No. 08-205

In the

Supreme Court of the United States

Ë

CITIZENS UNITED,

Appellant,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

Ë

On Appeal from the

United States District Court

for the District of Columbia

Ë

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION IN SUPPORT OF

APPELLANT ON SUPPLEMENTAL QUESTION

Ë

DEBORAH J. LA FETRA

Counsel of Record

DAMIEN M. SCHIFF

Pacific Legal Foundation

3900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation
i

QUESTION PRESENTED

For the proper disposition of this case, should the

Court overrule either or both Austin v. Michigan

Chamber of Commerce, 494 U.S. 652 (1990), and the

part of McConnell v. Federal Election Commission, 540

U.S. 93 (2003), which addresses the facial validity of

Section 203 of the Bipartisan Campaign Reform Act of

2002, 2 U.S.C. § 441b?
ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

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

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

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

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

I. RESTRICTIONS ON CORE POLITICAL

SPEECH MAY BE JUSTIFIED ONLY

BY ACTUAL EVIDENCE OF QUID

PRO QUO CORRUPTION . . . . . . . . . . . . . . . . 4

II. CORPORATE SPEECH ADDS VALUE

TO A DEMOCRATIC SOCIETY . . . . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
iii

TABLE OF AUTHORITIES

Page

Cases

Abood v. Detroit Bd. of Educ., 

431 U.S. 209 (1977) . . . . . . . . . . . . . . . . . . . . . . . 16

Ark. Educ. Television Comm’n v. Forbes, 

523 U.S. 666 (1998) ........................1

Austin v. Mich. Chamber of Commerce, 

494 U.S. 652 (1990) . . . . . . . . . . . . . . . 3, 6-9, 12-14

Bd. of Regents, Univ. of Wis. v. 

Southworth, 529 U.S. 217 (2000) .............1

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . 2-5

Citizens Against Rent Control v. Berkeley, 

454 U.S. 290 (1981) . . . . . . . . . . . . . . . . . . . . . . . 11

City of Ladue v. Gilleo, 512 U.S. 43 (1994) . . . . . . 15

Fed. Election Comm’n v. Beaumont, 

539 U.S. 146 (2003) ........................1

Fed. Election Comm’n v. Mass. Citizens 

for Life, Inc., 479 U.S. 238 (1986) . . . . . . . . . . 2, 13

Fed. Election Comm’n v. Nat’l Conservative

Political Action Comm., 470 U.S. 480 (1985) . . 3-4

Fed. Election Comm’n v. Nat’l Right 

to Work Comm., 459 U.S. 197 (1982) . . . . . . . . 2, 4

Fed. Election Comm’n v. Wis. Right to Life, Inc.,

551 U.S. 449, 127 S. Ct. 2652 (2007) . . . . . . . . 2, 7

First Nat’l Bank v. Bellotti, 

435 U.S. 765 (1978) . . . . . . . . . . . . . . . . 1, 9, 12, 15

Hague v. CIO, 307 U.S. 496 (1939) . . . . . . . . . . . . . 13
TABLE OF AUTHORITIES—Continued

Page

iv

Int’l Ass’n of Machinists & Aerospace Workers v.

Fed. Election Comm’n, 678 F.2d 1092 

(D.C. Cir.), aff’d, 459 U.S. 983 (1982) . . . . . . . . 17

Keller v. State Bar of Cal., 496 U.S. 1 (1990) ......1

Kingsley Int’l Pictures Corp. v. Regents, 

360 U.S. 684 (1959) ........................9

Mills v. Alabama, 384 U.S. 214 (1966) . . . . . . . . . . 12

Muir v. Ala. Educ. Television Comm’n, 

688 F.2d 1033 (5th Cir. 1982) . . . . . . . . . . . . . . . 12

NAACP v. Alabama, 357 U.S. 449 (1958) . . . . . . . 13

NAACP v. Button, 371 U.S. 415 (1963) . . . . . . . . . 13

Nike, Inc. v. Kasky, 539 U.S. 654 (2003) .........1

Nixon v. Shrink Mo. Gov’t PAC, 

528 U.S. 377 (2000) . . . . . . . . . . . . . . . . . . . . . . 1, 4

Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 

475 U.S. 1 (1986) . . . . . . . . . . . . . . . . . . . . . . 11-12

Pickering v. Bd. of Educ., 391 U.S. 563 (1968) . . . 14

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) ........................1

Rules

Sup. Ct. R. 37.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TABLE OF AUTHORITIES—Continued

Page

v

Miscellaneous

Baker, C. Edwin, Turner Broadcasting: 

