i 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ..................................... ii 

INTEREST OF AMICI CURIAE ............................ 1 

SUMMARY OF ARGUMENT .................................. 2 

ARGUMENT ............................................................. 4 

I. The Constitution Protects The Rights Of 

Individual Citizens To Participate 

Effectively In The Political Process And 

Allows Regulation Of Corporate Influence 

In Elections ................................................... 4 

II. The Constitution’s Text And History Allow 

Federal And State Governments To Impose 

Greater Restrictions Upon Corporations 

Than Upon Individual Citizens ................. 13 

CONCLUSION ....................................................... 19
ii 

TABLE OF AUTHORITIES 

Page 

Cases

Austin v. Michigan Chamber of Commerce, 

 494 U.S. 652 (1990) ............................................. 19 

Bank of Augusta v. Earle, 

 38 U.S. (13 Pet.) 519 (1839) ................................ 16

Cort v. Ash, 

 422 U.S. 66 (1975) ............................................... 10

First Nat’l Bank of Boston v. Bellotti, 

 435 U.S. 765 (1978) ....................................... 17, 18 

Head & Amory v. Providence Ins. Co., 

 6 U.S. (2 Cranch.) 127 (1804) .............................. 14 

McConnell v. FEC, 

 540 U.S. 93 (2003) ............................................... 19 

Northern Securities Co. v. United States, 

 193 U.S. 197 (1904) ....................................... 17, 18

Northwestern Nat’l Life Ins. Co v. Riggs, 

 203 U.S. 243 (1906) ............................................. 17 

Paul v. Virginia, 

 75 U.S. (8 Wall.) 168 (1868) ................................ 17

Sinking Fund Cases, 

 99 U.S. 700 (1878) ............................................... 18 

Trustees of Dartmouth College v. Woodward, 

 17 U.S. (4 Wheat.) 518 (1819) ....................... 14, 17
iii 

TABLE OF AUTHORITIES—continued 

Page 

Tomlinson v. Jessup, 

 82 U.S. 454 (1872) ............................................... 18 

Western Turf Ass’n v. Greenberg, 

 204 U.S. 359 (1907) ............................................. 17 

United States v. UAW, 

 352 U.S. 567 (1957) ......................................... 9, 10 

United States v. White, 

 322 U.S. 694 (1944) ............................................. 15 

Constitutional Provisions and Legislative Materials

23 Cong. Rec. 6063 (1892) ........................................ 7 

26 Cong Rec. 7775 (1894) ......................................... 8 

40 Cong. Rec. 96 (1905) .......................................... 10 

41 Cong. Rec. 22 (1906) .......................................... 10 

Act of Aug. 19, 1911 (Amendments to the Publicity 

Act), 37 Stat. 25 (Aug. 19, 1911) ............................ 12 

Annals of Congress, 1st Cong., 3rd Sess. 

1949 (1791) ............................................................. 14 

S. Rep. No. 59-3056 (1906) ..................................... 10 

Tillman Act of 1907, 34 Stat. 864 

(Jan. 26, 1907) ........................................................ 10 
iv 

TABLE OF AUTHORITIES—continued 

Page 

U.S. CONST., amend. II ........................................... 15 

U.S. CONST., amend. V ........................................... 15 

U.S. CONST., amend. XV ........................................... 4 

U.S. CONST., amend. XVII ........................................ 4 

U.S. CONST., amend. XIX ......................................... 5 

U.S. CONST., amend. XXIV ....................................... 5 

U.S. CONST., amend. XXVI ....................................... 5 

Books and Articles

Mark C. Alexander, Money in Political Campaigns 

and Modern Vote Dilution, 23 LAW & INEQ. 239 

(2005) ........................................................................ 5 

AKHIL REED AMAR, AMERICA’S CONSTITUTION: A

BIOGRAPHY (2005) ........................................... passim 

AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION 

AND RECONSTRUCTION (1998) ............................ 13-14 

Vikram David Amar, Indirect Effects of Direct 

Election: A Structural Examination of the 

Seventeenth Amendment, 49 VANDERBILT L. REV. 

