the Chamber report that it is behind advertisements sponsored by, for example, "Americans Working for a Real Change" and that listing its $1,000 contributors would be unnecessary for the voting public to know the interest behind the advertisement. The Court first notes that the Chamber does not provide, and the Court cannot formulate, a disclosure rule that would take into account the notoriety of the groups involved (for example, a law that exempts "well-known" groups from disclosing the names of their $1,000 contributors, while "less wellknown" groups would be required to make the disclosures). In addition, the Chamber provides no legal support for its theory, and the Court declines to consider its argument based on a record comprised of a single quotation from the Indiana Law Review and the Chamber's statement that it "is a well-known association of American businesses that has been in existence for 90 years." Chamber/NAM Br. at 20. The Court therefore rejects the Chamber of Commerce's argument.

In conclusion, the Court states what Section 201's disclosure requirements do and do not require. First, they apply only to electioneering communications, which we find constitutional. Second, Section 201 does not prevent anyone from making electioneering communications; it only requires that when persons do make such advertisements that they disclose the source of the communication's funding after they are broadcast. Lastly, the provision does not require the wholesale disclosure of all donors to the sponsoring organization, rather only donors contributing $1,000 to the disbursing account must be disclosed. Organizations are free to set up "segregated bank account[s]," funded by individuals' contributions, for electioneering communication disbursements. BCRA § 201(a); FECA § 434(f)(2)(E); 2 U.S.C. § 434(f)(2)(E). If electioneering communication disbursements made from such segregated accounts then reach the $10,000 threshold, only the names of the segregated account's $1,000 contributors will have to be disclosed. Lastly, any group can file suit to challenge the constitutionality of the application of Section 201's disclosure provisions to their contributors based on a showing such as "threats, harassment, or reprisals from either government officials or private parties." Buckley, 424 U.S. at 74, 96 S.Ct. 612.

In conclusion, the Court finds Section 201 constitutional on its face, with the exception of subsection (5), which the Court determines to be broader than necessary to achieve the legitimate governmental interest at stake because of its inclusion of future contracts for electioneering communications. For that reason, the Court severs subsection (5) and finds the remainder of Section 201 constitutional.

Sections 202, 212, and 214

Although Plaintiffs ask for judgment as to BCRA's Section 211, described supra, at oral argument they stated that they were not challenging the provision. See Tr. at 341-42 (Judge Henderson: Mr. Starr, I've got down that you all are challenging [Section] 211. Am I wrong about that? .... Baran: We are not challenging section 211...). Furthermore, other than a description of the provision, McConnell Br. at 82, Plaintiffs' briefs are silent on the provision.

The words "particular candidate" were printed in boldface type because the authors "wanted [students] to be thinking of candidates" when answering the question. Krasno Dep. at 122-23.

Elain Bloom is currently engaged in consulting, public speaking, and community activities. Bloom Decl. ¶ 2 [DEV 6-Tab 7]. In 2001, Bloom was a candidate for Mayor of Miami Beach, Florida. Id. In 2000, Bloom was the Democratic candidate in the general election to represent Florida's 22nd Congressional District, running against the incumbent Republican Clay Shaw, who had served in Congress for nearly 20 years. Id (Shaw won the race by approximately 500 votes out of over 200,000 cast). Prior to the 2000 race, Bloom served as a member of the Florida House of Representatives for over 18 years, from 1974 to 1978 (representing Northeast Dade County) and from 1986-2000 (representing Miami Beach and Miami). Id. Bloom was Speaker Pro-Tempore of the Florida House from 1992 to 1994, and also served as chair of several legislative committees, including the Health Care Committee, the Joint Legislative Management Committee, the Joint Legislative Auditing Committee, and the Tourism and Cultural Affairs Committee. Id.

Senator Rudman observed:
Almost every day, the press reports on important public issues that are being considered in Congress. Inevitably, the press draws a connection between an outcome and the amount that interested companies have given in soft money.... Even if a senator is supporting a position that helps an industry for reasons other than that the industry gave millions to his party, it does not appear that way in the public eye. Rudman Decl. ¶ 11 (emphasis added); see Finding 270; see, e.g., Dan Morgan and Juliet Eilperin, Campaign Gifts, Lobbying Built Enron's Power in Washington, Wash. Post, December 25, 2001, at A01; R.G. Ratcliffe and Alan Bernstein, Political Donors Have the Money, and Get the Time, Houston Chron., May 23, 1999, at 1.

1. Section 202

Section 202 is challenged by the Chamber of Commerce, NAM, and the McConnell Plaintiffs. Plaintiffs' arguments with regard to Section 202 relate to those made with respect to Sections 201 and 214. For example, Plaintiffs argue that the definition of "electioneering communication" is unconstitutional, and for that reason Section 202 must also be found unconstitutional. Chamber/NAM Br. at 12; McConnell Br. at 83 n. 42. As this argument was addressed and rejected in this Court's examination of Section 201's definition of "electioneering communication," it is rejected here as well.

In addition, the Court observes that Plaintiffs' arguments blur Section 202's provisions with those of Sections 201 and 214, making the Court's task of discerning and addressing their arguments more difficult.

Daniel Seltz was a research associate and later a project coordinator in the Democracy Program at the Brennan Center in the late 1990s; during that time he co-authored Buying Time 1998. See Seltz Dep. at 4-5; see also supra Finding 43c at page 307.

Since early 2001, Linda Chapin has been the Director of the Metropolitan Center for Regional Studies at the University of Central Florida. Chapin Decl. ¶ 2 [DEV 6-Tab 12]. Chapin was the Democratic candidate in the 2000 general election to represent Florida's Eighth Congressional District, which was an open-seat race. Id. ¶ 4. In the November 2000 general election, her Republican opponent received about 51% of the votes cast, and Chapin received about 49% of the votes cast. Id. ¶ 4. From 1998 to 2000, Chapin directed the Orange County (Florida) Clerk's Office. Id. ¶ 2. Prior to that, Chapin was elected to two successive four-year terms, in 1990 and 1994, as County Chairman of Orange County. Id. The County Chairman is a strong executive position roughly equivalent to a mayoral office. Id. Prior to her tenure as County Chairman, she was elected to a four-year term on the Orange County Commission in 1986.

See Findings 264-67.

Plaintiffs also contend that "the First Amendment limits the coordination concept to express advocacy," and for that reason Section 202 should be found unconstitutional. Chamber/NAM Br. at 12. Although Plaintiffs cite to FEC Commissioner Smith for support, id., this view has been rejected by courts in this Circuit. See Orloski v. FEC, 795 F.2d 156, 167 (D.C.Cir.1986) (finding the "express advocacy" limitation "not constitutionally required for those statutory provisions limiting contributions"); Christian Coalition, 52 F.Supp.2d at 86-87 n. 50 (finding the argument that "the `express advocacy' limitation must apply to expressive coordinated expenditures" to be "untenable" in light of Orloski and Buckley).

Finally, the AFL-CIO contends that "the BCRA § 202 ban on coordinated `electioneering communications' inevitably will criminalize efforts by the AFL-CIO to coordinate legislative public advocacy with Members of Congress, and interfere with ordinary and necessary lobbying contacts and the AFL-CIO's use of them to plan broadcast and other advocacy. For that reason alone, § 202 violates the First Amendment." AFL-CIO Br. at 14 (citing to the Declaration of Gerald M. Shea Ml 57-59). The Court notes first that Section 202 bans nothing. What the Court presumes the AFL-CIO complains of is the effect of Section 202 on some entities as read in conjunction with BCRA Section 203. This issue is dealt with in this Court's examination of Section 203. The group's allegation that Section 202 will criminalize AFL-CIO contacts with Members of Congress and subsequent advocacy activities is conclusory and is asserted without any legal support. Similarly, the declaration of Gerald M. Shea, the AFCIO's Assistant to the President for Governmental Affairs, does nothing to help the Court discern the legal basis for its argument. Mr. Shea states that "[a]ny legal restrictions on the ability of an organization like the AFL-CIO to coordinate legislative and policy communications and activities with federal officeholders who happen to be candidates could substantially interfere with our ability to maintain ordinary and necessary working relationships with Members of Congress and their staffs." Shea Decl. 1158. The fact that Mr. Shea believes that the AFL-CIO's current activities may be affected by Section 202 does not provide the Court with a legal basis for invalidating the provision. Furthermore, to the extent that the AFL-CIO challenges the scope of activities covered by BCRA's definition of "coordination," the Court finds, infra, that such arguments are not ripe given the statutory construction of Section 214 and the recent promulgation of final regulations on coordination by the FEC.

In the Court's discussion of Section 214, infra, it is noted that the regulations contain an explicit "safe harbor for responses to inquiries about legislative or policy issues." See Final Rules; Coordinated and Independent Expenditures, 68 Fed.Reg. 421, 455 (Jan. 3, 2003) (to be codified at 11 C.F.R. § 109.21(f)).

Luke McLoughlin, now a first-year law student, was a research associate in the Democracy Program at the Brennan Center from 2000 to 2002 and during that time co-authored Buying Time 2000. See McLoughlin Dep. at 3-6; see also supra Finding 43c at page 307.

Metaksa served as Chairman of the National Rifle Association Political Victory Fund and as Executive Director of the NRA Institute for Legislative Action. She made the statement above in her opening remarks to the American Association of Political Consultants' Fifth General Session on "Issue Advocacy." INT 015987, Opening Remarks at the American Ass'n of Political Consultants Fifth General Session on "Issue Advocacy," Jan. 17, 1997, at 2 [DEV 38-Tab 25]. During this litigation, NRA Executive Vice President Wayne La-Pierre testified that Ms. Metaksa is "someone who was knowledgeable about NRA's political strategies" and was someone who was "a reliable and trustworthy employee of NRA." LaPierre Dep. at 11 [JDT Vol. 14]. Plaintiffs have not objected to Ms. Metaksa's statement on hearsay grounds and given Mr. LaPierre's comments, I find Ms. Metaksa's statement trustworthy and rely on it for purposes of my Findings.

Turner I, 512 U.S. at 666, 114 S.Ct. 2445 (explaining that a court's role is to "assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence"). Though courts must "accord substantial deference to the predictive judgments of Congress," Turner I, 512 U.S. at 665, 114 S.Ct. 2445, it does not "`foreclose our independent judgment of the facts bearing on an issue of constitutional law,'" id. at 666, 114 S.Ct. 2445 (quoting Sable Communications of Cal, Inc. v. FCC, 492 U.S. 115, 129, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989)).

The Court therefore finds that Plaintiffs' arguments are unavailing and the Court has been presented with no basis for finding Section 202 unconstitutional.

2. Section 212

Section 212 is challenged by the AFCIO and the McConnell Plaintiffs. Plaintiffs object to Section 212 on the grounds that it requires disclosure of not only actual expenditures, but also contracts to make independent expenditures. See McConnell Br. at 56 n. 22; AFL-CIO Br. at 14-17. This advance disclosure, Plaintiffs argue, "servets] no governmental interest and will chill the exercise of free speech by forcing groups ... to disclose ongoing and confidential political strategies and decisionmaking processes, and by giving adversaries the opportunity to try to thwart broadcasts or counter them with their own messages." AFL-CIO Br. at 16.

As they did for Section 201, McConnell Plaintiffs, the Chamber of Commerce and NAM make a passing suggestion that Section 212 might constitute a "prior restraint" in violation of the First Amendment. The Court addresses this argument in its discussion of Section 201. See supra note 69.

Plaintiffs' expert Gibson is the Sidney W. Souers Professor of Government at Washington University. See Gibson Expert Report, Exh. 2.

Denise Mitchell is the Special Assistant for Public Affairs to AFL-CIO President John J. Sweeney. Mitchell Decl. ¶ 1 [6 PCS]. She was appointed to this position on November 1, 1995, shortly after Sweeney was elected President of the AFL-CIO. Id. Prior to assuming this position, Mitchell had worked with Sweeney in a similar role for a number of years when he was President of the Service Employees International Union and she had assisted in his campaign for election to the position of AFL-CIO President. Id. Mitchell has worked in marketing and media relations for unions and other non-profit organizations on working family issues for more than 20 years. Id. In her current position, Mitchell has the primary responsibility for overseeing all public relations activities of the AFL-CIO including all AFL-CIO use of broadcast and print media. Id. ¶ 2. Mitchell is responsible for making the operational decisions as to both the substance and the method of communication of the AFL-CIO's message to union members and to the general public. Id. Mitchell makes the strategic and logistical decisions regarding the AFL-CIO's media buys, and, within policy guidelines, makes the editorial decisions regarding the content of the AFL-CIO's communications.

For example, genuine issue advertisements include: (1) advertisements that support oppose officeholder-named legislation, like the McCain-Feingold bill, which is the common label for the legislation at issue here; (2) advertisements supporting or opposing legislation that simply ends with a call-to-action line asking the viewers to contact their congressional members to vote against or for a particular bill; or (3) even advertisements that criticize a certain political personality in order to energize the party's base on a particular issue, so long as those advertisements are not broadcast within the identified candidate's district or state.

A Court may not entertain a suit that is not ripe for review. The basic rationale behind the ripeness doctrine is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Furthermore, "[t]he power of courts ... to pass upon the constitutionality of acts of Congress arises only when the interests of the litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough." United Public Workers of America v. Mitchell, 330 U.S. 75, 89-90, 67 S.Ct. 556, 91 L.Ed. 754 (1947); see also id. at 90 n. 22, 67 S.Ct. 556 ("It has long been this Court's `considered practice not to decide abstract, hypothetical or contingent questions, ... or to decide any constitutional question in advance of the necessity for its decision, ... or to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied, ... or to decide any constitutional question except with reference to the particular facts to which it is to be applied ....'") {citing Alabama State Fed'n of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945)). In situations where a statute is challenged on First Amendment grounds, the Supreme Court has found that litigants need not wait for actual enforcement if the existence of the law would chill the exercise of First Amendment rights "even without an actual prosecution." Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 393, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988). However, in those cases, plaintiffs must "alleget ] an actual and well-founded fear that the law will be enforced against them" in order to assuage the troubling aspects of "the preenforcement nature of [such] suits." Id; see also Wisconsin Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1185 (7th Cir.1998) (Easterbrook, J.) (observing that if a group's concern that a law will be enforced is not wellfounded, "Article III of the Constitution precludes a federal court from ruling."), cert, denied, 525 U.S. 873, 119 S.Ct. 172, 142 L.Ed.2d 140 (1998); Nat'l Treasury Employees Union v. Kurtz, 600 F.2d 984, 988 (D.C.Cir.1979) ("[E]ven where allegations of unconstitutionality on the face of a regulation are made, a concrete factual Every person making, after the 20th day, but more than 24 hours before 12:01 a.m. dispute is required to make the case justiciable."); Nat'l Student Ass'n v. Hershey, 412 F.2d 1103, 1113-14 (D.C.Cir.1969) ("[W]e are not persuaded that every plaintiff who alleges a First Amendment chilling effect and shivers in court has thereby established a case or controversy.").

The Court finds that Plaintiffs' challenge to Section 212 is not ripe for review. At the time of briefing in this case, the FEC had proposed regulations that required disclosure only after independent advertisements have been "publicly disseminated." These proposals were recently promulgated as final regulations. See BCRA Reporting; Coordinated and Independent Expenditures; Final Rules, 68 Fed.Reg. 404, 452 (Jan. 3, 2003) (to be codified at 11 C.F.R. § 109.10). This fact makes the challenge unfit for judicial resolution, as the regulations provide Plaintiffs with the exact remedy they seek: the FEC will not require disclosure of independent express advocacy expenditures prior to their "public[ ] dissemination]." This situation presents the Court with the question Judge Easterbrook posed in Msconsin Right to Life: "How can a suit present a `case or controversy' when all the litigants are on the same side?" Wisconsin Right to Life, 138 F.3d at 1185.

The regulations provide in part:
The person making the independent expenditures [more than 20 days before an election] aggregating $10,000 or more must ensure that the Commission receives the report or statement by 11:59 p.m. Eastern Standard/Daylight Time on the second day following the date on which a communication is publicly distributed or otherwise publicly disseminated.... of the day of an election, independent expenditures aggregating $1,000 or more with respect to a given election must report those independent expenditures and ensure that the Commission receives the report or signed statement by 11:59 p.m. Eastern Standard/Daylight Time on the day following the date on which a communication is publicly distributed or otherwise publicly disseminated. 68 Fed.Reg. at 452 (to be codified at 11 C.F.R. § 109.10(c), (d)) (emphasis added).

Defense expert Arthur Lupia is a Professor of Political Science at the University of Michigan. See Lupia Rebuttal Report, App. A.

The full text of "Protect" is:
PHARMACIST: The Senior Citizens today can't afford their medication. They come in and I know they're skipping medication so they can pay for their food. With the rising cost of medication today, it could wipe out anybody at any time. VOICE: Yet Congressman Jay Dickey sided with the drug industry. He voted no to guaranteed Medicare prescription benefits that would protect seniors from runway [sic] prices. Tell Dickey quit putting special interests ahead of working families.

See generally Richard Briffault, The Political Parties and Campaign Finance Reform, 100 Colum. L.Rev. 620, 655-57 (2000).

This conclusion is bolstered by the decisions of other courts faced with similar circumstances. For example, the Seventh Circuit Court of Appeals rejected a group's claim that it had a "well-founded" fear of prosecution under Wisconsin campaign finance laws, where an advisory opinion of the Attorney General of Wisconsin and the Election Board's regulations codified the interpretation of the law the group sought. Wisconsin Right to Life, 138 F.3d at 1185-86; see also Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1193 (10th Cir.2000) (describing the Wisconsin Right to Life holding and distinguishing the case from the one before it, which lacked "such administrative regulations"). Similarly, in Shoemaker v. Handel, the Third Circuit Court of Appeals upheld the lower court's determination that amended regulations, put into effect before becoming final, cured the challengers' privacy concerns, and thus made "[t]heir privacy contentions ... not ripe for adjudication." Shoemaker v. Handel, 795 F.2d 1136, 1144 (3d Cir.1986), cert, denied, 479 U.S. 986, 107 S.Ct. 577, 93 L.Ed.2d 580 (1986). There was no need to enforce the amendments through injunctive or declaratory relief, because "[i]f the Commission cease[d] to comply with the proposed confidentiality rules, the [challengers could] return to court with a new lawsuit." Id.

Plaintiffs do not contest the import of the regulations. Instead, Plaintiff AFCIO argues that the FEC regulations do not remedy BCRA's alleged constitutional defect, as the regulations "may not be approved by Congress[,][a]nd there is nothing to prevent the Commission itself from reversing its position as soon as this litigation is over, as part of a litigation settlement or independently." AFL-CIO Reply at 10; see also AFL-CIO Br. at 17 n. 16 ("[G]iven the statutory text at issue plaintiffs have no assurance as to how the FEC will interpret or enforce it in the future."). These uncertainties amount to a "hypothetical threat" which the Supreme Court has stated "is not enough" to warrant judicial consideration. United Public Workers of America, 330 U.S. at 89-90, 67 S.Ct. 556. Should this hypothetical threat manifest itself as a "concrete factual dispute," Nat'l Treasury Employees Union, 600 F.2d at 988, nothing prevents Plaintiffs from "return[ing] to court with a new lawsuit," Shoemaker, 795 F.2d at 1144.

As Plaintiffs have presented "a controversy that has not yet arisen and may never arise," Wisconsin Right to Life, 138 F.3d at 1187-88, the Court lacks jurisdiction to resolve their challenge to Section 212 at this time.

3. Section 21k

Section 214 is challenged by the McConnell Plaintiffs, the Chamber of Commerce, NAM, the RNC and the AFL-CIO. Plaintiffs' basic argument is that Section 214, "[b]y repealing the FEC's current regulation and failing to supply any clear statutory definition of what constitutes prohibited coordination, ... will chill First Amendment speech and association." Chamber/NAM Br. at 11; see also ACLU Br. at 19-20; AFL-CIO Br. at 13 ("BCRA's vague and overbroad coordination standards will inevitably spur ... wide-ranging and burdensome investigations" by the FEC). Plaintiffs also charge that the directive of Section 214(c) that "`agreement or formal collaboration' not be a prerequisite to considering an expenditure `coordinated,' ... exceeds the constitutional bounds established in Buckley." McConnell Br. at 83; see also Chamber/NAM Opp'n at 8; RNC Br. at 72 (Section 214 "can only be understood as an impermissible effort to overrule this court's decision in FEC v. Christian Coalition ... which warned against overbroad definitions of `coordination.'"). The Chamber of Commerce and NAM, in their Opposition brief, argue that Section 214(a)(2), by classifying coordinated expenditures with parties as contributions, will "chill both party contacts, and contacts with legislators," and that Section 214(d) expands the definition of what may constitute a coordinated contribution or expenditure. Chamber/NAM Opp'n at 8.

The Court notes at this juncture that Plaintiffs' Section 214 arguments, especially those involving Defendants' justiciability arguments, were sparse and in many instances difficult to discern. Although the Court understands that the page limitations imposed on the parties may have been a contributing factor, the lack of clarity has made the Court's task more difficult.

Matt Keller serves as Common Cause's Legislative Director. See Keller Dep. at 7-9.

Two examples of "negative" candidatecentered issue advertisements are:
Americans For Job Security Advertisement "Are you Taxed Enough Already?" In this advertisement, an announcer states that "Gore plans to squeeze more money out of middle class families at the gas pump.... Gore's ideas are so extreme. If they ever came to pass, Americans would truly be Gored at the pump." CMAG Storyboards [DEV 48-Tab 3].

See Finding 27; see, e.g., Brister Decl. ¶ 4 ("The Republican Party of Louisiana's primary purpose is to help elect Republicans to office `from the courthouse to the White House.'"); RNC Chairman Haley Barbour's Update to the Members of the Republican National Committee, August 7, 1996, at 3 (stating that "[t]he purpose of a political party is to elect its candidates to public office, and our first goal is to elect Bob Dole president... Electing Dole is our highest priority, but it is not our only priority. Our goal is to increase our majorities in both houses of Congress and among governors and state legislatures"); see also Hastert Amicus Br. at 20 ("The very purpose of the National Republican Congressional Committee is to maintain Republican control of the House.").

a. Section 214(a)

Under Section 214(a)(2), expenditures by a person, other than a candidate or a candidate's authorized committee, made in "cooperation, consultation, or concert with, or at the request or suggestion of, a national, State or local committee of a political party," are considered to be contributions to those party committees. BCRA § 214(a)(2); FECA § 315(a)(7)(B)(ii); 2 U.S.C. § 441a(a)(7)(B)(ii). As noted supra, this same definition has been applied to expenditures coordinated with political candidates for over 25 years and was recently found by the Supreme Court to apply to political party expenditures. See 2 U.S.C. § 441(a)(7)(B)(i); Colorado II, 533 U.S. at 467, 121 S.Ct. 2351.

For the sake of clarity, the Court points out that contrary to Plaintiffs' description, Section 214(a) does not establish a "ban" on coordination, Chamber/NAM at 8, or a "year round prohibition on all communications made by a corporation," ACLU Br. at 20. Section 214(a) classifies such contacts as contributions, but does not prevent coordination from taking place.

Angus McQueen is the Chief Executive Officer of Ackerman McQueen, Inc., a communications and advertising firm headquartered in Oklahoma City, Oklahoma. See McQueen Decl. at 1. Ackerman McQueen has provided communications advice and services to the NRA and NRA PVF for approximately 22 years. See id. at 2.

LaRocco served as a Member of Congress from 1990 to 1995, representing the First Congressional District of Idaho. LaRocco Decl. 12 [DEV 7-Tab 27]. He served two terms and lost his 1994 reelection campaign. Id.

See also Nelson Dep. at 191 (stating that the RNC engages in "issue advocacy in order to achieve one of our primary objectives, which is to get more Republicans elected").

Plaintiffs argue that the definition of coordination in Section 214(a) is "unconstitutionally vague." McConnell Br. at 85 n. 44. This lack of precision, Plaintiffs allege, violates the First Amendment's "demand[ ] that the conduct that constitutes coordination be precisely, objectively, and narrowly defined," and leaves citizens unsure of what contact they may have with political parties without having future speech regulated as "coordinated." Chamber/NAM at 12. Plaintiffs discount the fact that BCRA orders the promulgation of clarifying regulations because regulations are "subject to the ebb and flow of administrative practice," and speakers "will thus be forced to `steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.'" Id. (quoting Buckley, 424 U.S. at 41 n. 48, 96 S.Ct. 612). Finally, Plaintiffs maintain that the existence of an "agreement" is a constitutional prerequisite to finding an expenditure to be "coordinated" with political parties. The Court analyzes each concern in turn.

The Chamber of Commerce and NAM also allege that regulations cannot save Section 214(a) for four key reasons: (i) some unconstitutional aspects such as its inclusion of `electioneering communication' are clearly mandated and are beyond the FEC's power to change; (ii) the vagueness as to what conduct may constitute coordination, and hence make future speech unlawful, is chilling association and petitioning activities right now; and [sic] (iii) there is no assurance that the FEC will be able to agree on new regulations at all, [sic] and (iv) there is no assurance that any regulations that may be adopted will survive Congressional and judicial review.
Chamber/NAM Br. at 13. These arguments can be disposed of with expedition. First, the Court does not understand how Section 214(a), on its face, includes "electioneering communication" and Plaintiffs have not explained their statement. Second, alleged chilling of rights incurred prior to the promulgation of the FEC's regulations, as well as the uncertainty over whether the FEC would be able to agree on new regulations, are rendered moot by the promulgation of the final regulations in early January 2003. FECA also provides protection for those who act in good faith reliance on FEC regulations. See 2 U.S.C. § 438(e). Finally, the possibility that the regulations may be struck down by Congress or a court is the type of speculative injury that does not rise to the level of a present case or controversy required for Article III standing. See infra at 257-58.

Mary Rose Adkins is the Treasurer of the NRA PVF and is responsible for maintaining records and accounting information on contributions thereto. See Adkins Decl. at 1.

Evidence for this finding is based on the Expert Report of Kenneth M. Goldstein. Goldstein compiled this information from data supplied by Campaign Media Analysis Group (CMAG). Goldstein Expert Report at 2 [DEV 3-Tab 7]. Although Plaintiffs question the completeness and accuracy of the CMAG data, I accept the CMAG data as a valid database. See infra Findings 2.12.1. Moreover, nowhere do Plaintiffs challenge the data of when candidates' names were mentioned in the advertisements.

It bears repeating: Even though donations to political parties may be used presumptively for the purpose of influencing a federal election, it is clearly not an irrebuttable presumption, such that all donations should be regulated. While the Court insinuated that Congress could require disclosures for all expenditures by political parties, Buckley, 424 U.S. at 79, 96 S.Ct. 612, there is a simple explanation for this outcome-the Constitution affords less protection to less offensive speech infringements, like disclosure requirements, than for more offensive infringements, like expenditure limitations. Compare id. at 39-51, 96 S.Ct. 612 (rejecting expenditure limitations, even those on express advocacy), with id. at 79-81, 96 S.Ct. 612 (upholding disclosure requirements for express advocacy); see also Post, supra note 60, at 1843 ("[T]he placement of a line between election speech and public discourse must be sensitive to the nature of the proposed regulation of election speech. Relatively more benign forms of regulation ... may constitutionally reach more deeply into the recesses of public discourse than more draconian requirements, like expenditure limitations."). Surely, the speech handicap imposed by contribution limitations, which simply requires that parties use hard money for certain activities, rests somewhere between that of expenditures limitations and disclosure requirements. See, e.g., Buckley, 424 U.S. at 20-23, 64-68, 96 S.Ct. 612; see also Colorado I, 518 U.S. at 611-26, 116 S.Ct. 2309 (rejecting expenditure limitation on political parties, even though parties are considered "political committees" that are subject to disclosure of all disbursements).

Although Plaintiffs have not directed this argument specifically at Section 214(a) (it is directed more explicitly at Section 214(c)), it is a central theme of the McConnell Plaintiffs' briefing and the Court presumes that they intend for it to be applied to Section 214(a) as well.

Michael Boos is Vice President and General Counsel of Citizens United, a non-profit tax-exempt interest group organized under the laws of Virginia. See Boos Decl. at 1.

The Annenberg Report describes Planned Parenthood as "a pro-family planning political advocacy group." Annenberg Report 2001 at 24 [DEV 38-Tab 22].

When the Buckley Court found unconstitutionally vague FECA expenditure provisions, which involved different language, "the vast majority of individuals and groups subject to" the Act did "not have a right to obtain an advisory opinion," 424 U.S. at 41 n. 47, 96 S.Ct. 612. Subsequently, Congress amended the advisory provision to make it available to "any person." 2 U.S.C. § 437f(a)(1).

1) Vagueness

As the Court noted above, the campaign finance system has been functioning for over 25 years despite the presence of the very same "vague" language to which Plaintiffs object. See 2 U.S.C. § 441a(a)(7)(B)(i). Plaintiffs have provided no explanation as to why the application of this coordination formula to the context of political parties chills political speech any more than when applied to expenditures coordinated with political candidates. Furthermore, the Court notes that the FEC's regulations have now been promulgated in final form. It is therefore possible that many, perhaps even all, of Plaintiffs' vagueness concerns have been remedied by the regulations' contents. See Chamber/NAM Br. at 13 (stating that while the FEC's now-repealed regulations on coordination "did not solve all the vagueness problems, it took useful steps toward alleviating them"). Although Plaintiffs discount the value of such regulations because of the "ebb and flow of administrative practice," they provide no support for their theory that laws restricting speech cannot be shaped by regulations because of the nature of administrative practices. In addition, as described in more detail below, see infra at 167, any issues arising from the enforcement of these regulations can be challenged via lawsuit under the Administrative Procedure Act (APA), or clarified through the advisory opinion procedure codified at 2 U.S.C. § 437f.

