IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________________________
)
SENATOR MITCH McCONNELL, )
United States
Senate, )
Washington, DC 20510, )
Plaintiff, )
)
v. ) Case No. _________
)
FEDERAL
ELECTION COMMISSION, )
999 E Street,
N.W., )
Washington,
DC 20463, )
Defendant; )
)
FEDERAL
COMMUNICATIONS COMMISSION, )
445 Twelfth
Street, S.W., )
Washington, DC 20554, )
Defendant. )
________________________________________________)
COMPLAINT FOR DECLARATORY AND INJUNCTIVE
RELIEF
Senator Mitch McConnell brings this action
for declaratory and injunctive relief, alleging as follows:
INTRODUCTION
1. This
is an action challenging numerous provisions of the Bipartisan Campaign Reform
Act of 2002 (BCRA) as violating the United States Constitution. The BCRA limits and criminalizes speech and
related activities touching on the widest range of public issues. In doing so, it dramatically extends the
scope of the Federal Election Campaign Act of 1971 (FECA) and the Federal
Communications Act of 1934 (FCA) in a manner that violates several provisions
of the Constitution. The BCRA’s 91
densely packed pages impose all manner of new federal rules that would radically
alter, in a fundamental and unconstitutional fashion, the ways that citizens,
corporations, labor unions, trade associations, officeholders, candidates,
advocacy groups, tax-exempt organizations, and national, state, and local
political party committees are permitted to participate in our Nation’s
democratic process.
2. Central
to the BCRA is its effort to regulate core political speech. When such speech, long and correctly viewed
as entitled to the highest degree of First Amendment protection, is broadcast
in the form of an issue advertisement on television or radio and merely
mentions a federal officeholder or candidate in the months leading up to an
election, it can be a crime, with penalties of up to five years in prison. If the BCRA had been in effect in 2000,
criminal punishments could have been meted out simply for the sponsorship of
ads urging a Member of Congress to vote yes or no on pending proposals to
expand the federal hate crimes law, to preempt Oregon’s law permitting
physician-assisted suicide, to regulate speech on the Internet, or to abolish
the Electoral College and provide for direct popular election of the
President. Not since the Alien and
Sedition Acts, enacted in the earliest days of our Republic, could criminal
sanctions be so easily incurred simply by engaging in such core political
speech.
3. By
creating a new crime of incitement to political action, the BCRA flagrantly
contravenes more than a quarter century of unbroken Supreme Court and lower
court precedent. In Buckley v. Valeo,
for example, the Supreme Court held that the federal government could regulate
spending for purposes of engaging in core political speech only when the speech
“in express terms advocate[s] the election or defeat of a clearly identified
candidate for federal office.”* By purporting to regulate spending for core
political speech when such speech merely “refers to a clearly identified
Federal candidate,” the BCRA ignores Buckley’s express holding, sweeps well
beyond the permissible scope of regulation under the First Amendment, and
criminalizes vast quantities of fully protected speech.
4. Nor
does it stop there. The BCRA attempts
to re-engineer the way our democratic process works, and in doing so
pervasively violates the Constitution.
To take but a few examples:
• The
BCRA unconstitutionally favors some speakers over others.
• The
BCRA unconstitutionally constrains the rights of officeholders and candidates
to raise money for tax-exempt organizations, political parties, and other
candidates.
• The
BCRA treads on First Amendment-protected associational rights by compelling
organizations to disclose the identity of their supporters to a far greater,
and more dangerous, extent than ever before contemplated, and imposes expensive
and burdensome reporting requirements.
• The
BCRA places unprecedented limits on political parties’ ability to make
expenditures for core political speech.
All this is accomplished by the use of
language that is itself unconstitutionally vague and overbroad and, in some
instances, violative of the constitutional guarantee of equal protection under
the laws.
5. The
far-reaching provisions of the BCRA, particularly those seeking to regulate and
control issue advocacy by groups independent of any candidate or campaign, do
not improve democracy. The impact of
the law is not merely to suppress speech, but to insulate incumbent
officeholders from effective criticism.
The BCRA permits candidates for federal office to specify what topics
are to be discussed during their campaigns and with what intensity. The First Amendment does not permit the
government to impose any such regime.