Content-Based Regulation of Persons

and Presses, 1994 Sup. Ct. Rev. 57 . . . . . . . . . . 15

Bauer, Robert F., Going Nowhere, Slowly: The

Long Struggle Over Campaign Finance Reform

and Some Attempts at Explanation and

Alternatives, 51 Cath. U. L. Rev. 741 (2002) ....9

BeVier, Lillian R., Campaign Finance “Reform”

Proposals: A First Amendment Analysis,

Cato Policy Analysis No. 282 (Sept. 4, 1997),

available at http://www.cato.org/pubs/pas/pa282.html (last visited July 24, 2009) . . . . . . . . . 13

BeVier, Lillian R., First Amendment 

Basics Redux: Buckley v. Valeo to 

FEC v. Wisconsin Right to Life, 

2007 Cato Sup. Ct. Rev. 77 . . . . . . . . . . . . 3, 10, 13

Committee Encouraging Corporate Philanthropy,

Giving in Numbers (2008), available at

http://www.corporatephilanthropy.org/pdfs/benc

hmarking_reports/GivinginNumbers2008.pdf

(last visited July 24, 2009) . . . . . . . . . . . . . . . . . 14

Cytryn, Miriam, Comment, Defining the 

Specter of Corruption: Austin v. Michigan 

State Chamber of Commerce, 

57 Brook. L. Rev. 903 (1991) . . . . . . . . . . . . . . 6-8
TABLE OF AUTHORITIES—Continued

Page

vi

Emord, Jonathan W., Contrived Distinctions: 

The Doctrine of Commercial Speech in First

Amendment Jurisprudence, Cato Policy

Analysis No. 161 (Sept. 23, 1991), available at

http://www.cato.org/pubs/pas/ pa-161.html 

(last visited July 24, 2009) . . . . . . . . . . . . . . . . . 11

Fisch, Jill E., Frankenstein’s Monster Hits the

Campaign Trail: An Approach to Regulation

of Corporate Political Expenditures, 

32 Wm. & Mary L. Rev. 587 (1991) ...........7

FPPC, Year in Review: 2005, available at

http://www.fppc.ca.gov/Library/2005annual.pdf

(last visited July 24, 2009) ..................9

Hasen, Richard L., Buckley Is Dead, Long Live

Buckley: The New Campaign Finance

Incoherence of McConnell v. Federal Election

Commission, 153 U. Pa. L. Rev. 31 (2004) ......3

Hayward, Allison R., Revisiting the Fable of

Reform, 45 Harv. J. on Legis. 421 (2008) .......5

Jaffe, Erik S., McConnell v. FEC: Rationing

Speech to Prevent “Undue” Influence, 

2004 Cato Sup. Ct. Rev. 245 . . . . . . . 10, 12-14, 16

Joo, Thomas W., The Modern Corporation and

Campaign Finance: Incorporating Corporate

Governance Analysis into First Amendment

Jurisprudence, 79 Wash. U. L.Q. 1 (2001) . . . 5, 14

Levin, Ronald M., Fighting the 

Appearance of Corruption, 

6 Wash. U. J.L. & Pol’y 171 (2001) ............8
TABLE OF AUTHORITIES—Continued

Page

vii

Lowenstein, Daniel H., Campaign Spending and

Ballot Propositions: Recent Experience, Public

Choice Theory and the First Amendment, 

29 UCLA L. Rev. 505 (1982) . . . . . . . . . . . . . . . . 10

Lowenstein, Daniel Hays, A Patternless Mosaic: 

Campaign Finance and the First Amendment

after Austin, 21 Cap. U. L. Rev. 381 (1992) .....3

Lowenstein, Daniel Hays, Political Bribery and

the Intermediate Theory of Politics, 

32 UCLA L. Rev. 784 (1985) .................6

Millon, David, The Sherman Act and the Balance

of Power, 61 S. Cal. L. Rev. 1219 (1988) . . . . . . 14

Novak, Michael, Toward a Theology 

of the Corporation (1981) . . . . . . . . . . . . . . . 14-15

Redish, Martin H. & Wasserman, Howard M.,

What’s Good for General Motors: Corporate

Speech and the Theory of Free Expression, 

66 Geo. Wash. L. Rev. 235 (1998) . . . . . . . . . 10, 15

Redish, Martin H., Free Speech and the Flawed

Postulates of Campaign Finance Reform, 

3 U. Pa. J. Const. L. 783 (2001) ..............7

Sandefur, Timothy, What Part of “No Law” 

Don’t You Understand?: Getting 

Government Out of the Politics Business, 

12 Nexus 135 (2007) . . . . . . . . . . . . . . . . . . . . 6, 13

Schultz, David, Proving Political Corruption:

