...AMICUS CURIAEBRIEF OF THE AMERICAN CIVIL
LIBERTIES UNION IN SUPPORT OF APPELLANT
ON SUPPLEMENTAL QUESTION
...
2
SUMMARY OF ARGUMENT
The broad prohibition on “electioneering com-
munications” set forth in § 203 of the Bipartisan
Campaign Reform Act of 2002 (BCRA), 2 U.S.C. §
441b(b)(2), violates the First Amendment, and the
limiting construction adopted by this Court in WRTL
is insufficient to save it.
Accordingly, the Court
should strike down § 203 as facially unconstitutional
and overrule that portion of McConnell that holds
otherwise.
This brief addresses only that question. It does
not address the additional question raised by this
Court’s reargument order: namely, whether Austin v.
Michigan Chamber of Commerce, 494 U.S. 652
(1990), should be overruled. However, if Austin is
overruled and the ban on express advocacy by
corporations and unions is struck down, then the ban
on “electioneering communications” in § 203 would
necessarily fall as a consequence.
Even if Austin is not overruled, § 203 is unconsti-
tutional precisely because it extends beyond the
express advocacy at issue in Austin. The history of
the McConnell litigation, as well as campaign finance
litigation before and after McConnell, demonstrates
that there is no precise or predictable way to
determine whether or not political speech is the
“functional equivalent” of express advocacy.
The decision in WRTL correctly recognized that
the BCRA’s prophylactic ban on “electioneering
communications” threatened speech that lies at the
heart of the First Amendment, including genuine
issue ads by nonpartisan organizations like the
ACLU. But the reformulated ban crafted by this
Court in WRTL continues to threaten core First
Amendment speech. Its reliance on the hypothetical
response of a reasonable listener still leaves speakers
guessing about what speech is lawful and what
speech is not. That uncertainty invites arbitrary and
discriminatory enforcement. It will also lead many
speakers to self-censor rather than risk sanctions or
undertake the expense of suing the FEC prior to
speaking, especially since most suits will not be
resolved until long after the speech is timely and
relevant.
In short, § 203 was a poorly conceived effort to
restrict political speech and should be struck down.