The regulations promulgated by the FEC define coordinated communications as those not paid for by the candidate or the political party, that meet one content and one conduct standard. Final Rules; Coordinated and Independent Expenditures, 68 Fed.Reg. 421, 453 (Jan. 3, 2003) (to be codified at 11 C.F.R. § 109.21). The conduct standards include: (1) communications made, produced, or distributed at the request or suggestion of the candidate or party, or at the request or suggestion of a payor who receives the candidate or party's assent; (2) material involvement by the candidate or party in decisions regarding the content, intended audience, means or mode, media outlet used, the timing or frequency, or the size or prominence of the communication; (3) one or more substantial discussions about the communication between the payor and the candidate clearly identified in the communication which concern the candidate's or political party committee's campaign plans, projects, activities, or needs that are material to the creation, production or distribution of the communication. Id. at 454. The regulation also creates a safe harbor for responses to inquiries about legislative or policy issues. Id. at 455. The content standards can be found at 68 Fed. Reg. 421, 453 (Jan. 3, 2003) (to be codified at 11 C.F.R. § 109.21(c)).

Lawrence Pratt is the Executive Director of Gun Owners of America, a non-profit taxexempt interest group organized under the laws of Virginia. See Pratt Decl. at 1.

The Annenberg Report describes Emily's List as "an organization dedicated to helping Democratic women who support abortion rights get into office." Annenberg Report 2001 at 22 [DEV 38-Tab 22].

See also Richard Briffault, Issue Advocacy: Redrawing the Elections/Politics Line, 77 Tex. L.Rev. 1751, 1792 (1999) ("[A]s skilled campaign professionals, the major political parties are in the best position to conform their activities to legal requirements.").

The statute provides in part:
Not later than 60 days
after the Commission receives from a person a complete written request concerning the application of [FECA] ... or a rule or regulation prescribed by the [FEC], with respect to a specific transaction or activity by the person, the [FEC] shall render a written advisory opinion relating to such transaction or activity to the person. 2 U.S.C. § 437f(a)(1) (emphasis added).

A "flight" is a series of virtually identical ads broadcast during the same period of time in multiple media markets.

The Annenberg Report describes Americans for Job Security as a "pro-business lob bying group." Annenberg Report 2001 at 23 [DEV 38-Tab 22],

As Justice Holmes observed: "Wherever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so, it is familiar to the criminal law to make him take the risk." United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 74 L.Ed. 508 (1930).

2) Agreement

The Court addresses next Plaintiffs' argument that Section 214(a) violates the Constitution because it does not require the existence of an "agreement" as a predicate to the finding of coordination. Plaintiffs cite to four cases in support of their theory that an agreement is required for an expenditure to be coordinated. The Court addresses each in turn, finding that none support Plaintiffs' argument.

In Buckley, the Supreme Court found that Congress could limit coordinated expenditures to "prevent attempts to circumvent [FECA] through prearranged or coordinated expenditures amounting to disguised contributions." Buckley, 424 U.S. at 47, 96 S.Ct. 612. In rejecting FECA's limitation on independent expenditures, the Supreme Court distinguished independent from coordinated expenditures, noting that expenditures "made totally independently of the candidate and his campaign .... may well provide little assistance to the candidate's campaign and indeed may prove counterproductive." Id. (emphasis added). The Supreme Court noted that "[t]he absence of prearrangement and coordination of an expenditure with the candidate ... not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." Buckley, 424 U.S. at 47, 96 S.Ct. 612. The coordinated expenditure provision Buckley upheld defined coordinated expenditures as those "authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate." Id. at 47 n. 53, 96 S.Ct. 612 (quoting FECA § 608(c)(2)(B)). The Supreme Court cited to the House and Senate reports, especially the more detailed Senate report which included the following "example illustrating the distinction between `authorized or requested' expenditures... and independent expenditures":

"(A) person might purchase billboard advertisements endorsing a candidate. If he does so completely on his own, and not at the request or suggestion of the candidate or his agent's (sic) that would constitute an `independent expenditure on behalf of a candidate' under section 614(c) of the bill. The person making the expenditure would have to report it as such."
"However, if the advertisement was placed in cooperation with the candidate's campaign organization, then the amount would constitute a gift by the supporter and an expenditure by the candidate just as if there had been a direct contribution enabling the candidate to place the advertisement himself. It would be so reported by both."

Id. (quoting S.Rep. No. 93-689, p. 18 (1974), U.S.Code Cong. & Admin. News 1974, p. 5604) (alteration in original). Based on this guidance, the Supreme Court found that "the `authorized or requested' standard of the Act operates to treat all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate as contributions." Id.

In Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) ("Colorado I"), the Supreme Court found that an advertisement made by a political party was not a coordinated expenditure, in part because of "uncontroverted evidence that this advertising campaign was developed by the Colorado Party independently and not pursuant to any general or particular understanding with a candidate." Colorado I, 518 U.S. at 614, 116 S.Ct. 2309 (plurality opinion) ("[W]e therefore treat the expenditure, for constitutional purposes, as an `independent' expenditure, not an indirect campaign contribution.").

This District Court grappled with the troublesome First Amendment line between coordinated and independent expenditures in FEC v. Christian Coalition, 52 F.Supp.2d 45 (D.D.C.1999). In her decision, which was not subjected to appellate review, Judge Joyce Hens Green explained:

This Court is bound by both the result and the reasoning of Buckley, even when they point in different directions. While Buckley confidently assured that coordinated expenditures fell within the Act's limits on contributions, it also reasoned that spending money on one's own political speech is an act entitled to constitutional protection of the highest order. Expressive coordinated expenditures bear certain hallmarks of a cash contribution but also contain the highly-valued political speech of the spender. I take from Buckley and its progeny the directive to tread carefully, acknowledging that considerable coordination will convert an expressive expenditure into a contribution but that the spender should not be deemed to forfeit First Amendment protections for her own speech merely by having engaged in some consultations or coordination with a federal candidate.

Christian Coalition, 52 F.Supp.2d at 91 (citations omitted). In addressing "coordination as it applies to expressive coordinated expenditures by corporations," id., Judge Green noted that "[t]he fact that the candidate has requested or suggested that a spender engage in certain speech indicates that the speech is valuable to the candidate, giving such expenditures sufficient contribution-like qualities to fall within the Act's prohibition on contributions." Id. at 92. However, the absence of such overtures would not, in Judge Green's view, prevent an expenditure from being coordinated.

In the absence of a request or suggestion from the campaign, an expressive expenditure becomes "coordinated" where the candidate or her agents can exercise control over, or where there has been substantial discussion or negotiation between the campaign and the spender over, a communication's: (1) contents; (2) timing; (3) location, mode, or intended audience (e.g., choice between newspaper or radio advertisement); or (4) "volume" (e.g., number of copies of printed materials or frequency of media spots). Substantial discussion or negotiation is such that the candidate and spender emerge as partners or joint venturers in the expressive expenditure, but the candidate and spender need not be equal partners. This standard limits § 441b's contribution prohibition on expressive coordinated expenditures to those in which the candidate has taken a sufficient interest to demonstrate that the expenditure is perceived as valuable for meeting the campaign's needs or wants.

Id. Judge Green acknowledged that this standard still left "room for factual dispute," which in turn could "chill some speech." Id. But such deficiencies were deemed acceptable given that "expressive coordinated expenditures present real dangers to the integrity of the electoral process." Id.

In Colorado II, the Supreme Court expounded on the difficulty in determining the point at which an expenditure becomes a coordinated expenditure. The Supreme Court also commented on the functional approach which Congress had adopted, and the Buckley Court accepted, to balance First Amendment rights and the state's interest in preventing campaign finance corruption.

The First Amendment line between spending and donating is easy to draw when it falls between independent expenditures by individuals or political action committees (PACs) without any candidate's approval (or wink or nod), and contributions in the form of cash gifts to candidates. But facts speak less clearly once the independence of the spending cannot be taken for granted, and money spent by an individual or PAC according to an arrangement with a candidate is therefore harder to classify. As already seen, Congress drew a functional, not a formal, line between contributions and expenditures when it provided that coordinated expenditures by individuals and nonparty groups are subject to the Act's contribution limits, 2 U.S.C. § 441a(a)(7)(B)(i). In Buckley, the Court acknowledged Congress's functional classification, and observed that treating coordinated expenditures as contributions "prevent[s] attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions." Buckley, in fact, enhanced the significance of this functional treatment by striking down independent expenditure limits on First Amendment grounds while upholding limitations on contributions (by individuals and nonparty groups), as defined to include coordinated expenditures.

Colorado II, 533 U.S. at 442^43, 121 S.Ct. 2351 (citations omitted). Also, in that case, the Supreme Court found that "coordinated spending ... covers a spectrum of activity." Id. at 445,121 S.Ct. 2351.

This Court agrees that "First Amendment clarity demands a definition of `coordination' that provides the clearest possible guidance to candidates and constituents, while balancing the Government's compelling interest in preventing corruption of the electoral process with fundamental First Amendment rights to engage in political speech and political association." Christian Coalition, 52 F.Supp.2d at 91. However, the Court finds nothing in the cited precedent, or Plaintiffs' arguments, demanding that for an expenditure to be coordinated there must be an agreement. The Court's reading of these cases suggests the very opposite. At the very least, the cases state that substantive requests and suggestions, or "wink or nod" arrangements, can render subsequent expenditures to be "coordinated," a standard that does not equate to agreement. Therefore, the Court rejects the argument that agreements are a constitutional prerequisite to the finding that an expenditure is coordinated, and finds that Plaintiffs have not demonstrated that Section 214(a) violates the Constitution.

Defendants offered this hypothetical to illustrate the type of coordination the "request or suggestion" standard is intended to cover: A candidate suggests to a wealthy individual, "If you want to help, you might finance some political advertisements advocating my election"; the individual does not reply, but a week later, buys $100,000 worth of air time to advocate the candidate's election.
Gov't Br. at 185. According to the Chamber of Commerce, this hypothetical "is realistic.... Candidates and their parties routinely make general requests for public support." Chamber/NAM Opp'n at 6.

Denise Mitchell is Special Assistant for Public Affairs to the President of the AFL-CIO and oversees all public relations activities of the AFL-CIO, including use of broadcast and print media. See D. Mitchell Decl. at 1-2.

The Annenberg Report describes the Business Round Table as "an organization that represents the CEO's of America's largest corporations." Annenberg Report 2001 at 20 [DEV 38-Tab 22].

That political parties are the speakers is also relevant because since most of their communications are election-based speech, especially those that identify candidates, there is less potential for chilling pure issue advocacy.

b. Section 214(b)

Section 214(b) repealed the FEC regulations on coordination in effect at the time BCRA was enacted. BCRA § 214(b). Plaintiffs concede that Congress has the power to repeal the regulations. What Plaintiffs argue, however, is that "Congress had a duty to provide a narrow, precise, and objective definition for the coordination concept" but failed to do so and "by repealing the FEC's regulatory definition, Congress substantially aggravated the constitutional violation." Chamber/NAM Br. at 13 n. 6. Since the FEC promulgated regulations on January 3, 2003, this "aggravation" claim is moot.

c. Section 214(c)

Because Defendants argue that Plaintiffs' challenge to Section 214(c) is nonjusticiable, Gov't Br. at 183-85; Int. Br. at 139^40, the Court will address this issue first as its resolution may preclude consideration of the merits of the Plaintiffs' other arguments. Preliminarily, the Court notes that BCRA provides this Court with jurisdiction to hear "any action brought for declaratory or injunctive relief to challenge the constitutionality of any provision of this Act or any amendment made by this Act," and instructs it to "expedite to the greatest possible extent the disposition of the action." BCRA § 403; 2 U.S.C. § 437h note. This grant does not extend to the consideration of FEC regulations, and it does not permit the Court to go beyond its Article III powers to address claims that are nonjusticiable. Clark v. Valeo, 559 F.2d 642, 650 n. 11 (D.C.Cir. 1977) ("To the extent [the dissent's] language may be read as suggesting a view that Congress may `command' the judiciary to act contrary to the rules relative to ripeness the Supreme Court has developed `for its own governance in the cases confessedly within its jurisdiction,' we respectfully disagree.") (citations omitted). Cognizant of its authority, the Court now turns to each of Defendants' justiciability claims.

1) Article III Standing

Plaintiffs have the burden of establishing standing to bring their suit by demonstrating that they have: (1) suffered an "injury in fact;" (2) which is "fairly traceable to the conduct complained of;" and (3) is capable of judicial redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In the First Amendment context, the standing requirements are somewhat relaxed. Parties have

standing to challenge a statute on grounds that it is facially overbroad, regardless of whether [their] own conduct could be regulated by a more narrowly drawn statute, because of the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.
Of course, in order to have standing, an individual must present more than allegations of a subjective chill. There must be a claim of specific present objective harm or a threat of specific future harm.

Bigelow v. Virginia, 421 U.S. 809, 816-17, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (citation and internal quotation marks omitted).

In terms of the "injury in fact" prong, it is true that Plaintiffs have "not alleged any concrete and particularized injury from [Section] 214(c)'s instructions to the Commission to promulgate a new regulation." Gov't Br. at 184. However, Bigelow instructs that Plaintiffs do not have to allege a particularized injury, they must only show a specific objective harm. Bigelow, 421 U.S. at 816-17, 95 S.Ct. 2222. Plaintiffs allege that the Constitution requires an agreement before an expenditure may be considered coordinated. McConnell Br. at 84; Chamber/NAM Opp'n at 8 n. 10 (stating that Section 214(c) "fairly read, rejects the constitutional holding" that the "First Amendment demanded a narrow agreement standard of coordination"). The fact that Section 214(c) directs that the FEC's regulations on coordination not require "agreement or formal collaboration," from Plaintiffs' perspective, presents a specific future harm of impermissibly overbroad regulations. McConnell Opp'n at 53 n. 24 (arguing that "since" no constitutional regulation consistent with BCRA can be promulgated (because of the statute's disavowal of an `agreement' standard) it would be futile to delay "litigation until regulations are promulgated, litigation is appropriate now"). This argument was addressed above and found to be inconsistent with the holdings of Buckley and its progeny. Therefore, Plaintiffs' allegation that they will be injured by regulations which by Congressional direction will be constitutionally overbroad, is not an injury-in-fact.

Plaintiffs, despite purporting to have standing to challenge Section 214(c), have not clearly articulated the basis for their position. This theory represents what the Court has gleaned from their terse briefings. See Chamber/NAM Opp'n at 7-8; Chamber/NAM Reply at 7-10; McConnell Opp'n at 53 ("For reasons discussed fully in the submission of the Chamber of Commerce Plaintiffs ... this assertion [that plaintiffs' coordination arguments are not justiciable at this time] are meritless.").

When President Bush reintroduced similar legislation in 2001 the AFL-CIO again ran broadcast advertisements opposing the proposal. See D. Mitchell Decl. at 35, Exhs. 154-58; G. Shea Decl. at 21.

The Annenberg Report describes Handgun Control as an "advocacy group supporting legislation to promote gun safety." Annenberg Report 2001 at 25 [DEV 38-Tab 22].

Title I does not, however, prevent circumvention of existing limitations on contributions to candidates in the manner set forth by the Supreme Court in Buckley, 424 U.S. at 38, 96 S.Ct. 612, and Colorado II, 533 U.S. at 456 n. 18, 121 S.Ct. 2351. Even before BCRA was enacted, because of existing party limitations on direct contributions to and coordinated expenditures on behalf of candidates, see 2 U.S.C. § 441 a(d); Colorado II, 533 U.S. at 440-65, 121 S.Ct. 2351, donors could not use the parties to funnel large sums of money directly to candidates in the form of contributions. Thus, any reliance on the Supreme Court's anticircumvention rationale in Buckley and Colorado II, see J. Kollar-Kotelly Op. at Part III.II.B.2.a.iii, necessarily dictates a novel application of that precedent.

McConnell Plaintiffs argue that the language of Section 214(c) violates the Constitution because it does not require "some form of agreement with the candidate [to] be present to find coordination. BCRA, of course, forbids the FEC from requiring that any sort of agreement-formal or otherwise-be required." McConnell Opp'n at 54 n. 26. The Court disagrees with Plaintiffs, interpreting Section 214(c) under the doctrine of noscitur a sociis. "The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress." Jarecki v. CD. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961). Given that "agreement" in Section 214(c) is immediately followed by the words "or formal collaboration," narrows the Court's reading of the term to cover formal agreements. This interpretation also appears to match the intent of Congress. See 148 Cong. Rec. S2144 (daily ed. Mar. 20, 2002) (Sen. Russ Feingold) ("Unfortunately, based on a single district court decision, the Federal Election Commission's current regulation defining when general public political communications funded by outside groups are considered coordinated with candidates or parties fails to account for certain types of coordination that may well occur in real-world campaigns. The FEC regulation is premised on a very narrowly defined concept of `collaboration or agreement' between outside groups and candidates or parties. This current FEC regulation fails to cover a range of de facto and informal coordination between outside groups and candidates or parties that, if permitted, could frustrate the purposes of the bill.").

Steven Rosenthal serves as Political Director of the AFL-CIO, oversees the organization's Political Department and is responsible for its day-to-day operations. See Rosenthal Decl. at 1.

The Annenberg Report describes the Sierra Club as "a pro-environment advocacy group." Annenberg Report 2001 at 23 [DEV 38-Tab 22].

For example, the California Republican Party funds Section 527 organizations to engage in voter registration activities in its Operation Bounty program. See Erwin Aff. II9.

The AFL-CIO, the Chamber of Commerce and NAM assert that "BCRA's vague and overbroad coordination standards will inevitably spur more ... wide-ranging and burdensome investigations." AFL-CIO Br. at 13; Chamber/NAM at 14 ("[T]he Chamber and NAM[ ] know from painful, first-hand experience how a vague and overbroad concept of `coordination' permits unfounded charges and investigations that seriously burden and chill participation in legislative initiatives.") These Plaintiffs point to the FEC's investigations into their broadcasts made in 1995 and 1996 (the Chamber of Commerce's advertisements were run in response to those aired by the AFL-CIO) to support this proposition. The Court finds a harm that may be caused by potential future investigations to be the type of speculative injury Litjan rejects as a basis for standing. Furthermore, the Court notes that the regulatory regime under which these investigations were conducted was far broader than that which BCRA appears to endorse. See Christian Coalition, 52 F.Supp.2d at 89-91 (rejecting the FEC's "insider trading" or "conspiracy" standard for coordination). The regulations in place prior to 2000 considered expenditures to be coordinated when they were "[m]ade by or through any person who is, or has been, authorized to raise or expend funds, who is, or has been, an officer of an authorized committee, or who is, or has been, receiving any form of compensation or reimbursement from the candidate, the candidate's committee or agent." 11 C.F.R. § 109.1(b)(4)(i)(B) (1999 ed.) (repealed 2001) (emphasis added).

From 1990 to 1995, Larry LaRocco served as a member of the House of Representatives from the 1st Congressional District of Idaho. See LaRocco Decl. at 1.

The Annenberg Report describes the League of Conservation Voters as a "proconservation advocacy and education group." Annenberg Report 2001 at 23 [DEV 38-Tab 22].

Soft money donations to federal candidates, regardless of whether they are used for nonfederal purposes by the candidates thereafter, can give rise to actual or apparent corruption, especially if the donation is of any magnitude.In those circumstances, it is natural for the public to presume that the donation will either be used to help the federal candidate get elected or in some other way that directly enures for his/her benefit. Either way, the perception of a personal gain, and the sense of indebtedness that follows therefrom, justly warrants Congress's regulation.

Even if this Court were to find that Plaintiffs have alleged an injury-in-fact, Plaintiffs would still lack standing to bring their Section 214(c) challenge because their claim lacks redressability. To establish standing, Plaintiffs are required to show that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Bennett v. Spear, 520 U.S. 154, 167, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Even if this Court were to strike Section 214(c) from BCRA, other provisions dealing with coordinated expenditures to candidates and parties would still govern and count contributions as any expenditures made at the request or suggestion of a candidate-covering behavior which falls short of formal collaboration or agreement. See 2 U.S.C. § 441a(a)(7)(B)(i), (ii). As the Court explained above in finding Section 214(a) constitutional, there is nothing inherently unconstitutional about the "cooperation, consultation, or concert with, or at the request or suggestion of language found in FECA § 441(a)(7)(B)® or (ii), 2 U.S.C. § 441(a)(7)(B)(i), (ii). Therefore, Plaintiffs' challenge to Section 214(c) cannot redress their claimed injury of having coordination defined as something broader than an agreement.

Based on the foregoing, the Court concludes that Plaintiffs have failed to establish the injury in fact and redressability elements required for Article III standing with regard to their challenge to Section 214(c).

2) Ripeness

In the alternative, the Court examines Defendants' assertion that Plaintiffs' Section 214(e) claims are not ripe for judicial review at this time. Defendants maintain that since Section 214(c) does not require or prohibit any actions by Plaintiffs, but merely directs the FEC to promulgate new regulations which were not final until after briefing and oral arguments in this case were completed, "neither the Court nor plaintiffs can know how the revised regulations will affect plaintiffs or have any basis for evaluating whether those regulations will contravene constitutional principles." Gov't. Br. at 183-84; see also Int. Br. at 140 ("[T]here is nothing meaningful for this Court to review ... until there is actually a new definition in place."). This defect, Defendants argue, renders Plaintiffs' claims not yet ripe.

It is presumed that "federal courts lack jurisdiction unless the contrary appears affirmatively from the record," and "[i]t is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers." Renne v. Geary, 501 U.S. 312, 315, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991). In commencing the ripeness analysis, the Eighth Circuit provides guidance:

In order for a claim to be justiciable under Article III, it must be shown to be a ripe controversy. Ripeness is peculiarly a question of timing, intended to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements. In short, the doctrine of ripeness is intended to forestall judicial determinations of disputes until the controversy is presented in clean-cut and concrete form....
[The] ripeness inquiry in the context of this [First Amendment] facial challenge... focuses on three elements: (1) hardship to the parties by withholding review; (2) the chilling effect the challenged law may have on First Amendment liberties; and (3) fitness of the controversy for judicial review. Our ripeness inquiry is not to be applied mechanically but rather, with flexibility.

New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499-1500 (10th Cir. 1995) (citations and quotation marks omitted).

Plaintiffs' arguments focus on the first two prongs of the ripeness analysis. They allege that Section 214 creates a situation whereby it is unclear what actions may render an expenditure "coordinated" under BCRA. This predicament, Plaintiffs claim, chills their speech and associational rights, which is the direct and immediate hardship they assert. See Chamber/NAM Opp'n at 10. Since BCRA is "self-enforcing," in that "it can be used against people in its current form," Plaintiffs maintain that the case is fit for judicial review. Tr. at 296 (Baran).

In light of the authority presented by the D.C. Circuit, the Court disagrees with Plaintiffs and finds their challenge to Section 214(c) not ripe for review. In Martin Tractor Co. v. FEC , a number of parties sought declaratory and injunctive relief from certain provisions of FECA. Martin Tractor Co. v. FEC, 627 F.2d 375, 377 (D.C.Cir.), cert, denied sub nom. Nat'l Chamber Alliance for Politics v. FEC, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 218 (1980). Limited to "soliciting" its hourly employees twice a year, the Martin Tractor Company complained that Section 441b(b)(4)(B) of FECA had restricted, in a constitutionally impermissible manner, its ability to communicate with its hourly employees about its PAC. Id. at 382. Neither the statute nor the regulations defined "solicit" or "solicitation." Id. at 383. The Court of Appeals determined, despite the vagueness of the undefined term "solicit" and the lack of clarifying regulatory language, that "the extent of the chill induced by the statutory provision at issue ... is a very limited one." Id. at 384. This conclusion was based on two factors. First, the statute provided an "advisory opinion (AO) mechanism ... authorized to give advice concerning the Act's application to specific factual situations," and mandated that such counsel be provided within 60 days of a request for advice. Id. 384-86. Second, the D.C. Circuit found that the legal rights alleged by Martin Tractor were "uncertain," id. at 386, and that unlike cases which had found ripeness in similar circumstances, the "adversarial posture assumed by the parties and contours of their dispute" were not clear, id. at 387. Specifically, the fact that the FEC "has said or done nothing ... to indicate how it construes the term `solicit,'" left the court "without substantial guidance to decide this case or even to frame the constitutional issues at stake." Id. at 387.

The situation this Court faces is virtually identical to that of Martin Tractor. Plaintiffs here similarly complain about the chilling effect of an ambiguous term. Plaintiffs, like those in Martin Tractor, have the option of seeking a chill-reducing AO if they fear their actions may be construed as "coordination." In addition, since briefing and oral argument in the case occurred prior to the FEC's promulgation of final regulations and the regulations affect the vagueness alleged, the Court does not know the "contours of [the] dispute." In other words, the Court does not know to what extent the regulations have clarified the vagueness Plaintiffs contend would chill their rights. Regulations in the past have clarified this very issue, Chamber/NAM Br. at 13 (stating that the FEC's now-repealed regulations on coordination "took useful steps toward alleviating" vagueness problems), and it is therefore likely that some, if not all, of Plaintiffs concerns have been addressed. For example, the ACLU maintains that because of Section 214 it "may not be able to discuss a ... vote or position with a Representative or Senator if the ACLU will subsequently produce a box score that praises or criticizes the official's stand. This feature of BCRA acts as a continuing prior restraint ...." ACLU Br. at 20. However, the FEC's recently promulgated regulations appear to assuage this fear, creating a safe harbor for "inquiries about legislative or policy issues." Final Rules; Coordinated and Independent Expenditures, 68 Fed.Reg. at 455 (Jan. 3, 2003) (to be codified at 11 C.F.R. § 109.21(f)). To decide Plaintiffs' claims at this juncture would entangle the Court in a dispute that has not been "presented in a clean-cut and concrete form," the exact situation the ripeness doctrine is designed to avoid. Gonzales, 64 F.3d at 1499.

Plaintiffs' argument that Buckley should be construed as rejecting the opportunity for AO guidance as a factor in determining ripeness is completely incorrect, and in their own words, is "[n]onsense." Chamber/NAM Reply at 8. Buckley found that since the AO procedure in FECA at that time was available only to "candidates, federal officeholders, and political committees," the AO mechanism did "not assure that the vagueness concerns will be remedied prior to the chilling of political discussion by individuals and groups in this or future years." Buckley, 424 U.S. at 41 n. 47, 96 S.Ct. 612. This is no longer the case. See Martin Tractor, 627 F.2d at 386 n. 44 (explaining why Buckley rejected the AO rationale and noting that "[b]oth of these aspects of the AO mechanism have been amended and the susceptibility of the FECA to challenge on the grounds of vagueness has consequently been reduced."). Section 437f of FECA requires the FEC to provide an advisory opinion within 60 days of receiving a "written request concerning the application of [FECA] ... or a rule or regulation prescribed by the" FEC. 2 U.S.C. § 437f(a)(1). The advisory opinions may be relied upon by the requester or any other person involved in an "identical transaction or activity with respect to which such advisory opinion is rendered." Id. at § 437f(c)(1). Such persons who "act[] in good faith in accordance with the provisions and findings of such advisory opinion, shall not, as a result of any such act, be subject to any sanction provided by" FECA. Id. § 437f(c)(2).
Plaintiffs also assert that it is "wildly implausible" and "impractical" to believe that the FEC could handle the thousands of AO requests they envision would result from the Court's decision today. Chamber/NAM Reply at 8. Whether or not there would be such an influx of requests, and whether or not the FEC would be in a position to handle them, are not questions before this Court and Plaintiffs have provided the Court with no basis, other than their unsupported assertion, for finding that the AO mechanism would be unworkable for solving coordination problems.

A portion of this cited material remains sealed pursuant to a separate order by Judge Kollar-Kotelly.

The Chart is based on data compiled by Kenneth Goldstein. Goldstein Expert Report, App. A, Table 16 [DEV 3-Tab 7]. Goldstein observed all interest group advertisements run during the forty-four weeks prior to the election using CMAG data. Although Plaintiffs dispute the completeness of his data set, see Appendix, none of the experts have criticized that the data demonstrates that in the sixty days prior to a federal election, the clear majority of issue advertisements mention the name of a federal candidate.

See J. Henderson Op. at Part IV.A.

The Chamber of Commerce and NAM seek to distinguish Martin Tractor from the current case on its facts. Chamber/NAM Reply at 8. First, they state that "[p]laintiff there did not claim immediate injury." Id. This is not the case. Martin Tractor alleged that "but for the [section] 441b restrictions and the threat of sanctions, [it] would resume the extent and manner of communication [it] engaged in previously." Martin Tractor, 627 F.2d at 382. Second, Plaintiffs presume, based on the fact the court stated that the AO mechanism "argues against constitutional adjudication on a barren record," Id. at 385, that the appellants in that case had "provided no factual record." Chamber/NAM Reply at 8. If the Plaintiffs had referred to the footnote immediately following the court's statement, they would have seen that the court meant a record bare of any indication of how the FEC planned to enforce the provision, as opposed to a barren factual record. See Martin Tractor, 627 F.2d at 385 n. 39 (citing cases holding "equitable relief inappropriate where administrative intent has not come to fruition or is unknown" and "case ripe where pertinent regulations and AO have been issued") (emphasis added). Next, the Chamber of Commerce and NAM appear to suggest that the Martin Tractor decision was the product of prudential concerns, and not an Article III ripeness determination. Chamber/NAM Reply at 8. Although the court stated, "we find the cases nonjusticiable as a constitutional matter and inappropriate for adjudication as a prudential matter," if Plaintiffs had looked at the footnote immediately following that statement, they would have read the Court's conclusion that "[s]ince we hold that these appellants present no justiciable `case or controversy' we need not decide or consider the circumstances under which a court might decline for prudential reasons alone to reach the merits of a constitutional challenge to FECA." Martin Tractor, 627 F.2d at 378 n. 5. Lastly, the Chamber of Commerce and NAM point out that Martin Tractor discounted Buckley's ripeness holding for "lack of a broad package of expedited challenges such as exist here." Chamber/NAM Reply at 8. The Martin Tractor court did note that the case before it provided "no similar urgency of decision ... that outweighs the inadvisability of premature constitutional adjudication," although its decision was also informed by "the comparative speed with which an advisory opinion on specific conduct can be secured." Martin Tractor, 627 F.2d at 388. Accordingly, the Court finds that Martin Tractor is applicable to the pending cases.