6. Many
of the BCRA’s supporters have acknowledged that the BCRA raises serious
constitutional questions, but these questions did not prevent the BCRA’s
enactment by the Congress and signature by the President, who likewise has
noted the BCRA’s grave constitutional implications. The federal courts therefore stand, as so often before in our
history, as the ultimate guardians of the Constitution and the Bill of
Rights. Plaintiff urges that this Court
take up that solemn responsibility and invalidate the many constitutionally
problematic provisions of the BCRA.
BACKGROUND
7. On
February 14, 2002, and March 20, 2002, the House and Senate passed the
BCRA. On March 27, 2002, the President
signed the BCRA into law.
8. Title
I of the BCRA, captioned “Reduction of Special Interest Influence,” includes a
ban on so-called “soft money”: that is, a prohibition on the solicitation,
receipt, or use by national political party committees of any funds that were
not raised subject to the so-called “hard money” source-and-amount restrictions
of the FECA. It also requires that
state, district, and local political party committees pay for what the BCRA
defines as “federal election activity” only with money raised subject to the
FECA’s restrictions. The BCRA carves
out a narrow exception for certain types of “federal election activity,”
including some voter registration, voter identification, and get-out-the-vote
activity; for these activities, state, district, and local political party
committees may use funds that are not raised subject to the FECA’s
restrictions, as long as the funds used for the state share of such activities
are raised in amounts no greater than $10,000, are segregated from the party
committee’s other funds, and are fully reported to the federal
authorities. Title I generally
prohibits federal officeholders and candidates from participating in raising or
spending any funds, for themselves or others, for “federal election activity”
if those funds are not raised subject to the FECA’s restrictions. And Title I bars state candidates from
spending funds on communications that promote or support candidates for federal
office, even if those communications do not expressly advocate a vote for or
against a candidate.
9. Title
II, entitled “Noncandidate Campaign Expenditures,” prohibits corporations and
labor unions from using funds not raised subject to the FECA’s limitations to
pay for so-called “electioneering communications”: that is, for broadcast,
cable, or satellite communications that refer to a clearly identified federal
candidate and are made within sixty days of a general election or thirty days
of a primary. The BCRA provides a
“fall-back” definition of “electioneering communications” in the event that the
primary definition is held to be unconstitutional. Both definitions include communications containing issue
advocacy, which does not expressly advocate the election or defeat of clearly
identified federal candidates. In
addition to the limitations on corporations and labor organizations, any person
who makes “electioneering communications” is subject to stringent new
disclosure requirements. This required
disclosure includes the disclosure of the names and addresses of any individual
who contributes as little as $1,000 to an organization that engages in
“electioneering communications.”
Moreover, any disbursements for “electioneering communications” that are
coordinated with candidates or their political parties are treated as
contributions to the candidates, and are therefore subject to the
source-and-amount limitations of the FECA.
With respect to any given candidate, Title II requires political party
committees to choose between making independent expenditures on behalf of that
candidate and making coordinated expenditures with that candidate. Finally, Title II directs the FEC broadly to
define the term “coordinated activity.”
10. Title
III, captioned “Miscellaneous,” sets revised limits on contributions by
individuals to candidates for federal office and to national party committees,
and sets an aggregate limit on an individual’s total contributions to
candidates, political action committees, and political parties. These contribution limits are modified by
the so-called “Millionaires’ Provisions,” which increase contribution limits by
up to six times for the campaigns of congressional candidates whenever they
confront opponents who expend substantial personal funds on their own
campaigns. In certain cases, Title III
also lifts limits on coordinated expenditures by political parties aiding
wealthy candidates’ opponents.
11. Title
V, titled “Additional Disclosure Provisions,” imposes additional disclosure
obligations, including significant disclosure obligations on broadcasters with
respect to political advertisements.
12. Finally,
the BCRA dramatically enhances the criminal penalties for violations of the
FECA. It increases the maximum prison
sentence from one to five years and eliminates language capping the amount of
any fine. The BCRA also lengthens the
limitations period and orders the United States Sentencing Commission to
promulgate sentencing guidelines for FECA violations.
13. The
BCRA takes effect on November 6, 2002, although funds not raised subject to the
FECA’s limitations may be spent by national party committees for certain
limited purposes until January 1, 2003.