1347 (1996) ............................................................. 11 
v 

TABLE OF AUTHORITIES—continued 

Page 

Jay S. Bybee, Ulysses at the Mast: Democracy, 

Federalism, and the Sirens’ Song of the Seventeenth 

Amendment, 91 NW. U. L. REV. 500 (1997) ............ 11 

Thomas M. Cooley, A TREATISE ON THE 

CONSTITUTIONAL LIMITATIONS WHICH REST UPON 

THE LEGISLATIVE POWER OF THE UNITED STATES OF 

THE AMERICAN UNION (3d ed. 1874) ......................... 6 

Daniel A. Crane, Antitrust Antifederalism, 96 CAL. 

L. REV. 1 (2008) ....................................................... 15 

Rutherford B. Hayes, THE DIARY AND LETTERS OF 

RUTHERFORD B. HAYES, NINETEENTH PRESIDENT OF 

THE UNITED STATES (Charles Richard Williams ed., 

Ohio State Archaeological & Historical Society 

1922).......................................................................... 6 

JAMES WILLARD HURST, THE LEGITIMACY OF THE 

BUSINESS CORPORATION IN THE LAW OF THE UNITED 

STATES, 1780-1970 (1970) ....................................... 14 

N.Y. TRIBUNE, Sept. 18, 1905 ................................... 9 

Frank Pasquale, Reclaiming Egalitarianism in the 

Political Theory of Campaign Finance Reform, 2008 

U. ILL. L. REV. 599 (2008) ..................................... 5, 8 

Terry Smith, Race and Money in Politics, 79 N.C. L.

REV. 1469 (2001) ............................................... 11, 12 
vi 

TABLE OF AUTHORITIES—continued 

Page 

MELVIN I. UROFSKY, MONEY AND FREE SPEECH:

CAMPAIGN FINANCE REFORM AND THE 

COURTS (2005) ........................................................... 6 

Adam Winkler, Beyond Bellotti, 32 LOY. L.A. L.

REV. 133 (1998) ................................................. 12, 13 

Adam Winkler, The Corporation in Election Law, 

32 LOY. L.A. L. REV. 1243 (1999) .............................. 9 
 1 

INTEREST OF AMICI CURIAE1

The League of Women Voters of the United 

States is a nonpartisan, community-based 

organization that encourages the informed and 

active participation of citizens in government and 

influences public policy through education and 

advocacy. Founded in 1920 as an outgrowth of the 

struggle to win voting rights for women, the League 

is organized in more than 850 communities and in 

every state, with more than 150,000 members and 

supporters nationwide. One of the League’s 

primary goals is to promote an open governmental 

system that is representative, accountable, and 

responsive and that assures opportunities for 

citizen participation in government decision 

making. To further this goal, the League has been 

a leader in seeking campaign finance reform at the 

state, local, and federal levels for more than three 

decades. 

Constitutional Accountability Center (CAC) is 

a think tank, public interest law firm, and action 

center dedicated to fulfilling the progressive 

promise of the Constitution’s text and history. CAC 

works in our courts, through our government, and 

with legal scholars to improve understanding of the 

 

1 The parties’ letters of consent to the filing of this brief have 

been filed with the Clerk. Under Rule 37.6 of the Rules of 

this Court, amici state 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 amici curiae, 

their members, or their counsel made a monetary 

contribution to its preparation or submission.
 2 

Constitution and to preserve the rights and 

freedoms it guarantees. 

SUMMARY OF ARGUMENT 

Since our Nation’s founding, our constitutional 

story has been one of democratic progress, moving 

American democracy toward broader 

enfranchisement and more meaningful political 

participation for individual American citizens. See 

AKHIL REED AMAR, AMERICA’S CONSTITUTION: A

BIOGRAPHY 423 (2005). Through constitutional 

amendments, our modern democracy has been 

constructed on the foundation of our original 

Constitution: the Fifteenth Amendment guaranteed 

the right to vote free from racial discrimination; the 

Seventeenth Amendment gave the people in each 

State the right to vote for U.S. senators; the 

Nineteenth Amendment extended the franchise to 

women; the Twenty-fourth Amendment freed the 

federal election process from poll taxes; and the 

Twenty-sixth Amendment secured the right to vote 

for young adults. Statutory enactments, such as 

the Voting Rights Act in 1965 and campaign 

finance regulation beginning with the Tillman Act 

in 1907, have also been central to the story of our 

hard-won, modern, inclusive democracy. 