The Court also notes that although the Martin Tractor court took Buckley's statement that "ripeness is peculiarly a question of timing," Buckley, 424 U.S. at 114, 96 S.Ct. 612, to describe the timing of that case in relation to the 1976 Presidential election, Martin Tractor, 627 F.2d at 388, a close reading of Buckley shows that the Supreme Court was referring to developments that had taken place in "the passage of months between the time of the decision of the Court of Appeals and our present ruling," Buckley, 424 U.S. at 114, 96 S.Ct. 612. The Supreme Court made its ripeness determination in the context of a separation of powers challenge to FECA's establishment of the FEC. Id. at 113, 96 S.Ct. 612. The Court finds that the challenge considered here differs greatly from that Buckley faceden it conducted the ripeness analysis described above. The separation of powers concerns raised in Buckley did not depend on the future promulgation of regulations, but focused solely on the constitutionality of the powers granted to the FEC. See id. at 113, 96 S.Ct. 612. The Buckley defendants could not claim that future regulations would shape the contours of the plaintiffs' claims. As such, this Court finds that the Buckley ripeness determination was made under circumstances that distinguish it from the case at bar and that its reasoning does not require the Court to forego Article III justiciability requirements in this case.

Laura Murphy is the Legislative Director of the ACLU. See Murphy Decl. at 1.

The CMAG data is discussed in detail in the Appendix to my opinion and Finding 112.12.1.

See J. Kollar-Kotelly Op. at Part III.I.C.I & Part III.I.C.2.

The cases at bar do differ from Martin Tractor, in one material respect. Unlike the case before the Martin Tractor court, where there was no indication the FEC would ever promulgate regulations to reduce the vagueness of the undefined term, Congress in this instance has explicitly ordered the FEC to promulgate regulations on this very matter in an expedited fashion, and the FEC did so on January 3, 2003. This fact argues against finding these cases ripe for adjudication. As the Eighth Circuit explained,

[m]any ripeness cases require finality of the government action that is challenged. This requirement is intended, in part, to guard against courts passing on the legality of actions that do not, in and of themselves, alter or burden the rights, duties or obligations of the claimant. For example, orders that merely embody a precursor to the later formulation of actual regulations will, as a general rule, not support a finding of ripeness.

Gonzales, 64 F.3d at 1504 n. 5 (citations omitted) (finding that, unlike the cases presented here, since the "challenged provision itself delineates the proscribed conduct and neither directs nor requires further administrative or legislative enactments for its effect" the case was ripe for adjudication); see also El Dia v. Hernandez Colon, 963 F.2d 488, 496 (1st Cir. 1992) (finding the "policies that underscore the ripeness doctrine militate strongly against granting discretionary (declaratory) relief where the executive order challenged was "merely a precursor to the later formulation of actual regulations"). Moreover, as long as Plaintiffs abide by the regulations in good faith, they will not be subject to sanctions under FECA. 2 U.S.C. § 438(e) ("[A]ny person who relies upon a rule or regulation proscribed by the [FEC] ... and who acts in good faith in accordance with such rule or regulation, shall not, as a result of such act, be subject to any sanction provided by [FECA].").

The Court acknowledges that the regulations may still be vetoed by Congress or face a court challenge. Regardless, the regulations shape the "contours" of Plaintiffs' complaints regarding Section 214(c). However, since the regulations are not properly before this Court, Plaintiffs' claims in this regard are not ripe. Again, it is possible that many, perhaps all, of Plaintiffs' concerns have been remedied by the recently promulgated regulations. The proper venue for any complaints Plaintiffs believe have not been addressed by the new regulations is not this special court, but in a single-judge court pursuant to a lawsuit brought under the Administrative Procedure Act (APA). See BCRA § 403. Although Plaintiffs decry the lengthy nature of suits brought under the APA, the Court lacks the jurisdiction to rule on the regulations and cannot ignore the absence of Article III ripeness in order to provide Plaintiffs with the forum they prefer.

Under the Administrative Procedures Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), the FEC's regulations must be submitted to Congress and do not take effect until 60 days after Congress receives the FEC's report on the regulations or the rule is published in the Federal Register, whichever is later. 5 U.S.C. § 801(a)(3). The regulations were transmitted to Congress on December 18, 2002 and published in the Federal Register on January 3, 2003. Final Rules; Coordinated and Independent Expenditures, 68 Fed.Reg. 421 (Jan. 3, 2003). Congress can veto the regulations within 60 days by passing a joint resolution disapproving the regulations. See 5 U.S.C. § 802.

Suzanne DeFrancis is a former Deputy Director of Communications at the RNC and currently serves as Senior Vice President, Director of Public Affairs at Porter Novelli, an advertising firm. See DeFrancis Dep. at 5-7.

In determining which races were competitive, Goldstein relied on his professional judgment as informed by various media sources including the Cook Report which he attached to his expert report. Goldstein Expert Report at 20 n.17 [DEV 3-Tab 7], The Cook Report is also used by Plaintiffs to handicap races. La-Pierre Dep. at 196 [JDT Vol. 14] ("Q. What were your sources of information from which you determined which races were close or which races were in battleground states or whatever? A. Newsletters, the media, just the general turning on the television. I mean, everybody-there are no secrets in-when you get into a campaign, I mean, everybody knows. I mean, it's-the columnists, the TV, the radio, the-I mean, every newsletter you pick up, whether it's the Cook Report...."); Ryan Dep. at 76-77 [JDT Vol. 27] (recalling that he would check the Cook Report to find out which races of Congress were competitive). Call him today and tell him to keep up his fight. Because if trial lawyers win, working families lose.

For example, last fall alone, in the period immediately preceding the 2002 congressional election, Congress considered the following important, and controversial, pieces of legislation: a resolution authorizing the use of armed force against Iraq, (H.J.Res.l 14, 107th Cong.); an election reform bill to update ballot machines and provide greater access to individuals with disabilities to polling places (H.R.3295, 107th Cong.); legislation to establish the Department of Homeland Security (H.R.5710, 107th Cong.); and various appropriations bills for federal departments, including the Departments of Defense, Justice, and State. While last fall's legislative calendar may not be typical, it nevertheless illustrates BCRA's potential impact on genuine issue advocacy. Murphy Decl. ¶ 12 ("Some of the President's or Attorney General's boldest initiatives are advanced during election years- often within 60 days of a general election. This year, for instance, legislation creating a new federal department of Homeland Security is under consideration during this pre-election period.").

Plaintiffs should also be aware that should they challenge the FEC's regulations, they may seek a stay from the FEC or a court to prevent the application of the rule pending its review. 5 U.S.C. § 705. The law provides: "When an agency finds that justice so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings." Id.

Although most records relating to MUR 4624 are confidential under 2 U.S.C. § 437g(a)(12), the FEC's public file contains a General Counsel's Report (Apr. 23, 2001) (General Counsel Report), a Statement for the Record by Commissioner Scott E. Thomas and Chairman Danny L. McDonald (Sept. 7, 2001), and a Statement for the Record by Commissioner Bradley A. Smith (Nov. 6, 2001) (Smith Statement).

The text of the advertisement is as follows: Worried about rising healthcare costs? Then look out for the trial lawyers. They want Congress to pass new liability laws that could overwhelm the system with expensive new healthcare lawsuits. Lawsuits that could make the trial lawyers richer. That could make healthcare unaffordable for millions. Senator Lauch Faircloth is fighting to stop the trial lawyers [sic] new Def.App. C, Tab 1 at 1. This advertisement was submitted by Plaintiffs on a CD as a "powerful illustration of the ... type of issue advocacy that would be prohibited by BCRA's primary definition of `electioneering communications.'" McConnell Br. at 61.

See Finding 359 n. 224.

Accordingly, the Court does not reach the merits of Plaintiffs' challenges to Section 214(c), as they are not ripe for adjudication.

d. Section 214(d)

In their Opposition Brief, the Chamber of Commerce and NAM claim that Section 214(d)

specifies that coordination applies not only to a "contribution or expenditure" in the defined sense that requires express advocacy, but "also includes any direct or indirect payment ...." (emphasis added). BCRA § 214(d) extends coordination to an "electioneering communication." These provisions remove express advocacy as a content standard and give no substitute.

Chamber/NAM Opp'n at 8 (emphasis in original). The Court does not find Section 214(d) to have the effect on FECA that Plaintiffs assert. Section 214(d) amends FECA Section 441b, which limits contributions or expenditures by national banks, corporations, or labor organizations, so that the definition of "contribution or expenditure" under that section "includes a contribution or expenditure, as those terms are defined in section 301" of FECA, 2 U.S.C. § 431(8), (9). BCRA § 214(d); FECA § 441b(b)(2); 2 U.S.C. § 441b(b)(2). The definitions of "contribution" and "expenditure" in FECA Section 301 have not been amended by BCRA. Plaintiffs' complaints about the definition's inclusion of "direct or indirect payment" are also misplaced as this provision preexisted BCRA and is therefore not subject to this Court's review.

BCRA Section 203 adds "electioneering communication" to FECA Section 441b(b)(2)'s definition of "contribution or expenditure."

Defense expert Thomas Mann is the W. Averell Harriman Chair and Senior Fellow in Governance Studies at the Brookings Institution. See Mann Expert Report at 1.

According to the AFL-CIO, "Save" was run "[a]fter the [Taxpayer Relief Act] passed the House and was being considered in the Senate." Mitchell Decl. 1152 [PCS 6]. This advertisement was "intended to influence House Members in the event that the bill returned for another vote in the Senate [sic]." Id. It was run between October 2 to October 9, 1998. Id.

See Finding 358 (statement of Dr. Gibson, rejecting the defendants' argument that it is unproductive to run legislation-centered issue advertisements focusing on policy matters in the periods before elections).

Given the fact that Plaintiffs' understanding of Section 214(d) is mistaken, the Court has no basis upon which to review the provision, cannot fathom the nature of their claims, and therefore does not find the provision unconstitutional.

C. BCRA Title III

Section 311: Clarity Standards for Identification of Sponsors of Election-Related Advertising

Section 311 amends Section 318 of FECA, 2 U.S.C. 441d, adding details and requirements for the identification of sponsors of political advertising. Included in the provision is the extension of FECA's requirements to electioneering communications, as defined in BCRA Section 201. BCRA § 311(1); FECA § 318(a); 2 U.S.C. § 441d(a). Pursuant to Section 318 of FECA, such communications must clearly state information about the sponsor, 2 U.S.C. § 441d(a); Section 311 adds various requirements related to the identification of the sponsor in the communication itself which are not challenged in the present litigation. See BCRA § 311(2), FECA § 318(c)-(d); 2 U.S.C. § 441d(c)-(d).

Plaintiffs' briefing on Section 311 is limited to a single sentence in a footnote in the McConnell Plaintiffs' Opening Brief:

BCRA's requirement that political ads contain information identifying the candidate supported by the communication, the party responsible for the content of the information, and/or an indication that the candidate approves the content of the communication ... is ... invalid, at least when applied to electioneering communications (and, for that matter, anything other than express advocacy).

It is not clear to the Court where the Plaintiffs find this purported requirement from the text of Section 311.

Plaintiffs' expert Sidney Milkis is the James Hart Professor of Politics at the University of Virginia; he is also a Senior Scholar and Co-Director of the American Political Development Program at the Miller Center of Public Affairs. See Milkis Expert Report at 1.

See supra Finding ¶ 2.8.5.2 (discussion this advertisement).

See Findings 358-60.

McConnell Pis.' Br. at 56 n. 22; see also Tr. at 303 (Baran). This argument is presented as a corollary to Plaintiffs' contention that if the Court agrees that the electioneering communications provisions cannot stand, the attendant disclosure provisions should likewise fall, because the disclosure provisions constitute a regulation of ... speech that the government may not regulate in the first place. Id. at 55-56. Given that the Court finds BCRA's electioneering communication definition constitutional, Plaintiffs' argument is rejected.

JUDGE HENDERSON: ... Jumping to 311, only because I think this is the last time we're going to hear from the omnibus [Plaintiffs], and I think you all are the only ones challenging 311, and it's not down here to be argued in Title 3 and I just want to make sure that it has been challenged.... MR. BARAN: I'd have to rely on the briefs on that, Your Honor. I'm not in a position to address that today. TR. at 303 (Baran).

Plaintiffs' expert Morton Keller was a Professor of American History from 1956 until 2001; he taught at the University of North Carolina at Chapel Hill, the University of Pennsylvania and Brandeis University. See Keller Expert Report at 1.

Laura W. Murphy has served as the ACLU's legislative director since 1993. Murphy Decl. ¶ 1 [3 PCS].

The advertisement aired in the districts of Congressman Chris John (LA-07); Congressman Scott Klug (WI-02); Congresswoman Jo Ann Emerson (MO-08); Congresswoman Anne Northup (KY-03); Congressman Jack Kingston (GA-01); and Congressman Rick White (WA-01), and referred to those federal candidates by name. See Finding 368.

V. CONCLUSION

Accordingly, the Court finds that the Paul Plaintiffs' challenge is without merit. The Court finds that the disclosure requirements in Section 201, with one exception, are constitutional, as well as Sections 202, 214(a), 214(d) and 311. The Court concludes that a challenge to Sections 212 and the remainder of Section 214 is not justiciable.

In contrast with Judge Henderson's characterization of our approach, we believe that the resolution of these eleven suits required a careful and judicious review of all the evidence, pleadings, and arguments in a fair manner to all the parties. We are satisfied that we accomplished this goal in an as expedited a manner as possible and thereby served "the strong public interest in election law clarity and stability." Henderson Op. at 6 n. 1.

Three separate opinions by the members of this three-judge panel follow this per curiam opinion. Given the complexity of the rulings, and the fact that not any one opinion is fully dispositive, the opinions are presented in order of seniority of the members of this three-judge panel. Accordingly, Judge Henderson's opinion appears first, followed by Judge Kollar-Kotelly's opinion and then Judge Leon's opinion.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the judgment in part and dissenting in part.

"To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas."

-Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 478 (1897).

I believe the statute before us is unconstitutional in virtually all of its particulars; it breaks faith with the fundamental principle-understood by our nation's Founding Generation, inscribed in the First Amendment and repeatedly reaffirmed by the United States Supreme Court-that "debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). My colleagues' per curiam opinion and thenother opinions ignore the statute's transparent infirmity and leave standing its most pernicious provisions, apparently on the ground that candidate-focused political speech inevitably "corrupts" the individuals to whom it refers. Their reasoning and conclusions treat a First Amendment with which I am not familiar. See Renne v. Geary, 501 U.S. 312, 349, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (Marshall, J., dissenting) ("[T]he prospect that voters might be persuaded by ... endorsements is not a corruption of the democratic political process; it is the democratic political process." (emphasis in original)). Further, the opinions are similarly flawed in their dissection of the statute's dense and interlocking provisions, upholding a portion here and striking down a fragment there until they have drafted legislation the Congress would never have enacted-all in the name of deference to that body. See, e.g., Per Curiam Op. at Part I; Memo Op., RJL, at Parts I.A.2,1.A.3, LB, II.C.1 On March 27, 2002-after nearly seven years of congressional wrangling-the President signed into law the Bipartisan Campaign Reform Act of 2002, Pub.L. No. 107-155,116 Stat. 81 (BCRA) (codified at 2 U.S.C. §§ 431 et sec/.),2 which amends and supplements the Federal Election Campaign Act of 1971 (FECA or Act), Pub.L. No. 92-225, 86 Stat. 3 (1971 Provisions) (codified as amended at 2 U.S.C. §§ 431 et seq.). Among BCRA's most significant and controversial features are provisions: prohibiting any corporation or labor organization from making a disbursement for any "electioneering communication," BCRA § 203, which is defined as "any broadcast, cable, or satellite communication which ... refers to a clearly identified candidate for Federal office ... [and which] is made within ... 60 days before a general, special, or runoff election ... or... 30 days before a primary or preference election ... for the office sought by the candidate," id. § 201; requiring any person who "makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any calendar year" to file certain disclosures with the Federal Election Commission (FEC or Commission), id.; limiting the source and amount of disbursements that are "coordinated" with a federal candidate or a national, state or local political party committee, id. §§ 202, 214; severely restricting any national, state or local political party committee and its agents from soliciting, receiving or transferring nonfederal (i.e., "soft money") funds, which are not subject to FECA's source-andamount limitations and reporting requirements but are subject to state regulation, see id. § 101; and prohibiting any individual who is 17 years old or younger from making any contribution whatsoever to any candidate for federal office or any contribution or donation to any political party committee, see id. § 318. The Congress enacted these and other innovations in response to perceived regulatory gaps in the Act. By many popular accounts, a "soft money loophole" had allowed corporations, unions, wealthy individuals and political parties themselves to distort the political process in violation of the spirit, if not the letter, of the Act. 148 CONG. REC. S2104 (daily ed. Mar. 20, 2002) (statement of Sen. Feingold); see Gov't Br. at 3 (contending "soft money loophole has grown from a narrow exception to FECA's limitations into a huge and ever-growing means of circumventing" them). More troubling, according to BCRA's proponents, was that corporations and unions had used vast portions of their treasury funds-and political parties had used a large percentage of their non-federal funds-to pay for campaign advertisements that steered clear of FECA's limits only by "masquerading" as ads about issues of public concern. E.g., Regarding the First Amendment and Restrictions on Issue Advocacy: Hearings Before the Subcomm. on the Constitution of the House Judiciary Comm., 105th Cong. (1997) (statement of Donald J. Simon), available at http://www.house.gov/judiciary/22343.htm; see Intervenors Br. at 72 ("The parties spent much of [the] soft money on broadcast advertising that supposedly addressed only `issues,' but in fact was designed to influence the election of candidates for federal office." (citing Mann Expert Report at 18-26)).

As soon as BCRA was signed into law, Senator Mitch McConnell and the National Rifle Association (NRA) filed separate suits in this court challenging the statute's constitutionality. Since then, nine additional complaints have been filed and a total of 75 additional plaintiffs have joined Senator McConnell and the NRA in challenging the validity of the new law.3 The plaintiffs pray for relief in the form of (1) an order and judgment declaring the challenged provisions of BCRA unconstitutional; (2) an order and judgment permanently enjoining the defendants4 and their agents from enforcing, executing or otherwise applying the challenged provisions; (3) costs and attorneys' fees pursuant to any applicable statute or authority; and (4) any other relief the court in its discretion deems just and appropriate. See, e.g., McConnell Second Am. Compl. (McConnell Compl.) at 51. In my view, all of the challenged provisions except the one discussed in Part IV.D.4 (which I believe must be sustained) and those discussed in Parts IV.F and IV.G (as to which I would pass no judgment5) are unconstitutional. Accordingly, and for the reasons stated infra in Parts III and IV of this opinion, I would (1) declare that BCRA sections 201, 202, 203, 204, 212, 213, 214, 311, 318 and 504 violate the First Amendment to the United States Constitution; (2) declare that new FECA sections 301(20), 323(a), 323(b), 323(c), 323(d) and 323(f)-as added by BCRA section 101-violate the First Amendment to the United States Constitution; (3) permanently enjoin the defendants and their agents from enforcing, executing or otherwise applying BCRA sections 201, 202, 203, 204, 212, 213, 214, 311, 318 and 504; and (4) permanently enjoin the defendants and their agents from enforcing, executing or otherwise applying new FECA sections 301(20), 323(a), 323(b), 323(c), 323(d) and 323(f), as added by BCRA section 101.

* * *

This opinion begins with a factual recitation divided into two Parts.6 Part I provides a history of congressional efforts to regulate campaign finance and discusses the Supreme Court's seminal decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), the jurisprudential starting point of my analysis. Part II describes BCRA's interwoven provisions; it details the ways in which BCRA changes the existing regulatory scheme and it catalogues the constitutional bases upon which the plaintiffs in these consolidated actions challenge the new statute. With that foundation established, Part III addresses in limine matters including, most importantly, the findings of fact that I would make (in lieu of those of the majority) and the standards of review that guide my substantive analyses. Part IV then addresses the myriad constitutional questions raised by the new law. Part V provides a brief conclusion. Given complexity of the undertaking, the number of issues to be addressed, the plain need for clarity and the length of this opinion, I the provide a table of contents below,

* * * * * *

Table of Contents I. A Brief History of Campaign Finance Regulation .............................. 271 II. A Catalogue of BCRA's Provisions and the Challenges Thereto ................. 281 A. The Ban on Corporate and Labor Disbursements for "Electioneering Communications" ....................................................... 282 B. Disclosure and Reporting Requirements ................................... 284 C. Limits on "Coordinated Expenditures" .................................... 287 D. Restrictions on Non-Federal Funds ....................................... 289 E. The Ban on Minors' Contributions and Donations .......................... 292 F. The Conditions on the Lowest Unit Broadcast Charge ...................... 292 G. Increased Contribution Limits ........................................... 292 1. General Increases ................................................... 293 2. The "Millionaire Provisions" ........................................ 294 III. In Limine Matters ........................................................... 295 A. Procedural Posture ...................................................... 295 B. Alternative Findings of Fact ............................................ 296 1. The Litigants ....................................................... 297 2. The Ban on Corporate and Labor Disbursements for "Electioneering Communications" and the Disclosure and Reporting Requirements ...................................................... 302 3. Limits on "Coordinated Expenditures" ................................ 326 4. Restrictions on Non-Federal Funds ................................... 331 5. The Ban on Minors' Contributions and Donations ...................... 356 C. Standards of Review ..................................................... 356 IV. Constitutional Analyses ....................................................... 360 A. The Ban on Corporate and Labor Disbursements for "Electioneering Communications" ....................................................... 360 B. Disclosure and Reporting Requirements ................................... 374 C. Limits on "Coordinated Expenditures" .................................... 381 D. Restrictions on Non-Federal Funds ....................................... 388 1. The Party Restrictions: New FECA Sections 301(20) and 323(a) and(b) ............................................................ 388 a. The Party Restrictions are Subject to Strict Scrutiny ........... 389 b. Section 323(a) Fails Strict Scrutiny ............................ 394 c. Sections 301(20) and 323(b) Fail Strict Scrutiny ................ 402 2. Fundraising Costs: New FECA Section 323(c) .......................... 412 3. Tax-Exempt Organizations: New FECA Section 323(d) ................... 412 4. Federal Candidates: New FECA Section 323(e) ......................... 417 5. State Candidates: New FECA Section 323(f) ........................... 422 E. The Ban on Minors' Contributions and Donations .......................... 422 F. The Conditions on the Lowest Unit Broadcast Charge ...................... 426 G. Increased Contribution Limits ........................................... 429 1. General Increases ................................................... 429 2. The "Millionaire Provisions" ........................................ 431 V. Conclusion .................................................................. 432

* * * * * *

I. A Brief History of Campaign Finance Regulation

Although federal campaign finance legislation dates back at least to the late ninettenth century,7 federal campaign contributing and spending were not heavily regulated until the 1970s. In 1971, following an expensive 1968 presidential election, the Congress enacted FECA, which relied upon public disclosure of campaign contributions8 and expenditures9 as the primary method of identifying and weeding out political quid pro quos. 10 See 1971 Provisions §§ 301-311; see also ACLU v. Jennings, 366 F.Supp. 1041, 1054 nn. 18-20 (D.D.C.1973) (three-judge court) (describing FECA's Title III, which "established] an elaborate system of record keeping and public disclosure of campaign contributions and expenditures"), vacated as moot sub nom., Stoats v. ACLU, 422 U.S. 1030, 95 S.Ct. 2646, 45 L.Ed.2d 686 (1975). By 1974 many legislators who were not content to rely exclusively on a "disclosure-centered regime" to prevent corruption called for tighter campaign finance restrictions. Joel M. Gora, `Wo Law ... Abridging," 24 HARV. J.L. & PUB. POL'Y 841, 856-57 (2001) ("Even though not all of the abuses that we put under the rubric of `Watergate' involved illegal or questionable campaign funding, Watergate seemed to have become at least in part a poster child for campaign finance excess and corruption."). The resulting amendments to FECA, see Federal Election Campaign Act Amendments of 1974, Pub.L. No. 93-443, 88 Stat. 1263 (1974 Amendments) (codified as amended at 2 U.S.C. §§ 431 et seq.), included several innovations warranting a detailed recitation here.

The 1974 Amendments prohibited any person11 from contributing more than $1,000 per election12-and any political committee13 from contributing more than $5,000 per election-to any one candidate14 for federal office. See 1974 Amendments § 101. They also barred any person from contributing more than an aggregate of $25,000 to all recipients per election cycle. See id.

In addition, the 1974 Amendments sharply curtailed the amount of money that could be spent for the purpose of influencing any election for federal office. For instance, they prohibited any person from spending more than $1,000 "relative to a clearly identified candidate" during any calendar year. Id. They precluded any candidate from spending more than a given amount of personal funds-$50,000 in the case of a presidential or vicepresidential candidate, $35,000 in the case of a senatorial candidate and $25,000 in the case of any other congressional candidate15 -"in connection with his campaigns during any calendar year." Id. And they placed restrictions on overall campaign spending by candidates: a presidential candidate could spend a maximum of $10,000,000 in seeking nomination for office and a maximum of an additional $20,000,000 in the general election campaign; in any senatorial primary election, a candidate was limited to spending either $100,000 or eight cents times the relevant voting-age population, whichever was greater; in the general election, a senatorial candidate could spend either $150,000 or 12 cents times the relevant population, whichever was greater; in both the primary campaign and the general election campaign for the House of Representatives, the limit was $70,000.16 See id.

Finally, the 1974 Amendments expanded the disclosure and reporting requirements of the 1971 Provisions. See id. §§ 201-209. Together with the earlier provisions, the 1974 Amendments mandated, inter alia, that each political committee17: register with the FEC, see id. §§ 208-209; keep detailed records of both contributions and expenditures, see 1971 Provisions §§ 302-304, 1974 Amendments §§ 202-204; include in its records the name and address of anyone who made any contribution in excess of $10,18 together with the date and amount of the contribution, see 1971 Provisions § 302, 1974 Amendments § 202; and include as well the occupation, employer and/or principal place of business of anyone contributing more than $10019 during any calendar year, see 1971 Provisions § 302, 1974 Amendments § 202. The disclosure provisions also required each candidate to file with the FEC quarterly reports containing detailed financial information, including the full name, mailing address, occupation and principal place of business of each person contributing more than $10020 during any calendar year, as well as the amount and date of the contributions. See 1971 Provisions § 304, 1974 Amendments § 204. Further, the provisions required the Commission to make the reports "available for public inspection... and copying." 1971 Provisions § 311, 1974 Amendments § 208. Finally, they mandated that any individual or group (other than a political committee) making independent expenditures of over $10021 during any calendar year file a statement to that effect with the Commission. See 1974 Amendments § 204.

A diverse group of plaintiffs-including United States Senator James L. Buckley, who was seeking re-election, a candidate for the presidency of the United States, a potential contributor, the Committee for a Constitutional Presidency, the Conservative Party of the State of New York, the Mississippi Republican Party, the Libertarian Party and the New York Civil Liberties Union-challenged FECA's provisions on a variety of constitutional grounds, spawning the massive and nowlegendary litigation known as Buckley v. Valeo. What follows is a synopsis of the United States Supreme Court's decision in Buckley. 22

Although the Buckley Court recognized that monetary contributions to candidates and political committees play an "important role ... in financing political campaigns," Buckley, 424 U.S. at 21, 96 S.Ct. 612, that contribution limitations "implicate fundamental First Amendment interests," id. at 23, 96 S.Ct. 612, and that such limitations "could have a severe impact on political dialogue if [they] prevented candidates and political committees from amassing the resources necessary for effective advocacy," id. at 21, 96 S.Ct. 612, it upheld all three of the Act's major contribution limits because there was "no indication" that they would have "any dramatic adverse affect on the funding of campaigns," id. More specifically, the Court rejected free speech and equal protection challenges to the provision barring any person from contributing more than $1,000 per election to any one candidate. See id. at 23-35, 96 S.Ct. 612. "[UJnder the rigorous standard of review established by our prior decisions," the Court held, "the weighty interests served by restricting the size of financial contributions to political candidates"-namely, "limitfing] the actuality and appearance" of quid pro quo corruption of federal candidates and officeholders-"are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling." Id. at 26, 29, 96 S.Ct. 612. It upheld as well the provision prohibiting any political committee from contributing more than $5,000 per election to any one candidate, see id. at 35-36, 96 S.Ct. 612, concluding that it "serve[s] the permissible purpose of preventing individuals from evading the applicable contribution limitations by labeling themselves committees," id. And it sustained the provision prohibiting any person from contributing more than $25,000 in the aggregate per election cycle, see id. at 38, 96 S.Ct. 612, holding that "this quite modest restraint upon protected political activity" likewise "serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party," id.

The Court found, however, that in contrast to the Act's contribution restrictions, the limits on expenditures "impose[d] direct and substantial restraints on the quantity of political speech." Id. at 39, 96 S.Ct. 612; see id. at 19-20, 96 S.Ct. 612 (expenditure ceilings "would appear to exclude all citizens and groups except candidates, political parties, and the institutional press from any significant use of the most effective modes of communication" (footnotes omitted)). Rejecting the notion that "the dependence of a communication on the expenditure of money operates itself to... reduce the exacting scrutiny required by the First Amendment," id. at 16, 96 S.Ct. 612, the Court held that

[a] restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.

Id. at 19, 96 S.Ct. 612; see id. at 19 n. 18, 96 S.Ct. 612 ("Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.").23 Addressing first the $1,000 limit on any person's expenditure "relative to a clearly identified candidate," the Court observed that no provision of the Act lent potential spenders (and, therefore, speakers) any interpretive aid in discerning what "relative to" might mean. Id. at 41, 96 S.Ct. 612. Because the use of such an "indefinite phrase" failed to "clearly mark the boundary between permissible and impermissible speech," id., offered "no security for free discussion," id. at 43, 96 S.Ct. 612 (quotation omitted), "blanketfed] with uncertainty whatever may be said," id. (quotation omitted), and would "compel[ ] the speaker to hedge and trim," id. (quotation omitted), the Court-in order to preserve the provision from invalidation-construed it to apply only to expenditures "for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office," id. at 44, 96 S.Ct. 612; see id. at 44 n. 52, 96 S.Ct. 612 ("This construction would restrict the application of [the provision] to communications containing express words of advocacy of election or defeat, such as `vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject.'"). Even so construed, however, the provision failed the Court's scrutiny:

[T]he governmental interest in preventing corruption and the appearance of corruption is inadequate to justify [the $1,000] ceiling on independent expenditures.... The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.... [Moreover, the ceiling] heavily burdens core First Amendment expression.... Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.