Documenting the Evidence Required to 

Sustain Campaign Finance Reform Laws, 

18 Rev. Litig. 85 (1999) .....................5
TABLE OF AUTHORITIES—Continued

Page

viii

Shockley, John S., Direct Democracy, 

Campaign Finance, and the Courts: 

Can Corruption, Undue Influence, and

Declining Voter Confidence Be Found?, 

39 U. Miami L. Rev. 377 (1985) . . . . . . . . . . . . . 10

Sitkoff, Robert H., Corporate Political 

Speech, Political Extortion, and the 

Competition for Corporate Charters, 

69 U. Chi. L. Rev. 1103 (2002) . . . . . . . . . . . 16-17

Smith, Bradley A., The John Roberts Salvage

Company: After McConnell, A New Court 

Looks to Repair the Constitution, 

68 Ohio St. L.J. 891 (2007) . . . . . . . . . . 5, 8, 12, 14

Wald, Patricia M., Two Unsolved Constitutional

Problems, 49 U. Pitt. L. Rev. 753 (1988) . . . 17-18

Winkler, Adam, Beyond Bellotti, 

32 Loy. L.A. L. Rev. 133 (1998) . . . . . . . . . . . . . 16

Winkler, Adam, Election Law as Its Own Field 

of Study: The Corporation in Election Law, 

32 Loy. L.A. L. Rev. 1243 (1999) . . . . . . . . . . . . 10

Wright, R. George, Why Free Speech Cases 

Are as Hard (And as Easy) as They Are, 

68 Tenn. L. Rev. 335 (2001) . . . . . . . . . . . . . . . . 13
1

1

 Pursuant to this Court’s Rule 37.3(a), all parties have consented

to the filing of this brief. Letters evidencing such consent have

been filed with the Clerk of the Court.

 Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel

for any 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.

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF) was founded over

35 years ago and is widely recognized as the largest

and most experienced nonprofit legal foundation of its

kind. PLF litigates matters affecting the public

interest at all levels of state and federal courts and

represents the views of thousands of supporters

nationwide. PLF is an advocate for limited

government, individual rights, and free enterprise.1

PLF has litigated on behalf of First Amendment

speech rights in the contexts of campaign speech,

corporate speech, and expressive associations. See,

e.g., Fed. Election Comm’n v. Beaumont, 539 U.S. 146

(2003); Nike, Inc. v. Kasky, 539 U.S. 654 (2003) (mem.);

Bd. of Regents, Univ. of Wis. v. Southworth, 529 U.S.

217 (2000); Nixon v. Shrink Mo. Gov’t PAC, 528 U.S.

377 (2000); Ark. Educ. Television Comm’n v. Forbes,

523 U.S. 666 (1998); Rosenberger v. Rector & Visitors

of Univ. of Va., 515 U.S. 819 (1995); Keller v. State Bar

of Cal., 496 U.S. 1 (1990); and First Nat’l Bank v.

Bellotti, 435 U.S. 765 (1978).
2

PLF believes that the First Amendment

prohibits government regulation of speech—be it

political or commercial, by individuals, associations, or

corporations—unless the regulation satisfies strict

scrutiny. Critical to the strict scrutiny analysis is

identification of the compelling state interest, which

PLF believes should be limited to actual evidence of

individual corruption. Moreover, PLF believes that

corporate speech adds value to our democratic society

and should not be treated as a malignancy that the

body politic rejects.

SUMMARY OF ARGUMENT

The intersection of this Court’s jurisprudence

regarding the regulation of political speech during

election campaigns and its jurisprudence reflecting

wariness of corporate participants in the market of

ideas has created an untenable situation in which First

Amendment rights are based on fine distinctions

applied on an almost ad hoc basis.

There are distinctions between contributions and

expenditures (Buckley v. Valeo, 424 U.S. 1 (1976));

between contributions to candidates and to ballot

propositions (Bellotti); between direct and indirect

corporate campaign contributions (Beaumont); between

issue advocacy advertisements and express

advocacy/functional equivalent advertisements (Fed.

Election Comm’n v. Wis. Right to Life, Inc. (WRTL),

551 U.S. 449, 127 S. Ct. 2652 (2007); McConnell);

between individuals and corporations (Fed. Election

Comm’n v. Nat’l Right to Work Comm. (NRWC), 459

U.S. 197 (1982)); between business interests and

“advocacy groups” (Fed. Election Comm’n v. Mass.

Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986));

and between small advocacy groups and large ones
3

(Austin v. Mich. Chamber of Commerce, 494 U.S. 652

(1990)). In the thirty-three years since Buckley, the

distinctions have grown more numerous and more fine.