Recognizing the serious constitutional questions the BCRA raises, the
law provides for immediate judicial review by a three-judge panel of this Court
of any constitutional action for declaratory or injunctive relief, with
expedited appellate review by the Supreme Court of the United States. The BCRA also gives any Member of Congress
the right to bring suit challenging the BCRA’s constitutionality.
JURISDICTION AND VENUE
14. This
Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and
2201. Venue is proper in this Court
pursuant to 28 U.S.C. § 1391(e) and section 403 of the BCRA.
PARTIES
15. Plaintiff
Mitch McConnell is the senior United States Senator from the Commonwealth of
Kentucky, and one of the Senate’s foremost advocates for unfettered political
speech and association. He was first
elected in 1984 and is currently a candidate for reelection. He is the former Chairman and current
Ranking Member of the Senate Committee on Rules and Administration, which has
jurisdiction over federal election law.
He has served as Chairman of the National Republican Senatorial
Committee, which promotes issues and supports the campaigns of Republican
candidates on the federal, state, and local level.
16. Senator
McConnell is a United States citizen, member of Congress, candidate, voter,
donor, recipient, fundraiser, and party member, and has been, and will continue
to be, injured by the BCRA in each of these capacities.
17. A
variety of other plaintiffs are expected to join this complaint, or file separate
complaints, in the near future. Senator
McConnell anticipates that a substantially amended complaint will be filed to
include these new plaintiffs and their varying interests. Senator McConnell is committed to taking all
steps necessary to ensure that the many issues identified in this complaint are
efficiently presented for resolution by the three-judge Court.
18. Defendants
Federal Election Commission (FEC) and Federal Communications Commission (FCC)
are government agencies charged with enforcing the relevant provisions of the
BCRA.
COUNT I
Prohibition of “Electioneering
Communications”
19. Plaintiff
realleges and incorporates by reference all of the allegations contained in all
of the preceding paragraphs.
20. Section
201(a) of the BCRA adds new section 304(f) of the FECA, which defines an
“electioneering communication” as “any broadcast, cable, or satellite
communication which . . . refers to a clearly identified candidate for
Federal office . . . 60 days before a general, special, or runoff election for
the office sought by the candidate; or . . . 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
. . . 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.”
21. Anticipating
that this definition of “electioneering communication” may be declared
unconstitutional, section 201(a) provides a fall-back definition. It defines “electioneering communication” as
“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.”
22. Section
203(a) of the BCRA amends section 316(b)(2) of the FECA to prohibit
corporations and labor unions from engaging in “electioneering
communications.” Section 203(b) of the BCRA
adds new section 316(c)(1) to the FECA, which prohibits any other persons from
engaging in “electioneering communications” using funds donated by corporations
or labor unions.
23. By
prohibiting or 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,” sections 201 and
203 burden the right of free speech in violation of the First Amendment.
24. Moreover,
by specifying in so vague and overbroad a manner what speech is prohibited or
limited, sections 201 and 203 violate the First Amendment and the Due Process
Clause of the Fifth Amendment.
25. By
arbitrarily limiting disbursements for broadcast, cable, and satellite
communications but allowing disbursements for other forms of communications,
sections 201 and 203 violate the First Amendment and the equal protection
component of the Due Process Clause of the Fifth Amendment.
26. By
imposing limitations on corporations and labor unions that are not imposed on
other groups such as certain non-profit organizations, political organizations,
and corporations that own news-media organizations, sections 201 and 203
violate the First Amendment and equal protection component of the Due Process
Clause of the Fifth Amendment.
COUNT II
Disclosures Relating to “Electioneering
Communications”
27. Plaintiff
realleges and incorporates by reference the allegations contained in all of the
preceding paragraphs.
28. Section
201(a) of the BCRA also requires that any person (including any individual) who
spends more than $10,000 on “electioneering communications” in a calendar year
make disclosures to the FEC. In those
disclosures, the person must specify, inter alia, the amount of any
disbursement over $200; the person to whom the disbursement was made; the
election to which the “electioneering communication” pertains; and the
candidate identified or to be identified in the “electioneering communication.”
29. In
addition, section 201(a) requires that, where an organization makes
disbursements for “electioneering communications” from funds donated by
individuals, the names and addresses of any individuals donating $1,000 or more
also be disclosed.
30. Section
201(a) also requires disclosures not only when a person has made disbursements
for “electioneering communications,” but also when a person has entered into a
contract to make disbursements, prior to any disbursement and even if the
disbursement never actually takes place.