Id. at 45-48, 96 S.Ct. 612; see id. at 39-51, 96 S.Ct. 612. For similar reasons, the other expenditure restrictions under review failed the First Amendment test as well. The limit on a candidate's spending of personal resources was not justified given that: (1) "[t]he candidate, no less than any other person, has a ... right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates," id. at 52, 96 S.Ct. 612; and (2) "the use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's ... limitations are directed," id. at 53, 96 S.Ct. 612 (emphasis added); see id. at 51-54, 96 S.Ct. 612. Likewise infirm were the limits on overall candidate campaign spending- which, the government stressed, were designed to reduce allegedly "skyrocketing" costs of campaigns, id. at 57, 96 S.Ct. 612-because "[t]he First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise," id.; see id. at 54-59, 96 S.Ct. 612.

Finally, although the Buckley Court recognized that "compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment," id. at 64, 96 S.Ct. 612 (citing, inter alia, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)), it upheld the Act's numerous disclosure and reporting requirements, see id. at 60-84, 96 S.Ct. 612, concluding that they vindicated three governmental interests "sufficiently important" to outweigh their infringement of First Amendment freedoms:

First, disclosure provides the electorate with information "as to where political campaign money comes from and how it is spent by the candidate" in order to aid the voters in evaluating those who seek federal office.... The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office. Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.... Third, and not least significant, recordkeeping, reporting, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the [Act's] contribution limitations....

Id. at 66-68, 96 S.Ct. 612 (quoting, inter alia, Louis D. BRANDEIS, OTHER PEOPLE'S MONEY 62 (National Home Library Foundation ed. 1933) ("Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.")). Specifically, the Court sustained the disclosure provisions against the plaintiffs' contentions that they were overbroad both in their application to minor-party and independent candidates and in their extension to de minimis contributions, see id. at 68-74, 82-84, 96 S.Ct. 612; the Court found that "any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors" was "highly speculative," id. at 70, 96 S.Ct. 612. Not without apparent misgivings, it also sustained the provision requiring any individual or group (other than a political committee or candidate) making expenditures of over $100 during any calendar year (other than by contributions to political committees or candidates) to file a statement with the FEC. See id. at 74-82, 96 S.Ct. 612. The plaintiffs had contended that the provision would impose "very real, practical burdens ... certain to deter individuals from making expenditures for their independent political speech." Id. at 75, 96 S.Ct. 612. Noting that the Act's definition of "expenditure" spoke in terms of funds used "for the purpose of ... influencing" the nomination or election of any candidate for federal office, id. at 77, 96 S.Ct. 612, the Court recognized that the $100 disclosure provision could indeed have a drastic chilling effect on protected speech in the form of campaign spending, see id. at 76-77, 96 S.Ct. 612. Thus, in order to steer the provision clear of the "shoals of vagueness," id. at 78, 96 S.Ct. 612, and "[t]o insure that [its] reach [was] not impermissibly broad," id. at 80, 96 S.Ct. 612, the Court construed the term "expenditure" under the disclosure provision in the same way it construed the Act's $1,000 spending cap-"to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate," id. (footnote omitted).

Buckley left in its wake a regime that has been described as a "nonsensical, loophole-ridden patchwork," FEC v. National Conservative Political Action Committee, 470 U.S. 480, 518, 105 S.Ct. 1459, 84 L.Ed.2d 455 (1985) (NCPAC) (White, J., dissenting), one that some observers believed was not worth the regulatory candle. See, e.g., Buckley, 424 U.S. at 236, 96 S.Ct. 612 (Burger, C.J., concurring in part and dissenting in part) ("[W]hat remains after today's holding leaves no more than a shadow of what Congress contemplated. I question whether the residue leaves a workable program."); see also, e.g., Sanford Levinson, Regulating Campaign Activity: The New Road to Contradiction?, 83 MICH. L. REV. 939, 939 n. 1 (1985) (expressing doubt that "a rational legislature would ever have passed" as "a unified package" the "crazy quilt" of statutes and regulations governing campaign finance after Buckley).24 The following paragraphs describe the regulatory scheme that unfolded after Buckley; the discussion is included to provide a context for BCRA's enactment and to help make clearer what BCRA is designed to accomplish.

As noted, the Buckley Court left in place several of the Act's major components. Significantly, all of the Act's contribution limits remained (and, indeed, the Congress even added some more in the 1976 amendments): no person could contribute to any candidate more than $1,000 per election,25 see U.S.C. § 441a(a)(1)(A); no person could contribute to the committees of a national political party more than $20,000 during any calendar year,26 see id. § 441a(a)(1)(B); no person could contribute to any political committee (other than a national political party committee) more than $5,000 during any calendar year,27 see id, § 441a(a)(1)(C); no political committee could contribute to any candidate more than $5,000 per election, see id. § 441a(a)(2)(A); no political committee could contribute to the committees of a national political party more than $15,000 during any calendar year, see id. § 441a(a)(2)(B); and no political committee could contribute to any other political committee more than $5,000 during any calendar year, see id. § 441a(a)(2)(C). Moreover, if any national or state political party committee coordinated its expenditures with a specific candidate for the purpose of benefiting the candidate, i.e., if the committee spent funds "in connection with" the candidate's campaign, the expenditures were treated like contributions- they were subject to formula-driven monetary ceilings, albeit ones that were slightly higher than the $5,000 limit on any political party committee's contributions to any candidate.28 Compare id. § 441a(a)(2)(A), with id. § 441a(d); see FEC v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 465, 121 S.Ct. 2351, 150 L.Ed.2d 461 (2001) (Colorado Republican II) (holding section 441a(d) not facially unconstitutional because "a [political] party's coordinated expenditures ... may be restricted to minimize circumvention" of FECA's contribution-to-candidate limits (emphasis added)); Colo. Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 613-23, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996) (Colorado Republican I) (plurality opinion) (holding section 441a(d) unconstitutional as applied to political party's independent expenditures). Finally, a sweeping source restriction not challenged in Buckley prohibited (and still prohibits) any national bank, corporation or labor organization from making-or any officer thereof from approving-a contribution "in connection with" any federal election.29 2 U.S.C. § 441b(a). The same provision also forbade (and still forbids) "any candidate, political committee, or other person knowingly to accpet or receive" any corporate or labor contribution. Id.

FCECA's post-Buckley source-and-amount provisions thus restricted all of the money contributed-and much of the money spent-"in connection with" or "for the purpose of influencing" federal elections. In a 1978 advisory opinion, however, the FEC made clear that these "federal": or "hard" money restrictions extended only so far and that the Act permitted political parties to use funds, including corporate and union funds, not subject to source-and-amount limits to pay for activities benefiting both federal and state candidates. See generallyh FEC Advisory Op.1978-10: Allocation of Costs for Voter REgistration, available at http://herndon3.sdrdc.com/ao/ao/780010. html. Commission regulations then in effect permitted parties to "allocate" administrative expenses-including rent, utilities and supplies-between federal and state candidates based upon the propertionate benefit received. Under the allocattion regime, amounts spent on administrative expenses for state candidates were not subject to FECA's source-and-amount restrictions. That is, administrative expense orcould be paid for with state-regulated "non-federal" funds-a.k.a. "soft money"30-because such funds were not given or spent "for the purpose of influencing any election for Federal office." 2 U.S.C. § 431(8)(A)(i), (9)(A)(i) (defining "contribution" and "expenditure"). When the Kansas Republican State Committee asked the FEC whether it was permitted to allocate expenses for voter registration and get-out-the-vote drives that benefited both the state and federal candidates on a given ticket, the FEC responded that

the costs of [such activities] should be allocated between Federal and non-Federal elections in the same manner as other general party expenditures.... That portion of the costs allocable to Federal elections ... must come from funds ... contributed in accordance with the limitations and prohibitions contained in 2 U.S.C. §§ 441a, 441b, 441c, 441e, 441f and 441g.... The costs allocable to non-Federal elections may be paid out of party funds raised and expended pursuant to applicable Kansas law.... [W]ith respect to an election in which there are candidates for [both non-Federal] and Federal office, expenditures for registration and get-out-thevote drives need not be attributed as contributions to [Federal] candidates unless the drives are made specifically on their behalf.

FEC Advisory Op.1978-10. Because "applicable Kansas law" did not prohibit corporate and union donations and placed no ceilings on donations for state and local campaigns, federal candidates in Kansas were able to benefit-albeit indirectly- from such donations. See TWENTY YEAR REPORT, supra, at ch. 3 (detailing history and pre-BCRA treatment of non-federal funds and explaining "[t]he origins of `soft money' lie in the United States' federal system of government," under which "each [S]tate may establish its own rules for financing the nonfederal elections held within its borders").

The use of non-federal funds grew during the 1980s. New FEC regulations permitted political committees to allocate expenses between federal and non-federal accounts on a "reasonable basis." Proponents of tighter campaign finance restrictions criticized the standard, claiming that committees underestimated the federal share of their contributions and expenditures and thereby influenced federal elections with funds that would otherwise be subject to FECA's source-and-amount restrictions. In 1984 Common Cause petitioned the FEC to promulgate more stringent regulations to close the perceived loophole. After the FEC denied its petition, Common Cause sought relief in this court, which ordered the Commission to clarify its rules. See generally Common Cause v. FEC, 692 F.Supp. 1391 (D.D.C. 1987).

The amended regulations-which took effect on January 1, 1991-served as the basis of the federal/non-federal funding system until BCRA's enactment. The regulations set forth several formulae fixing the maximum amount of money a political committee could use for an activity benefiting both federal and non-federal candidates, see 11 C.F.R. § 106.5(b)-(d) (1997), and required expanded reporting of mixed federal and non-federal giving and spending, see TWENTY YEAR REPORT, supra, at ch. 3. "Despite the new rules," the Commission reported in 1995, some legislators and "reform" groups remained troubled by the growing influence of non-federal funds:

They say, for example, that soft money spending-even for the non-federal share of expenses-influences federal elections because it permits committees to conserve federal funds that can later be spent to support federal candidates. Many are also concerned about the way committees raise soft money. They believe that the active role federal candidates and their associates play in raising large sums of soft money, at the veryleast, creates an appearance of undue influence by the contributors on the federal candidates involved.

Id. at ch. 3. Non-federal donations to the two major political parties did, in fact, grow exponentially during the 1990s- from $86.1 million in the 1992 election cycle to $487.5 million in the 2000 cycle. See infra Findings of Fact (Findings) 65-66 at page 331.

Proponents of tighter restrictions were disturbed by this trend not simply because, in their view, corporations and unions were effectively contributing funds to federal campaigns. See Mann Expert Report at 15 & Tbl. 4. They worried as well about the parties' spending of non-federal funds on "issue ads"-issue-based but, at least to their ears, candidate-focused advertisements that do not expressly advocate the election or defeat of an identifiable federal candidate. See Intervenors Br. at 8-9 (discussing expanded role of non-federal funds in issue advertising during 1996 campaign); see infra note 75 (defining "issue ad" for purposes of this opinion). They lamented that permitting such ads-which might discuss, for example, a candidate's record, ideological bent, accomplishments or failures but do not "exhort the viewer to take a specific electoral action for or against a particular candidate"-would "allow[] individuals and organizations to circumvent [FECA's restrictions] simply by omitting from their communications the genre of words and phrases" found in Buckley`s famous footnote 52. Chamber of Commerce v. Moore, 288 F.3d 187, 195 (5th Cir.) (holding that, under Buckley, political advertisement may be regulated constitutionally only if it contains explicit words advocating election or defeat of clearly identified candidate), cert, denied, ___ U.S. ___, 123 S.Ct. 536, 154 L.Ed.2d 425 (2002); see Buckley, 424 U.S. at 44 n. 52, 96 S.Ct. 612 (express words of advocacy include "`vote for,' `elect,' `support,' `cast your ballot for,' `Smith for Congress,' `vote against,' `defeat,' `reject'").

BCRA's provisions, to which I now turn, embody the first congressional response to these and other perceived dropped stitches in the federal election law patchwork.

II. A Catalogue of BCRA's Provisions and the Challenges Thereto

BCRA contains 38 sections that, inter alia, prohibit corporate and labor disbursements for "electioneering communications," require certain disclosures to the FEC, limit the source and amount of "coordinated expenditures," severely restrict the use of non-federal funds, bar minors from making contributions or donations, condition the lowest unit charge for broadcast ads on their content and increase the Act's existing contribution limits. The plaintiffs in these consolidated actions challenge-on free speech, free association, free press, right-to-petition, vagueness, equal protection and federalism grounds-nearly half of them. The following sections describe the provisions at issue and catalogue all of the plaintiffs' constitutional challenges to the new law.31 A. The Ban on Corporate and Labor Disbursements for "Electioneering Communications"

Section 203 of BCRA amends the Act to prohibit any corporation or labor organization from making any disbursement "for any applicable electioneering communication." BCRA § 203(a); FECA § 316(a), (b)(2); 2 U.S.C. § 441b(a), (b)(2). Under BCRA section 201,

[t]he term "electioneering communication" means any broadcast, cable, or satellite communication which-
(I) refers to a clearly identified candidate for Federal office;
(II) is made within-
(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or
(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and
(III) in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.

BCRA § 201(a); FECA § 304(f)(3)(A)®; 2 U.S.C. § 434(f)(3)(A)®. Section 201 provides a fallback definition set to take effect in the event the primary definition is invalidated:

[T]he term "electioneering communication" [in that event] means any broadcast, cable, or satellite communication which promotes or supports a candidate for [Federal] office, or attacks or opposes a candidate for [Federal] office (regardless of whether the communication expressly advocates a vote for or against a candidate) and which also is suggestive of no plausible meaning other than an exhortation to vote for or against a specific candidate.

BCRA § 201(a); FECA § 304(f)(3)(A)(ii); 2 U.S.C. § 434(f)(3)(A)(ii). Additionally, section 201 exempts from either definition of electioneering communication

(i) a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate;
(ii) a communication which constitutes an expenditure or an independent expenditure under [FECA]; [or]
(iii) a communication which constitutes a candidate debate or forum conducted pursuant to regulations adopted by the Commission, or which solely promotes such a debate or forum and is made by or on behalf of the person sponsoring the debate or forum ....

BCRA § 201(a); FECA § 304(f)(3)(B); 2 U.S.C. § 434(f)(3)(B). While section 201 purports to authorize the Commission to exempt by regulation certain communications from either definition, see BCRA § 201(a); FECA § 304(f)(3)(B)(iv); 2 U.S.C. § 434(f)(3)(B)(iv), the Commission may not under any circumstances exempt

a public communication that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate)[.]

BCRA § 101(b); FECA § 301(20)(A)(iii); 2 U.S.C. § 431(20)(A)(iii). Because the language of section 101(b) prohibits promulgation of a regulation that retreats from either the primary or fallback definition of electioneering communication, it leaves the Commission no room to adopt a more permissive restriction than that set forth in section 201.32

BCRA's ban on corporate and labor disbursements for electioneering communications applies to entities other than unions and for-profit corporations. Section 203(a) extends to any incorporated entity and therefore bars both incorporated non-profit organizations (as defined by section 501(c) of the Internal Revenue Code) and incorporated political organizations (as defined by section 527 of the Internal Revenue Code) from making disbursements for electioneering communications.33 True, section 203(b) provides that

the term "applicable electioneering communication" does not include a communication by a section 501(c)(4) organization or a political organization (as defined in section 527(e)(1) of the Internal Revenue Code of 1986) ... if the communication is paid for exclusively by funds provided directly by individuals who are United States citizens or nationals or lawfully admitted for permanent residencef.]

BCRA § 203(b); FECA § 316(c)(2); 2 U.S.C. § 441b(c)(2). But section 204-referred to by the parties as the "Wellstone Amendment"-eliminates the section 203(b) exception:

EXCEPTION DOES NOT APPLY.-[FECA section 316(c)(2) ] shall not apply in the case of a targeted communication that is made by an organization described in such paragraph.... [T]he term "targeted communication" means an electioneering communication (as defined in [FECA] section 304(f)(3)) that is distributed from a television or radio broadcast station or provider of cable or satellite television service and, in the case of a communication which refers to a candidate for an office other than President or Vice President, is targeted to the relevant electorate.34

BCRA § 204; FECA § 316(c)(6)(A), (B); 2 U.S.C. § 441b(c)(6)(A), (B). By definition, an "electioneering communication" is "distributed from a television or radio broadcast station or provider of cable or satellite television service" and either refers to a candidate for President or Vice President or is "targeted to the relevant electorate" of any other candidate. The Wellstone Amendment therefore ensures that no electioneering communication made by an incorporated political organization or non-profit corporation can shelter under section 203(b)-if a communication is an "electioneering communication," it fails a fortiori to qualify for the exception.

The McConnell, NRA Chamber of Commerce, NAB and AFL-CIO plaintiffs challenge the ban on corporate and labor disbursements for electioneering communications on several interrelated constitutional grounds. First, they allege that the ban abridges their First Amendment rights to engage in core political speech and expressive association by "limiting speech that does not expressly advocate the election or defeat of a clearly identified candidate, either under the original definition or the fall-back definition of `electioneering communication,'" McConnell Compl. at Iff 48, 62; see also, e.g., McConnell Br. at 44-56; Chamber of Commerce Br. at 4-5; AFL-CIO Br. at 3-11; ACLU Br. at 4-7, 11-16; and by failing to exempt non-profit advocacy organizations like those identified in FEC v. Massachusetts Citizens for Life, 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (MCFL), see, e.g., McConnell Compl. at 1149; see also, e.g., ACLU Br. at 16-17.

Second, these plaintiffs claim that the ban-under either the primary or the fallback definition and even without reference to Buckley`s express advocacy test-is unconstitutionally overbroad, void for vagueness and so underinclusive that it fails to serve a compelling governmental interest. See, e.g., McConnell Br. at 56-77; NRA Br. at 14-39.

Third, these plaintiffs assert that the ban violates the First Amendment and the equal protection component of the Fifth Amendment by (1) prohibiting non-media corporations, labor organizations, section 501(c) non-profit organizations and section 527 political organizations from engaging in certain broadcast speech while permitting individuals, unincorporated organizations and corporations that own broadcast stations to engage in the same or similar speech, see, e.g., NRA Br. at 39^8; and (2) prohibiting disbursements for broadcast, satellite and cable communications while permitting disbursements for other communications, including the printed word, see, e.g., NAB Compl. at 1124; McConnell Br. at 77-S1.35

I consider the constitutionality of the ban on corporate and labor disbursements for electioneering communications in Part IV. A infra.

B. Disclosure and Reporting Requirements

Section 201 of BCRA amends the Act to require "[e]very person who makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any calendar year" to file with the FEC, under penalty of perjury and "within 24 hours of each disclosure date,"36 BCRA § 201(a); FECA § 304(f)(1); 2 U.S.C. § 434(f)(1), a "statement" containing, inter alia:

· The identification of the person making the disbursement;
· The principal place of business of the person making the disbursement, if the person is not an individual;
· The amount of any single disbursement over $200;
· The identification of persons to whom any disbursement over $200 is made;
· The election to which an electioneering communication pertains;
· The candidate identified, or to be identified, in an electioneering communication; and
· If an organization makes the disbursement from funds donated by individuals, the names and addresses of any individuals donating $1,000 or more.

See BCRA § 201(a); FECA § 304(f)(2); 2 U.S.C. § 434(f)(2).37 A person must disclose the foregoing information not only when he makes a disbursement for electioneering communications but also when he contracts to make the disbursement.38 See BCRA § 201(a); FECA § 304(f)(5); 2 U.S.C. § 434(f)(5).39

BCRA section 212 contains disclosure requirements pertaining not to electioneering communications but to "independent expenditures."40 Amending section 304 of the Act, section 212 requires any person (including any individual) who disburses more than $1,000 in independent expenditures within 20 days of an election, BCRA § 212(a); FECA § 304(g)(1); 2 U.S.C. § 434(g)(1)-or more than $10,000 at any time up to and including the twentieth day before an election, BCRA § 212(a); FECA § 304(g)(2); 2 U.S.C. § 434(g)(2)-to file with the FEC, under penalty of perjury, a "report" specifying:

· The name and address of the recipient of any expenditure(s);
· The date, amount and purpose of the expenditure(s); and
· The name of, and office sought by, the candidate supported or opposed by the expenditure(s).

See BCRA § 212(a); FECA § 304(g)(3)(B), (b)(6)(B)(iii); 2 U.S.C. § 434(g)(3)(B), (b)(6)(B)(iii). A report on an independent expenditure made within 20 days of an election must be filed with the FEC within 24 hours of the expenditure; a report on an independent expenditure made at any time up to and including the twentieth day before an election must be made within 48 hours of the expenditure. See BCRA § 212(a); FECA § 304(g)(1), (2); 2 U.S.C. § 434(g)(1), (2). Just as a contract to make a disbursement for an electioneering communication triggers the pertinent disclosure requirements, see BCRA § 201(a); FECA § 304(f)(5); 2 U.S.C. § 434(f)(5), so does a contract to make an independent expenditure, see BCRA § 212(a); FECA § 304(g)(1), (2); 2 U.S.C. § 434(g)(1), (2).41

A final cluster of new disclosure rules under challenge is found in Title V of BCRA. Section 504, which amends section 315 of the Federal Communications Act of 1934(FCA), mandates disclosure of certain broadcast records. It requires broadcast licensees to "maintain, and make available for public inspection, a complete record" of any "request" of any person "to purchase broadcast time" for communications "relating to any political matter of national importance."42 BCRA § 504; FCA § 315(e)(1); 47 U.S.C. § 315(e)(1). Each record maintained must include the following information:

· Whether the request to purchase broadcast time is accepted or rejected by the licensee;43
· The rate charged for the broadcast time;
· The date on which and the time at which the communication is to be aired;
· The name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers or the issue to which the communication refers;
· In the case of a request made by or on behalf of a candidate, the name of the candidate, his authorized committee and the treasurer of that committee; and
· In the case of any other request, the name of the person seeking to purchase the time, the name, address and phone number of "a contact person for such person" and a list of the chief executive officers or members of the board of directors of the person (if the person is not an individual).

BCRA § 504; FCA § 315(e)(2); 47 U.S.C. § 315(e)(2).

The McConnell, NRA, Chamber of Commerce, NAB and AFL-CIO plaintiffs challenge BCRA's disclosure and reporting requirements on three First Amendment grounds. First, they allege that the provisions mandating detailed statements about disbursements for electioneering communications, see BCRA §§ 201 and 311, violate their First Amendment rights to free political expression and association by restricting in an overbroad, vague and underinclusive fashion their airing of communications that do not contain express advocacy. See, e.g., McConnell Br. at 44-77; NRA Br. at 48-50; Chamber of Commerce Br. at 18-20; ACLU Br. at 11-19.

Second, these plaintiffs claim that the reporting requirements of BCRA section 212, pertaining to independent expenditures, impermissibly burden their First Amendment rights to free political expression and association by requiring "advance disclosures of planned and prospective communications, including communications that ultimately are never made." AFCIO Compl. at ¶ 35 (emphasis added); see, e.g., AFL-CIO Br. at 14-17.

Third, these plaintiffs assert that the disclosure requirement of section 504, pertaining to requests to purchase broadcast time, burdens their First Amendment rights to engage in political expression and association by, inter alia, imposing vague and overbroad recordkeeping requirements that "lack[ ] any rational relationship to a legitimate governmental objective." McConnell Br. at 99; see, e.g., id. at 98-100; AFL-CIO Br. at 18-20.

I consider the constitutionality of the disclosure and reporting provisions in Part IV. B infra.

C. Limits on "Coordinated Expenditures"

BCRA section 202 amends the Act to provide that if

(i) any person makes, or contracts to make, any disbursement for any electioneering communication (within the meaning of [FECA] section 304(f)(3)); and
(ii) such disbursement is coordinated with a candidate or an authorized committee of such candidate, a Federal [sic], State, or local political party or committee thereof, or an agent or official of any such candidate, party, or committee;

then the disbursement or contract to disburse "shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate's party and as an expenditure by that candidate or that candidate's party." BCRA § 202(2); FECA § 315(a)(7)(C); 2 U.S.C. § 441a(a)(7)(C). By treating a "coordinated" disbursement for an electioneering communication as a "contribution" to the supported candidate, section 202 subjects it to the Act's source-and-amount limitations.44 Moreover, as amended by BCRA, the Act equates "cooperation," "consultation," "concert" and "suggestion" with "coordination]"-a disbursement made in any such fashion will be treated as a contribution. See BCRA § 214(a); FECA § 315(a)(7)(B); 2 U.S.C. § 441a(a)(7)(B). BCRA directs the FEC to define "coordination" broadly; section 214, which repeals the Commission's existing regulations on coordinated communications, provides that in prescribing the prerequisites for coordination, the new regulations "shall not require agreement or formal collaboration to establish coordination" between a candidate (or political party committee) and a person making a disbursement.45 BCRA § 214(c); FECA § 315(a)(7) note; 2> U.S.C. § 441a(a)(7) note.

The other "coordinated expenditure" provision at issue, BCRA section 213, amends the Act to provide that

[o]n or after the date on which a political party nominates a candidate, no committee of the political party may make-
(i) any coordinated expenditure under this subsection with respect to the candidate during the election cycle at any time after it makes any independent expenditure (as defined in [FECA] section 301(17)) with respect to the candidate during the election cycle; or
(ii) any independent expenditure (as defined in [FECA] section 301(17)) with respect to the candidate during the election cycle at any time after it makes any coordinated expenditure under this subsection with respect to the candidate during the election cycle.

BCRA § 213; FECA § 315(d)(4)(A); 2 U.S.C. § 441a(d)(4)(A). In other words, section 213 compels a political party committee, at the time the party's candidate is nominated, to make a binding choice between independent expenditures and "coordinated" disbursements in support of the candidate. In addition, "all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee" under the provision. BCRA § 213; FECA § 315(d)(4)(B); 2 U.S.C. § 441a(d)(4)(B). That is, regardless whether any of the related political committees has any control over, influence on or knowledge of the disbursement decisions of the others, the first disbursement decision made on behalf of the "single political committee" binds the other component committees.

The McConnell, Chamber of Commerce, AFL-CIO, RNC and CDP plaintiffs challenge BCRA's "coordinated expenditure" provisions primarily on two constitutional grounds. First, they allege that sections 202 and 214 infringe their First Amendment rights to free speech, association and petition for redress of grievances by defining coordination too broadly. See, e.g., McConnell Br. at 82^85; Chamber of Commerce Br. at 6-18; AFL-CIO Br. at 12-14; ACLU Br. at 7-9, 19-20.

Second, the political party plaintiffs claim that the binding choice provision, section 213, burdens their First Amendment freedoms of speech, association and petition by requiring them to forgo "future coordinated expenditures as the `price' of exercising their constitutional right to make independent expenditures." RNC Compl. at ¶ 60; see, e.g., McConnell Br. at 85-88; RNC Br. at 72; CDP Br. at 47-49.

I consider the constitutionality of the limits on "coordinated expenditures" in Part IV. C infra. D. Restrictions on Non-Federal Funds

The most publicized provision of BCRA, section 101, is also the statute's lengthiest and most complex. Section 101, in a nutshell, curtails political party committees' use of non-federal funds-funds not subject to FECA's source-and-amount limitations, see supra note 30 and accompanying text-in order to reduce such funds' allegedly corrupting influence on federal officeholders. In the following paragraphs, I discuss in turn (and, for the sake of precision, reproduce at length) the provision's major components.

Adding section 323 ("Soft Money of Political Parties") to the Act, section 101 first prohibits, in FECA section 323(a), any national political party committee from soliciting, receiving, directing or spending non-federal funds for any purpose whatsoever:

A national committee of a political party (including a national congressional campaign committee of a political party) may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.

BCRA § 101(a); FECA § 323(a)(1); 2 U.S.C. § 441i(a)(1). The ban, which has no exceptions, applies broadly to

any such national committee, any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee.

BCRA § 101(a); FECA § 323(a)(2); 2 U.S.C. § 4411(a)(2).

Adding section 323(b) to the Act, BCRA further prohibits any state, district or local political party committee from spending or disbursing non-federal funds for any "Federal election activity":

[A]n amount that is expended or disbursed for Federal election activity by a State, district, or local committee of a political party (including an entity that is directly or indirectly established, financed, maintained, or controlled by a State, district or local committee of a political party and an officer or agent acting on behalf of such committee or entity), or by an association or similar group of candidates for State or local office or of individuals holding State or local office, shall be made from funds subject to the limitations, prohibitions, and reporting requirements of this Act.

BCRA § 101(a); FECA § 323(b)(1); 2 U.S.C. § 441i(b)(1). "Federal election activity" is defined to include:

(i) voter registration activity during the period that begins on the date that is 120 days before the date a regularly scheduled Federal election is held and ends on the date of the election;
(ii) voter identification, get-out-the-vote activity, or generic campaign activity conducted in connection with an election in which a candidate for Federal office appears on the ballot (regardless of whether a candidate for State or local office also appears on the ballot);
(iii) a public communication that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate); or
(iv) services provided during any month by an employee of a State, district, or local committee of a political party who spends more than 25 percent of that individual's compensated time during that month on activities in connection with a Federal election.

BCRA § 101(b); FECA § 301(20)(A); 2 U.S.C. § 431(20)(A). The definition of "Federal election activity" excludes any "amount expended or disbursed by a State, district, or local committee of a political party" for

(i) a public communication that refers solely to a clearly identified candidate for State or local office, if the communication is not a Federal election activity described in subparagraph (A)(i) or (ii);
(ii) a contribution to a candidate for State or local office, provided the contribution is not designated to pay for a Federal election activity described in subparagraph (A);
(iii) the costs of a State, district, or local political convention; and
(iv) the costs of grassroots campaign materials, including buttons, bumper stickers, and yard signs, that name or depict only a candidate for State or local office.