Prevention of improper corporate influence in 

the electoral process—like the extension of the 

franchise, anti-discrimination mandates, and the 

bedrock equality principle of one-person, one-vote—

is a pillar of our modern democracy. Concern that 

corporations were corrupting elections motivated 

passage of the Tillman Act of 1907, the first piece of 
 3 

federal corporate campaign finance legislation, as 

well as the ratification of the Seventeenth 

Amendment in 1913, which was intended to 

prevent corporate influence in the selection of U.S. 

senators. The idea that government can act to 

prevent improper corporate influence in elections is 

thus woven into the very fabric of our constitutional 

system and has been reflected in more than a 

century of campaign finance regulation. 

While our Constitution reflects an increasingly 

expansive view of individual participation in the 

political process, it does not reflect a similar 

solicitude for corporate participation. To the 

contrary, our constitutional history reflects a 

growing concern over the influence of corporations, 

and the distinction between the legal protections 

afforded to living persons and corporations has 

been part of our constitutional law from the 

Founding. Corporations are never specifically 

mentioned in the Constitution, and from the 

earliest days this Court has held that the 

government need not treat corporations the same 

way it treats individual citizens. The Tillman Act 

and the Seventeenth Amendment built upon this 

solid foundation of constitutional text and history 

in preventing corporations from dominating our 

electoral system. 

If the Court takes this opportunity to “return 

to first principles,” as suggested by Citizens United, 

Supp. Br. for Appellant at 2, amici submit that 

these first principles support preserving, not 

dismantling, corporate campaign finance 

regulations. To change course and create a new 
 4 

constitutional right for corporations to make 

unlimited expenditures in candidate elections 

would reverse our centuries-long march of progress 

toward greater democracy and run contrary to 

constitutional text and history. 

ARGUMENT 

I. THE CONSTITUTION PROTECTS THE 

RIGHTS OF INDIVIDUAL CITIZENS TO 

PARTICIPATE EFFECTIVELY IN THE 

POLITICAL PROCESS AND ALLOWS 

REGULATION OF CORPORATE 

INFLUENCE IN ELECTIONS. 

As constitutional scholar Akhil Amar has 

observed, the Constitution’s “chronological format 

highlights the grand arc of constitutional history,” 

demonstrating, at a glance, “how democracy has 

swept forward across the centuries.” AKHIL REED 

AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 459 

(2005). While “America’s Founding gave the world 

more democracy than the planet had thus far 

witnessed,” id. at 14, it nonetheless took almost two 

centuries of constitutional amendments and 

statutory enactments to achieve our modern 

American democracy. 

With the Fifteenth Amendment, ratified in 

1870,2 the franchise was guaranteed to citizens 

regardless of race or color; with the Seventeenth 

Amendment, ratified in 1913,3 citizen participation 

was advanced through direct election of U.S. 

 

2 U.S. CONST., amend. XV. 

3 U.S. CONST., amend. XVII. 
 5 

senators; with the Nineteenth Amendment, ratified 

in 1920,4 women gained the right to vote; and with 

the Twenty-fourth Amendment, ratified in 1964,5

and the Twenty-sixth Amendment, ratified in 

1971,6 the Constitution extended the right to vote 

to the poor and young adults, respectively. See 

generally AMAR, AMERICA’S CONSTITUTION, at 18-19, 

408. While none of these amendments speaks 

directly to campaign finance, concerns about 

corporate influence in politics and elections have, 

throughout this history, intertwined with 

constitutional efforts to safeguard the rights of 

individual voters. Preventing improper influence of 

corporate wealth in elections has gone hand-inhand with modern democracy’s embrace of the 

principle of political equality. See Mark C. 

Alexander, Money in Political Campaigns and 

Modern Vote Dilution, 23 LAW & INEQ. 239 (2005). 