The parsing and hairsplitting have rendered this area

of the law a patchwork of contradictory opinions

impacting political speech rights at the core of the First

Amendment. Relatively early on, Justice White noted

that Buckley’s distinction between contributions and

independent expenditures had caused the Federal

Election Campaign Act’s regulations to become a

“nonsensical, loophole-ridden patchwork.” Fed.

Election Comm’n v. Nat’l Conservative Political Action

Comm. (NCPAC), 470 U.S. 480, 518 (1985). This

situation has only grown worse. See, e.g., Daniel Hays

Lowenstein, A Patternless Mosaic: Campaign Finance

and the First Amendment after Austin, 21 Cap. U. L.

Rev. 381 (1992); Richard L. Hasen, Buckley Is Dead,

Long Live Buckley: The New Campaign Finance

Incoherence of McConnell v. Federal Election

Commission, 153 U. Pa. L. Rev. 31 (2004), cited in

Lillian R. BeVier, First Amendment Basics Redux:

Buckley v. Valeo to FEC v. Wisconsin Right to Life,

2007 Cato Sup. Ct. Rev. 77, 78 n.9 (Redux).

Thus, whether or not this Court must overrule

Austin and McConnell to protect Appellant’s speech,

this Court should overrule these decisions to (1) restore

“actual quid pro quo” corruption as the sole

justification for restricting political speech rights, and

(2) acknowledge the value of corporate participation in

public debates, including debates during the course of

elections. In so doing, this Court can revivify “the

absolutely central truth of the First Amendment: that

government cannot be trusted to assure, through

censorship, the ‘fairness’ of political debate.” Austin,

494 U.S. at 679-80 (Scalia, J., dissenting).
4

ARGUMENT

I

RESTRICTIONS ON CORE POLITICAL

SPEECH MAY BE JUSTIFIED

ONLY BY ACTUAL EVIDENCE

OF QUID PRO QUO CORRUPTION

This Court has held that “contribution . . .

limitations operate in an area of the most fundamental

First Amendment activities,” and such limitations

“impinge on protected associational freedoms.”

Buckley, 424 U.S. at 14, 22. Therefore, burdens on

contributions may be sustained only if the State

demonstrates “a sufficiently important interest and

employs means closely drawn to avoid unnecessary

abridgment of associational freedoms.” Id. at 25; see

also Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. at 387-88

(affirming standard of review articulated in Buckley in

assessing the validity of a Missouri state law imposing

a limit on political contributions). Buckley held that

“the prevention of corruption and the appearance of

corruption” is a “constitutionally sufficient

justification” for a limit on contributions. Buckley, 424

U.S. at 25-27; see also NCPAC, 470 U.S. at 496-97. 

This Court usually defers to Congress’ judgment

that corporate political speech is of a type more prone

to actual corruption and the appearance of corruption,

thus justifying greater regulation than it would

countenance for individuals. See, e.g., NRWC, 459 U.S.

at 210; NCPAC, 470 U.S. at 497. But this distinction

between natural and corporate persons, and their

respective tendencies toward corruption, does not

justify this Court’s continued acceptance of a campaign
5

finance regulatory regime that, after more than three

decades of attempts, has utterly failed to achieve its

stated ends. See Bradley A. Smith, The John Roberts

Salvage Company: After McConnell, A New Court

Looks to Repair the Constitution, 68 Ohio St. L.J. 891,

900 (2007). The core political speech protections of the

First Amendment should be open to all equally—to the

millionaire as well as to the grassroots entity that

selects the corporate form to facilitate the

dissemination of its message.

In the aftermath of Watergate, the Court was

understandably concerned about corruption, election

law abuses, and the public’s subsequent loss of faith in

government. Buckley, 424 U.S. at 27 n.28. Buckley

presumed that political contributions can cause

corruption or a public perception of corruption,

even though no evidence to that effect had been

adduced. See Thomas W. Joo, The Modern Corporation

and Campaign Finance: Incorporating Corporate

Governance Analysis into First Amendment

Jurisprudence, 79 Wash. U. L.Q. 1, 18 & n.84 (2001)

(Incorporating Corporate Governance). Cf. Allison R.

