No. 08-205

IN THE

Supreme Court of the United States

CITIZENS UNITED,

Appellant,

—v.—

FEDERAL ELECTION COMMISSION,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

BRIEF AMICUS CURIAE OF SENATOR MITCH

MCCONNELL IN SUPPORT OF APPELLANT

FLOYD ABRAMS

Counsel of Record

SUSAN BUCKLEY

CAHILL GORDON & REINDEL LLP

80 Pine Street

New York, New York 10005

(212) 701-3000

Attorneys for Amicus Curiae

July 31, 2009

d
-iiTABLE OF CONTENTS 

 Page

TABLE OF AUTHORITIES.................................. iii 

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

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

ARGUMENT......................................................... 2 

I. McCONNELL SHOULD BE OVERRRULED 

AND BCRA’S BAN ON ELECTIONEERING 

COMMUNICATIONS HELD UNCONSTITUTIONAL...................................................... 10 

II. AUSTIN SHOULD BE OVERRULED TO 

ENSURE THAT CORPORATIONS AND 

UNIONS MAY ENGAGE IN CORE POLITICAL SPEECH ABOUT CANDIDATES.. 16 

CONCLUSION ..................................................... 19 
-iiiTABLE OF AUTHORITIES 

Cases

Ashcroft v. Free Speech Coalition, 

535 U.S. 234 (2002) .............................. 10 

Austin v. Michigan Chamber of 

Commerce, 494 U.S. 652 (1990) ........... 2, 6, 16-19 

Baggett v. Bullitt, 377 U.S. 360 

(1964) .................................................... 14 

Buckley v. Valeo, 424 U.S. 1 

(1976) ....................................................

2-6, 9, 11, 

17 

Connally v. General Construction 

Co., 269 U.S. 385 (1926) ....................... 11 

FEC v. Massachusetts Citizens for 

Life, Inc., 479 U.S. 238 (1986) ............. 5, 9, 9n 

FEC v. Wisconsin Right to Life, 

Inc., 127 S. Ct. 2652 (2007) ..................

2, 8-10, 

15, 15n 

First National Bank v. Bellotti, 435 

U.S. 765 (1978) ..................................... 18 

McConnell v. FEC, 540 U.S. 93 

(2003) ....................................................

1, 7, 9n, 

10-12, 18 

Mills v. Alabama, 384 U.S. 214 

(1966) .................................................... 3 

Reno v. ACLU, 521 U.S. 844 (1997) ........ 11 
-ivThornhill v. Alabama, 310 U.S. 88 

(1940) .................................................... 18 

United States v. Automobile Workers, 352 U.S. 567 (1957) ....................... 3n 

United States v. CIO, 335 U.S. 106 

(1948) .................................................... 3n-4n 

Constitutional Provisions

U.S. Const. amend. I ................................ passim 

Statutes

2 U.S.C. § 434(f)........................................ 7, 15 

2 U.S.C. § 441b ......................................... 1, 7, 10 

2 U.S.C. § 441b(a) .................................... 5-6 

18 U.S.C. § 608(e)(1) (1975)...................... 4-5 

Other Authorities

Floyd Abrams, Speaking Freely: 

Trials of the First Amendment

(2005) .................................................... 7-8 

FEC Advisory Op. 1994-30 (Oct. 

28, 1994) ................................................ 9 

FEC Advisory Op. 2004-30 

(Sept. 10, 2004)...................................... 17 
-vDog Eat Dog Films, MURs 5479 

and 5539, First General Counsel’s Report (May 25, 2005)................... 17 

Statement of Sen. McCain, 147 

Cong. Rec. S3116 (daily ed. Mar. 

29, 2001) ............................................... 12-13 
INTEREST OF AMICUS CURIAE1

Senator Mitch McConnell is the Senior Senator 

from the Commonwealth of Kentucky and the Senate 

Republican Leader in the 111th Congress. Senator 

McConnell was the lead plaintiff in McConnell v. 

FEC, 540 U.S. 93 (2003), litigation challenging, inter

alia, the constitutionality of Section 203 of the Bipartisan Campaign Reform Act of 2002 (“BCRA”). For 

many years, Senator McConnell has been a leader in 

the United States Senate in opposing Congressional 

efforts to restrict speech about elections in the name 

of campaign finance reform. 