BCRA § 101(b); FECA § 301(20)(B); 2 U.S.C. § 431(20)(B). At paragraph (2)- commonly known as the "Levin Amendment"-section 323(b) provides a narrow exception to the general rule against stateparty spending of non-federal funds on "Federal election activity." The Levin Amendment allows state and local parties to use an FEC-specified amount of federally-regulated "Levin funds" for voter registration, voter identification, "generic campaign activity" and get-out-the-vote activity as long as

(i) [such] activity does not refer to a clearly identified candidate for Federal office;
(ii) the amounts expended or disbursed are not for the costs of any broadcasting, cable, or satellite communication, other than a communication which refers solely to a clearly identified candidate for State or local office;
(iii) ... no person ... donatefs] more than $10,000 to a State, district, or local committee of a political party in a calendar year for such expenditures or disbursements; and
(iv) the amounts expended or disbursed are made solely from funds raised by the State, local, or district committee which makes such expenditure or disbursement....

BCRA § 101(a); FECA § 323(b)(2)(B); 2 U.S.C. § 441i(b)(2)(B) (emphasis added); see RNC Br. at 22-23 (discussing Levin Amendment's conditions, including "homegrown" funds requirement of subsection (iv), which prohibits a state party committee from receiving transferred funds from a national party committee or another state or local committee of a political party).

At new FECA section 323(c), BCRA requires every political party committee- national, state or local-to use federal funds to raise any money that will be used, in turn, on "Federal election activity." BCRA § 101(a); FECA § 323(c); 2 U.S.C. § 441i(c).

Under new FECA section 323(d), BCRA prohibits any political party committee- national, state or local-or its agents from "soliciting] any funds for, or mak[ing] or directfing] any donations to" (1) any organization that is described in section 501(c) of the Internal Revenue Code of 1986, is exempt from taxation and "makes expenditures or disbursements in connection with an election for Federal office (including expenditures or disbursements for Federal election activity)"; or (2) any organization (other than a political committee) that is described in section 527 of such Code. BCRA § 101(a); FECA § 323(d); 2 U.S.C. § 441i(d).

At new FECA section 323(e), the statute prohibits any federal candidate or officeholder (or any agent of a federal candidate or officeholder) from soliciting, receiving, directing, transferring or spending nonfederal funds "in connection with an election for Federal office, including funds for any Federal election activity."46 BCRA § 101(a); FECA § 323(e)(1)(A); 2 U.S.C. § 4411(e)(1)(A).

Finally, at new FECA section 323(f), the statute bars any state candidate or officeholder (or any agent of a state candidate or officeholder) from spending any nonfederal funds for

a public communication that refers to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office (regardless of whether the communication expressly advocates a vote for or against a candidate).

BCRA § 101(a); FECA §§ 323(f)(1), 301(20)(A)(iii); 2 U.S.C. §§ 441i(f)(1), 431(20)(A)(iii).

The McConnell, RNC and CDP plaintiffs challenge BCRA's restrictions on nonfederal funds on three grounds. First, they allege that the restrictions "intrud[e] upon the sovereign power of the [S]tates to regulate the financing of their own elections" and thereby violate the Tenth Amendment to the United States Constitution. RNC Compl. at ¶ 39; see, e.g., McConnell Br. at 9-25 (challenging restrictions on their face and as applied to Libertarian National Committee); RNC Br. at 25-37; CDP Br. at 20-27.

Second, these plaintiffs assert that section 101 violates their rights to engage in free speech and expressive association by, inter alia: preventing "the funding of core political speech that does not expressly advocate the election or defeat of a clearly identified federal candidate," RNC Compl. at ¶ 48, restricting "the amount of speech in which political parties are able to engage," id., preventing political parties from "pooling the resources of party members and contributors in support of campaigns for office," McConnell Compl. at ¶ 100, and precluding them from raising funds for or accepting funds from "like-minded party committees and non-party organizations and individuals," id. See, e.g., McConnell Br. at 25-40; RNC Br. at 37-56; CDP Br. at 27-46.

Third, these plaintiffs charge that section 101 denies them equal protection (and violates their First Amendment rights) to the extent that it subjects them to speech restrictions not placed upon similarly situated entities.47 See, e.g., McConnell Br. at 40-43; RNC Br. at 57-70. I consider the constitutionality of section 101 in Part IV.D infra.

E. The Ban on Minors' Contributions and Donations

In contrast to most of BCRA's provisions, section 318 is quite simple-it prohibits any person under the age of 18 from making (1) any contribution whatsoever to any federal candidate; or (2) any contribution or non-federal "donation" to any political party committee. See BCRA § 318; FECA § 324; 2 U.S.C. § 441k ("An individual who is 17 years old or younger shall not make a contribution to a candidate or a contribution or donation to a committee of a political party."). Period.

The McConnell and Echols plaintiffs contend that such a "sweeping restriction" on an entire class of expressive and associational activity by minors cannot be upheld under the First Amendment's guarantees or the Fifth Amendment's equal protection component.48 E.g., Echols Am. Compl. at ¶¶ 55, 57, 62, 65; see also, e.g., McConnell Compl. at ¶ 93; McConnell Br. at 91-95. I address this challenge in Part IV. E infra.

F. The Conditions on the Lowest Unit Broadcast Charge

Until BCRA's enactment, section 315 of the FCA required licensed broadcast stations to provide a candidate for public office-during the 45 days before a primary election and the 60 days before a general or special election-the benefit of "the lowest unit charge of the station" on any broadcast advertisement "in connection with" the candidate's campaign. FCA § 315(b); 47 U.S.C. § 315(b). BCRA section 305, however, amends the FCA to deny a candidate the lowest unit charge for television or radio broadcast advertisements unless the candidate "provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office." BCRA § 305(a)(3); FCA § 315(b)(2)(A); 47 U.S.C. § 315(b)(2)(A). If the candidate does make a direct reference to another candidate, he can nonetheless meet the content requirements for the lowest unit charge if, in the case of a television broadcast,

at the end of such broadcast there appears simultaneously, for a period no less than 4 seconds-
(i) a clearly identifiable photographic or similar image of the candidate; and
(ii) a clearly readable printed statement, identifying the candidate and stating that the candidate has approved the broadcast and that the candidate's authorized committee paid for the broadcast!;]

or if, in the case of a radio broadcast,

the broadcast includes a personal audio statement by the candidate that identifies the candidate, the office the candidate is seeking, and indicates that the candidate has approved the broadcast.

BCRA § 305(a)(3); FCA § 315(b)(2)(C), (D); 47 U.S.C. § 315(b)(2)(C), (D).

The McConnell plaintiffs contend that BCRA section 305 violates the First Amendment's guarantee of free speech by "conditioning the cost of advertisements on their content." McConnell Compl. at ¶ 96; see McConnell Br. at 89-91. I discuss section 305 in Part IV.F infra.

G. Increased Contribution Limits

BCRA contains two types of provisions that increase the contribution limits of the Act. The first type raises the "hard money" ceilings of the Act by permitting individual donors to contribute greater amounts to candidates and national and state political party committees. The second type permits a candidate for either house of the United States Congress to accept and spend contributions in excess of otherwise applicable limits if his opponent expends a substantial amount in personal funds. I discuss these two types of provisions, and the plaintiffs' challenges thereto, in turn.

1. General Increases

BCRA section 307 raises the Act's limit on any individual's contribution to any given candidate (or his authorized political committee) from $1,000 to $2,000.49 See BCRA § 307(a)(1); FECA § 315(a)(1)(A); 2 U.S.C. § 441a(a)(1)(A). It also changes the aggregate limit an individual contributor may give to all candidates from $25,000 during any calendar year to $37,500 over a two-year period and changes the aggregate limit an individual contributor may give to all political party committees to $57,500 over a two-year period.50 See BCRA § 307(b); FECA § 315(a)(3); 2 U.S.C. § 441a(a)(3). Together with BCRA section 102, section 307 increases as well the Act's limits on an individual's contributions to a national political party committee (from $20,000 to $25,000 per calendar year) and to a state political party committee (from $5,000 to $10,000 per calendar year). See BCRA §§ 102, 307(a)(2); FECA § 315(a)(1)(B), (D); 2 U.S.C. § 441a(a)(1)(B), (D). The provisions leave in place, however, the Act's $5,000 limit on an individual's contributions to "any other political committee." See 2 U.S.C. § 441a(a)(1)(C). Finally, BCRA section 307 indexes for inflation all but the $10,000 limit on any individual's contributions to a state political party committee and the $5,000 cap on any individual's contributions to "any other political committee."51

The Adams and CDP plaintiffs challenge BCRA's general contribution increases on rather novel constitutional grounds. The Adams plaintiffs charge that the higher ceilings violate their Fifth Amendment right to equal protection by "precluding equal participation in the political process on the basis of economic status." Adams Compl. at f 60; see Adams Br. at 9-18. The CDP plaintiffs allege that to the extent BCRA indexes for inflation the limits on contributions to national party committees and federal candidates but does not index the limits on contributions to state and local party committees, it "severely erode[s]" their ability to engage in political communications and thus deprives them of equal protection.52 CDP Compl. at ¶ 105; see CDP Br. at 50. 2. The "Millionaire Provisions"

BCRA section 304 amends the Act to permit a candidate for the United States Senate to accept and spend individual contributions in excess of otherwise applicable "hard money" limits in order "to allow response to expenditures from personal funds" of a wealthy opponent. BCRA § 304(a)(2); FECA § 315(i); 2 U.S.C. § 441a(i) (capitalization altered). For example, if a candidate's opponent spends over two but less than four times a specified "threshold amount"53 in "opposition personal funds,"54 the candidate may accept individual contributions of $6,000 per donor per election. See BCRA § 304(a)(2); FECA § 315(i)(1)(C)(i); 2 U.S.C. § 441a(i)(1)(C)(i) ("[I]f the opposition personal funds amount is over ... 2 times the threshold amount, but not over 4 times that amount ... the increased limit shall be 3 times the applicable limit ...."). If the opponent spends from four to ten times the threshold amount in personal funds, the candidate may accept individual contributions of $12,000 per donor per election. See BCRA § 304(a)(2); FECA § 315(i)(1)(C)(ii); 2 U.S.C. § 441a(i)(1)(C)(ii). And if the opponent spends over ten times the threshold amount in personal funds, not only may the candidate accept individual contributions of $12,000 per donor per election but also, significantly, the restrictions on any political party committee's spending "in coordination with" the candidate are lifted. See BCRA § 304(a)(2); FECA § 315(i)(1)(C)(iii); 2 U.S.C. § 441a(i)(1)(C)(iii).

Likewise, BCRA section 319 amends and supplements the Act to permit a candidate for the United States House of Representatives to accept and spend individual contributions of $6,000 per donor per election if his opponent spends over $350,000 in personal funds. See BCRA § 319(a); FECA § 315A(a)(1)(A); 2 U.S.C. § 441a-1(a)(1)(A). Again, significantly, in that same circumstance the restrictions on any political party committee's spending "in coordination with" the candidate are lifted. See BCRA § 319(a); FECA § 315A(a)(1)(C); 2 U.S.C. § 441a-1(a)(1)(C).

Finally, BCRA sections 304 and 319 impose reporting requirements on Senate and House candidates who intend to expend substantial personal funds in support of their candidacy. Section 304 requires a Senate candidate to file with his opponents) and the FEC-within 15 days of becoming a candidate-"a declaration stating the total amount of expenditures from personal funds that [he] intends to make, or to obligate to make, with respect to the election that will exceed the State-by-State competitive and fair campaign formula." BCRA § 304(b); FECA § 304(a)(6)(B)(ii); 2 U.S.C. § 434(a)(6)(B)(ii). It also requires the candidate to file with his opponent(s) and the FEC a notification if and when he spends more than twice the threshold amount and, thereafter, each and every time he spends more than $10,000 in additional personal funds. See BCRA § 304(b); FECA § 304(a)(6)(B)(iii), (iv); 2 U.S.C. § 434(a)(6)(B)(iii), (iv). Section 319 imposes similar requirements on a candidate for the House of Representatives. See BCRA § 319(a); FECA § 315A(b)(1); 2 U.S.C. § 441a-l(b)(1).

The RNC and Adams plaintiffs challenge BCRA's "millionaire provisions" on separate constitutional grounds. The RNC plaintiffs claim that the provisions "discriminate among similarly situated federal candidates and thereby violate the equal protection component of the Fifth Amendment." RNC Br. at 73 (capitalization altered); see id. at 73-75; RNC Compl. at ¶ 74. The Adams plaintiffs assert that they are denied equal protection as well, to the extent that the millionaire provisions "precludfe] [their] equal participation in the political process on the basis of economic status." Adams Compl. at ¶ 62; see Adams Br. at 9-18.

I discuss the two types of increased contribution limits in Part IV.G infra.

III. In Limine Matters

Before reaching the merits of the plaintiffs' claims, I first attend to important preliminary matters.

A. Procedural Posture

In these consolidated actions, the panel is asked to declare most of BCRA unconstitutional and to enjoin the defendants and their agents from enforcing, executing or otherwise applying several of its provisions to anyone. See, e.g., McConnell Compl. at 51. In other words, the plaintiffs bring a facial challenge to the statute. As the Supreme Court emphasized in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), a facial challenge is "the most difficult challenge to mount successfully" because, in the usual case, "the challenger must establish that no set of circumstances exists under which the [statute] would be valid," id. at 745, 107 S.Ct. 2095. The case before us, however, is not the usual case. Where, as here, First Amendment freedoms are at stake, a facial challenge will succeed if there exists "a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court." City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (citing, inter alia, Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)); see Broadrick v. Oklahoma, 413 U.S. 601, 613, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (facial invalidation "is, manifestly, strong medicine" that will be invoked only if statute's provisions are substantially overbroad when "judged in relation to the statute's plainly legitimate sweep"); see also Salerno, 481 U.S. at 745, 107 S.Ct. 2095 (recognizing First Amendment overbreadth doctrine as exception to general "no-set-ofcircumstances" principle). In my view, all of the challenged provisions of BCRA- except the one discussed in Part IV.D.4 (which I believe must be sustained) and those discussed in Parts IV.F and IV.G (as to which I would pass no judgment)-are substantially overbroad when "judged in relation to [their] plainly legitimate sweep" and are therefore facially unconstitutional. Broadrick, 413 U.S. at 615, 93 S.Ct. 2908.

Because my view that most of BCRA is unconstitutional rests squarely and solely on First Amendment free association and free speech grounds, I would not reach the merits of the plaintiffs' federalism, free press or equal protection claims except with respect to the provision discussed in Part IV.D.4. Thoroughgoing discussion of these subjects would further complicate an already difficult task; more importantly, it would be unnecessary to the disposition of these actions and, as such, would fly in the face of the "venerable principle of [federal] adjudicatory processes," Webster v. Reproductive Health Services, 492 U.S. 490, 525, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (O'Connor, J., concurring in part and concurring in judgment), to abstain from "anticipat[ing] a question of constitutional law in advance of the necessity of deciding it," Ashwander v. TVA 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (quotation omitted).

B. Alternative Findings of Fact

Before proceeding to the facts, I emphasize the Supreme Court's teaching that "casual statements from the floor debates" in the Congress-not to mention "postlegislation legislative history" like that constructed during discovery in these actions-merit little evidentiary weight. See United States v. Carlton, 512 U.S. 26, 39, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994) (Scalia, J., concurring in judgment) ("post-legislation legislative history" is an "oxymoron"); Blanchette v. Conn. Gen. Ins. Corps., 419 U.S. 102, 132, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) ("[P]ost-passage remarks of legislators, however explicit, cannot serve to change the [expressed] legislative intent of Congress...."). And while the Congress's factual findings and committee reports are entitled to somewhat greater weight, see Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (Court "eschew[s] reliance on the passing comments of one Member" and has "stated that Committee Reports are more authoritative than comments from the floor" (quotations omitted)); but cf. Int'l Bhd. of Elec. Workers, Local Union No. 474 v. NLRB, 814 F.2d 697, 715, 718 (D.C.Cir.1987) (Buckley, J., concurring) (because "Congress is a political as well as a legislative body, and [because] its members will put the privileges and facilities of their respective chambers to political as well as legislative uses," "not every utterance to be found [even] in committee reports ... may be assumed to represent statutory gold"), such evidentiary sources are negligible or non-existent in the case of BCRA. I point out as well the Court's reminder that "[t]he justification" for a restriction on constitutionally protected liberties "must be genuine, not hypothesized or invented post hoc in response to litigation." United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Finally, I would note that I am in substantial agreement with the plaintiffs' observation that, especially with respect to Title II, their facial challenges to BCRA's provisions are based upon established First Amendment jurisprudence in the campaign finance realm. See, e.g., McConnell Br. at 44 ("[T]his [c]ourt need not go beyond Buckley v. Valeo to determine that Title II cannot possibly stand under the First Amendment."). Accordingly, I believe the constitutional challenges discussed in Part IV can be resolved even without extensive reference to the record. Nonetheless, in recognition of the fact that the Supreme Court may see things differently and may indeed revisit established jurisprudence, I offer the following set of findings-as an alternative to those of the majority-based on my view of the record as a whole.55

1. The Litigants

As to the litigants in the consolidated actions before us,56 would find that: 1. Senator Mitch McConnell is the senior United States Senator from Kentucky and is a member of the Republican Party. He has long been active in the Republican Party at the national, state and local levels. He was first elected in 1984 and was reelected in 1990, 1996 and 2002. See McConnell Aff. at 1-3.

2. The National Rifle Association (NRA) is a non-partisan, tax-exempt organization governed by section 501(c)(4) of the Internal Revenue Code. It is dedicated primarily to defending the rights its members believe are guaranteed by the Second Amendment to the United States Constitution; its principal function is to disseminate information regarding those rights. The NRA has approximately four million members and represents their views on legislative and public policy issues before federal, state and local officials and the general public. See LaPierre57 Decl. at 1; NRA App. at 106 (setting forth NRA bylaws).

3. The NRA Political Victory Fund (NRA PVF) is a political committee governed by 2 U.S.C. § 431(4) and section 527 of the Internal Revenue Code and is a separate segregated fund of the NRA pursuant to 2 U.S.C. § 441b(b).

4. Bill Pryor is the current Alabama Attorney General and was a candidate for reelection as Alabama Attorney General in 2002. See Pryor Decl. at 1.

5. The Libertarian National Committee, Inc. (LNC) is the governing body of the Libertarian Party at the national level. The LNC is a non-profit organization incorporated in the District of Columbia and is governed by section 527 of the Internal Revenue Code. The LNC advocates the principle that all individuals have the right to live in whatever manner they choose so long as they do not forcibly interfere with the right of others to do the same. See Dasbach58 Decl. at 2.

6. The American Civil Liberties Union (ACLU) is a tax-exempt organization incorporated in the District of Columbia and is governed by section 501(c)(4) of the Internal Revenue Code. The ACLU is a nationwide, non-profit, non-partisan organization with approximately 300,000 members "dedicated to the principles of liberty and equality embodied in the Constitution." Romero59 Decl. at 1.

7. Club for Growth, Inc. is a nationwide membership organization governed by section 527 of the Internal Revenue Code. It is dedicated to advancing, inter alia, school choice, overall reduction in government spending, personal investment of social security, tax rate reduction, capital gains tax reduction and estate tax repeal. See Keating60 Decl. at 2.

8. The National Right to Life Committee (NRLC) is a tax-exempt organization incorporated in the District of Columbia and is governed by section 501(c)(4) of the Internal Revenue Code. The NRLC is a nationwide, non-profit, non-partisan organization with approximately 3,000 local chapters and fifty state affiliates dedicated to "promoting respect for the worth and dignity of all human life from conception to natural death." O'Steen61 Decl. at 1. 9. The National Right to Life Educational Trust Fund (NRL ETF) is an organization governed by section 501(c)(3) of the Internal Revenue Code. NRL ETF sponsors educational advertising and develops materials detailing "fetal development, abortion's impact on America, and... euthanasia." O'Steen Decl. at 3.

10. The National Right to Life Political Action Committee is a political committee governed by 2 U.S.C. § 431(4) and section 527 of the Internal Revenue Code and is a separate segregated fund of the NRLC pursuant to 2 U.S.C. § 441b(b). See O'Steen Decl. at 5.

11. Thomas E. Mclnerney is a U.S. citizen, a registered voter in the State of New York and a member of and contributor to various Republican Party organizations and committees at the national, state and local levels. See Mclnerney Aff. at 1.

12. Barret Austin O'Brock is a U.S. citizen and a resident of the State of Louisiana. He is 14 years of age and intends to make contributions to federal candidates in future elections, including the 2004 election. See O'Brock Decl. at 1.

13. Emily Echols, Hannah and Isaac McDow, Zachary White, Daniel Solid and Jessica Mitchell are U.S. citizens who range in age from 12 to 16. They intend to seek out and contribute to federal candidates "who represent their views and beliefs on important questions like the right to life of children before birth, and on the size of government." Echols Pis.' Proposed Findings of Fact at 11.

14. The U.S. Chamber of Commerce is a tax-exempt corporation governed by section 501(c)(6) of the Internal Revenue Code. It is the world's largest not-forprofit business federation, representing over 3,000,000 businesses and business associations. See Josten62 Direct Test, at 1.

15. The U.S. Chamber Political Action Committee (U.S. Chamber PAC) is a political committee governed by 2 U.S.C. § 431(4) and section 527 of the Internal Revenue Code and is a separate segregated fund of the Chamber of Commerce pursuant to 2 U.S.C. § 441b(b). U.S. Chamber PAC is funded by contributions voluntarily made by individual Chamber executives, administrative employees, members and their families. See Josten Direct Test, at 5.

16. The National Association of Manufacturers (NAM) is the oldest and largest broad-based industrial trade association in the United States. Its membership comprises 14,000 companies and 350 member associations. Like many trade associations, NAM is a tax-exempt corporation governed by section 501(c)(6) of the Internal Revenue Code. See Huard63 Direct Test, at 1.

17. Associated Builders and Contractors, Inc. (ABCI) is a non-profit tax-exempt organization governed by section 501(c)(6) of the Internal Revenue Code and is funded primarily by membership dues. It is a national trade association representing more than 23,000 contractors and related firms in the construction industry. ABCI's members, which include both union and non-union employers, "share the philosophy that construction work should be awarded and performed on the basis of merit, regardless of labor affiliation." Monroe64 Direct Test, at 1-2. 18. Associated Builders and Contractors Political Action Committee (ABC PAC) is a political committee governed by 2 U.S.C. § 431(4) and section 527 of the Internal Revenue Code and is a separate segregated fund of ABCI pursuant to 2 U.S.C. § 441b(b). ABC PAC makes contributions to federal candidates who support the principles of ABCI and makes independent expenditures for communications on their behalf. See Monroe Direct Test, at 9.

19. The National Association of Broadcasters (NAB) is a non-profit, incorporated trade association of radio and television stations and broadcasting networks in the United States. See Goodman65 Decl. at 2.

20. The AFL-CIO is a national labor federation comprised of 66 national and international labor unions that, collectively, have a total' of approximately 13 million members. The AFL-CIO also includes 51 state labor federations, nearly 580 area and central labor councils and numerous trade and industrial departments. A core mission of the AFL-CIO is to provide "an effective political voice to workers on public issues that affect their lives." G. Shea66 Decl. at 2-3.

21. The Republican National Committee (RNC) is an unincorporated association headquartered in Washington, D.C. It consists of three members each from the Republican Party in each of the fifty States, the District of Columbia, Puerto Rico, American Somoa, Guam and the U.S. Virgin Islands. Each state and territorial Republican Party elects a national committeeman and a national committeewoman. In addition, the state and territorial Republican Party chairmen serve as members of the RNC. See Josefiak67 Decl. at 4; Duncan Decl. at 3.

22. Mike Duncan is a member of the RNC from the State of Kentucky and currently serves as the General Counsel of the RNC. Prior to becoming General Counsel, he was Treasurer of the RNC and in that capacity signed all RNC reports filed with the FEC. See Duncan Decl. at 3. In both his official capacity as an officer of the RNC and his private capacity, Duncan has participated in and (unless prohibited by BCRA) will continue to participate in national, state and local political party activities. He will also (unless prohibited by BCRA) continue to solicit, receive or direct non-federal funds to other persons. See id. at 3-6.

23. The Republican Party of New Mexico is a state committee of the Republican Party under BCRA. It supports federal, state and local candidates for office in New Mexico and promotes Republican positions on public policy issues. See Dendahl68 Decl. at 1. Under New Mexico law, the Republican Party of New Mexico is permitted to raise and spend corporate, labor union and individual funds in unlimited amounts in support of state and local candidates. See N.M. STAT. ANN. §§ 1-19-25 to 1-19-36 (1978); see also Dendahl Decl. at 2.

24. The Dallas County (Iowa) Republican County Central Committee is a local political party committee the FEC has deemed independent of any state or national political party committee. It is actively involved in supporting state and local candidates for office in Iowa. See Josefiak Decl. at 5.

25. The California Democratic Party is an unincorporated association of approximately seven million members and is the authorized Democratic Party of the State of California. Similarly, the California Republican Party is an unincorporated association of over five million members and is the authorized Republican Party of the State of California. The CDP and the CRP perform many functions, among them providing financial and material support to federal, state and local candidates; taking positions on public issues (including state and local ballot measures) and publicizing those positions; engaging in voter registration, get-out-the-vote activities and generic party-building activities; and maintaining an administrative staff and structure to support the parties' goals and activities and to comply with extensive federal and state regulation. See Bowler69 Decl. at 2-3; Morgan Aff. at 2-3.

a. Pursuant to state law, the CDP is governed by the Democratic State Central Committee (DSCC). The DSCC is made up of approximately 2,710 members, about 849 of whom are elected by the 58 county central committees. Other members serve on the DSCC in their capacities as federal or state officials, as nominees of the CDP, as members of the Democratic National Committee (DNC) from California or as elected representatives of 80 Assembly District Committees (AD Committees). See Bowler Decl. at 2-3. CDP bylaws provide for local party AD Committees, which elect delegates to the DSCC and are the district-level organizational blocks of the CDP. The AD Committees are primarily involved in local voter registration, getout-the-vote and grassroots activities and they act as liaisons with the campaign organizations of Democratic candidates in their area. See id. at 3.

b. The CRP is governed by the Republican State Central Committee (RSCC). The RSCC consists of about 1,500 regular and appointive members. The regular members include federal and state officeholders as well as the CRP's nominees for governor, seven other state constitutional offices, United States Senate, 53 congressional districts, 40 state senate districts, 80 state assembly districts and four state board of equalization districts. The RSCC also includes the chairmen of the 58 county central committees and the chairmen of volunteer party organizations. See Morgan Aff. at 3-5. The CRP operates as well through (1) a 100-member Executive Committee, which includes federal and state officeholders and 16 representatives of county central committees; and (2) a 25member Board of Directors, which includes a Member of the Congress70 appointed by the delegation, three state elected officeholders and representatives from an association of Republican county central committee chairmen. See id. at 3-4. Under the CRP's bylaws and the RNC's rules, the CRP is part of the RNC. The CRP's elected chairman is a member of the RNC. The CRP elects two other representatives to the RNC-a national committeeman and national committeewoman, each of whom is a member of the CRP Executive Committee and Board of Directors. See id. at 5-6.

26. Art Torres is the elected Chair of the CDP. Torres also serves on the DNC and has been elected by the DNC to serve on the DNC Executive Committee. As Chair of the CDP, Torres assists the CDP and county central committees in fundraising efforts by meeting and talking regularly with potential donors and attending fundraising events. See Bowler Decl. at 4; Torres Decl. at 1-2.

27. The Yolo County Democratic Central Committee and Santa Cruz County Republican Central Committee are two of the 58 county central committees authorized and governed by the California Elections Code. Members of the county central committees are elected at each statewide primary election. All members of the CDP who are also state senators, members of the state assembly or Members of the Congress serve as ex officio members of their respective county central committees. See Bowler Decl. at 3. The county central committees are primarily involved in local voter registration, get-out-the-vote activities and grassroots activities and they act as liaisons with the campaign organizations of Democratic candidates in their area. See id.

28. Timothy J. Morgan is (1) a member of the RNC; (2) a member of the CRP Executive Committee; (3) a member of the CRP Board of Directors; and (4) Chairman of the Santa Cruz County Republican Central Committee. See Morgan Aff. at 1.

29. The FEC is a government agency headquartered in Washington, D.C, constituted pursuant to FECA, 2 U.S.C. § 437c, and charged with enforcing the Act as amended by BCRA.

30. The United States, through the DOJ, is charged with enforcing the criminal provisions of the Act as amended by BCRA.

31. The FCC is a government agency headquartered in Washington, D.C, and is charged with enforcing the FCA as amended by BCRA.

32. The intervenors are Members of the Congress who were principal sponsors and authors of BCRA. Senator John McCain is a Republican United States Senator from the State of Arizona. Senator Russell Feingold is a Democratic United States Senator from the State of Wisconsin. Senators McCain and Feingold face reelection in 2004. Senator Olympia Snowe is a Republican United States Senator from the State of Maine. Senator James Jeffords is an Independent United States Senator from the State of Vermont. Senators Snowe and Jeffords face reelection in 2006. Congressman Christopher Shays is a Republican member of the House of Representatives from the 4th Congressional District in Connecticut. Congressman Martin Meehan is a Democratic member of the House of Representatives from the 5th Congressional District in Massachusetts.

2. The Ban on Corporate and Labor Disbursements for "Electioneering Communications" and the Disclosure and Reporting Requirements

As to BCRA's ban on corporate and labor disbursements for "electioneering communications" and the statute's disclosure and reporting requirements, see generally supra Parts II.A and II.B, I would find that:

33. After the Buckley decision in 1976 and subsequent amendments to the Act, the Act's prohibition on the use of corporate and union treasury money and its disclosure requirements applied to independent political spending only if it funded express advocacy of the election or defeat of a clearly identified candidate. See 2 U.S.C. § 431(17).

34. Few candidate or party advertisements use words of express advocacy. In the 1998 election cycle only four per cent of ads sponsored by candidates used words of express advocacy. In 2000 only 11.4 per cent of ads sponsored by candidates and only 2.2 per cent of ads sponsored by political parties used words of express advocacy. See Krasno71 & Sorauf72 Expert Report at 53; Goldstein73 Expert Report at 16, 31.

35. Before BCRA was enacted, interest groups74 running issue advertisements75 often did not disclose the sources of their funding. See Krasno & Sorauf Expert Report at 72; Magleby76 Expert Report at 18-19. Among the groups that did not disclose their sources was Citizens for Better Medicare, which is funded by the pharmaceutical industry. In 1999 and 2000 Citizens for Better Medicare was one of the top sponsors of issue advertisements that also name federal candidates; it spent approximately $65 million on television advertising during that period. See Magleby Expert Report at 18-19; Ryan77 Dep. at 13-15.