Hayward, Revisiting the Fable of Reform, 45 Harv. J.

on Legis. 421, 424 (2008) (observing that much of the

account of state and federal regulation of corporate

political speech over the last century that the Court

has used to uphold corporate speech limitations “is

more fable than history”). This presumption allowed

the Court to elude questions as to the amount and kind

of evidence required to support an allegation of

corruption or the appearance of corruption. See David

Schultz, Proving Political Corruption: Documenting

the Evidence Required to Sustain Campaign Finance

Reform Laws, 18 Rev. Litig. 85, 98-99 (1999).
6

The notion of “corruption” as a justification for

corporate political speech restrictions was considerably

broadened in Austin, 494 U.S. 652. There, “corruption”

ceded place to the even more loosely defined phrase,

“corrosive and distorting effects.” Id. at 660. This

latter definition expanded the compelling state interest

well beyond the quid pro quo interest identified only 16

years before in Buckley. Under Austin’s definition of

corruption, it is nearly impossible to discern whether

regulation is a permissible attempt to purge corruption

from politics, or whether the regulation is an

impermissible attempt to equalize influence. See

Daniel Hays Lowenstein, Political Bribery and the

Intermediate Theory of Politics, 32 UCLA L. Rev. 784,

851 (1985) (describing corruption as “an ‘essentially

contested concept,’ that is, a concept containing a

descriptive core on which users of the concept can

agree roughly, but so unbounded and so intertwined

with controversial normative ideas that general

agreement on the features of the concept is

impossible”).

Once corruption is perceived beyond the

relationship between the contributor and the

candidate, the entire electoral process is threatened;

corporate speech limitations intensify this threat

through their distortion of actual expressive activity.

See Timothy Sandefur, What Part of “No Law” Don’t

You Understand?: Getting Government Out of the

Politics Business, 12 Nexus 135, 145 (2007). “Within

this enlarged framework, legislative intent may more

easily expand from the eradication of a particular evil,

to the eradication of a larger class of evils, and even to

the effectuation of some model of a greater good.”

Miriam Cytryn, Comment, Defining the Specter of

Corruption: Austin v. Michigan State Chamber of
7

Commerce, 57 Brook. L. Rev. 903, 937 (1991) (Defining

the Specter).

Under the Austin standard, questions of evidence

largely disappeared. After all, if public opinion polls

suggest a significant agreement with the premise that

“special interest groups” or “corporate” money has a

corrosive impact on the political process, then the

government can freely regulate speech rights. This

does a disservice to the Constitution. See Martin H.

Redish, Free Speech and the Flawed Postulates of

Campaign Finance Reform, 3 U. Pa. J. Const. L. 783,

815 (2001) (“[I]n no other case of speech regulation has

the Court been willing to accept evidence of public

perception of a compelling interest, rather than

existence of the interest itself, to justify restrictions on

expression.); see also Jill E. Fisch, Frankenstein’s

Monster Hits the Campaign Trail: An Approach to

Regulation of Corporate Political Expenditures, 32 Wm.

& Mary L. Rev. 587, 589, 617-29 (1991) (arguing that

Austin is an unjustified departure from precedent

because it redefines corruption as unfairness instead of

the appearance or actuality of bribery and this

redefinition seems to justify legislative efforts to

equalize speech by restricting the voices of certain

speakers). This Court has already noted the

constitutional peril latent in the Austin corruption

rationale, which taken to its natural conclusion “would

call into question [the Court’s] holding in Bellotti that

the corporate identity of a speaker does not strip

corporations of all First Amendment rights.” WRTL,

127 S. Ct. at 2656.
8

Professor Ronald Levin identifies at least three

problems with the Court’s reliance on public

perceptions of corruption rather than evidence of

actual corruption: First, it “invites regulation on too

indiscriminate a basis.” Ronald M. Levin, Fighting the

Appearance of Corruption, 6 Wash. U. J.L. & Pol’y 171,

177 (2001) (Fighting the Appearance); see also Smith,

supra, at 920. In rough-and-tumble politics,

accusations of wrongdoing are flung at any candidate.

All fund-raising efforts result in accusations that the

candidates are beholden to special interests. Levin,

Fighting the Appearance, supra, at 177 (“The

knowledge that a particular type of fund-raising has

been drawn into question in an editorial or an advocacy

group’s press releases is not a reliable guide to deciding

whether it should be suppressed.”). This shift in focus

allows legislators a stronger hand in election

regulation, as they need only point to a

disproportionate impact and identify the source to

justify content based regulation. Cytryn, Defining the

Specter, supra, at 949-50.

Second, reliance on public perceptions means that

advocates of “reform” can make wide-ranging

accusations of corruption, and then rely on the fact

that some people believe the charges as a reason to

justify regulation. Levin, Fighting the Appearance,

supra, at 178. Cf. Austin, 494 U.S. at 684 (Scalia, J.,

dissenting) (noting that, pursuant to the appearance of

corruption standard, “anything . . . deem[ed] politically

undesirable can be turned into political corruption—by

simply describing its effects as politically ‘corrosive’”).