Serious concerns about corporate influence in 

government began in the post-Civil War era, 

around the time the Fifteenth Amendment was 

ratified. This “Gilded Age” is when the story of 

campaign finance reform properly begins, “when a 

variety of political reform movements began to 

question the growing influence of trusts and other 

organized economic interests within the American 

democratic system.” Frank Pasquale, Reclaiming 

Egalitarianism in the Political Theory of Campaign 

Finance Reform, 2008 U. ILL. L. REV. 599, 603 

(2008). 

 

4 U.S. CONST., amend. XIX. 

5 U.S. CONST., amend. XXIV. 

6 U.S. CONST., amend. XXVI. 
 6 

Industrialization, economic growth, and 

government contracts awarded during the war 

combined to give American corporations 

remarkable wealth and power in the aftermath of 

the Civil War. In 1864, President Abraham Lincoln 

presciently predicted that “as a result of the war, 

corporations have become enthroned, and an era of 

corruption in high places will follow.” MELVIN I.

UROFSKY, MONEY AND FREE SPEECH: CAMPAIGN 

FINANCE REFORM AND THE COURTS 7 (2005). In 

1874, conservative jurist Thomas Cooley similarly 

warned that “the most enormous and threatening 

powers in our country have been created; some of 

the great and wealthy corporations actually [have] 

greater influence in the country at large and upon 

the legislation of the country than the States to 

which they owe their corporate existence.” Thomas 

M. Cooley, A TREATISE ON THE CONSTITUTIONAL 

LIMITATIONS WHICH REST UPON THE LEGISLATIVE 

POWER OF THE UNITED STATES OF THE AMERICAN 

UNION 279 n.2 (3d ed. 1874). By 1888, corporate 

power in politics had become so overwhelming that 

President Rutherford Hayes remarked with dismay 

in his diary that the United States had become “a 

government of corporations, by corporations, and 

for corporations.” Rutherford B. Hayes, THE DIARY 

AND LETTERS OF RUTHERFORD B. HAYES,

NINETEENTH PRESIDENT OF THE UNITED STATES 374 

(Charles Richard Williams ed., Ohio State 

Archaeological & Historical Society 1922), available 

at http:// www.ohiohistory.org/onlinedoc/hayes/ 

volume04/Chapter45/March11.txt. 

Reformers began to heed these warnings about 

corporate financial influence in elections. The 
 7 

process by which United States senators were 

selected by state legislatures was seen as 

particularly prone to corporate corruption, and 

reform of this process ranked high on reformers’ 

agenda.7 While the Seventeenth Amendment was 

not ratified until 1913, corporate influence in the 

selection of U.S. senators was seen as a sufficiently 

serious problem before the turn of the century that 

prominent members of Congress spoke out against 

it. In 1892, Representative Tucker observed that: 

 [t]he wonderful growth of our country 

has been greatly accelerated by the 

combinations of wealth in corporate forms 

[but] when they leave their legitimate 

fields of operation and seek to control, 

against the interests of the people, the 

legislation of the country, whether they 

be banks or railroads, corporations or 

trusts, or combines, they will meet with 

the indignant protests of all true friends 

of the people . . . The standard for the 

exalted position of United States Senator 

is thus debased by corporate influence.” 

23 Cong. Rec. 6063 (1892). 

 

7 The selection of U.S. senators by state legislatures was 

viewed as particularly susceptible to corporate corruption 

because special interests could pay off state lawmakers to vote 

a certain way in Senate contests. Supporters of direct election 

of senators by the people believed that “it is harder to bribe a 

large group of ad hoc decisionmakers—such as ordinary 

voters—than a small group of standing officials.” AMAR,

AMERICA’S CONSTITUTION, at 413. 
 8 

Political leader William Jennings Bryan 

further explained that the concern over corporate 

political influence had grown since the time of the 

Founding, and required new regulation. In arguing 

for direct election of senators, he said: 

We all recognize that there is a reason for 

the election of Senators by a direct vote 

today that did not exist at the time the 

constitution was adopted. We know that 

today great corporations exist in our 

States, and that these great corporations, 

different from what they used to be one 

hundred years ago, are able to compass 

the election of their tools and their agents 

through the instrumentality of 

Legislatures, as they could not if Senators 

were elected directly by the people. 