Senator McConnell submits this brief, amicus curiae, because of his belief that speech about candidates for federal office cannot be constrained by the 

Congress consistent with the First Amendment. 

SUMMARY OF ARGUMENT 

Few would dispute that Hillary: The Movie offers a 

critical, caustic, and often harsh view of then Senator 

and presidential candidate Hillary Clinton. But 

whatever one thinks of the film, from whichever side 

of the aisle, it is simply inconceivable that in a country founded on a profound commitment to freedom of 

speech, its dissemination may be punishable as a 

1 No counsel for a party authored this brief in whole or in 

part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No 

person other than amicus curiae, its members, or its counsel 

made a monetary contribution to its preparation or submission. 

The parties have consented to the filing of this brief. 
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crime. Lamentably, that is where Congress and this 

Court’s decisions in McConnell and Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), have 

brought us. 

Senator McConnell does not offer a view in this 

brief as to whether, as a matter of law, Hillary: The

Movie contains “express advocacy” as that term was 

defined by the Court in Buckley v. Valeo, 424 U.S. 1 

(1976), which would make criminal its dissemination 

at any time in any forum. Nor does he opine as to 

whether the movie is “susceptible of no reasonable interpretation other than as an appeal to vote for or 

against a specific candidate,” FEC v. Wisconsin Right 

to Life, Inc., 127 S. Ct. 2652, 2667 (2007) (“WRTL II”), 

which would make criminal its dissemination by 

broadcast television, cable or satellite during BCRA’s 

extensive blackout periods. He does venture a guess 

that most citizens, unburdened with knowledge of the 

fine distinctions of current federal campaign finance 

law, would likely believe it was both. His conclusion 

is that if the screening of this movie can lead to the 

imposition of criminal sanctions on either — or any — 

theory, there is something seriously wrong, and constitutionally intolerable, not with the movie, but with 

the state of the law. 

ARGUMENT 

INTRODUCTION: THE ROAD TO CENSORSHIP

In this case, the federal government asserts the 

authority to criminalize a motion picture critical of a 

candidate for the presidency of the nation because it 

was paid for in part with corporate funds and shown 

too close to the election. It should really not be neces-
-3- 

sary to cite a case for the proposition that Americans 

may not be fined or jailed for such speech. If it were, 

the unanimous ruling of this court in Mills v. Alabama, 384 U.S. 214 (1966), should suffice. There, an 

Alabama statute drafted to “protect” the public from 

the impact of last-minute campaign charges was applied to bar the publication on election day of an editorial urging adoption of a particular form of city government. Unsurprisingly, the statute was held unconstitutional on the ground that “[w]hatever differences may exist about interpretations of the First 

Amendment, there is practically universal agreement 

that a major purpose of that Amendment was to protect the free discussion of government affairs.” Id. at 

218. “[O]f course,” this Court concluded, that includes 

“discussions of candidates [and] structures and forms 

of government.” Id. (emphasis added). 

What was self-evident in 1966 is no longer so today. Recent campaign finance legislation and litigation spawned by that legislation have too often turned 

First Amendment principles inside out. 

Not until its ruling in Buckley was the constitutionality of limitations on independent expenditures 

addressed by this Court.2 In Buckley, the Court 

2 Prior to Buckley, the Court and various of its members 

had repeatedly voiced serious doubts about the constitutionality 

of sweeping limitations on independent expenditures by corporations and unions. In United States v. CIO, 335 U.S. 106 (1948), 

the Court narrowly construed the Taft-Hartley Act to avoid potential First Amendment concerns. 335 U.S. at 121 (Court has 

“gravest doubt . . . as to . . . constitutionality” of broader reading) 

(Reed, J.); id. at 155 (Rutledge, J., Black, J., Douglas, J., Murphy, J. concurring) (“A statute which, in the claimed interest of 

Footnote continued on next page. 
-4- 

struck down the limits on independent expenditures 

set forth in the Federal Election Campaign Act 

(“FECA”). As originally enacted, FECA restricted expenditures by any person “relative to a clearly identified candidate” to $1,000. See FECA § 608(e)(1). 