Third, if perceptions of corruption suffice to

impose greater regulation, the “reformers” will then

simply have more occasions for accusations of
9

2

 In 2005 (the most recent year for which data are available),

California’s Fair Political Practices Commission (FPPC) reported

that it opened over 870 enforcement cases. FPPC, Year in

Review: 2005 at 13, available at http://www.fppc.ca.gov/Library/

2005annual.pdf (last visited July 24, 2009).

3

 The Court should be careful to distinguish corruption from

legitimately effective and persuasive speech.

To be sure, corporate advertising may influence the outcome

of the vote; this would be its purpose. But the fact that

advocacy may persuade the electorate is hardly a reason to

suppress it: The Constitution “protects expression which is

eloquent no less than that which is unconvincing.”

Bellotti, 435 U.S. at 790 (quoting Kingsley Int’l Pictures Corp. v.

Regents, 360 U.S. 684, 689 (1959)). Even so, corporate

contributions cannot guarantee legislation favorable to business

interests. The social welfare programs of the New Deal and Great

Society, and the current expanding federal regulation of the

tobacco and drug industries, were enacted over the objections of

(continued...)

noncompliance. The readiness of the campaign finance

watchdogs to cry “corruption!” means that candidates

and their campaign staff members who make judgment

calls on debatable issues will be under a microscopic

scrutiny; this is an untenable situation in real life. Id.

2

This Court should require evidence of actual quid pro

quo corruption to justify infringement on core political

First Amendment rights, rather than permit reliance

on “gossip and newspaper citations.” Robert F. Bauer,

Going Nowhere, Slowly: The Long Struggle Over

Campaign Finance Reform and Some Attempts at

Explanation and Alternatives, 51 Cath. U. L. Rev. 741,

758 (2002).

Importantly, there is no evidence that

corporations—as an identifiable group—are corrupt or

introduce corruption into the political process, at least

to any greater degree than individuals.3

 See, e.g.,
10

3

 (...continued)

corporate America. Martin H. Redish & Howard M. Wasserman,

What’s Good for General Motors: Corporate Speech and the Theory

of Free Expression, 66 Geo. Wash. L. Rev. 235, 247 (1998) (General

Motors).

BeVier, Redux, supra, at 112 n.162 (citing sources).

Hence, Austin’s and McConnell’s abandonment of the

core political speech protections of the First

Amendment, see BeVier, Redux, supra, at 83; Erik S.

Jaffe, McConnell v. FEC: Rationing Speech to Prevent

“Undue” Influence, 2004 Cato Sup. Ct. Rev. 245, 279,

was entirely unjustified. For, despite research

intended to demonstrate that corporations exert

considerable influence in ballot campaigns, see, e.g.,

Daniel H. Lowenstein, Campaign Spending and Ballot

Propositions: Recent Experience, Public Choice Theory

and the First Amendment, 29 UCLA L. Rev. 505,

542-47 (1982); John S. Shockley, Direct Democracy,

Campaign Finance, and the Courts: Can Corruption,

Undue Influence, and Declining Voter Confidence Be

Found?, 39 U. Miami L. Rev. 377, 391-406 (1985), the

many and varied intangibles influencing any election

make it extremely difficult to identify a specific causal

relationship between contributions and electoral or

legislative events. “How can one prove that voters

were overwhelmed by spending, rather than convinced

by substantive arguments, other initiative backers, or

the inept advertisements for the other side?” Adam

Winkler, Election Law as Its Own Field of Study: The

Corporation in Election Law, 32 Loy. L.A. L. Rev. 1243,

1249 (1999); see also Jaffe, supra, at 289 (“Money only

buys speech, which will be effective or not depending

on whether voters are persuaded by the message.”).

The Court should move away from the amorphous

standard of “potential corruption” alleged without
11

evidence and demand an evidentiary showing of actual

corruption before permitting the government to silence

political speech.

II

CORPORATE SPEECH ADDS

VALUE TO A DEMOCRATIC SOCIETY

The First Amendment is first and

foremost a denial of government power. It is

not a catalogue of favored and disfavored

forms of speech. It is by no means a vehicle

for rendering a prejudice against

profit-motivated speech the supreme law of

the land. It leaves to each of us the choice of

what and how to communicate and whether

to communicate at all. There exists no

lawful “preferred” mix of ideas, no required

speech or disallowed speech. No free speech

and press model is mandated by the

First Amendment. Rather, each model

is descriptive of that government-free

environment mandated by the First

Amendment. 

Jonathan W. Emord, Contrived Distinctions: The

Doctrine of Commercial Speech in First Amendment

Jurisprudence, Cato Policy Analysis No. 161 (Sept. 23,

1991), available at http://www.cato.org/pubs/pas/

pa-161.html (last visited July 24, 2009). Expressive

associations have a long-standing, constitutionally

protected role as part of the political process. Citizens

Against Rent Control v. Berkeley, 454 U.S. 290, 294

(1981). Corporations are one form of expressive

association. See, e.g., Pac. Gas & Elec. Co. v. Pub.