31. By
requiring these disclosures, section 201 burdens the rights of free speech and
free association in violation of the First Amendment.
COUNT III
Non-Profit and Political Organizations and
“Electioneering Communications”
32. Plaintiff
realleges and incorporates by reference the allegations contained in all of the
preceding paragraphs.
33. Section
203(a) of the BCRA bars incorporated non-profit organizations, as defined by
I.R.C. § 501(c)(4), and political organizations, as defined by I.R.C.
§ 527, from making disbursements for “electioneering communications,” just
as it bars corporations and labor unions from doing so. Section 203(b) contains a narrow exception
seemingly allowing section 501(c)(4) and section 527 organizations to make
“electioneering communications” if the communications are paid for exclusively
out of funds provided directly by individuals.
However, section 204 of the BCRA, adding section 316(c)(6) to the FECA,
then appears to shut the door on this exception, stating that “electioneering
communications” (which, according to the primary definition in section 201,
must be “targeted”), cannot be “targeted,” or broadcast to voters for the named
candidate. Like corporations and labor
unions, therefore, section 501(c)(4) and section 527 organizations appear to be
precluded altogether by the BCRA from making “electioneering communications.”
34. The
unconstitutional disclosure obligations of section 201 apply both to section
501(c)(4) and section 527 organizations making disbursements for
“electioneering communications.” For
the reasons given in Count II, section 201 burdens the rights of free speech
and free association in violation of the First Amendment.
35. Because
sections 201, 203, and 204 bar or severely restrict section 501(c)(4) and
section 527 organizations from engaging in speech that does not expressly
advocate the election or defeat of a clearly identified candidate, they burden
the right of free speech and free association in violation of the First
Amendment.
36. By
imposing advocacy limitations on corporations, unions, section 501(c)(4)
non-profit organizations, and section 527 political organizations that are not
imposed on individuals and other organizations, sections 201, 203, and 204
violate the First Amendment and the equal protection component of the Due
Process Clause of the Fifth Amendment.
COUNT IV
Coordinated “Electioneering Communications”
37. Plaintiff
realleges and incorporates by reference the allegations contained in all of the
preceding paragraphs.
38. Section
202 of the BCRA amends section 315(a)(7) of the FECA to treat coordinated
disbursements for “electioneering communications” as “contributions” to the
“supported” candidates. These
“contributions,” in turn, are subject to the source-and-amount limitations of
the FECA.
390 Section 214(c) directs the FEC to define
the concept of coordination broadly, and specifically directs that any
promulgated regulations shall not require agreement or formal collaboration
between the candidate or political party and the entity making the disbursement
in order to establish coordination.
Under this definition, for instance, a Member of Congress could be
liable for receiving, and a citizen group liable for making, a “contribution”
simply because the Member met with the group about pending legislation and the
group then took out an advertisement to promote that legislation.
400 In addition, section 214(a) states that
any expenditure made by a person “in cooperation, consultation, or concert
with, or at the request or suggestion of,” a party committee shall be treated
as a “contribution” to that committee.
410 By specifying in so overbroad a manner
what constitutes coordination with candidates and party committees, sections
202 and 214 burden the rights of free speech and free association and the right
to petition the government for redress of grievances, all in violation of the
First Amendment.
420 Moreover, by specifying in so vague a
manner what constitutes coordination with candidates and party committees,
sections 202 and 214 violate the First Amendment and the Due Process Clause of
the Fifth Amendment.
COUNT V
Independent and Coordinated Expenditures
430 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
440 Section 213 of the BCRA, amending section
315(d) of the FECA, requires that a national, state, district, or local
political party committee make an irrevocable choice as to whether to make
independent or coordinated expenditures on behalf of any given candidate at the
time the party’s candidate is nominated.
In addition, section 213 restricts transfers of funds between political
party committees that have elected to make only independent expenditures and
those that have made only coordinated expenditures, regardless of the purpose
of such transfers.
450 By restricting political party committees
from making otherwise permissible expenditures, section 213 burdens the rights
of free speech and free association in violation of the First Amendment.
460 Moreover, by restricting “all political
committees established and maintained by” a national or state political party
from making expenditures of one type or the other “with respect to the
candidate,” and by barring transfers from committees that have made or
“intend[] to make” independent expenditures, section 213 is excessively vague
and overbroad, in violation of the First Amendment and the Due Process Clause
of the Fifth Amendment.