26 Cong Rec. 7775 (1894). 

In addition to seeking structural change in 

senatorial elections, reformers also responded to 

criticism of businesses financing political 

campaigns by proposing regulation of corporate 

political activity. “Campaign finance reform was 

viewed as a logical complement” to other reforms 

aimed at combating political corruption and 

providing political equality. Pasquale, supra, at 

605. 

Accusations of corporate corruption in the 

election of Theodore Roosevelt in 1904 created an 

opportunity for the country to consider corporate 

campaign finance regulation. As Justice 
 9 

Frankfurter explained, “[c]oncern over the size and 

source of campaign funds so actively entered the 

presidential campaign of 1904 that it crystallized 

popular sentiment for federal action to purge 

national politics of what was conceived to be the 

pernicious influence of ‘big money’ campaign 

contributions.” United States v. UAW, 352 U.S. 

567, 571-72 (1957). As Roosevelt’s defeated 

challenger stated, “[t]he greatest moral question 

which now confronts us is, Shall the trusts and 

corporations be prevented from contributing money 

to control or aid in controlling elections?” Id. at 

572. 

Public sentiment in favor of corporate 

campaign finance regulation was informed not just 

by a belief that corporations were wielding too 

much power in elections by virtue of their 

extraordinary wealth, but also by the belief that 

the political process should be left to the American 

people themselves, not artificial corporate entities. 

In 1905, the New York Tribune expressed its views, 

which were widely shared: “A corporation is not a 

citizen . . . . It is an artificial creation . . . and 

attempts by it to exercise rights of citizenship are 

fundamentally a perversion of its power.” N.Y.

TRIBUNE, Sept. 18, 1905, at 6 quoted in Adam 

Winkler, The Corporation in Election Law, 32 LOY.

L.A. L. REV. 1243, 1255 (1999). 

President Roosevelt responded to the calls for 

corporate campaign finance reform, recommending 

in his annual message to Congress that “[a]ll 

contributions by corporations to any political 

committee or for any political purpose should be 
 10 

forbidden by law.” 40 Cong. Rec. 96 (1905). In his 

message to Congress the following year, Roosevelt 

“listed as the first item of congressional business a 

law prohibiting political contributions by 

corporations.” UAW, 352 U.S. at 575 (citing 41 

Cong. Rec. 22 (1906)). 

In turn, Congress passed the Tillman Act of 

1907, 34 Stat. 864 (Jan. 26, 1907), which prohibited 

corporate contributions in federal elections and 

prevented national banks or corporations organized 

under the laws of Congress from making “a money 

contribution in connection with any election to any 

political office.” Id. The Senate Report explained 

that the Tillman Act was “calculated to promote 

purity in the selection of public officials.” S. Rep. 

No. 59-3056, at 2 (1906). As this Court noted, the 

Act was intended to “eliminate the apparent hold 

on political parties which business interests . . . 

seek and sometimes obtain by reason of liberal 

campaign contributions.” Cort v. Ash, 422 U.S. 66, 

82 (1975) (citation omitted).

 

Having achieved the first federal campaign 

finance regulation, reformers re-focused on 

attacking corruption in senatorial elections. The 

Seventeenth Amendment imported the Tillman 

Act’s opposition to corporate election influence into 

the Constitution. Proposed in 1912 and ratified the 

following year, the Seventeenth Amendment 

provided that U.S. senators would be chosen 

directly by each state’s voters rather than by state 

legislatures. Supporters of direct election, like the 

supporters of the Tillman Act, argued that “their 

system would result in cleaner, less corrupt 
 11 

government and would counter the undue effects of 

large corporations, monopolies, trusts, and other 

special-interest groups in the Senate election 

process.” AMAR, AMERICA’S CONSTITUTION, at 412. 

See also Vikram David Amar, Indirect Effects of 

Direct Election: A Structural Examination of the 

Seventeenth Amendment, 49 VANDERBILT L. REV. 

1347, 1353 (1996) (observing that “state legislative 

corruption and special interest group control were 

perhaps the greatest evils associated with indirect 

election”). While there were concerns among some 

in Congress about the efficacy of the Seventeenth 

Amendment in eliminating corporate influence,8

there was general consensus that corporate wealth 

in the political process was a problem requiring an 

attempt at a solution. 