36. From 1996 to 2000 the majority of advertisements run by interest groups were not regulated by the Act because they did not use words of express advocacy. By 2000, for every interest group ad covered by the Act, 20 interest group ads mentioning federal candidates were not covered. See Krasno & Sorauf Expert Report at 53; Goldstein Expert Report at 10; Annenbeeg Public Policy Center, Issue Advertising in the 1999-2000 Election Cycle 12-15 (2000) (hereinafter Annenberg Study).

37. From 1996 to 2000 the number of issue advertisements-as well as the number of organizations sponsoring issue ads and the amounts spent on issue advocacy-increased.

a. In the 1996 election cycle a total of approximately $135 million to $150 million was spent on national and local television and radio broadcasts of about 100 distinct ads on national issues sponsored by relatively few organizations. In the 1998 election cycle approximately 77 organizations aired 423 distinct ads at a cost of between $250 million and $341 million. In the 2000 election cycle approximately 130 organizations aired over 1,100 distinct ads at a cost of more than $500 million. In the 2000 cycle the Republican and Democratic parties accounted for almost $162 million (32 per cent) of the spending on issue advocacy; Citizens for Better Medicare accounted for $65 million (13 per cent); the Coalition to Protect America's Health Care accounted for $30 million (six per cent); the Chamber of Commerce accounted for $25.5 million (five per cent); and U.S. Term Limits accounted for $20 million (four per cent). See ANNENBERG STUDY at 1, 4.

b. By way of comparison, a total of approximately $100 million was spent in 1995 alone to advertise syndicated reruns of "Seinfeld," a television sitcom. See BRADLEY A. SMITH, UNFREE SPEECH-. THE FOLLY OF CAMPAIGN FINANCE REFORM 42 & n. 4 (2001).

38. In some competitive races, interest group issue advocacy often rivals and even outpaces advertising by federal candidates themselves. See Krasno & Sorauf Expert Report at 51; Goldstein Expert Report at 12, 22; Magleby Expert Report at 20, 22.

39. Many of the interest group issue ads that also name a federal candidate and air near an election avoid using words of express advocacy but end with an exhortation to "call" the named candidate and "tell" him something or "thank" him for his stance on a particular issue. See, e.g., Magleby Expert Report at App. G. Both the Chamber of Commerce and the AFLCIO agree that "the ultimate way to tell an elective official to do something is through the voting process." G. Shea Dep. at 46; see Josten Dep. at 230.

a. Republican political consultant Rocky Pennington testified that "[t]he usual final tag line [of an issue ad] is to `call' or `ask' or `tell' a candidate to stop or continue doing something, often something vague like fighting for the right priorities. This is pretty silly, because it's hard to imagine thousands of people calling the candidate in response to the ad and saying, keep doing this, this is wonderful." Pennington Decl. at 6. Senator Feingold testified similarly, stating that the plea to "call somebody's office" is at "the heart of the phony issue ad." Feingold Dep. at 14. Senator Feingold acknowledged, however, that his constituents often do contact him in response to television advertisements. See id. at 238-39.

b. In 1996 Citizens for Reform, an interest group, spent $2 million on television issue ads that did not expressly advocate the election or defeat of any candidate but were directed at influencing congressional races. That year it sponsored the notorious "Bill Yellowtail" ad, which aired during the final weeks of a Montana congressional race and accused Yellowtail, the challenger, of spousal abuse: "He preaches family values but he took a swing at his wife." Thompson Comm. Rep. at 6301-05. In addition to its television and radio ads opposing Yellowtail, Citizens for Reform "did direct mail and phone banking against [him]," which would not be prohibited by BCRA. Lamson78 Decl. at 3.

c. The NAB "admits that a [political [advertisement might conceivably influence a federal election without the use of any particular words as might many other factors depending upon the circumstances of each individual race." Resp. of NAB to FEC's First Reqs. for Admis. at 5. d. Republican political consultant Douglas Bailey testified that "[i]n the modern world of 30 second political advertisements, it is rarely advisable to use such clumsy words as `vote for' or `vote against.'... All advertising professionals understand that the most effective advertising leads the viewer to his or her own conclusion without forcing it down their throat. This is especially true of political advertising, because people are generally very skeptical of claims made by or about politicians." Bailey Decl. at 1-2.

40. Interest group issue advertisements that air near election time more frequently refer to federal candidates than do interest group ads that air at all other times. For example, from January 1, 2000 until September 4, 2000 Citizens for Better Medicare sponsored 28,867 television ad spots, none of which named a federal candidate. See Goldstein Expert Report at App. A & Tbl. 17A. During the three weeks preceding the 2000 election, by contrast, Citizens for Better Medicare sponsored 6,000 ad spots that identified a federal candidate. See id.

41. Beginning in 1996 corporations, unions and interest groups-to which the defendants refer as "outside groups," e.g., Interveners Proposed Findings of Fact at 31-began large-scale use of their treasury funds to sponsor issue advertisements that to some observers "looked and sounded like campaign ads," id. (citing ANNENBERG STUDY at 3, 7-8; Thompson Comm. Rep. at 5927 & n. 4).

42. Issue advertisements are heavily concentrated in the final weeks leading up to an election and are often intensely partisan. They are concentrated most heavily in jurisdictions with competitive election contests-commonly known as "battleground states"-where a small change in voter preference can affect the outcome of the election. Interest groups often broadcast ads in competitive contests where their investment is most likely to make a difference. See Goldstein Expert Report at 21 Tbl. 5; Magleby Expert Report at 20, 31 ("Interest groups ... take aim at particular states with competitive U.S. Senate races or congressional districts where the outcome is in doubt.... This tendency has been reinforced by the exceedingly close margin of party control in Congress in recent years."); LaPierre Dep. at 24-25, 118, 157-59. The following subparagraphs contain representative examples of such ads.

a. During the 60 days leading up to the 2000 general election the NRA ran a 30-minute infomercial known as "Union/Gore" which would constitute an "electioneering communication" under BCRA. The infomercial opened with NRA President Charlton Heston stating that "[t]his election could come down to battleground states like Pennsylvania, Michigan, Ohio and Missouri, states with lots of union members where the union vote could decide the outcome. But not all union members will vote as political observers might expect. So we sent NRA correspondent Ginny Simone deep into the heart of union country to talk with union members about this election, about the candidates, about the issues, and what to them really matters most. Here's Ginny's report." The infomercial then focused on union members' comments in response to the NRA reporter's questions:

· "All this union leadership, they send you stuff all the time [telling you to] vote for Al Gore. Well, I don't see it that way. It's-you know, I-I want my freedom, I want to hold onto my guns, I want to vote for Bush."
· "I have a hand gun, and I've had NRA training, and I'm a survivor of domestic violence, and I believe in self-protection, and I do not want my guns taken away."
· "A loss of my gun rights is what Al Gore represents. There's no ifs, ands, or buts about that. In my mind, ... if Al Gore and his administration is [sic] voted in, we will lose firearm rights."
· "Yes, it's nice being part of my union, it helps protect me. But having my right to bear arms is something that's extremely important to me. It's something that's kind of just been engrained [sic] in me."

The infomerical then turned back to Heston, who urged voters "to protect your freedoms on November 7th. It's one way you can thank the many souls sacrificed in freedom's name over the past couple hundred years.... And that includes carefully considering which candidates promise to defend our freedoms and which candidates promise to diminish or even destroy them." McQueen Dep. at 113-23.

b. During the 60 days leading up to the 2000 general election the interest group Planned Parenthood aired an ad called "Bush Doesn't Say Much," which under BCRA is an "electioneering communication." The ad claimed that "[a]s President, Bush could appoint Supreme Court Justices who could take away our right to choose. Get the facts about George W. Bush's Texas record." Defs.' Exhs. Vol. 48, Tab 3 (CMAG Storyboard No. 29).

c. During the 60 days leading up to the 2000 general election the interest group Handgun Control Inc. ran an ad called "Handgun/Martin Sheen," an "electioneering communication" under BCRA. Actor Martin Sheen stated in the ad that "[between now and election day, at least two thousand Americans will die from gunfire. Should the next president be a candidate of the gun lobby? Should he have signed a bill that allows hidden handguns in churches, hospitals, and amusement parks?... That's Governor Bush's record. Find out more at bushandguns.com." Defs.' Exhs. Vol. 48, Tab 3 (CMAG Storyboard No. 32).

d. RNC political operations director Terry Nelson testified that, as a general rule, issue advocacy is not as effective in August of an election year as it is in October or early November. See Nelson Dep. at 90-91 ("I would tell candidates that they needed to spend their money when people are paying attention, which tends to be towards the election.").

e. The 2000 United States Senate race between Spencer Abraham and Debbie Stabenow is illustrative of recent issue advocacy campaigns across the country.

1) During the 60 days preceding the general senatorial election between Abraham and Stabenow interest groups aired 4,323 ad spots. During the other ten months of the year the groups aired only 926 ad spots, for a year-long total of 5,249 ad spots.

2) By way of comparison, Abraham and Stabenow themselves ran (together) a total of 11,381 ad spots during the year 2000 and the political parties ran 7,905 ad spots in the same period.

3) The AFL-CIO ran one ad critical of Abraham 269 times from October 16 to October 22. On October 20 the ad aired 26 times in Detroit and 29 times each in the markets of Grand Rapids, Battle Creek and Kalamazoo. The Michigan and U.S. Chambers of Commerce ran five distinct ads against Stabenow a total of 1,635 times between September 20 and November 6.

4) During the 60 days preceding the general election not a single candidatesponsored ad and only one party-sponsored ad (accounting for ten per cent of party ad airings during that period of time) employed words of express advocacy. The issue ads regularly criticized Abraham and Stabenow for votes they had taken in the past and did not focus heavily on forthcoming legislative initiatives. See Interveners Proposed Findings of Fact at 37-38.

5) A Michigan Chamber of Commerce issue ad entitled "Stabenow Against Local Schools"-now an "electioneering communication" under BCRA-stated: "Local schools, local teachers, local parents electing local school boards. That is the way our schools work best. So why did Debbie Stabenow vote against a bi-partisan plan to make our schools better? To reduce federal red tape and increase student performance in five years? Why did she vote against allowing teachers to control their own classrooms? ... Call Debbie Stabenow and tell her we want to run our own neighborhood schools." Defs.' Exhs. Vol. 48, Tab 3 (CMAG Storyboard No. 6).

43. No credible evidence in the record supports the defendants' assertion that BCRA's "electioneering communication" provisions will affect "very few genuine discussions of policy matters." E.g., FEC's Am. Proposed Findings of Fact at 153. To the contrary, credible record evidence indicates that BCRA will actually capture a vast number of "genuine" issue advertisements. See, e.g., infra Findings 43f-43h, 51d at pages 308-12, 317.

a. The Brennan Center for Justice (Brennan Center) played a "central role" in the adoption of BCRA. Holman79 Dep. at 14-15, Exh. 3. The Brennan Center helped "craft the design of the McCain-Feingold bill," id. at 11, and provided "legal opinions" on what it believed would be "constitutionally defensible," id. at 13.

b. The Brennan Center promoted campaign finance regulation by, inter alia: drafting for legislators memoranda that "directly addressed concerns that were being debated in the Congress concerning the McCain-Feingold and Shays-Meehan bills," id. at 11; meeting with Members of the Congress to review research findings, see id. at 16-17; drafting and publishing a "scholars' letter" and a signed statement by former leadership figures of the ACLU, which documents deemed the bills constitutional and were "very influential in the Senate debate and in influencing media perceptions," id. at 11, 12, 19-20, Exh. 3.

c. In addition to undertaking these wide-ranging activities in support of new campaign finance regulation, the Brennan Center published two reports: CRAIG B. HOLMAN & LUKE P. MCLOUGHLIN, BUYING TIME 2000: TELEVISION ADVERTISING IN THE 2000 FEDERAL ELECTIONS (Brennan Center 2001) (hereinafter Buying Time 2000), and JONATHAN S. KRASNO & DANIEL E. SELTZ, BUYING TIME 1998: TELEVISION ADVERTISING IN THE 1998 CONGRESSIONAL ELECTIONS (Brennan Center 2000) (hereinafter Buying Time 1998). See generally Defs.' Exhs. Vols. 46, 47.

d. The Buying Time reports were based on data gathered by Kenneth Goldstein with the help of his political science students at Arizona State University (for the 1998 report) and the University of Wisconsin (for the 2000 report). Goldstein's students were shown "storyboards"-prepared by the Campaign Media Analysis Group (CMAG)-of certain political advertisements broadcast during 1998 and 2000. The students were asked to "code" the ads based on their content. See Defs.' Exhs. Vol. 46 at 19; Defs.' Exhs. Vol. 47 at 7. According to the Brennan Center, the Buying Time reports were "the central piece of evidence marshaled by defenders of BCRA's electioneering communication provisions "in support of [their] constitutional validity." Holman Dep. Exh. 3 at 2. While the government claims that "[t]he Buying Time databases show that ... BCRA will correctly capture" almost all so-called "sham" issue advertisements "but very few genuine issue advertisements," FEC's Am. Proposed Findings of Fact at 192, the Buying Time reports are flawed. See infra Findings 43e-13h at pages 308-12.

e. The Brennan Center and the authors of the Buying Time reports sought to achieve a certain result and therefore sacrificed scientific objectivity.

1) Funds to underwrite Buying Time 1998 were solicited on the basis of the explicit promise that the study would be abandoned midstream if the results being obtained were not helpful to the cause for more stringent campaign finance regulation. See Goldstein Dep. Exh. 2 at 6 ("Whether we proceed ... will depend on the judgment of whether the data provide a sufficiently powerful boost to the reform movement."). Money to fund Buying Time 2000 was solicited on the promise that the study would be "design[ed] and execute[d]" to achieve "reform" and the study was so designed and executed. Goldstein Dep. (Vol. 1) at 37-38 ("Q: So I take it that it was your goal to design and execute the study in a way that would help move the campaign reform ball forward: is that right?" "A: Yes.").

2) The Brennan Center submitted a grant proposal to the Pew Charitable Trusts (Pew) to gain funding for Buying Time 1998 and, later, Buying Time 2000. See Krasno Dep. at 51, 55-56, Exh. 4. The Brennan Center understood that Pew's "bottom line" was "regulating sham issue advocacy." Id. at 52-53, Exh. 3. Most of the funding Pew subsequently agreed to provide was to be put toward publicity and advocating "reform" rather than purchasing and analyzing data. See id. at 63-64, Exh. 5.

3) The grant proposal to Pew was authored by Jonathan Krasno, who-before he had approached Pew or had performed any studies-had already "come to believe that political parties were using the magic words test as cover to sponsor thinlyveiled campaign ads masquerading as issue advocacy." Krasno Dep. at 66, Exh. 6, Exh. 13 at 2.

4) Each element of the Brennan Center's grant proposal to Pew was aimed at "overcoming the obstacles to reform" and at "influencing at least one of the four critical audiences that [would] play a pivotal role in determining the success or failure of any reform: Legislators, journalists, academics and courts." Holman Dep. Exh. 4 at 2-3; see id. ("[T]he purpose of our acquiring the data is not simply to advance knowledge for its own sake, but to fuel a continuous and multi-faceted campaign to propel reform forward."). According to the proposal, the Brennan Center planned to implement the 1998 study in two "phases," during the first of which the Center would "acquire" the data and "adapt it so that it might be easily used" to "develop a strategy for responding to the threat posed by issue advocacy." Goldstein Dep. Exh. 2 at 3.

f. Buying Time 1998 miscalculates the percentage of so-called "genuine" issue advertisements that would have been regulated in 1998 by a statute like BCRA.

1) The key question included in the 1998 study was Question 6,80 which asked coders: "In your opinion, is the purpose of this ad to provide information about or urge action on a bill or issue, or is it to generate support or opposition for a particular candidate?"81 Defs.' Exhs. Vol. 47 at 193 (emphasis in original); see Seltz82 Dep. at 184-85. If coders concluded that an ad provided information about or urged action on a bill or issue, the ad was to be coded as a "genuine" issue ad. If the coders concluded that the ad generated support for or opposition to a particular candidate, the ad was to be coded as a "sham" issue ad.

2) The authors of Buying Time 1998 claimed that just seven per cent of "genuine" issue advertisements aired during 1998 would be regulated by a statute like BCRA. In arriving at this figure, the authors counted as "genuine" only two ads in the source database. See Seltz Dep. at 77-80. 101-02, Exh. 1 at 109-110, Exh. 4; Krasno Dep. at 149-50; Holman Dep. at 51-52, Exh. 6.

3) Joshua Rosenkranz, Executive Director of the Brennan Center, testified before the Congress in April 2000 and highlighted the seven per cent figure. He asserted that "[w]ith solid empirical data of this type, Congress can be confident that the major campaign finance reform proposals currently before it do not inhibit true issue advocacy." Holman Dep. Exh. 25 at 5 (Rosenkranz testimony). In January 2001, however, Rosenkranz discovered the seven per cent figure to be "flat out false." Id. Exh. 28 (e-mail from Rosenkranz); see id. Exh. 27 (e-mail from Holman stating that "[w]hile only 7% of groups placing genuine issue ads would be captured, those groups bought about 40% of all issue ads within [60 days of the 1998 general election]. So, in reality, according to the 1998 database, about 40% of genuine issue ads would be deemed electioneering within a 60-day regulatory period."); id. Exh. 29 (e-mail from McLoughlin83 stating the seven per cent finding was "either false or so vague as to mislead the reader"); id. Exh. 31 (subsequent e-mail from McLoughlin reporting correct percentage to be 11.38 per cent); id. Exh. 36 (subsequent memo from Holman reporting correct percentage to be 13.8 per cent).

4) Craig Holman, a co-author of Buying Time 2000, "decided that since Buying Time [was] already published and distributed," he would not "rekindle the issue" even though he had concluded that "[t]here was no mistake in the reassessment" that the seven per cent figure was false. Id. Exh. 30.

5) Although the Brennan Center now claims that it "is sticking by the 7 percent figure," id. at 142, Holman apparently still believes that 13.8 per cent is the correct percentage "with respect to airings," id. at 155-56; see also id. at 154 (stating that authors of Buying Time 1998 should have been clear "whether [the study was] referring to airings or unique ads").

6) According to two of the defendants' experts, if the formula used by the Brennan Center in Buying Time 2000 had been applied to the data underlying Buying Time 1998, the Buying Time 1998 study would have reported that the percentage of "genuine" 1998 issue ads that would be regulated by BCRA was 14.7 per cent. See Krasno & Sorauf Expert Report at 60 n. 143.

7) Goldstein's students originally coded as "genuine" at least eight of the ads the Brennan Center later counted as "sham" issue ads in Buying Time 1998. Analysis of the handwritten student coding sheets- produced pursuant to a subpoena issued to Goldstein-demonstrates that the students determined that the eight ads "provide[d] information about or urge[d] action on a bill or issue." Goldstein Dep. (Vol. 2) at 65-69 & Exhs. 19-21, 78-79 & Exhs. 22-23, 79-80 & Exhs. 24-25, 80-82 & Exhs. 26-27, 83 & Exhs. 28-29, 84-85 & Exhs. 30-32, 85-87 & Exhs. 33-35, 87-88 & Exhs. 36-37.

8) According to one of the plaintiffs' experts, James Gibson,84 Buying Time 1998 would have shown-if the students' original codings had not been disregarded-that 64 per cent of all group-sponsored issue ads aired during the last 60 days of the 1998 election were "genuine" and would have been covered by BCRA. See Gibson Expert Report at 42-43.

9) Although the defendants' experts filed three rebuttal reports in response to Gibson's expert report, none challenged his 64 per cent finding. In his rebuttal expert report, Gibson reconsidered his analysis using the methodology used in Krasno's expert report. See Gibson Rebuttal Report at 23. Crediting the students' judgments once again, Gibson concluded that no less (and likely more) than 50.5 per cent of "genuine" issue ads aired within 60 days of the 1998 general election would have been regulated by BCRA. See id.

g. Like Buying Time 1998, Buying Time 2000 is based on a flawed methodology and is therefore unreliable as evidence of how many "genuine" 2000 issue advertisements would have been regulated by BCRA

1) The authors of Buying Time 2000 concluded that only three "genuine" issue ads in the 2000 database-numbers 627, 1389 and 2862-would have been "unfairly caught by [BCRA]" in the 2000 election season. Holman Dep. at 89-90, Exh. 18.

2) But at least six distinct ads were originally coded as "genuine" by the student coders for Buying Time 2000. See Goldstein Dep. (Vol. 2) at 126-27; Goldstein Expert Report at 26 n. 21. These included numbers 627, 1389 and 2862 and three others as well. See Goldstein Dep. (Vol. 2) at 131-33; Goldstein Expert Report at App. J. That is, three of the six ads were changed from being coded as "genuine" issue ads to "sham" ads in the Buying Time 2000 database. See Goldstein Rebuttal Report at 16; Holman Dep. Exh. 15; McLoughlin Dep. at 44, 47^8, Exh. 13. The students' original coding decisions for the 2000 report have not been preserved and Goldstein has no way of determining precisely how each of the ads was originally coded. See Goldstein Dep. (Vol. 2) at 129; Goldstein Rebuttal Report at 16.

3) In March 2001-shortly before Buying Time 2000 went to press-the Brennan Center called Goldstein on his cell phone at the West Palm Beach airport seeking his judgment on an unknown number of ads aired within 60 days of the 2000 election, all of which were coded by the students as "genuine." After the text of each ad was read to him over the phone, Goldstein overruled the students' judgments and reclassified each ad as an "electioneering" ad. See Goldstein Dep. (Vol. 2) at 57-59, 147-150 ("Q: What was the urgency?" "A: I think the book was going to press.... Feingold was being debated the next week, and Brennan wanted to be able to write a report.... [T]he Brennan Center was trying to get a report out the door around that debate.").

h. Both of the Buying Time reports contain additional flaws that further undermine their evidentiary value.

1) As plaintiffs' expert Gibson testified, the 1998 and 2000 databases upon which the Buying Time studies are based are "subject to continuous alteration by Professor Goldstein, in consultation with the Brennan Center staff." Gibson Expert Report at 46 ("No documents have been produced that indicate how Professor Goldstein has [exercised] or should exercise his enormous discretionary powers to change or recode the data."). There are approximately 12 versions of databases connected to the Buying Time reports. See Gibson Dep. at 210. These databases have been repeatedly changed so that "[n]o database has been ... produced that will generate the specific numbers found in [the Buying Time reports]." Gibson Expert Report at 5, 44.

2) Buying Time 1998, in particular, is a "fundamentally flawed" study. Gibson Expert Report at 4. Because the study contains little, if any, explanation or analysis of the data upon which it relies, even members of the Brennan Center have had difficulty understanding it. See, e.g., Holman Dep. at 32 ("To tell the truth, I couldn't understand much of Buying Time 1998."); Krasno Rebuttal Report at 8 (co-author of Buying Time 1998 acknowledging data set upon which study is based is "maddeningly complex"); Goldstein Dep. Exh. 17 (e-mail from Holman stating "[t]he missing data category is uncomfortably large in the 1998 database").

3) Daniel Seltz, a co-author of the 1998 study, has had little if any training in the methods of quantitative analysis. See Seltz Dep. at 8 (Seltz received a B.A. in 1996 in history and East Asian studies); see also Gibson Expert Report at 6, 45 (neither 1998 nor 2000 study has been subject to scrutiny of objective peer reviewers and methodology underlying each study "has not been judged to be acceptable by the social scientific community").

4) In each of the studies, student coders were all of a "certain educational level" and "certain age level" and were all "[giving in a certain geographical area." Holman Dep. at 228-29. The Brennan Center conceded that the coders were "not representative of the general population" and, therefore, intercoder reliability-i.e., the technique of using multiple respondents to code the same ad "to try to weed out any kind of bias that may be present in one of the coders versus another," id. at 189- could at most establish that "this particular group of students roughly of [the same] age roughly of the same educational background living in roughly the same part of the country with contacts to the same professors tend to see things about the same way," id. at 228, 232, Exh. 1 at 19.

5) One finding from the Buying Time data that was not described in the two reports stemmed from a question asking student coders to determine whether the "primary focus" of a particular advertisement was (1) "personal characteristics"; (2) "policy matters"; (3) "both"; or (4) "neither." Gibson Expert Report at 31-32. The students' answers to this question differed significantly from their answers to Question 6 (in the 1998 study) and Question 11 (in the 2000 study), which asked them to evaluate the "purpose" of a particular ad. In 1998 98.1 per cent of the interest group-sponsored ads broadcast within 60 days of the general election and mentioning a candidate were coded as having policy matters as their "primary focus." See id. at 32-33. In 2000 98.7 per cent of the group-sponsored ads broadcast within 60 days of the general election and mentioning a candidate were coded as having policy matters as their "primary focus." See id. at 59-60. One defense expert acknowledged-and it would be difficult not to acknowledge-that "a very large percentage of the advertisements... had policy issues as their primary focus." Lupia85 Rebuttal Report at 12. Plaintiffs' expert Gibson concluded that the "primary focus" question was superior to Question 6 of the Buying Time 1998 study because it included the option "both" and therefore did not force the student coders into an artificial choice between candidate speech and issue speech. See Gibson Expert Report at 34; see also Buckley, 424 U.S. at 42, 96 S.Ct. 612 ("[T]he distinction between discussion of issues and ... advocacy of election or defeat of candidates may often dissolve in practical application.").

6) Seltz acknowledged that "many ads both provide information about or urge action on a bill or issue and generate support or opposition for a candidate." Seltz Dep. at 188. Krasno, his co-author, acknowledged that the test established by the Supreme Court in Buckley does not distinguish between "candidate-oriented" issue ads and "genuine" or "pure" issue ads. Krasno & Sorauf Expert Report at 58. When asked if he would have designed his studies any differently had he known that speech about both candidates and issues was constitutionally protected, Goldstein conceded that he would have. See Goldstein Dep. (Vol. 2) at 186-89.

7) The reports' authors and the database's creator cannot seem to agree about what constitutes a "genuine" issue ad and what constitutes a "sham" issue ad. An ad sponsored by the National Pro Life Alliance entitled "Feingold Kohl Abortion 60," which aired within 60 days of the 2000 election, announced that

America was outraged when two New Jersey teenagers checked into a Delaware hotel and delivered and exposed [sic] of their newborn baby in a dumpster. Most Americans couldn't believe that this defenseless human life could be so coldly snuffed out. But incredibly, if a doctor had been present that day in Delaware and delivered the infant, all but one inch from full birth and then killed him it would have been perfectly legal. Instead of murder or manslaughter, it would have been called a partialbirth abortion. Killing late in the third trimester, killing just inches away from full birth. Partial-birth abortion puts a violent death on thousands of babies every year. Your Senators, Russ Feingold and Herb Kohl voted to continue this grizzly [sic] procedure. Contact Senators Feingold and Kohl today and insist they change their vote and oppose partial birth abortion. Their number in Washington is XXX-XXX-XXXX.

Defs.' Exhs. Vol. 48, Tab 3 (CMAG Storyboard No. 80). McLoughlin testified that the ad was "genuine" because "[t]he ad's focus is primarily on the issue of partial birth abortion." McLoughlin Dep. at 42. Holman disagreed with his co-author, concluding that the ad was an "electioneering issue ad." Holman Dep. at 67-69. Goldstein-who was so certain in 2000 that the ad was not "genuine" he reversed a student determination that it was-concluded during the course of this litigation that the ad was indeed a "genuine" issue ad. Goldstein Dep. at 135.

44. The ACLU engages in non-partisan political activities designed to influence federal legislation involving civil rights and civil liberties issues of national importance. See Romero Decl. at 1.

a. The ACLU has never taken a position in a partisan political election in its 82-year history, although it frequently takes positions on public issues of significance to the organization and its members. See id. at 2.

b. As an advocacy organization, the ACLU actively lobbies for its positions and frequently talks with federal officials and candidates about civil liberties issues. Although the ACLU does not endorse or oppose the election of particular candidates, its public statements, member communications and other similar activities frequently and necessarily refer to, praise, criticize, set forth, describe or rate the conduct or actions of clearly identified public officials who often are also candidates for federal office. See id.

c. The ACLU regularly publicizes in its membership mailings-and through pamphlets and other publications-the civil liberties voting records, positions and actions of elected officials, all of whom are at some point candidates for federal office. It sends out over 6.7 million pieces of mail each year to its members and potential members. See id.

d. The ACLU has never operated a political action committee and has no interest in establishing one. The creation of a political action committee would be inconsistent with the ACLU's mission and identity as a non-partisan organization. Establishing a political action committee would also have adverse consequences for the organization's members. Under FECA political action committees are required to disclose the identities of their contributors. Many ACLU members and contributors seek explicit assurances that their membership will remain confidential and that their contributions will remain anonymous. See id. at 2-3.

e. The ACLU is primarily a membership-driven organization. Membership dues are not tax deductible. The basic membership fee is $35, although many members contribute more than that. A reduced membership rate is available for students and other low-income individuals. Membership dues accounted for $9,393,948 of the $13,625,051 contributed to the organization by individuals in 2001. Only 212 individuals contributed more than $1,000. Although the ACLU does not maintain records on the corporate status of nonindividual donors, less than $85,000 of the ACLU's total revenues were contributed by business entities and other organizations in 2001. None of the contributions from businesses exceeded $500. Contributions from non-individual donors represent less than one per cent of the ACLU's total annual funding. See id. at 3.

f. Many of the ACLU's public statements involving legislation or executive branch policies-including print and broadcast communications-necessarily refer to clearly identified federal candidates, Members of the Congress or executive branch officials because high profile legislation (like "McCain-Feingold" or "Shays-Meehan") is often publicly identified with its sponsors. Likewise, the ACLU's public statements supporting or opposing the President's policies invariably refer to the President by name. See Murphy Decl. at 4.