Stressing the sanctity of the “[d]iscussion of public issues and debate on the qualifications of candidates,” 

Buckley, 424 U.S. at 14, the Court emphasized that 

the First Amendment affords such speech the “broadest protection” from government regulation, because it 

is “at the core of our electoral process and [our] First 

Amendment freedoms.” Id. at 39 (citation and internal quotation marks omitted). 

Based on these principles, Buckley held that section 608(e)(1) could not withstand First Amendment 

scrutiny. Seeking to construe the provision in a manner that could save it from unconstitutional vagueness, the Court first narrowed the provision to “communications that in express terms advocate the election or defeat of a clearly identified candidate for fedFootnote continued from previous page. 

free and honest elections, curtails the very freedoms that make 

possible exercise of the franchise by an informed and thinking 

electorate, and does this by indiscriminate blanketing of every 

expenditure made in connection with an election . . . cannot be 

squared with the First Amendment.”); United States v. Automobile Workers, 352 U.S. 567, 597 (1957) (“Some may think that one 

group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or 

because it has a record of lawless action. But these are not justifications for withholding First Amendment rights from any group 

— labor or corporate.”) (Douglas, J., Warren, C.J., Black, J., dissenting.) 
-5- 

eral office,” id. at 44, which it further clarified to 

mean “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. 

Even under its narrowing construction, the Court 

ultimately struck down section 608(e)(1), holding that 

the provision could not survive strict scrutiny. See id.

at 44. Rejecting the lower court’s conclusion that restrictions on expenditures were necessary to prevent 

circumvention of restrictions on contributions, see id., 

the Court explained that the governmental interest in 

preventing corruption and the appearance of corruption was not implicated by independent expenditures 

and that, even if it were, the limitation on independent expenditures was necessarily underinclusive, see 

id. at 45-46. “The exacting interpretation of the 

statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation’s effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper 

influence upon a candidate or office-holder [by running ads that do not ‘in express terms advocate the 

election or defeat of a clearly identified candidate’].” 

Id. at 45. 

In the aftermath of Buckley, Congress amended 

FECA and the provision prohibiting contributions or 

expenditures by corporations and unions in connection with any federal election. See 2 U.S.C. § 441b(a). 

In FEC v. Massachusetts Citizens for Life, Inc., 479 

U.S. 238 (1986)(“MCFL”), the Court drew from Buckley’s narrowing construction of section 608(e)(1) the 

need to limit section 441b(a) expenditures to “express 

advocacy,” see MCFL, 479 U.S. at 248-49. Nonethe-
-6- 

less, the Court ruled that section 441b(a) could not 

constitutionally be applied to MCFL, a non-profit corporation with a policy of declining corporate contributions. 

Four years later, the Court held, for the first time, 

that independent corporate expenditures could be restricted in the service of a goal other than the prevention of quid pro quo corruption. In Austin, the Court 

considered a Michigan law prohibiting corporations 

from using treasury funds for independent expenditures in support of or in opposition to candidates in 

elections for state office. Implicitly recognizing that 

such restrictions did not advance the government’s 

interest in preventing corruption or the appearance of 

corruption as Buckley had found, Austin identified a 

new governmental interest in the course of upholding 

Michigan’s ban: “the corrosive and distorting effects of 

immense aggregations of wealth that are accumulated 

with the help of the corporate form and that have little or no correlation to the public’s support for the 

corporation’s political ideas.” Austin, 494 U.S. at 660. 

Notwithstanding the Court’s prior determinations 

that the alternative of establishing separate segregated funds or PACs imposed too great a burden on 

the right to engage in core political speech, MCFL, 

479 U.S. at 253-255; id. at 266 (O’Connor, J., concurring), the Court embraced the PAC alternative in Austin, paving the way for BCRA. 

In 2002, Congress passed BCRA. Signed into law 

by President Bush notwithstanding his publicly expressed doubts about its constitutionality, the statute 

bans all corporations and unions, or entities using 

funds donated by corporations or unions, from using 

treasury funds to make disbursements for “election-
-7- 

eering communications.” An electioneering communication is defined as “any broadcast, cable, or satellite 

communication” disseminated within 30 days of a 

primary or 60 days of a general election which “refers 

to a clearly identified candidate for Federal office.” 