Given the similar motivations behind the 

Tillman Act and the Seventeenth Amendment, the 

Amendment’s history is particularly relevant to 

questions about the constitutionality of corporatefocused campaign finance reform. The interaction 

of the First Amendment and campaign finance 

reform “must account for or consider the 

Seventeenth Amendment, which, while not facially 

concerned with political speech, was enacted in 

part to curb the influence of money in the selection 

of United States Senators.” Terry Smith, Race and 

Money in Politics, 79 N.C. L. REV. 1469, 1505 n.178 

(2001). “[T]he Seventeenth Amendment’s language 

and history . . . supports the view that in reposing 

the power to elect Senators directly in the people, 

 

8 See Jay S. Bybee, Ulysses at the Mast: Democracy, 

Federalism, and the Sirens’ Song of the Seventeenth 

Amendment, 91 NW. U. L. REV. 500, 541 (1997). 
 12 

Congress also intended that the people have 

residual authority to effectuate one of the principal 

purposes of the Amendment, the reduction of the 

influence of money in selecting Senators.” Id.

The ratification of the Seventeenth 

Amendment, coming so close on the heels of the 

Tillman Act’s ban on corporate contributions and 

the attendant national conversation on corporate 

influence in political campaigns, strongly suggests 

that our political leaders and the people themselves 

understood regulation of corporate political 

activities to be constitutional—and good for modern 

democracy. Indeed, the Congress that passed the 

Seventeenth Amendment also enacted campaign 

finance regulation that required certain disclosures 

and imposed spending limits. Act of Aug 19, 1911, 

37 Stat. 25 (1911). 

In its efforts to enhance the power of the 

people and prevent corruption by special interests, 

the Progressive-era movement sought, in addition 

to campaign finance reform, passage of the 

Seventeenth and Nineteenth Amendments. See 

Adam Winkler, Beyond Bellotti, 32 LOY. L.A. L.

REV. 133, 137-38 (1998). This era bridged the first 

Reconstruction, in which the Fifteenth Amendment 

was ratified to guarantee the franchise regardless 

of race, and the Second Reconstruction of the civil 

rights movement, in which the promise of the 

Fifteenth Amendment was made a reality through 

the Voting Rights Act and the poor and young were 

brought into the electorate through the Twentyfourth and Twenty-sixth Amendments. Along with 

these Amendments, the Tillman Act and 
 13 

subsequent campaign finance reform legislation 

stand for the principle that democratic selfgovernance belongs to individuals, not business 

corporations. While the Constitution provides for 

equal political participation for individual 

Americans, corporations have “no obvious standing 

to participate in a democratic polity.” Id. at 194. 

II. THE CONSTITUTION’S TEXT AND 

HISTORY ALLOW FEDERAL AND 

STATE GOVERNMENTS TO IMPOSE 

GREATER RESTRICTIONS UPON 

CORPORATIONS THAN UPON 

INDIVIDUAL CITIZENS. 

While the text and history of the Constitution 

show an ever-expanding concern for the rights of 

individuals to vote and participate in the political 

process, constitutional text and history do not 

suggest an intention to treat corporations in the 

same manner. To the contrary, the Constitution 

gives federal and state governments broad power to 

regulate the acts of corporations. 

From the very beginnings of our Nation’s 

history, the legal protections afforded to living 

persons and corporations have been fundamentally 

different. At the Founding, the Bill of Rights was 

added to the Constitution to protect the 

fundamental rights of the citizens of the new 

nation—the “We the People” who ordained and 

established the Constitution—reflecting the 

promise of the Declaration of Independence that all 

Americans “are endowed by their Creator with 

certain unalienable rights.” See AKHIL REED AMAR,
 14 

THE BILL OF RIGHTS: CREATION AND 

RECONSTRUCTION 3-133 (1998). 

Corporations—never specifically mentioned in 

the Constitution itself—stood on an entirely 

different footing. A corporation, Chief Justice John 

Marshall explained, “is an artificial being, invisible, 

intangible, and existing only in contemplation of 

the law. Being the mere creature of law, it 

possesses only those properties which the charter of 

creation confers upon it . . . .” Trustees of 

Dartmouth College v. Woodward, 17 U.S. (4 

Wheat.) 518, 636 (1819). James Madison described 

the charter of incorporation as a bill that “creates 

an artificial person previously not existing in law.” 