45. The NRLC regularly pays to broadcast what BCRA defines as "electioneering communications." See O'Steen Decl. at 1-2.

a. The primary purpose of the NRLC's electioneering communications is to affect legislation. See id. at 3.

b. The NRLC qualifies as an MCFL-type organization under the Supreme Court's decision in FEC v. Massachusetts Citizens for Life . See O'Steen Decl. at 2. c. The NRLC has received donations from political party committees in the past and persons associated with political parties have assisted the NRLC in raising funds. See id. at 3.

d. The NRLC strongly supports a partial-birth abortion ban. It helped initiate the Partial-Birth Abortion Ban Act and published numerous print ads, press releases and educational materials in support of the Act and in an effort to override President Clinton's veto. Some of the ads and materials mentioned federal officials and some mentioned President Clinton after April 10, 1996 while he was a candidate for the 1996 presidential election. See id. at 7-10, Exhs. A-l to A-12.

e. The NRLC has a long history of opposing campaign finance legislation like BCRA. See id. at 10-21, Exhs. B-l to 44.

1) In November 1995 the NRLC sent to all United States Senators a letter opposing newer and stricter campaign finance legislation on grounds that it would "almost entirely eliminate involvement in the political process for ordinary citizens who are not independently wealthy" and would regulate issue advocacy such that groups not organized as political action committees would be unable to inform the public about candidates' positions and voting records. See id. at 11.

2) The NRLC has broadcast advertisements in opposition to campaign finance legislation like BCRA. Many such ads mentioned federal candidates and were broadcast within 30 days of a primary or within 60 days of a general election. See id. at 15-19, Exhs. B-14 to B-19, B-21 to B-25, B-27, B-30, B-31, B-33, B-36 to 39.

3) In January 2000, when Governor Bush and Senator McCain were seeking the Republican presidential nomination, the NRLC used the national attention focusing on the two candidates to continue its long-term battle against campaign finance legislation like BCRA, just as Senator McCain used the national attention to promote the McCain-Feingold legislation. See id. at 19.

46. Common Cause, an interest group not a party to these consolidated actions, has a long history of supporting campaign finance legislation like BCRA.

a. Since its creation in 1970 Common Cause has promoted and supported a strict regulatory regime over campaign finance. -See Keller86 Dep. at 17-18. While it has not run electioneering communications in support of campaign finance restrictions, it has engaged in a variety of activities mentioning federal candidates in the weeks leading up to elections. For example, as the 2000 New Hampshire presidential primary approached, Common Cause "staged an event with both Senator McCain and former Senator Bradley around the issue of [c]ampaign [f]inance [r]eform generally," an event at which the candidates were to pledge their support for campaign finance legislation like BCRA. Id. at 105. At that time, an opinion editorial published on Common Cause's website extolled Senators McCain and Bradley as presidential candidates who uniquely understood the need for campaign finance reform. See id. Exh. 20. The purpose of the editorial "was to raise the visibility of the issue" of campaign finance, not to influence a federal election. Id. at 106. A Common Cause official acknowledged it was "possible" that the editorial influenced the 2000 election but he made clear "that was not [its] intent." Id. at 106-07.

b. During the 2000 election season Common Cause financed a number of "Town Hall Meetings" or "Town Hall Forums" in New Hampshire and other States to promote campaign finance legislation. At least one of the events coincided with active primary campaigns. Several other events mentioned Members of the Congress who would be candidates in the general election and, at still others, Members themselves were present. A Common Cause official stated that while the events might have affected the outcome of the 2000 election, their purpose was not to influence any election or to promote or oppose any candidate. See id. at 116-17, Exh. 23; id. at 132-36, Exh. 30; id. at 136-39, Exh. 31; id. at 139-42, Exh. 32.

c. Within 30 days of a primary election and while Vice President Gore was a presidential candidate, Common Cause distributed a nationwide press release subtitled "Gore Sets Forth Innovative Plan for Reform." Id. at 113-15, Exh. 23. The press release described Gore's proposal as "innovative and promising" and commented that "Gore is again putting forth strong reform proposals in contrast to Governor George W. Bush." Id. Exh. 23. Common Cause stated that the purpose of the press release was not to influence the election but to highlight that "yet another candidate for President was making [c]ampaign [f]inance [r]eform a primary issue in his campaign." Id. at 115. A Common Cause official did not believe the press release promoted or supported Gore but he acknowledged that the statement "could affect a federal election." Id.

d. On October 18, 2000 (shortly before the 2000 general election) Common Cause issued a nationwide press release announcing a "Reform Report Card" that graded Members of the Congress on their support for tighter campaign finance restrictions and listed legislators who had signed a "Public Integrity Pledge," which promised to support campaign finance legislation. See id. at 119-21, Exhs. 25-27. While a Common Cause official acknowledged that the press release could be interpreted to promote particular candidates, he stated that the press release's purpose was not to influence any election or to promote any candidate but to "encourage ... Members of Congress to vote for the Shays-Meehan, McCain-Feingold Bill." Id. at 122-23.

47. NRL ETF has spent and intends to spend funds on broadcast and print communications that do not refer to a candidate but do (1) appear within 60 days of a general election and (2) discuss issues that are contested and on which the candidates have taken a position. See O'Steen Decl. at 4. NRL ETF qualifies as an MCFL-type organization under the Supreme Court's decision in FEC v. Massachusetts Citizens for Life . See O'Steen Decl. at 4.

48. NRL PAC regularly enters contracts for independent expenditure communications days, weeks and months in advance of the time the actual expenditures are made. See id. at 5.

49. Club for Growth's goal is to help its members identify races to which their contributions-combined with those of many other members-should be sent so that they can influence public policy in accord with the Club's values of economic freedom. See Keating Aff. at 3.

a. Club for Growth is involved in the political process in two major ways; it bundles contributions to candidates and it engages in broadcast issue advocacy. See id. at 4-5.

b. Club for Growth's television and radio ads do not contain express words of advocacy but identify candidates' positions on tax cuts, tax reform, free-market issues and other economic issues of concern to the Club. See id. The Club's ads are frequently broadcast during the 30 days before a primary election and the 60 days before a general election and are intended to educate voters about federal and state candidates' records and platforms. See id. at 5-6.

50. The NAB serves and represents the American broadcasting industry and has approximately 7,300 member stations throughout the country. All of the NAB's voting members are broadcast licensees within the meaning of the FCA. See Goodman Decl. at 2.

a. The NAB's members broadcast, on television and radio, an extensive number of political advertisements that take positions on issues of public importance. The ads are funded by individuals, groups, labor unions, incorporated entities and others. They often refer to a candidate for federal office and are broadcast in that candidate's district within 60 days of a general election or within 30 days of a primary. Thus, many of the ads fall within BCRA's definition of "electioneering communication." See id. at 3.

b. The NAB's Annual Report and Member Resource Guide and its "Political Broadcast Catechism" publication provide member stations with guidance as to their obligations under the rules of political broadcasting. See id. at 2-3, Exhs. 2-3.

c. Although the precise amount of money paid to the NAB's member stations by the sponsors of electioneering communications is not specifically known, NAB members collectively receive millions of dollars every election cycle to air such ads. See id. at 3.

d. BCRA section 504 requires the personnel at NAB member stations to make what will often be a difficult and sensitive decision about whether a particular communication relates to a "political matter of national importance," a decision for which station sales personnel are not trained. Section 504 will also materially add to the amount of records NAB members must maintain. See id. at 6.

e. NAB members are likely to have difficulty discerning whether a particular communication relates to a "political matter of national importance" and are therefore likely to have difficulty discerning whether and under what circumstances recordkeeping and disclosure are required. See id. at 7.

51. The NRA's frequent references to candidates for federal office in the programming it broadcasts throughout the election cycle-including the periods immediately preceding primaries and general elections-are essential to its political mission of educating the public about Second Amendment and related firearm issues. See LaPierre Decl. at 1-3. They also enable the NRA to respond directly and effectively to frequent criticism by politicians and the media. See id. at 12, 15-17; McQueen87 Decl. at 9-14; see also, e.g., NRA App. at 223-44 (examples of ads criticizing NRA).

a. The NRA 30-minute news magazine entitled "California" aired more than 800 times in California from August 29, 2000 through November 5, 2000 and 595 of the airings were in one of the nation's top 75 television markets. See LaPierre Decl. at 5; NRA App. at 216. Although the program pictured Vice President Gore, it focused primarily on the history of gun confiscation in California. See LaPierre Decl. at 5-6 (only reference to federal candidate occurred when "a cover of an issue of the NRA's magazine `First Freedom' depicting Vice President Gore, then a presidential candidate, flashed on the screen for several seconds"). b. In 2000-on at least 438 occasions in the 60 days prior to the general election- the NRA aired a 30-minute news magazine entitled "It Can't Happen Here." See NRA App. at 1005^9. The program contained the same brief depiction of Vice President Gore as the "California" news magazine did. See LaPierre Decl. at 6.

c. In response to the media's coverage of the Million Mom March, the NRA aired a 30-minute news magazine that examined the forces and influences behind the March. See id. at 17. The news magazine aired dozens of times in the 60 days prior to the 2000 general election. See NRA App. at 245^48. The program made references to Senators Hatch and Feinstein and senatorial candidate Clinton and several of the references would have been covered by BCRA if the statute had then been in effect. See id. at 245-51; id. at 931 (Senator Hatch stating "[i]t's hypocritical" for Rosie O'Donnell's bodyguard to carry a gun); id. at 933 (woman stating candidate Clinton was at the March "for [her] own political gain").

d. The 60,623 airings of all issue ads (whether "genuine" or "sham") considered in Buying Time 2000 ran for 31,069 minutes. See NRA App. at 1005^9. "California" and "It Can't Happen Here" aired in top television markets for 25,140 minutes in the 60 days prior to the 2000 general election. See id. at 216, 1005^49. The "Union/Gore" program featuring Charlton Heston, see supra Finding 42a at page 305, ran for 17,220 minutes in top television markets in the 60 days prior to the 2000 general election. See NRA App. at 108 (NRA infomercial data). If Buying Time 2000 had considered these airings- and had coded them as "genuine"-at least 34 per cent (by duration) of the issue advertising that BCRA would have regulated in the 60 days prior to the 2000 general election would have been "genuine."

e. On March 2, 2000 President Clinton appeared for a 15-minute interview on NBC's "Today Show," during which he repeatedly criticized the NRA by name and stated that "most Americans have [no] idea what a stranglehold the NRA has had on [the] Congress." Id. at 907 (interview transcript). In order to respond to what it believed were unfair comments, the NRA developed a series of 30- and 60-second paid television ads in which NRA President Heston responded to President Clinton by name. See id. at 914 ("Mr. Clinton, you say ... the NRA is `against anything that requires anybody to do anything as a member of society that helps to make it safer.' Are you talking about the NRA whose gun accident prevention program has been distributed to 12 million school kids? Are you talking about the millions of NRA members who pay for it all?"). The NRA intended this series of ads to highlight the controversy with the President and to gain a forum in the national news media. The NRA's strategy succeeded in large measure because of the NRA's ability to purchase broadcast time and to respond to the President by name. See LaPierre Decl. at 11-12; McQueen Decl. at 9-14.

f. The NRA's financial strength is derived from pooling the resources of millions of Americans who seek to preserve what they believe is their constitutional right to keep and bear arms. See La-Pierre Decl. at 23. Almost all of the NRA's net revenues are derived from individual contributions, which averaged $30 per person in 2000. See id. at 23-24. Corporate contributions account for less than one per cent of the NRA's funds. See id. at 24.

g. The NRA's political action committee, NRA PVF, is unable to raise funds that fairly reflect individuals' support for the NRA's political mission and message. 1) While NRA PVF raised $17.5 miUion during the 2000 election cycle, the NRA received over $300 million in contributions from individuals during the same period. See NRA App. at 198; Cross Exam, of PI. Witness Adkins88 at 41. The disparity stems from the inability of NRA members-most of whom are individuals of modest means-to pay the NRA's membership fees and then contribute beyond that amount to NRA PVF. See LaPierre Decl. at 15.

2) Political action committees cannot finance more than a small fraction of the electioneering communications that corporations and unions have been able to fund from their treasury funds. See id. at 14-15; Boos89 Decl. at 4-13; Keating Decl. at 11; Pratt90 Decl. at 13-20.

3) Because many NRA members believe they face a risk of retaliation and harassment as a result of their views, they would not donate to NRA causes if doing so required them to disclose their identities. See LaPierre Decl. at 24-25; Adkins Decl. at 2; NRA App. at 884 (letter from member to NRA PVF Treasurer upon being informed that FEC requires information about all persons who contribute $200 and over: "I am 73 years old and retired [but] I do not want to expose my current parttime employer to retaliation, so could you please send me a penny so that my contribution will be $199.99?").

52. Business associations need to be able to communicate their views to the public. Accordingly, many businesses regularly sponsor television, radio, cable and other public communications about matters of public interest. See Josten Direct Test, at 1; Monroe Direct Test, at 7.

a. Sometimes business associations sponsor broadcast communications directly and in their own names. In 1999, for example, Chamber of Commerce President Tom Donohue delivered a series of radio talks entitled "Speaking of Business." See Josten Direct Test, at 1. On two occasions in the late 1990s NAM sponsored in its own name issue ads supporting the President's tax proposals. See Huard Direct Test, at 1.

b. On other occasions business associations contribute to coalitions of like-minded organizations that prepare and air the communications. See Josten Direct Test, at 1-2; Huard Direct Test, at 1-2.

1) In March 2000 the Chamber of Commerce supported issue ads run by American Business for Legal Immigration. See Josten Direct Test, at 2.

2) "The Coalition: Americans Working for Real Change" is one example of a coalition joined by many businesses. In early 1996 the AFL-CIO announced that it would spend a large sum-allegedly $35 million-on issue advertisements attacking the Republican legislative agenda. The business community immediately decided that a response was necessary. In April 1996 five leading business associations- including the Chamber of Commerce and NAM-formed the Coalition. See Huard Direct Test, at 1-2. The Coalition recruited about 30 organizations as public members, in addition to many contributors who asked not to be identified publicly. The Coalition ultimately raised and spent about $5 million on broadcast issue ads during 1996. See Josten Dep. at 29; Huard Dep. at 66.

c. The Chamber of Commerce, NAM and ABCI find that their ability to assure contributors that contemplated advertisements will not be "express advocacy"-and that the contributors' identities, therefore, will not be required to be disclosed-is vital to obtaining contributions. Contributors seek anonymity with respect to particular issue ads for a wide range of reasons. Some fear that the ads may provoke or exacerbate difficulties with opposing groups such as labor organizations. Others fear that state or federal officials may retaliate. See Huard Direct Test, at 4; Josten Direct Test, at 4; Monroe Direct Test, at 5.

1) The Chamber of Commerce's Bruce Josten testified that members who support ads do "not want to be identified out of concerns that they may become targets or recipients of corporate campaigns or other types of what some would call union harassment activities." Josten Dep. at 28.

2) Stephen Sandherr, Chief Executive Officer of the Associated General Contractors of America, said his members "were concerned that if their contributions were publicly disclosed ... their local building trades would take offense and would threaten actions on the job site or would threaten to make life miserable for them." Sandherr Dep. at 45.

3) ABCI's Edward Monroe testified that ABCI lost members who suffered acts of vandalism after their contributions were publicly disclosed. See Monroe Direct Test, at 5. Monroe also testified that potential members sometimes decline to join ABCI because they "do not trust our ability to keep [their] information confidential." Cross Exam, of PI. Witness Monroe at 88-89.

d. In a rapidly moving communications environment, BCRA's requirement that a public report be filed within 24 hours each time a business association or its agent executes a contract to disburse a certain amount of funds for an electioneering communication imposes a severe burden on businesses' political advertising efforts, as does BCRA's requirement that all contributors of more than $1,000 be publicly identified. See Josten Direct Test, at 4; Monroe Direct Test, at 6.

1) Because expenditure amounts often become clear only as an advertising project progresses, it can be difficult to determine whether a particular contract (or subcontract or addendum) requires disbursements of more than $10,000. It can also be difficult to determine which of an ad's revisions is a new contract requiring disbursements of more than $10,000. See Huard Direct Test, at 4; Josten Direct Test, at 4; Monroe Direct Test, at 6.

2) BCRA's requirement of public notice when a contract to disburse is executed informs other associations and individuals what is being planned. Ideological opponents may take preemptive measures to render the planned communication impossible or ineffective. See Josten Direct Test, at 5.

e. Business associations' issue ads often, and of necessity, refer to federal candidates.

1) Federal officeholders and candidates are prominent individuals whose support of or opposition to a particular policy or bill may have important persuasive and informational effects. Calling proposed legislation a "Gingrich tax proposal" or a "Kennedy labor bill" often reveals more to the electorate than does a complex description of the policy or bill. See Huard Direct Test, at 2-3 ("[M]any people understand the general political inclinations of prominent officials or candidates better than they understand the intricacies of legislative policy."). 2) A flurry of legislative action often occurs near the end of a congressional session, see Cross Exam, of Def. Expert Mann at 176, and often, therefore, within 60 days of a general election. If business associations and coalitions cannot air nearelection ads mentioning federal candidates or officeholders, they will have greater difficulty educating the public about, and motivating it to take action on, legislative proposals of interest to the business community. See Monroe Direct Test, at 3; Monroe Dep. at 60.

f. Some business associations have chosen to establish political action committees. For example, the Chamber of Commerce and ABCI have established, respectively, U.S. Chamber PAC and ABC PAC. See Josten Direct Test, at 5; Monroe Direct Test, at 9. Other business associations, including NAM, have considered sponsoring a political action committee but have concluded that the regulatory and financial burdens of doing so outweigh the political utility. See Huard Direct Test, at 3.

53. Two of the AFL-CIO's primary missions are to provide an effective political voice to workers on public issues that affect their lives and to fight for an agenda at all levels of government for working families. See G. Shea Decl. at 3. BCRA's ban on corporate and labor disbursements for electioneering communications and the statute's disclosure and reporting requirements significantly interfere with the AFL-CIO's missions.

a. The AFL-CIO maintains an active lobbying program aimed at influencing federal and state legislation and executive branch decisions affecting workers and their families. See id. at 5-23, Exhs. 2-18. The AFL-CIO's lobbying activities focus on a broad range of domestic and foreign policy matters of importance to union members, non-union workers, retirees and their families. See id

b. The AFL-CIO relies on an extensive, year-round broadcast advertising program to gain public support for its legislative and policy agendas.

1) Between 1995 and 2001 the AFLCIO sponsored in its own name over 70 "flights"91 of television or radio advertisements, including seven flights in 1995, 25 in 1996, 10 in 1997, 12 in 1998, six in 1999, 13 in 2000 and four in 2001. See D. Mitchell92 Decl. Exh. 1. During the same period the AFL-CIO co-sponsored seven flights of radio ads with other organizations under the name of a coalition or a coalition partner. See id.

2) The primary focus of the AFL-CIO's broadcast advertising in 1999 and 2000 was the "Patient's Bill of Rights," which had failed to gain approval in the previous Congress. See id. at 28, 30, Exhs. 117-123, 137-138; G. Shea Decl. at 21-22. The AFL-CIO also aired several flights of ads from February 2000 through June 2000 in opposition to President Clinton's proposal for permanent, normalized trade relations with China.93 See D. Mitchell Decl. at 29-30, Exhs. 127-136; Cross Exam, of PI. Witness D. Mitchell at 98; G. Shea Decl. at 20-21.

3) The timing of the AFL-CIO's broadcast advertisements is often dictated by upcoming votes in the Congress or by other events related to the legislative process. See D. Mitchell Decl. at 16-35 (providing specific examples); G. Shea Decl. at 9-23 (providing specific examples); see also D. Mitchell Dep. at 27-29, 31-32. During the weeks and months following an election or when the Congress adjourns its annual session, the AFL-CIO does not generally air ads because the public's attention usually turns to the upcoming holidays. See G. Shea Dep. at 55-57. When the Congress was in session in December 1995 during the federal budget crisis, however, the AFL-CIO broadcast a series of ads to influence its resolution. See D. Mitchell Decl. at 16-17.

4) While the AFL-CIO often broadcasts advertisements to influence short-term legislative action, it also broadcasts them to create long-term support for its positions. See D. Mitchell Dep. at 30-32; G. Shea Dep. at 52-53.

5) The "targets" of the AFL-CIO's broadcast advertisements are selected on the basis of substantive and tactical factors, including the legislative issue involved; a legislator's committee assignments, prior voting record on similar legislation or leadership role with respect to particular legislation; the extent to which the target might help generate "free media" for the AFL-CIO's political message; and the concentration of union members in the jurisdiction targeted. See D. Mitchell Decl. at 7-8; D. Mitchell Dep. at 20-21, 205-06, 209-12; Cross Exam, of Pl Witness D. Mitchell at 198-200.

(A) The AFL-CIO's ads have targeted both Democratic and Republican officeholders and candidates. See D. Mitchell Decl. at 7-8, Exhs. 1-22; Cross Exam, of PI. Witness D. Mitchell at 100, 179-80; Cross Exam, of PI. Witness G. Shea at 31-32.

(B) The AFL-CIO's ads have targeted more Republicans than Democrats because Republicans generally favor legislation opposed by organized labor. See D. Mitchell Decl. at 7-8; Cross Exam, of PL Witness D. Mitchell at 100, 127-28; G. Shea Decl. at 13.

(C) The AFL-CIO's ads have targeted Democrats when Democrats have taken positions opposed by organized labor or when Democrats have been undecided on issues such as trade policy. See G. Shea Decl. at 12; Cross Exam, of Pl Witness G. Shea at 31-32; D. Mitchell Dep. at 26-28, Exh. 2; Cross Exam, of Pl Witness D. Mitchell at 100-01,180-81.

6) With respect to advertisements run in the weeks and months immediately preceding a general election, the AFL-CIO sometimes selects jurisdictions in which the candidates named in the advertisements are expected to be involved in close races. Based on experience and on advice it receives, the AFL-CIO believes that policymakers and the public are far more likely to pay attention to the organization's political message when an election is competitive than when an officeholder has no significant opposition. See D. Mitchell Decl. at 8; D. Mitchell Dep. at 17-20, 74, 205-06; Cross Exam, of Pl Witness D. Mitchell at 128, 199; see also Rosenthal94 Dep. at 95-97 (asserting that "if you are trying to help shape public debate, if you are helping to move elected officials to support a certain issue agenda, [issue] ads work best if they are run in a place where there is a competitive political environment"). 7) The AFL-CIO's broadcast advertisements identify the AFL-CIO as their sponsor by using phrases like "paid for by the working men and women of the AFLCIO." D. Mitchell Decl. Exhs. 2-22; see D. Mitchell Dep. at 103-04; G. Shea Dep. at 58-59; Rosenthal Dep. at 18. There have been only a few exceptions to this practice, all of which involved the AFLCIO's sponsorship of advertisements under the name of coalitions created with other organizations. In those circumstances, it was not appropriate to list only the AFL-CIO as the sponsor. See D. Mitchell Dep. at 101-06; G. Shea Dep. at 59-60.

8) For cost reasons, the AFL-CIO runs virtually identical broadcast advertisements in several jurisdictions, often changing only the name of the targeted officeholder or candidate. See D. Mitchell Decl. at 5-6, Exh. 1.

c. Pre-BCRA, 18 flights of AFL-CIO issue ads were broadcast within 60 days of a general federal election in which the officeholders named in the ads were candidates. If BCRA had been in effect at the time the ads aired, the AFL-CIO would be subject to civil and criminal penalties for spending any funds on any of the ads in the 18 flights, including the following ads.

1) "No Two Way"-a television and radio advertisement focusing on an incipient fight in the Congress over the education budget-ran between September 5 and September 17, 1996 in media markets serving approximately 35 congressional districts. See id. at 21-22, Exh. 1; Cross Exam of PI. Witness D. Mitchell at 27. The ad informed viewers and listeners that the named congressman in their area had voted with House Speaker Newt Gingrich to cut the college loan program in October 1995 and that the "Congress will vote again on the budget." D. Mitchell Decl. at 22. It ended by urging viewers and listeners to "Tell [the named congressman] don't write off our children's future.' ... Tell him his priorities are all wrong." Id. The ad included a toll-free number to be used in contacting the named congressman.

2) "Deny," another flight of television and radio ads, ran between September 10 and September 23,1998, shortly before the Senate was scheduled to vote on an HMO reform bill the AFL-CIO considered "extremely inadequate." Id. at 27, Exh. 1. "Deny" referred to approximately 17 Senators the AFL-CIO and its allies believed could be persuaded to vote for a stronger version of the bill. Thirteen of the Senators were not candidates in the 1998 election but four were. See id. at 27.

3) "Barker," an AFL-CIO radio advertisement, ran in eight congressional districts beginning on September 21, 1998 after a vote on "Fast Track" trade legislation was hastily scheduled for September 25. The ad urged listeners to call their congressman to "tell him to vote no on Fast Track. Tell him we're still paying attention. And Fast Track is still a bad idea." Id. at 28.

d. The AFL-CIO's broadcast advertisements would be significantly less effective if they did not mention legislative events. See id. at 16-35; G. Shea Decl. at 9-23; see also D. Mitchell Dep. at 27-29, 31-32. Furthermore, many of the AFLCIO's broadcast advertisements would be significantly less effective if they had to be aired outside of the weeks immediately preceding primary and general federal elections-during which period a substantial amount of legislative business occurs and citizens, officeholders and candidates are more likely to pay attention to the AFL-CIO's political message. See D. Mitchell Decl. at 8; Mitchell Dep. at 17-20, 74, 205-06; Cross Exam, of Pl Witness D. Mitchell at 128, 199; Rosenthal Dep. at 95-97; Gibson Rebuttal Report at 26-28 (refuting defense expert Goldstein's assertion that "a reasonable interest group would not air its issue ads during an electoral period").

e. The AFL-CIO's broadcast advertisements would be significantly less effective in influencing legislation and policy if they did not identify federal officeholders and candidates by name. Issue advertisements that identify policymakers by name and describe in detail their records can have greater impact on those policymakers than do issue ads that refer to issues more generically. Likewise, an ad that urges viewers or listeners to contact a specific policymaker regarding a political issue is more likely to engage them on the issue than is an ad that does not ask them to take any action. See D. Mitchell Decl. at 8; D. Mitchell Dep. at 33-34; G. Shea Dep. at 33-34; see also Feingold Dep. at 238-39 (acknowledging that constituents often call in response to television advertisements).

f. If the AFL-CIO is prohibited from using its general treasury funds to sponsor broadcast issue advertisements of the kind it has run in the past, it will be unable to finance such ads to the same degree using federal contributions to its federally-registered political action committee, the AFLCIO Committee on Political Education Political Contributions Committee (COPE PCC). See Rosenthal Decl. at 7-9; Rosenthal Dep. at 57-65.

1) Contributions to COPE PCC may be made only by union members and their families-or by certain employees of the AFL-CIO itself-and the amount of money that can be raised from these sources is generally limited and unlikely to increase to the extent necessary to replace the treasury funds now spent on issue advocacy. See Rosenthal Decl. at 7-8.

2) During 1998 and 2000 the AFL-CIO spent $8.4 million and $17.9 million, respectively, on its broadcast advertising program, see D. Mitchell Decl. at 15, while COPE PCC raised only $1.4 million and $1.1 million during those years, see Rosenthal Decl. at 8.

3) Any amount of funds COPE PCC spends on issue advertising necessarily reduces the amount of funds available for cash and in-kind contributions made directly to candidates, as well as the money available to support independent expenditures on behalf of candidates. See id. at 7-9.

4) Union members and other workers are generally unable to make large contributions of federal funds to political action committees or similar entities to support broadcast advertising. See id. at 9. Also, in contrast to many corporate officials and other wealthy individuals, union members and other workers are generally unable to afford the high cost of personally sponsoring broadcast issue advertisements.

g. Since 1996 the AFL-CIO's political adversaries have made numerous efforts to pressure broadcast stations into refusing to run the AFL-CIO's ads. Some of the stations have given in to the pressure. See D. Mitchell Decl. at 12-13, Exh. 24; D. Mitchell Dep. at 174-76. If the AFL-CIO is required to file reports with the FEC regarding its proposed broadcast advertisements-or if broadcast stations are required to obtain such information and make it available to the public in advance of actually running the ads-efforts to interfere with the AFL-CIO's advertising program will likely intensify. See D. Mitchell Decl. at 13-15.

h. Advance disclosure of the AFLCIO's advertisements will interfere with and have a chilling effect on the organization's broadcasting program by forcing it to reveal its plans and strategies before they are finalized and by giving opponents the opportunity to prepare counter-messages. See id. i. For similar reasons, BCRA's requirement that a committee like COPE PCC disclose to the FEC within 24 to 48 hours its contracts to make independent expenditures will deter COPE PCC from making such expenditures. See Rosenthal Decl. at 9-10.

54. The record reflects that BCRA's ban on corporate and labor disbursements for electioneering communications will not prevent actual or apparent corruption of federal candidates.

a. To the extent that corporate and labor disbursements for electioneering communications corrupt or appear to corrupt federal candidates-and little or nothing in the record suggests that they do, see infra Finding 54b at page 325-BCRA leaves unregulated many communications that pose as great a risk of actual or apparent corruption.

1) Newspaper ads often dwarf broadcast ads, especially radio ads, in terms of their expense. For instance, a full-page ad in the New York Times can cost $65,000 whereas a 60-second radio broadcast that recites precisely the same text in a small market such as Peoria would cost only $75. See McQueen Decl. at 8; NRA App. at 256-57.

2) Direct mail is a vital, expensive and effective component of mass advertising campaigns designed to influence federal elections. See Magleby Expert Report at 25, 53; LaRocco95 Decl. at 2 (in 1994 election "the Christian Coalition circulated 370,000 `voter guides' in the 1st District of Idaho that were intended to create negative impressions among voters and influence the outcome of the election"); Pennington Decl. at 2-3.

3) Ads broadcast over the internet are comparable to those broadcast over television and radio in terms of their public reach and impact and will almost certainly grow in influence in the coming years. See McQueen Decl. at 6-7.

(A) More than 168 million Americans, or 60 per cent of the general public, use the internet. See NRA App. at 348-49. More Americans use the internet than read a daily newspaper, see id., and internet usage is growing rapidly, see id. at 352. This trend is likely to continue because internet usage has grown at close to a rate of 100 per cent per year in recent years. See id.

