SUMMARY OF ARGUMENT
The broad prohibition on "electioneering communications" set forth in § 203 of the Bipartisan Campaign Reform Act of 2002 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 unconstitutional 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.

Amicus brief of ACLU...

As you don't know what Democracy means, you won't be able to understand Fascism.

So let me give you a hint:  Fascism starts when people begin turning into monsters.

For further detailed information you should ask your spiritual brother, the scientist, or better your local hairdresser.