COUNT VI
Broadcasting Records
470 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
480 Section 504 of the BCRA amends section
315 of the FCA to require licensees to collect and disclose records of requests
to purchase broadcast time for communications “relating to any political matter
of national importance,” including communications relating to “a legally
qualified candidate” or “any election to Federal office.”
490 Section 504 also requires disclosures not
only when communications have actually been broadcast, but also when a person
has made “a request to purchase broadcast time,” prior to any broadcast
actually taking place.
500 By requiring these disclosures, section
504 burdens the rights of free speech and free association in violation of the
First Amendment.
510 Moreover, by requiring disclosures when
communications “relating to any matter of national importance” are made,
section 504 is excessively vague and overbroad, in violation of the First
Amendment and the Due Process Clause of the Fifth Amendment.
COUNT VII
Limitations on Contributions
520 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
530 Sections 102 and 307 of the BCRA amend
section 315 of the FECA to alter the limits on political contributions by
individuals. Section 301, inserting new
section 313 in the FECA, specifies the permissible uses of those contributions.
540 Sections 304(a) and 316 of the BCRA amend
section 315 of the FECA to allow a candidate for the United States Senate to
accept and spend contributions in excess of the otherwise applicable limits
where that candidate’s opponent expends substantial personal funds. Specifically, the otherwise applicable
contribution limits may be increased by as much as sixfold, and the limitations
on coordinated expenditures by the candidate’s political party lifted
altogether, depending on how much in personal funds the opponent expends. Section 304(b) of the BCRA amends section
304(a)(6) of the FECA to require a candidate for the Senate who intends to
expend substantial personal funds to notify the FEC and his opponents, within
15 days of becoming a candidate, stating the total amount of expenditures from
personal funds that the candidate intends to make. Section 319 of the BCRA amends section 315 of the FECA, and adds
new section 315A of the FECA, to impose similar requirements for candidates for
the United States House of Representatives.
550 By increasing the limits on contributions
for the opponent of a candidate who spends his own funds on his campaign, and
thereby punishing a candidate for using his own money to engage in core political
speech, sections 304, 316, and 319 burden the exercise of the rights of free
speech and free association in violation of the First Amendment.
560 Moreover, by increasing the otherwise
applicable contribution limits, sections 304, 316, and 319 make clear that the
underlying limits are not necessary to achieve the purported goals of the BCRA
and the FECA.
570 By allowing a contributor to donate more
to a candidate running against an opponent who expends his own funds than to a
candidate without such an opponent, sections 304, 316, and 319 violate the
First Amendment and the equal protection component of the Due Process Clause of
the Fifth Amendment.
580 By lifting altogether the limits on
coordinated expenditures by the political party of the opponent of a candidate
who expends his own funds, and thereby allowing a political party to spend more
money on behalf of a candidate running against an opponent who expends his own
funds than on behalf of a candidate without such an opponent, sections 304,
316, and 319 violate the First Amendment and the equal protection component of
the Due Process Clause of the Fifth Amendment.
590 By requiring that a candidate make
advance disclosure of his intent to use his own money to fund core political
speech, sections 304 and 319 impose an unconstitutional condition on the
exercise of the rights of free speech and free association under the First
Amendment.
COUNT VIII
Prohibitions on Contributions by Minors
600 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
610 Section 318 of the BCRA adds new section
324 to the FECA, which prohibits any individual seventeen years of age or
younger from making a contribution, in any amount, to a candidate or a
contribution or donation to a political party committee.
620 By barring the speech of individuals
seventeen or under who wish to make contributions in their own right, section
318 violates the rights to free speech and free association under the First
Amendment.
COUNT IX
Unavailability of “Lowest Unit Charge” for
Federal Candidates Mentioning Opposition
630 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
640 Section 305 of the BCRA amends section
315(b) of the FCA to deny a candidate the lowest unit charge for broadcast
advertisements “unless the candidate provides written certification to the
broadcast station that the candidate . . . shall not make any direct
reference to another candidate for the same office, in any broadcast using the
rights and conditions of access under this Act,” unless the candidate satisfies
the content requirements set forth in section 305(a).