Annals of Congress, 1st Cong., 3rd Sess. 1949 (1791). 

See also Head & Amory v. Providence Ins. Co., 6 

U.S. (2 Cranch.) 127, 167 (1804) (describing 

corporation as “mere creature of the act to which it 

owes its existence”). 

At the Founding, corporations existed at the 

behest, and by the creation, of the government to 

serve public purposes, such as “supplying 

transport, water, insurance, or banking facilities.” 

JAMES WILLARD HURST, THE LEGITIMACY OF THE 

BUSINESS CORPORATION IN THE LAW OF THE UNITED 

STATES, 1780-1970, at 15 (1970). Because charters 

conferred on corporations special privileges that 

enabled them to amass wealth and property, the 

Constitution’s framers were “suspicio[us] of 

corporate charters based on the view that special 

privileges generally led to monopoly” and 

specifically rejected proposed constitutional 

language that would have given Congress an 
 15 

explicit power to charter corporations. See Daniel 

A. Crane, Antitrust Antifederalism, 96 CAL. L. REV. 

1, 6, 7-10 (2008). 

Consistent with this original understanding, 

both the Constitution’s text and the Court’s early 

case-law reflect that the Constitution’s individualrights guarantees do not apply equally to 

corporations, and that federal and state 

governments have broad power to regulate the acts 

of corporations. 

Many of the individual-rights provisions of the 

Constitution—including the Bill of Rights and the 

Civil War Amendments, which were added to the 

Constitution to ensure the equal citizenship of the 

newly freed slaves—use words that make little 

sense as applied to corporations. For example, as 

artificial entities, corporations themselves cannot 

“keep and bear Arms.” U.S. CONST., amend. II. A 

corporation cannot claim the right not to be 

“compelled to be a witness against himself.” U.S.

CONST., amend. V; see United States v. White, 322 

U.S. 694 (1944) (finding that corporations do not 

enjoy the privilege against self-incrimination). 

With respect to the voting amendments, only 

individual citizens enjoy the right to vote. The 

constitutional right to vote “in letter and spirit 

encompassed not merely the equal right to vote for 

legislators and other elected officials, but also the 

equal right to vote in legislatures, the equal right to 

be voted for and serve in any elective post, and the 
 16 

equal right to vote in juries9 of all sorts.” AMAR,

AMERICA’S CONSTITUTION, at 399. Corporations do 

not share in these rights—they cannot vote in 

elections, stand for election, or serve as an elected 

official or member of a jury. 

Indeed, early in this Nation’s history, the 

Supreme Court confirmed that corporations do not 

share in the substantive protections the 

Constitution affords to American citizens. In Bank 

of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839), 

the Supreme Court held that corporations were not 

entitled to the protection of Article IV’s Privileges 

and Immunities Clause, which provides that the 

“Citizens of each State shall be entitled to all 

Privileges and Immunities of Citizens in the 

several States.” The Court reasoned that a 

corporation could not claim both the special 

privileges conferred by corporate status and the 

protections the Constitution guarantees to 

individuals. “If . . . members of a corporation were 

to be regarded as individuals carrying on business 

in their corporate name, and therefore entitled to 

the privileges of citizens . . . they must at the same 

time take upon themselves the liabilities of 

citizens,” an approach inconsistent with the 

corporation’s special privileges. Id. at 586. 

Bank of Augusta and other precedents of the 

Court settled that the foundational document 

setting out the corporation’s substantive legal 

rights was the corporate charter, not the 

 

9 Most states at the Founding and in the early twentieth 

century provided that jurors should be drawn from the pool of 

eligible voters. See AMAR, AMERICA’S CONSTITUTION, at 426. 
 17 

Constitution. Accord First Nat’l Bank of Boston v. 

Bellotti, 435 U.S. 765, 824 (1978) (Rehnquist, J., 

dissenting) (noting that “it cannot be disputed that 

the mere creation of a corporation does not invest it 

with all the liberties enjoyed by natural persons”). 