(B) As a source of news and information, the internet rivals and is displacing the broadcast media. See id. at 443-99 (Pew Research Center study entitled "Internet Sapping Broadcast News Audience"). The rapid growth in internet usage is one of the reasons for the dramatic decline in broadcast news program viewing. See id. The internet has also become an increasingly popular source of political news during election periods. See id. at 408, 427.

(C) Numerous websites provide an alternative source of daily news that challenges the market dominance previously enjoyed by the traditional media. See id. at 500-01, 505-08. For example, the Drudge Report-an internet news service started by a single individual unaffiliated with any media company-receives up to five million visits per day. See id. at 507.

4) Issue ads broadcast outside the 30-day window preceding a primary election and the 60-day window preceding a general election can influence the election. See Milkis Rebuttal Report at 5.

5) The media industry is no longer "unique" in the way that it was 10 or 15 years ago. (A) Over the past decade the role of the traditional media in informing and educating the public has been profoundly altered by the emergence of the internet. See supra Finding 54a.3 at pages 243^4.

(B) Since the mid-1980s many media entities have been subsumed within larger corporate conglomerates and have devoted their resources to bottom-line profits. See NRA App. at 620, 625-26, 631-39, 671-72. CBS has been acquired twice in the past decade, first by Westinghouse and then by Viacom; it is now a subsidiary of a conglomerate that runs oil companies, farms, theme parks and mining companies. See id. at 546-50, 554-56. Similarly, ABC is now part of the entertainment empire of Walt Disney Corporation, see id. at 522-26, NBC is owned by General Electric, see id. at 541^5, and Fox Television is part of Rupert Murdoch's global News Corporation, which owns transportation companies and sports teams, see id. at 532-38.

(C) Media subsidiaries in some circumstances have been pressured by their nonmedia parent corporations to advance the interests of the parent or of the affiliated non-media businesses. See id. at 600, 861-81. Some media companies have refused to cover stories that might compromise the interests of the parent or of the affiliated entities. See id. at 687-93.

6) The media industry is better able to influence elections than are corporations in any other industry because it can use its news reporting and editorial functions to influence public opinion about politicians and political candidates. See id. at 714-803.

b. None of the evidence the defendants have offered materially supports the proposition that corporate and labor disbursements for issue advocacy corrupt or appear to corrupt federal candidates. Nor does the evidence show that BCRA would alleviate actual or apparent corruption "in a direct and material way" to the extent that either exists. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). The defendants submit only unexamined anecdotal accounts of political consultants, legislators and former legislators for three propositions that, even if true, do not demonstrate that corporate and labor disbursements for issue advocacy corrupt or appear to corrupt federal candidates:

· "Unlike the general public, federal candidates and parties know who runs advertisements covered by the BCRA, sometimes because those running the ads make sure they know." FEC's Am. Proposed Findings of Fact at 214 (capitalization altered); see id. at 214-15.
· "Federal candidates who benefit from advertisements covered by the BCRA are grateful for the outside help." FEC's Am. Proposed Findings of Fact at 215 (capitalization altered); see id. at 215-18.96
· "Parties whose candidates benefit from advertisements covered by the BCRA are grateful for the outside help." FEC's Am. Proposed Findings of Fact at 218 (capitalization altered); see id. at 218-19 (citing Resp. of AFLCIO and COPE PCC to FEC's First Reqs. for Admis. at 10 (acknowledging that "[a]t least one [political [p]arty has expressed appreciation or gratitude for [the AFL-CIO's] financing of at least one" electioneering communication)).

3. Limits on "Coordinated Expenditures"

As to BCRA's limits on "coordinated expenditures," see generally supra Part II.C, I would find that:

55. Since 1976 the Act has treated an expenditure that is "coordinated" with a candidate as a contribution. See 2 U.S.C. § 441a(a)(7)(B)(i).

56. In December 2000 the FEC promulgated new regulations that defined "coordination" narrowly in the context of "general public political communications." See General Public Political Communications Coordinated with Candidates and Party Committees; Independent Expenditures, 65 Fed.Reg. 76138 (Dec. 6, 2000). Under the FEC's December 2000 regulations, a disbursement for a communication was "coordinated" with a candidate if the communication was created, produced or distributed (1) "[a]t the request or suggestion of the candidate or party committee; (2) after the candidate or party committee had "exercised control or decision-making authority" over the content or distribution of the communication; or (3) after "substantial discussion or negotiation" resulting in a "collaboration or agreement" between the creator, producer, distributor or payer of the communication and the candidate or party committee about the content or distribution of the communication. 11 C.F.R. § 100.23(c)(2).

57. BCRA section 214 repealed the FEC's December 2000 coordination regulations because, according to one of BCRA's sponsors, they were "far too narrow to be effective in defining coordination in the real world of campaigns and elections and threaten[ed] to seriously undermine the soft money restrictions contained in [BCRA]." 148 CONG. REC. S2145 (daily ed. Mar. 20, 2002) (statement of Sen. McCain). The provision directed the FEC to promulgate new regulations that "shall not require agreement or formal collaboration to establish coordination" between a candidate (or political party committee) and an entity making a disbursement. BCRA § 214(c); FECA § 315 note; 2 U.S.C. § 441a note. In accordance with that mandate, the FEC on January 3, 2003 promulgated a final rule on "coordinated communications." See supra note 45. The rule provides as follows:

§ 109.21 What is a "coordinated communication"?
(a) Definition. A communication is coordinated with a candidate, an authorized committee, a political party committee, or an agent of any of the foregoing when the communication:
(1) Is paid for by a person other than that candidate, authorized committee, political party committee, or agent of any of the foregoing;
(2) Satisfies at least one of the content standards in paragraph (c) of this section; and
(3) Satisfies at least one of the conduct standards in paragraph (d) of this section.
.....
(c) Content standards. Each of the types of content described in paragraphs (c)(1) through (c)(4) satisfies the content standard of this section.
(1) A communication that is an electioneering communication ....
(2) A public communication that disseminates, distributes, or republishes, in whole or in part, campaign materials prepared by a candidate, the candidate's authorized committee, or an agent of any of the foregoing, unless the dissemination, distribution, or republication is excepted under 11 CFR 109.23(b)....
(3) A public communication that expressly advocates the election or defeat of a clearly identified candidate for Federal office.
(4) A communication that is a public communication ... about which each of the following statements in paragraphs (c)(4)(i), (ii), and (iii) of this section are true.
(i) The communication refers to a political party or to a clearly identified candidate for Federal office;
(ii) The public communication is publicly distributed or otherwise publicly disseminated 120 days or fewer before a general, special, or runoff election, or 120 days or fewer before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate; and
(iii) The public communication is directed to voters in the jurisdiction of the clearly identified candidate or to voters in a jurisdiction in which one or more candidates of the political party appear on the ballot.
(d) Conduct standards. Any one of the following types of conduct satisfies the conduct standard of this section whether or not there is agreement or formal collaboration, as defined in paragraph (e) of this section:
(1) Request or suggestion.
(i) The communication is created, produced, or distributed at the request or suggestion of a candidate or an authorized committee, political party committee, or agent of any of the foregoing; or
(ii) The communication is created, produced, or distributed at the suggestion of a person paying for the communication and the candidate, authorized committee, political party committee, or agent of any of the foregoing, assents to the suggestion.
(2) Material involvement. A candidate, an authorized committee, a political party committee, or an agent of any of the foregoing, is materially involved in decisions regarding:
(i) The content of the communication;
(ii) The intended audience for the communication;
(iii) The means or mode of the communication;
(iv) The specific media outlet used for the communication;
(v) The timing or frequency of the communication; or
(vi) The size or prominence of a printed communication, or duration of a communication by means of broadcast, cable, or satellite.
(3) Substantial discussion. The communication is created, produced, or distributed after one or more substantial discussions about the communication between the person paying for the communication, or the employees or agents of the person paying for the communication, and the candidate who is clearly identified in the communication, or his or her authorized committee, or his or her opponent or the opponent's authorized committee, or a political party committee, or an agent of any of the foregoing. A discussion is substantial within the meaning of this paragraph if information about the candidate's or political party committee's campaign plans, projects, activities, or needs is conveyed to a person paying for the communication, and that information is material to the creation, production, or distribution of the communication.
. . . . .
(e) Agreement or formal collaboration. Agreement or formal collaboration between the person paying for the communication and the candidate clearly identified in the communication, his or her authorized committee, his or her opponent, or the opponent's authorized committee, a political party committee, or an agent of any of the foregoing, is not required for a communication to be a coordinated communication. Agreement means a mutual understanding or meeting of the minds on all or any part of the material aspects of the communication or its dissemination. Formal collaboration means planned, or systematically organized, work on the communication.
(f) Safe harbor for responses to inquiries about legislative or policy issues. A candidate's or a political party committee's response to an inquiry about that candidate's or political party committee's positions on legislative or policy issues, but not including a discussion of campaign plans, projects, activities, or needs, does not satisfy any of the conduct standards in paragraph (d) of this section.

68 Fed.Reg. at 453-55.

58. The ACLU's legislative efforts include many activities directly associated with lobbying but do not involve contributions to candidates, political parties, political committees or participation at fundraising functions sponsored by candidates or political organizations. See Murphy97 Decl. at 2.

a. The ACLU regularly meets, speaks or corresponds with Members of the Congress and executive branch officials regarding proposed or pending legislation or executive action that may affect civil liberties. See id.

b. The ACLU routinely testifies before the Congress, conducts staff briefings for the Congress and provides Members with ACLU position papers. See id.

c. The ACLU holds press conferences, issues press releases, offers public commentary and makes regular media appearances and other public appearances asserting the organization's civil liberties positions on different legislative and executive initiatives. See id.

d. The ACLU works to build coalitions around common issues. It associates with at least 20 coalitions in a combined membership of over 250 organizations. The ACLU's legislative activities are frequently coordinated with other coalition partners. See id.

e. The ACLU maintains a congressional scorecard on important civil liberties issues and periodically publishes different guides on such issues. See id. at 3.

f. The ACLU and other organizations often work with Members of the Congress to ensure that proposed legislation is consistent with civil liberties principles. See id.

59. Under BCRA's definition of "coordination," as implemented by the FEC's regulations, many of the ACLU's legislative activities are subject to the prohibitions and limitations of FECA even though the ACLU does not engage in those activities for the purpose of influencing federal elections. See id. at 3^.

60. The NRLC regularly lobbies federal legislators, consults with federal candidates about their positions on certain issues, disburses funds for electioneering communications and publishes printed communications, including what are known as "voter guides." Some of these activities are undertaken without communication with candidates and some are undertaken after communication with candidates. See O'Steen Decl. at 2.

61. A given business association's broadcast advertisements often address issues the association has discussed with Members of the Congress, representatives of political parties and various cooperating organizations of all types. See Josten Direct Test, at 2. Business associations want to maintain contacts with Members of the Congress while participating in issue advocacy at the same time. See Huard Direct Test, at 3.

a. An association operating under a vague or overbroad definition of coordination faces serious risks each time it sponsors public communications either directly or through groups of like-minded organizations or individuals because any discussion with a legislator may later serve as the basis for an allegation that an association has coordinated a particular communication's content with the legislator. Likewise, a meeting with a legislator whose policy views are consistent with the association's views and with its advertisements may lead to a charge of coordination. See Josten Direct Test, at 3; Monroe Direct Test, at 3-4; DeFrancis98 Dep. at 12, 21, 35, 43, 57.

b. The threat posed by a vague or overbroad definition of "coordination" is illustrated by the experience of the Chamber of Commerce, NAM and other business associations that were investigated in FEC Matter Under Review (MUR) 4624. The investigation in MUR 4624 pertained to the 1996 activities of an issue advocacy group called "The Coalition: Americans Working for Real Change." All of the Coalition's members were instructed to avoid any contact that could be perceived as coordination of the content, location or frequency of certain broadcast ads. Alleging that the Coalition's issue ads were coordinated with federal candidates, campaigns and political committees, however, the FEC pursued the investigation for years and, in the Chamber of Commerce's and NAM's judgment, it deterred the Coalition's members from supporting a similar advertising effort in 1998.99 See Huard Direct Test, at 3-4; Josten Direct Test, at 2; Josten Dep. at 12-13.

1) On June 9, 1998-18 months after the Coalition's ads were broadcast-the FEC instituted MUR 4624 to investigate charges by the DNC that the Coalition, 28 of its members and R. Bruce Josten (Executive Vice President of the Chamber of Commerce) had coordinated their efforts with the National Republican Congressional Committee (NRCC), its treasurer and seven candidate committees. Parallel charges were leveled against candidates and committees with whom the Coalition had allegedly coordinated its advertising efforts.

2) The crux of the FEC's coordination charge was that Coalition members-who met regularly with Congressman John Boehner to discuss and promote pro-business legislative aspects of the "Contract With America"-had the opportunity to coordinate issue ads with Congressman Boehner, who was then the fourth-ranking Republican House member, the Republican Conference Chair and an ex officio board member of the NRCC. See Josten Direct Test, at 2.

3) After four years of extensive discovery, the FEC's General Counsel concluded there was "circumstantial evidence that the activities of the Coalition were loosely coordinated with the Republican Party leaders, specifically Representative John Boehner and other candidates." General Counsel Report at 2. The General Counsel conceded, however, that "loosely coordinated" was not a viable standard in light of recently-enacted FEC regulations defining coordination, see id., and therefore recommended that the case be dismissed. See id. at 3.

4) MUR 4624 was disruptive, burdensome and expensive. As a result of the investigation, Coalition members' willingness to participate in or support the Coalition evaporated. The Coalition financed only a few ads in 1998 and is now defunct. In his Statement for the Record, Commissioner Smith observed:

Despite the fact that the Commission has found no violations in this case, I strongly suspect that the original complainant, the Democratic National Committee, considers its complaint to have been a success. The complaint undoubtedly forced [the DNC's] political opponents to spend hundreds of thousands, if not millions of dollars in legal fees, and to devote countless hours of staff, candidate, and executive time to responding to discovery and handling legal matters. Despite our finding that their activities were not coordinated and so did not violate the Act, I strongly suspect that the huge costs imposed by the investigation will discourage similar participation by these and other groups in the future.

Smith Statement at 2.

62. The AFL-CIO does not discuss its decisions regarding the content or placement of its broadcast advertising with any candidate, candidate committee, party or party official. See D. Mitchell Decl. at 9; D. Mitchell Dep. at 229-32, 235, 238; G. Shea Dep. at 71-72, 80-81.

a. The AFL-CIO's Political Department-and other persons who have regular contact with candidates and political party officials-played no role in broadcasting decisions during the period from 1995 to 1998 and virtually no role during the period from 1999 to 2000. See Rosenthal Decl. at 10-11; D. Mitchell Decl. at 9-10.

b. On the few occasions over the years that a candidate or a candidate's agent has approached the AFL-CIO and has encouraged it to run ads in a particular State or congressional district, the AFL-CIO has declined. See D. Mitchell Decl. at 9; D. Mitchell Dep. at 232-35, 243, Exh. 20; G. Shea Dep. at 91-92.

c. As a matter of policy, the AFL-CIO has likewise declined to honor requests from candidates not to air ads identifying them or their opponents because the AFL-CIO believes it has both the right and the ability to decide whether and what kind of broadcast advertising will advance its legislative and policy agenda. See D. Mitchell Decl. at 12, Exh. 23; D. Mitchell Dep. at 169.

63. Lobbyists from the AFL-CIO's Legislative Department regularly meet with Members of the Congress and employees of the executive branch on a host of issues. The AFL-CIO's executive officers and other staff also meet with Members on policy matters.

a. The AFL-CIO seeks through such contacts to influence the policy positions of legislators and officials.

b. The AFL-CIO also relies on such contacts to gather information about the status of particular legislation and the positions of other Members. Such information has often been a significant factor in deciding whether or not to run broadcast issue advertisements on particular issues and in determining the timing, placement and content of the ads. See G. Shea Decl. at 23-24; G. Shea Dep. at 82-85, 89-90; D. Mitchell Dep. at 253-57.

64. If the AFL-CIO is prohibited from sponsoring broadcast ads because of its lobbying contacts with Members of the Congress, it will be forced either to curtail its lobbying activities or to refrain from airing public communications during elections.

a. The AFL-CIO is likely to refrain even from permissible lobbying contacts if it is unable to determine with utmost confidence that it can legally engage in them. See D. Mitchell Decl. at 9.

b. Even when the AFL-CIO is confident that a lobbying contact is permitted, it may nonetheless refrain therefrom if the contact can be construed by political opponents as improper or illegal. The AFLCIO has been the target of complaints of improper coordination by its political adversaries in the past. Throughout 1996, for example, the AFL-CIO's political opponents filed a series of complaints with the FEC charging that the AFL-CIO had coordinated its broadcast advertisements and other activities with the Democratic Party and with certain Democratic candidates for federal office. See Rosenthal Decl. at 11; D. Mitchell Decl. at 8-9, 11. After a four-year investigation, the Commission concluded that no violation of FECA had occurred. See Rosenthal Decl. at 11; see also AFL-CIO v. FEC, 177 F.Supp.2d 48, 52-53 (D.D.C.2001).

4. Restrictions on Non-Federal Funds

As to BCRA's restrictions on non-federal funds, see generally supra Part II.D, I would find that:

65. The FEC began tracking non-federal donations in the 1992 election cycle. During that cycle the Democratic and Republican parties together raised $86.1 million in non-federal funds. During the 1994 election cycle the two major parties raised $101.6 million in non-federal funds; during the 1996 cycle they raised $263.5 million in non-federal funds; during the 1998 cycle they raised $222.5 million in non-federal funds; during the 2000 cycle they raised $487.5 million in non-federal funds; and during the 2002 cycle they raised $495.8 million in non-federal funds. See FED. ELECTION COMM'N, NEWS RELEASE: PARTY FUNDRAISING REACHES $1.1 BILLION IN 2002 ELECTION CYCLE (Dec. 18, 2002), available at http://www.fec.gov/press/20021218 party/20021218party.html.

66. During the 1996 election cycle the 50 donors who gave the most in non-federal funds to the national political party committees each contributed between $530,000 and $3,287,175. During the 2000 election cycle the top 50 non-federal donors to the national committees each gave between $955,695 and $5,949,000. During the 2000 cycle 800 donors-435 corporations, unions and other organizations and 365 individuals-each gave a minimum of $120,000 to the national committees and accounted for almost $300 million, or 60 per cent, of all non-federal money raised by the committees. See Mann100 Expert Report at 22-25, Tbls. 5, 6.

67. Senator McConnell routinely participates in political and fundraising events for state and local candidates and party committees. a. For example, on July 5, 2002 Senator McConnell participated in an election strategy conference call with Kentucky state senator Robert Leeper; on August 15 he headlined a state party fundraiser to benefit state senate candidates; on August 20 he participated in a fundraiser for a state senate candidate; and on September 28 he attended a rally for the Republican candidate for judge-executive in Butler County, Kentucky. See McConnell Aff. at 2.

b. Since his election to the Senate, Senator McConnell has been a member of the National Republican Senatorial Committee (NRSC), which advocates Republican principles and supports Republican candidates at the federal, state and local levels. Senator McConnell chaired the NRSC in the 1998 and 2000 election cycles and, as chairman, he raised non-federal funds. These funds were used for voter registration, identification and get-out-the-vote activities, issue advocacy, building projects and national support for state and local candidates. During his tenure as NRSC Chairman, Senator McConnell also directed non-federal NRSC donations to dozens of state and local candidates, including Virginia Republican gubernatorial candidate Jim Gilmore (in 1997); California Republican gubernatorial candidate Dan Lungren (in 1998); and the Republican candidate for mayor of Warwick, Rhode Island (in 2000). See id. at 3.

c. BCRA prohibits Senator McConnell from raising money for state or local parties or candidates from corporate or union donors, or in excess of $10,000 from individual donors. Absent BCRA, Senator McConnell would raise money for state and local parties in compliance with applicable state laws. See id. at 4-5.

d. During his 18 years in the United States Senate, Senator McConnell has met thousands of Americans with whom he has shaken hands, posed for photographs, answered questions and discussed legislative issues. The overwhelming majority of the meetings were with people who do not donate funds to the Republican Party at the national, state or local level. Senator McConnell is usually unaware of the donation history of individuals with whom he meets. See id. at 8.

68. Plaintiff Thomas Mclnerney shares the Republican Party's general philosophy on policy issues. He has pursued his political and public policy goals by pooling his resources with like-minded Americans in Republican organizations at the national, state and local levels to promote Republican principles and candidates at the federal, state and local levels. See Mclnerney Aff. at 1-2.

a. Prior to BCRA's enactment Mclnerney donated amounts in excess of $57,500 per cycle to the national political party committees of the Republican Party and in excess of $10,000 per year to state and local Republican Party organizations. His donations were intended to support state and local candidates; voter registration activities for state and local parties; near-election voter identification activity; get-out-the-vote activity; generic campaign activity for state and local parties, including broadcast communications that promote the Republican Party when a federal candidate is on the ballot; slate cards, palm cards and sample ballots for state and local parties; absentee ballot programs for state and local parties; phone bank programs for state and local parties; public communications discussing policy issues, including communications that mention federal candidates in a manner that could be construed to "promote, support, attack or oppose" such candidates; and staff salaries of employees who spend 25 per cent of their paid time in any given month on any of these activities. See id. at 2-3. 1) In the 2002 election cycle Mclnerney donated more than $57,500 to Republican Party organizations at the national, state and local levels-funds that were spent on many or all of the activities described above. See id. at 5.

2) In the 2000 election cycle Mclnerney donated more than $57,500 to Republican Party organizations at the national, state and local levels-funds that were spent on many or all of the activities described above. See id. at 6.

b. The laws of the State of New York permit Mclnerney to donate funds in excess of what BCRA permits him to donate.

1) New York law permits Mclnerney to donate $76,500 per year to state and local political party organizations-funds that may be spent on any of the activities listed supra in Finding 68a at page 332, including state and local candidate support, voter identification activity, slate cards, palm cards, sample ballots and phone bank programs for state and local parties. See Mclnerney Aff. at 3; see also N.Y. ELEC. LAW §§ 14-100 to 14-124 (West 2003).

2) New York law permits Mclnerney to make unlimited non-federal donations to the housekeeping accounts of state and local political party organizations-funds that may be spent on administrative expenses such as rent, utilities, printing costs, supplies and legal and accounting services; salaries and benefits, including the salaries of individuals who spend 25 per cent of their paid time in any given month on grassroots activities; activities that are not for the express purpose of promoting the candidacy of specific candidates, including issue advocacy referring to federal candidates and near-election voter registration activity. See Mclnerney Aff. at 4; see also N.Y. ELEC. LAW §§ 14-100 to 14-124 (West 2003).

3) New York law permits Mclnerney to make unlimited non-federal donations to the RNC, the NRSC, the Republican National State Elections Committee of the Republican National Committee (RNSEC), among others-funds that may be spent on any of the activities listed supra in Finding 68a at page 332. See Mclnerney Aff. at 4; see also N.Y. ELEC. LAW §§ 14-100 to 14-124 (West 2003).

4) BCRA prohibits Mclnerney from donating amounts in excess of $57,500 per cycle to Republican Party organizations at the national, state and local levels and in excess of $10,000 per year to state and local Republican party organizations- funds that Mclnerney would like to be used on the political activities listed supra in Finding 68a at page 332. See Mclnerney Aff. at 5.

c. Mclnerney's support for Republican Party organizations at the national, state and local levels reflects his shared philosophy and values with the Republican Party, not any corrupt motive.

1) Nothing in the record suggests that Mclnerney has ever attempted to make a non-federal donation to change the vote or official action of any federal official; has ever been solicited by any federal officeholder or agent of a national political party based on a promise or offer of any official action; or has ever donated funds that, to his knowledge, affected the vote or official action of any public official, including a federal official. See id. at 7.

2) Nothing in the record suggests that Mclnerney's support for the Republican Party at the national, state and local levels is dependent upon gaining access to federal officeholders. See id. at 8.

d. BCRA permits Mclnerney to make unlimited non-federal donations to interest groups that engage in many or all of the activities listed supra in Finding 68a at page 332, while prohibiting him from making similar donations to Republican Party organizations at the national, state and local levels. Absent BCRA, Mclnerney would continue to make such donations to Republican Party organizations in compliance with the laws of the relevant States. See Mclnerney Aff. at 8.

e. Under BCRA, Mclnerney would be subject to criminal fines and imprisonment of up to five years for funding-at the same level and using non-federal funds- the same political activities he has funded in the past. See id. at 10.

69. Attorney General Pryor has sponsored public communications that refer to federal candidates and promote, support, attack or oppose such candidates, including communications that do not expressly advocate a vote for or against any such candidate. See Pryor Decl. at 1-3, Exhs. F. Pryor has received and hopes in the future to receive contributions from the RNSEC. See id. at 4. As a candidate for state office, Pryor has raised and spent funds for voter registration activities conducted within 120 days of a federal election and for voter identification, get-out-the-vote and generic campaign activities conducted in connection with elections in which a federal candidate has also appeared on the ballot. He intends to continue raising and spending funds for such activities, on his own and in association with other candidates for state and local office. See id. at 4-6.

70. Political parties have played and continue to play at least four critical roles in our country's political process.

a. First, the parties have coordinated the political activities and messages of various national, state and local entities within the federal system. See Milkis101 Expert Report at 13-14; Keller102 Expert Report at 6-7.

b. Second, the parties encourage "democratic nationalism" by nominating and electing candidates and by engaging in discussions about public policy issues of national importance. Milkis Expert Report at 14-19. For example, the RNC has recently participated in public policy debates regarding a balanced budget amendment, welfare reform and education policy. See Josefiak Decl. at 27-29; RNC Exhs. 1711, 2428, 2440.

1) The parties recruit and nominate candidates, aggregate public preferences and provide a means of democratic accountability. See Green Expert Report at 7; Magleby Expert Report at 33; Mann Expert Report at 28. Political scientists also credit parties with increasing voter turnout, encouraging volunteer grassroots political participation, fostering broader electoral competition by supporting challengers against incumbents and diluting the influence of organized interests. See Cross Exam, of Def. Expert Green at 83-84; Cross Exam, of Defense Expert Mann at 53; Keller Expert Report at 5-6; Milkis Expert Report at 12-13; La Raja Expert Report at 5, 7-8. 2) Party competition in general is healthy for democracy; it was a major force behind the expansion of the electorate through the enfranchisement of blacks in the South, reduction of the voting age to eighteen and the elimination of poll taxes and other constraints on voting registration. See Keller Expert Report at 15.

Defense expert Donald Green is a Professor of Political Science at Yale University, where he also serves as Director of the Institution for Social and Policy Studies. See Green Expert Report at 1.

"California" and "It Can't Happen Here" are discussed in greater detail supra, App. ¶I.D.8.h.

See Finding 290 (discussing the indicia of electioneering advertisements).

Plaintiffs' expert Raymond La Raja is an Assistant Professor of Political Science at the University of Massachusetts, Amherst. See La Raja Expert Report at 1.

"Tribute" includes the following statement delivered by Charlton Heston: The NRA is baaaaaaack. [Much applause] All of this spells very serious trouble for a man named Gore. [Applause]. That leads me to that one mission that is left undone- winning in November.... So, as we set out this year to defeat the divisive forces that would take freedom away, I want to say these fighting words for everyone within the sound of my voice to hear and to heed and especially for you, Mr. Gore. "From my cold dead hands." [Much Applause]. NRA App. at 947 (emphasis in the original). The NRA states that this passage "simply reflects] the NRA's practice of soliciting members by mentioning anti-gun politicians." NRA Reply at 24.

McConnell Opening Br. at 65 (arguing generally that genuine issue advocacy will be regulated by BCRA); NRA Opening Br. at 26.

c. Third, the parties act as critical agents in developing consensus in the United States. See Milkis Expert Report at 19. In the words of one defense expert, parties are "the main coalition building institution[s] ... by a good measure." Cross Exam, of Def. Expert Green at 84; see Cross Exam, of Def. Expert Mann at 53, 56 ("[n]o other group could come close to political parties" in moderating extreme views); Krasno & Sorauf Expert Report at 24 ("Parties with their necessary `big tent' compete for the allegiances of multiple groups ....").

d. Fourth, the parties cultivate a sense of community and collective responsibility in American political culture. See Milkis Expert Report at 19-21; La Raja Expert Report at 3^1. Parties have been integral in forming a consensus on such divisive issues as social welfare policy. See Milkis Expert Report at 4.

71. As a national political party committee, the RNC has historically participated and participates today in electoral and political activities at the federal, state and local levels. See Josefiak Decl. at 5, 11-17; see also Milkis Expert Report at 28-29. The RNC seeks to advance its core principles by advocating Republican positions, electing Republican candidates and encouraging governance in accord with Republican views at the federal, state and local levels. See Josefiak Decl. at 6; see also La Raja Expert Report at 20-22.

a. In pursuit of its objectives, the RNC engages in frequent communications with its members, officeholders, candidates, state and local party committees and the general public. These communications occur both during campaign seasons and at all other times. See Banning Decl. at 11-13; Josefiak Decl. at 26, 32.

Jay Banning is Director of Administration and Chief Financial Officer of the RNC and his responsibilities include managing the RNC's budget, overseeing its finance and accounting personnel, maintaining books and overseeing the RNC's annual audit, paying all bills and (before BCRA) serving as assistant treasurer for the RNC's various nonfederal accounts. See Banning Decl. at 1-2.

The Southeastern Legal Foundation is a 501(c)(3) organization, McConnell Second Amend. Compl. ¶ 36, which is exempt from BCRA's restrictions on electioneering communication. Final Rule, Electioneering Communications, 67 Fed.Reg. 65,190, 65,199-200 (Oct. 23, 2002) (to be codified at 11 C.F.R. 100.29(c)(6)).

Gov't Opening Br. at 159; Gov't Opp'n Br. at 68.

b. The RNC engages in activities intended to influence federal elections and supports those activities with federal funds. See Josefiak Decl. at 6, 26. The RNC spends federal funds on recruiting and training candidates; contributing to federal candidate campaign committees; coordinated expenditures on behalf of federal candidates; communications calling for the election or defeat of federal candidates; the federal share of research and issue development; and the federal share of voter registration, voter identification and get-out-the-vote campaigns. See Banning Decl. at 11; Josefiak Decl. at 7, 10, 26; La Raja Expert Report at 5-6; Magleby Expert