650 By conditioning the cost of
advertisements on their content, section 305 burdens the right of free speech
in violation of the First Amendment.
COUNT X
Ban on the Solicitation or Use of Non-Federal
Money by National Party Committees
660 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
670 Section 101(a) of the BCRA adds new
section 323 to the FECA, which prohibits a national political party committee
or its officers or agents, including a party’s national congressional campaign
committee, from soliciting, receiving, or directing any money that is not
subject to the FECA’s contribution limitations, prohibitions, and reporting
requirements. This ban also applies to
any entity that is directly or indirectly established, financed, maintained, or
controlled by a national committee.
Finally, section 101(a) of the BCRA, adding new section 323(d) to the
FECA, prohibits national party committees from soliciting funds for, or making
donations to, either section 501(c) organizations that make expenditures or
disbursements in connection with federal elections, or section 527
organizations.
680 By restricting the funding of core
political speech and restricting the amount of speech in which national party
committees are able to engage, section 101(a) violates the rights of free
speech and free association under the First Amendment.
690 By preventing national party committees
from pooling the resources of party members and contributors in support of
campaigns for office; preventing the sharing of funds with, and raising funds
for, like-minded party committees and non-party organizations and individuals;
limiting the resources available to national party committees for all
activities, including voter registration, voter identification,
get-out-the-vote activity, and internal communications with their own members
and employees on non-election-related issues; and restricting the ability of a
national party committee to associate with its affiliated state, district, and
local committees, section 101(a) further violates the right of free association
under the First Amendment.
700 By regulating the role of national party
committees in state and local elections and barring national party committees
from soliciting funds for, or making donations to, section 501(c) and section
527 organizations even when such expenditures relate exclusively to state
elections, section 101(a) usurps the States’ power to regulate such elections,
and thereby violates the Tenth Amendment and principles of federalism.
710 By prohibiting national party committees
from soliciting, receiving, or directing any money not subject to the FECA’s
restrictions, and thereby imposing restrictions on national party committees
that are not placed on other similarly situated entities, section 101(a)
violates the First Amendment and the equal protection component of the Due
Process Clause of the Fifth Amendment.
720 By barring national party committees from
“solicit[ing]” anything of value not obtained pursuant to the FECA’s
restrictions and extending its prohibition to “any entity that is directly or
indirectly established, financed, maintained, or controlled by such a national
committee,” section 101(a) uses excessively vague and overbroad terms, in
violation of the First Amendment and the Due Process Clause of the Fifth
Amendment.
COUNT XI
Ban on the Solicitation or Use of Non-Federal
Money by State and Local Party Committees
730 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
740 Section 101(a) of the BCRA adds new
section 323(b) to the FECA, which prohibits state, district, and local party
committees or their officers or agents from using funds not raised subject to
FECA’s restrictions with respect to federal elections, regardless of applicable
state law. Section 101(a) imposes
federal restrictions on financing the state portion, as well as the federal portion,
of voter registration, voter identification, and “get out the vote”
activities. Further, section 101(a)
precludes the use of non-federal money for broadcast communications, unless the
communications “refer[] solely to a clearly identified candidate for state or
local office.” Section 101(a) limits to
$10,000 the amount that state, district, and local party committees can
annually receive from one person for any regulated activities.
750 As with national party committees,
section 101(a) bars the transfer of funds among state, district, and local
party committees for any regulated activities.
Section 101(a) also prohibits state, district, and local party
committees from raising money jointly or on behalf of one another for regulated
activities.
760 Again as with national party committees,
section 101(a) prohibits state, district, and local party committees from
soliciting funds for, or making donations to, either section 501(c)
organizations that make expenditures or disbursements in connection with
federal elections, or section 527 organizations.
770 By regulating the funding of core
political speech and restricting the amount of speech in which state, district,
and local party committees are able to engage, section 101(a) violates the
rights of free speech and free association under the First Amendment.
780 By barring the transfer of funds among
state, district, and local party committees, section 101(a) further violates
the right of free association under the First Amendment.
790 By regulating the way in which state,
district, and local party committees may raise, spend, and manage funds, and
barring state, district, and local party committees from soliciting funds for,
or making donations to, section 501(c) and section 527 organizations even when
such expenditures relate exclusively to state elections, section 101(a)
violates the Tenth Amendment and principles of federalism.