Anticipating that this definition might be held unconstitutional, Congress included a “fallback” definition 

which defines an electioneering communication as any 

broadcast, cable or satellite communication carried at 

any time which “promotes,” “supports,” attacks” or 

“opposes” a federal candidate and “is suggestive of no 

plausible meaning other than an exhortation to vote 

for or against a specific candidate.” BCRA § 201(a) 

(adding new FECA § 304(f)). 

BCRA’s ban on electioneering communications was 

sustained in McConnell without resort to the fallback 

definition. Although the Court concluded that appellants’ challenge to the statute failed “to the extent 

that the issue ads . . . are the functional equivalent of 

express advocacy,” it offered no narrowing construction and simply affirmed (in the single paragraph that 

the Court devoted to the merits of the challenge to 

BCRA’s § 203) that “the vast majority of ads clearly 

had [an electioneering] purpose.” McConnell, 540 

U.S. at 206. 

It did not take long after the Court’s decision in 

McConnell for BCRA to lead to a significant diminution of speech: 

To comply with the new law in the 

months before the 2004 election, the 

Chamber of Commerce of the United 

States . . . had to abandon its plans to 

broadcast advertisements supporting 

class action reform legislation which 
-8- 

mentioned the names of senators and 

congressmen whose votes the Chamber 

coveted. At the same time, and for the 

same reason, the AFL-CIO was forced to 

forego its efforts to broadcast advertisements criticizing federal overtime regulations issued by the Department of Labor in which the union wished to identify 

names of members of Congress that it 

sought to pressure to vote their way. . . 

[T]he ACLU. . .ultimately broadcast advertisements denouncing the Patriot Act 

but refrained, as McCain-Feingold required, from criticizing (or even mentioning) President Bush as it did so. 

Floyd Abrams, Speaking Freely: Trials of the First 

Amendment, 274-75 (2005). 

Significant, if partial, relief from the draconian 

impact of BCRA’s ban on electioneering communications ultimately came with this Court’s decision in 

WRTL II. However one characterizes that ruling,

there can be no doubt that “electioneering communications” were, in effect, redefined. Under WRTL II, a 

communication in the targeted media at the targeted 

times is prohibited only if it “is susceptible of no reasonable interpretation other than as an appeal to vote 

for or against a specific candidate.” WRTL II, 127 

S.Ct. at 2655. 

Corporations and unions now find themselves in 

the following position. As a result of FECA’s ban on 

independent expenditures, no corporation or union 

may spend its treasury funds on any communication 

which contains express advocacy as defined in Buck-
-9- 

ley.3 This prohibition applies to any and all media 

whether it be a road sign, a placard, a newsletter, an 

internet posting, a movie, a television, cable or satellite offering or, indeed, a book. It applies 24 hours a 

day, seven days a week, 365 days a year. There are 

few exceptions, the most notable being for not-forprofit corporations that meet the criteria of this 

Court’s decision in MCFL, media entities (as defined 

in FECA) and entities engaging in purely commercial 

transactions (see FEC Advisory Op. 1994-30 (Oct. 28, 

1994)). In addition, as a result of BCRA’s ban on electioneering communications, no corporation or union 

may spend its treasury funds on any communication 

which is “susceptible of no reasonable interpretation 

other than as an appeal to vote for or against a specific candidate.” WRTL II, 127 S.Ct. at 2667. This 

prohibition applies to any communication transmitted 

by broadcast television, cable or satellite during the 

“black out periods” defined in BCRA. Thus, if Hillary: 

The Movie contains “express advocacy” it is doomed 

wherever and however displayed. If it passes the express advocacy test of Buckley but fails the test of 

WRTL II, it subjects Citizens United to severe criminal penalties if distributed by broadcast television, 

3 The emphasis in McConnell on corporate PACs serving 

as a sufficient substitute for a corporation’s use of treasury funds 

is inconsistent with the Court’s recognition in both MCFL, see p. 

5, supra, and WRTL II of the “well-documented and onerous burdens” the use of PACs entails. WRTL II, 127 S. Ct. at 2671 n.9 

(Roberts, C.J.). See McConnell, 540 U.S. at 330-333 (Kennedy, 

J., dissenting). See generally Brief of Amicus Curiae National 

Rifle Association at 18-22.
-10- 

cable or satellite during any of BCRA’s blackout periods. 