Utils. Comm’n, 475 U.S. 1, 8 (1986) (plurality opinion)
12

(“Corporations . . . contribute to the ‘discussion, debate,

and the dissemination of information and ideas’ that

the First Amendment seeks to foster.” (quoting Bellotti,

435 U.S. at 783)). Austin acknowledges this

proposition for media corporations, 494 U.S. at 667, but

makes an inappropriate content-based distinction to

give other types of corporations lesser protection. See

id. Corporations are not an alien force requiring a

barrier to protect the political process from its

influence. The open political process of a democratic

society is the clash of all sorts of different viewpoints,

many driven by economic interests and many driven by

noneconomic interests. To allow entrenched politicians

to pick and choose which among the disparate interests

will be hobbled is antidemocratic. Cf. Jaffe, supra, at

285 (noting the incumbent favoritism of campaign

finance laws); Smith, supra, at 906-07 (same). The fact

that private associations have been a dynamic and

sometimes positive influence on politics over our

nation’s history does not mean that modern economic

organizations are not. See Muir v. Ala. Educ.

Television Comm’n, 688 F.2d 1033, 1038 n.12 (5th Cir.

1982) (“Freedom of speech is not good government

because it is in the First Amendment; it is in the First

Amendment because it is good government.”).

Free speech adds three types of value to society:

First, free speech bolsters the pursuit of truth. Second,

free speech provides a check on other sources of power,

thus supporting a stable, progressive, uncorrupt, and

responsive democratic government. Mills v. Alabama,

384 U.S. 214, 218 (1966) (“[A] major purpose of [the

First] Amendment was to protect the free discussion

of governmental affairs.”). Third, free speech

serves values of self-realization, personal and

cultural development, autonomy, and autonomous
13

decision-making. R. George Wright, Why Free Speech

Cases Are as Hard (And as Easy) as They Are, 68 Tenn.

L. Rev. 335, 337-38 (2001). Accordingly, the First

Amendment guarantees that citizens may speak,

publish, and join together in groups to engage in

political activity to try to achieve the substantive ends

they deem desirable. Lillian R. BeVier, Campaign

Finance “Reform” Proposals: A First Amendment

Analysis, Cato Policy Analysis No. 282 (Sept. 4, 1997),

available at http://www.cato.org/pubs/pas/pa-282.html

(last visited July 24, 2009) (citing NAACP v. Button,

371 U.S. 415 (1963), and NAACP v. Alabama, 357 U.S.

449 (1958)). They may attempt to persuade others and

to acquire political influence, and the government may

not interfere with, punish, repress, or otherwise

impede their efforts. Id. (citing Hague v. CIO, 307 U.S.

496 (1939)). These protections exist not so much

because corporate speech as corporate speech is the

good. Rather, allowing corporations to speak facilitates

the airing of more speech, which is a good. See BeVier,

Redux, supra, at 108-09.

In Austin and MCFL, the Court suggested that

election-related spending by business corporations is

somehow less deserving of protection than speech by

individuals or political organizations, Austin, 494 U.S.

at 659-60; MCFL, 479 U.S. at 257, but this criticism is

based upon the constitutionally suspect “complaint

that [corporations] are wealthy and that it is somehow

wrong to use wealth to support political speech.” Jaffe,

supra, at 287; Sandefur, supra, at 150-51. Moreover,

the proposition is inconsistent with Buckley in two

ways: First, by justifying regulation with the lack of

public support for corporate views, the Court

contradicted the central and long-standing Buckley

rule against the equalization of relative voices, Austin,
14

494 U.S. at 659, even while purporting to leave it in

place. Id. at 659-60. See also Jaffe, supra, at 287-88;

Smith, supra, at 919. Second, Austin relied on the

grant theory (that a corporation is nothing more than

an artifice granted certain benefits by the state) in

basing its ruling on the special privileges of

corporations. 494 U.S. at 659. This reasoning is not

only conclusory, see Sandefur, supra, at 150, it also

raises a troubling implication that incorporation is

predicated on unconstitutional conditions. Joo,

Incorporating Corporate Governance, supra, at 80; see

also Pickering v. Bd. of Educ., 391 U.S. 563, 574-75

(1968) (public school teacher’s employment cannot be

conditioned on refraining to engage in otherwise

constitutional speech).

Corporations add to societal values in numerous

ways. Cf. Michael Novak, Toward a Theology of the

Corporation 1 (1981) (“Neither participatory democracy

nor capitalism could exist without the corporation.”).