800 By prohibiting state, district, and local
party committees from funding federal election activities by soliciting,
receiving, or directing any money not subject to the FECA’s restrictions, and
thereby imposing restrictions that are not placed on other similarly situated
entities, section 101(a) violates the First Amendment and the equal protection
component of the Due Process Clause of the Fifth Amendment.
COUNT XII
Ban on the Solicitation or Use of Non-Federal
Money by Federal Officeholders and Candidates
810 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
820 Section 101(a) of the BCRA adds new
section 323(e) to the FECA, which prohibits federal officeholders and
candidates, and their agents, from soliciting, receiving, directing,
transferring, or spending money not subject to the FECA’s restrictions in
connection with an election for federal office, including funds for any
“federal election activity.” Section
101(a) carves out a narrow exception for general solicitations on behalf of
section 501(c) non-profit organizations, and for certain specific solicitations
on behalf of organizations whose principal purpose is to engage in certain
types of “federal election activity.”
830 By restricting the funding of core
political speech and restricting the amount of speech in which federal
officeholders and candidates are able to engage, section 101(a) violates the
rights of free speech and free association under the First Amendment.
840 By restricting the activities of federal
officeholders and candidates with respect to state and local election campaigns
and processes, section 101(a) violates the Tenth Amendment and principles of
federalism.
850 By allowing general solicitations for
section 501(c) non-profit organizations but not for other similarly situated
organizations, including political parties, section 101(a) violates the First
Amendment and the equal protection component of the Due Process Clause of the
Fifth Amendment.
COUNT XIII
Ban on the Solicitation or Use of Non-Federal
Money by State Officeholders and Candidates
860 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
870 Section 101(a) of the BCRA adds new
section 323(f) to the FECA, which prohibits state officeholders and candidates,
and their agents, from spending funds not subject to FECA’s requirements for “a
communication described in [section 101(b)]”: that is, “a public communication
that refers to a clearly identified candidate for Federal office
. . . 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).”
880 By restricting the funding of core
political speech and restricting the amount of speech in which state
officeholders and candidates are able to engage, section 101(a) violates the
rights of free speech and free association under the First Amendment.
890 By interfering in the conduct of
campaigns for state office, section 101(a) usurps the States’ power to regulate
such elections, and thereby violates the Tenth Amendment and principles of
federalism.
COUNT XIV
Definition of “Federal Election Activity”
900 Plaintiff realleges and incorporates by
reference the allegations contained in all of the preceding paragraphs.
910 Section 101(b) of the BCRA adds new
section 301(20) to the FECA, which defines “federal election activity” to
include “a public communication that refers to a clearly identified candidate
for Federal office . . . 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).”
920 Section 101(b) leaves undefined several
terms used in the definition of “federal election activity,” including “refers to,” “promotes or supports,” and
“attacks or opposes.”
930 Because the ability and extent of persons
and entities to engage in political speech is defined throughout the BCRA by
whether their speech falls within the definition of “federal election
activity,” and because many terms used to define “federal election activity”
are excessively vague and overbroad, section 101(b) violates the First
Amendment and the Due Process Clause of the Fifth Amendment.
PRAYER FOR RELIEF
Wherefore, plaintiff prays for the following
relief:
1. an
order and judgment declaring the aforementioned provisions of the BCRA
unconstitutional;
2. an
order and judgment enjoining defendants from enforcing the aforementioned
provisions of the BCRA;
3. costs
and attorneys’ fees pursuant to any applicable statute or authority; and
4. any
other relief as this Court in its discretion deems just and appropriate.
Respectfully submitted,
______________________________ ______________________________
Floyd Abrams Kenneth
W. Starr (Bar No. 273245)
Cahill Gordon & Reindel Kirkland & Ellis
80 Pine Street 655
Fifteenth Street, N.W.
New York, NY
10005 Washington,
DC 20005
(212) 701-3000 (202) 879-5000
Kathleen M. Sullivan Jan Witold
Baran
559 Nathan Abbott Way Wiley Rein & Fielding LLP
Stanford, CA
94305 1776
K Street, N.W.
(650) 723-4455 Washington,
DC 20006
(202) 719-7000
James Bopp, Jr.
Bopp, Coleson & Bostrom
1 South Sixth Street
Terre Haute, IN 47807
(812) 232-2434
Attorneys for Plaintiff
March 27, 2002