I. McCONNELL SHOULD BE OVERRRULED 

AND BCRA’S BAN ON ELECTIONEERING 

COMMUNICATIONS HELD UNCONSTITUTIONAL

The Court’s ruling in WRTL II makes it unnecessary to review in detail the constitutionally impermissible overbreadth of the primary definition set forth in 

BCRA. In addition to the analysis in that case by the 

Chief Justice and the concurring opinion of Justice 

Scalia, we note only that the consideration of BCRA’s 

ban on electioneering communications in McConnell

was driven by flawed factual and legal premises. Section 203 does not simply prohibit communications 

with “an electioneering purpose” or which are the 

“functional equivalent of express advocacy.” On its 

face BCRA prohibits corporations and unions from using treasury funds to air any communication that 

even “refers” to a federal candidate during BCRA’s 

blackout periods. In doing so, BCRA’s goal of banning 

supposedly “bad” speech — i.e. speech with an “electoral purpose” — swept within it significant amounts 

of speech that had no such purpose. But this Court 

had previously made plain that the notion “that protected speech may be banned as a means to ban unprotected speech . . . turns the First Amendment upside down.” Ashcroft v. Free Speech Coalition, 535 

U.S. 234, 255 (2002); accord WRTL II, 127 S. Ct. at 

2670 (Roberts, C.J.). 

BCRA’s fallback definition — banning any communication that “promotes,” “supports,” attacks” or 

“opposes” a federal candidate and “is suggestive of no 
-11- 

plausible meaning other than an exhortation to vote 

for or against a specific candidate” — cannot salvage 

the statute. As the record in the McConnell case vividly revealed, the definition is unconstitutionally 

vague. 

A statute is unconstitutionally vague if people “of 

common intelligence must necessarily guess at its 

meaning and differ as to its application.” Connally v.

General Construction Co., 269 U.S. 385, 391 (1926); 

accord Reno v. ACLU, 521 U.S. 844, 871-72 (1997). 

An “even greater degree of specificity is required” in 

the First Amendment context. Buckley, 424 U.S. at 

77 (citation and internal quotation marks omitted). 

As the Court explained in Buckley: 

In short, the supposedly clear-cut distinction between discussion, laudation, 

general advocacy, and solicitation puts 

the speaker in these circumstances 

wholly at the mercy of the varied understanding of his hearers and consequently 

of whatever inference may be drawn as 

to his intent and meaning. 

Such a distinction offers no security 

for free discussion. In these conditions it 

blankets with uncertainty whatever may 

be said. It compels the speaker to hedge 

and trim. 

Id. at 43 (emphasis added; citation and internal quotation marks omitted). 

Discovery in McConnell confirmed that reasonable 

and intelligent people often disagree about whether 

particular political ads meet the criteria of the fallback definition. When shown particular ads during 
-12- 

their depositions in McConnell, the authors of the 

much disputed studies submitted to Congress and the 

Court, defendants’ experts, and BCRA’s sponsors routinely disagreed with each other as to whether a given 

ad was intended to promote, support, attack, or oppose a specific candidate or was “suggestive of no 

plausible meaning other than an exhortation to vote 

for or against a specific candidate.” A criminal law 

that gives so little guidance as to its meaning cannot 

be sustained. 

By way of example, an ad that ran within 60 days 

of the 1998 general election stated in part: “Year after 

year the federal government takes a bigger piece of 

the pie. In fact in 1998 we’ll pay more in federal taxes 

than at any time in American history except for World 

War II. And now with the budget surplus, in thirty 

years all the Washington politicians can talk about is 

getting their hands on more of your dough.” The ad 

then asked viewers to “[c]all Harry Reid and John Ensign” and urge them to cut taxes. “Otherwise,” the ad 

concluded, “there will be nothing left but the crumbs.” 

McConnell Br. App. 4a.4 One author of the pro-BCRA 

studies opined that this ad was a “genuine” issue ad 

and not a candidate ad because its “focus is on taxes.” 

J.A. 959. Senator McCain, in contrast, testified that 

the ad “attacks” both candidates. Id. at 937. And Congressman Shays, another legislative sponsor, offered a 

third view, testifying that the ad supported “one per4 References to “McConnell Br. App.” are to the Appendix 

to the “Brief for Appellants/Cross-Appellees Senator Mitch 

McConnell, et al.” in No. 02-1674. References to “J.A.” are to the 

Joint Appendix in that case. 
-13- 

son’s position, but not the other” and that it was 

therefore “designed to influence the election.” Id. at 

994. 