Although the Constitution might protect the vested 

rights of a corporation spelled out in the corporate 

charter, see Dartmouth College, 17 U.S. at 636-45, 

the Constitution did not, of its own force, grant any 

substantive fundamental rights to corporations. 

See Paul v. Virginia, 75 U.S. (8 Wall.) 168, 177 

(1868) (“The term citizen [in the Privileges and 

Immunities Clause] applies only to natural 

persons, members of the body politic owing 

allegiance to the State, not to artificial persons 

created by the legislature, and possessing only the 

attributes which the legislature has prescribed.”); 

Northwestern Nat’l Life Ins. Co v. Riggs, 203 U.S. 

243, 255 (1906) (“The liberty referred to in th[e 

Fourteenth] Amendment is the liberty of natural, 

not artificial, persons.”); Western Turf Ass’n v. 

Greenberg, 204 U.S. 359, 363 (1907) (holding that a 

corporation was not a citizen protected by the 

Privileges or Immunities Clause of the Fourteenth 

Amendment). 

Not only did the legal rights of corporations 

derive from their charters, not the Constitution, 

but corporations—being creatures of the charter 

creating them—could be extensively regulated to 

ensure that corporations did not abuse the special 

privileges conferred on them by the government, 

whether federal or state. See Northern Securities 

Co. v. United States, 193 U.S. 197, 332-51 (1904) 

(recognizing congressional power to regulate 
 18 

corporations under its Article I powers); Sinking 

Fund Cases, 99 U.S. 700, 721 (1878) (“[W]hatever 

rules Congress might have prescribed in the 

original charter for the government of the 

corporation in the administration of its affairs, it 

retained the power to establish by amendment.”); 

Tomlinson v. Jessup, 82 U.S. 454, 459 (1872) 

(holding that reservation clause giving the State 

the right to amend the corporate charter “affects 

the entire relation between the State and the 

corporation, and places under legislative control all 

rights, privileges, and immunities derived by its 

charter directly from the State”). While the Court 

has noted that states may not “define the rights of 

their creatures without constitutional limit,” 

Bellotti, 435 U.S. at 778 n.14, it has never held that 

corporations enjoy the full measure of rights that 

individuals enjoy under the First Amendment. See

id. at 777. 

Accordingly, if a “return to first principles is in 

order,” Supp. Br. of Appellant at 2, it is important 

to recall precisely what those first principles are 

with respect to regulation of corporate activity. Far 

from treating living persons and corporations 

identically, the Constitution’s text and history 

recognize that “[a] corporation . . . is not endowed 

with the inalienable rights of a natural person. It 

is an artificial person, created and existing only for 

the convenient transaction of business,” Northern 

Securities, 193 U.S. at 362 (Brewer, J., concurring),

and necessarily “subject to legislative control so far 

as its business affects the public interest.” Sinking 

Fund Cases, 99 U.S. at 719. 
 19 

* * * 

From the Declaration of Independence, 

through our Nation’s Founding, and as reflected in 

our amended Constitution, broad citizen 

participation in fair elections has been a central 

ideal of American democracy. Our modern system, 

more democratic than any before in history, 

achieves this ideal in part through regulation of 

corporate influence in the election process. 

Corporate campaign finance reform is intertwined 

with and incorporated into our modern 

constitutional democracy. The Constitution allows 

federal and state government to regulate 

corporations and does not require that artificial 

corporate entities be treated the same as individual 

citizens. 

CONCLUSION 

For the foregoing reasons, the judgment of the 

district court—and the continued vitality of Austin 

v. Michigan Chamber of Commerce, 494 U.S. 652 

(1990), and McConnell v. FEC, 540 U.S. 93 (2003)—

should be affirmed. 
 20 

Respectfully submitted. 

LLOYD J. LEONARD DOUGLAS T. KENDALL

 LEAGUE OF WOMEN ELIZABETH B. WYDRA

 VOTERS OF THE Counsel of Record 

 UNITED STATES DAVID H. GANS

1730 M Street, NW CONSTITUTIONAL 

Washington, D.C. 20036 ACCOUNTABILITY 

(202) 263-1302 CENTER

 1301 Connecticut Ave., NW 

 Suite 502 

 Washington, D.C. 20036 

 (202) 296-6889 

Counsel for Amici Curiae 

July 2009