Another ad, sponsored by the Alliance for Quality 

Nursing Home Care broadcast within 60 days of the 

2000 general election, referred to then-presidential 

candidate Al Gore. See McConnell Br. App. 5a. In his 

deposition, Senator Feingold was unsure whether the 

ad was pro-Gore or anti-Gore. See J.A. 852. On the 

other hand, Senator McCain testified that the ad “implies that Al Gore was responsible for Medicare cuts, 

which is a pretty damning indictment.” Id. at 941. 

But Representative Meehan concluded that the ad 

“probably” was intended to promote Gore’s candidacy, 

see id. at 973, and Representative Shays agreed, see

id. at 994. 

A third example was this ad, aired with 60 days of 

the 2000 general election: 

GRADUATE: Dear high tech company, 

I’d like to send you my resume. 

ANNOUNCER: Dear Graduate, sorry, 

Congress is going to give your job to a 

foreign worker. 

GRADUATE: But I’ve just finished four 

hard years of technical studies. 

ANNOUNCER 1: Sorry, besides foreign 

workers will work for a lot less. 

ANNOUNCER 2: Is this any way to treat 

American workers? But based on her record, Congresswoman Northup is likely 

to vote in favor of the Foreign Worker 

Bill. Call Congresswoman Northup and 
-14- 

tell her to save our best jobs for American workers. Ask her to vote no on the 

Foreign Worker Bill. This message paid 

for by the Coalition for the Future 

American Worker. 

McConnell Br. App. 6a. Though the ad was treated by 

supporters of BCRA in a study much cited by members of Congress, as a “genuine” issue ad (that is, one 

that does not “generate support or opposition for a 

particular candidate”), see J.A. 895-98, Senator 

McCain called the ad “exactly what I have in mind as 

a sham issue ad,” id. at 942. 

With disagreement of such magnitude, it is plain 

that the fallback definition would inevitably lead 

speakers to “steer far wider of the unlawful zone than 

if the boundaries of the forbidden areas were clearly 

marked.” Baggett v. Bullitt, 377 U.S. 360, 372 (1964) 

(citation and internal quotation marks omitted). 

Senator McCain said it best when he rose on the Senate floor to oppose the inclusion of materially identical 

statutory language: 

Boy, we better get out the dictionary because there is a great deal of ambiguity 

of words . . . It says in the amendment: . . 

. [ads] can have no reasonable meaning 

other than to advocate the defeat of one 

or more clearly identified candidates. 

Who decides that? . . . Now you are asking a judge to look at every commercial, 

or you are asking the broadcast station 

to look at every commercial[,] and make 

some decision as to whether it is an attack ad or not. . . I am not a lawyer, but I 
-15- 

have been involved so long and so engaged in these issues that words do have 

meaning, and this amendment is very 

vague. 

147 Cong. Rec. S3116 (daily. ed. Mar. 29, 2001). The 

fallback definition in section 201 is, as Senator 

McCain counseled, unacceptably and unconstitutionally vague. 

The test adopted in WRTL II, which looks to 

whether a communication is “susceptible of no reasonable interpretation other than as an appeal to vote 

for or against a specific candidate” is similar to 

BCRA’s fallback definition and suffers from the same 

difficulties.5 BCRA’s sponsors and its expert defenders are no doubt reasonable people. If they cannot 

agree on whether an ad is “an exhortation to vote for 

or against a specific candidate,” there is no reason to 

conclude that juries or judges would be any more able 

to agree on whether it is “an appeal to vote for or 

against a particular candidate.” 

McConnell should be overruled. 

5 It is dissimilar in one significant way. BCRA’s “fallback 

definition” has no temporal limitation. The test adopted by the 

Court in WRTL II is apparently limited to BCRA’s blackout periods. 
-16- 

II. AUSTIN SHOULD BE OVERRULED TO ENSURE THAT CORPORATIONS AND UNIONS MAY ENGAGE IN CORE POLITICAL 

SPEECH ABOUT CANDIDATES 

As a consequence of FECA’s ban on independent 

expenditures, given force by this Court’s decision in 

Austin, corporations and unions are currently subjected to criminal penalties for using their treasury 

funds to engage in “express advocacy” but are free to 

engage in “issue advocacy,” subject, of course, to the 

limitations of BCRA’s ban on electioneering communications. The criticism in some quarters of the Solicitor General’s Office for forthrightly acknowledging in 

oral argument that the government’s position would 

permit criminal punishments to be inflicted for the 

publication of books or the screening of movies funded 

by corporations or unions is thus entirely misplaced. 

Congress has already invoked that power in FECA if 

the work contains “express advocacy” and the FEC already enforces it. As a result, other movies have not 

escaped the FEC’s scrutiny, in ways that cannot be 

reconciled with the First Amendment. 

In the 2004 election cycle, Michael Moore’s Fahrenheit 9/11, a documentary that criticized President 

Bush to the point of ridicule, came under the scrutiny 

of the FEC. The claim was that the movie, funded as 

it was by a corporation, was illegal express advocacy 

and that to show it at all would violate FECA. The 

movie barely escaped a finding of liability. The Commission ruled that because the film was a commercial 

venture, i.e., because its producers charged viewers to 

see it, it fell within the Commission’s exemption for 

“bona fide commercial activity,” an exemption unavailable to Citizens United in the context of this 
-17- 

case. Dog Eat Dog Films, MURs 5474 and 5539, First 

General Counsel’s Report at 8 (May 25, 2005). The 

second reason Fahrenheit 9/11 wiggled away from the 

FEC’s reach was the Commission’s finding, after dissecting each minute of the entire film, that it did not 

quite contain any of the language specified in Buckley. 

Id. at 17-18. 

Another film produced during the 2004 election cycle, also produced by Citizens United, met with similar FEC scrutiny. This film focused on the lives and 

careers of presidential candidate John Kerry and vicepresidential candidate John Edwards. Citizens 

United’s plan was to make the film available to the 

public through movie theaters, DVD and videocassette sales and by purchasing air time to broadcast 

the film in certain television markets. It sought an 

advisory opinion from the FEC to ensure it would not 

be subjecting itself to potential criminal liability for 

doing so. The theater showings and DVD and videocassette sales passed muster with the FEC because 

Citizens United represented that the film “would not 

contain express advocacy.” The television effort was 

doomed however because the film was to have aired 

during a BCRA blackout period. FEC Advisory Opinion 2004-30 (Sept. 10, 2004). 

The world reflected in these opinions is one of government censors parsing through the content of core 

political speech in an effort to determine whether it 

may be published or whether the speaker would be 

guilty of a crime. And the case on which all this governmental authority rests is Austin. 

At its core, Austin stands for the unsound proposition that the government has an interest in regulating 

speech by corporations simply because they are corpo-
-18- 

rations. This is flatly contrary to this Court’s prior 

ruling in First National Bank of Boston v. Bellotti, 435 

U.S. 765 (1978). See McConnell, 540 U.S. at 326 

(Kennedy, J., dissenting). There is no valid justification for subjecting non-commercial speech by corporations to more stringent regulation, especially speech 

that is “indispensable to the effective and intelligent 

use of the processes of popular government to shape 

the destiny of modern industrial society.” Thornhill v. 

Alabama, 310 U.S. 88, 103 (1940). 

The Supplemental Brief for Appellant addresses in 

considerable detail why Austin was not analytically 

sound when issued and has not stood the test of time. 

So as not to burden the Court with duplicative argument, we join in those arguments and Appellant’s request that Austin be overruled. 
-19- 

CONCLUSION 

Sometimes a case helps us see just how far off constitutional course Congress and prior rulings of this 

Court have taken the nation. This is one of those 

cases. That the dissemination of Hillary: The Movie

may be prohibited by BCRA (under the authority of 

McConnell) or prohibited by FECA (under the authority of Austin) is reason enough to overrule those decisions. 

Respectfully submitted, 

 FLOYD ABRAMS

 Counsel of Record 

SUSAN BUCKLEY

CAHILL GORDON & REINDEL LLP

 80 Pine Street 

 New York, New York 10005 

 (212) 701-3000 

 

Attorneys for Amicus Curiae 

Senator Mitch McConnell