For example, corporations have become

significant engines of charitable giving. See

Committee Encouraging Corporate Philanthropy,

Giving in Numbers 4 (2008), available at

http://www.corporatephilanthropy.org/pdfs/benchmar

king_reports/GivinginNumbers2008.pdf (last visited

July 24, 2009) (155 surveyed companies donated over

$11.6 billion in cash and products).

Moreover, corporations play an important role in

diffusing and checking societal and governmental

accumulations of power. David Millon, The Sherman

Act and the Balance of Power, 61 S. Cal. L. Rev. 1219,

1243 (1988) (“Commercial opportunity meant more

than just personal independence. Equally important,

it guaranteed a balance of economic power in society.”).
15

Viewed in this light, governmental suppression of

corporate speech takes on 

potentially ominous implications for avoiding

political power’s centralization. One can

never be sure whether restrictions on

corporate expression are in reality nothing

more than governmental attempts to curb or

intimidate a potential rival for societal

authority. 

Redish & Wasserman, General Motors, supra, at 264.

A message’s overall nature may change when the

messenger changes; similarly, the degree of

effectiveness and credibility may change depending on

the source. See Bellotti, 435 U.S. at 791-92 (stating

that the people in a democracy “may consider . . . the

source and credibility of the advocate”); C. Edwin

Baker, Turner Broadcasting: Content-Based

Regulation of Persons and Presses, 1994 Sup. Ct. Rev.

57, 65 (“Many listeners find that the identity of the

source affects the worth or at least their evaluation of

the speech.”). The same statement from different

speakers may constitute a different message. As the

Court has noted, an “espousal of socialism may carry

different implications when displayed on the grounds

of a stately mansion than when pasted on a factory

wall or an ambulatory sandwich board.” City of Ladue

v. Gilleo, 512 U.S. 43, 56-57 (1994); Redish &

Wasserman, General Motors, supra, at 257. Corporate

speech thus provides both a message and a messenger

of value to the bustling market of ideas.

Perhaps most importantly, corporations help the

individuals who form them to achieve their fullest

human potential. Cf. Novak, supra, at 37-43
16

(observing that corporate activity bears the hallmarks

of human creativity, liberty, socialization, and insight,

among others). Specifically in the context of First

Amendment values, corporations provide “individuals

the ability to organize in a form that would allow them

to engage efficiently in collective action.” Robert H.

Sitkoff, Corporate Political Speech, Political Extortion,

and the Competition for Corporate Charters, 69 U. Chi.

L. Rev. 1103, 1110-11 (2002); see also Jaffe, supra, at

289-90 (observing that restrictions on the funding of

speech are tantamount to restrictions on speech itself).

These “corporate” goods—especially the good of

corporate speech—are in no way undercut by the

happenstance that corporations operate with and

spend “someone else’s money.” The corporate form

does not enable corporations to accumulate money

from their customers. Adam Winkler, Beyond Bellotti,

32 Loy. L.A. L. Rev. 133, 158 (1998) (“[T]he business

association’s form is irrelevant to its ability to attract

customers and sell services or products.”). As for

shareholders and their role in directing corporate

speech, this Court has, to be sure, expressed concern

that shareholders’ disincentives to disassociate from a

for-profit corporation are so overwhelming as to

implicate the shareholders’ First Amendment rights

not to associate with expressive activity. See Abood v.

Detroit Bd. of Educ., 431 U.S. 209, 234 (1977). But, as

Professor Sitkoff explains, the Court’s analysis of

economic disincentives to disassociate does not comport

with reality. 

The minority shareholder who invests in

stock for income, which is the precondition to

having an economic disincentive to

dissociating, is by hypothesis indifferent
17

between companies with comparable rates of

return. He therefore has no reason not to

sell his stock in the politically active

company and then invest the proceeds in

another company that is not politically

active. In contrast, the minority shareholder

or member of the incorporated nonprofit

political association often faces an incentive

not to dissociate because of the shortage of

alternatives. There is a thick market for

corporate securities; the menu of prospective

political associations is less robust.

Sitkoff, supra, at 1120 (footnotes omitted). See also

Int’l Ass’n of Machinists & Aerospace Workers v. Fed.

Election Comm’n, 678 F.2d 1092, 1118 (D.C. Cir.), aff’d,

459 U.S. 983 (1982) (shareholder is not legally or

practically obliged “to continue his investment, is not

compelled to speak, in violation of his First

Amendment right to remain silent” by a statute

permitting corporate political action committees).

Therefore, the Court’s concerns about “disincentives to

disassociate” do not provide a sufficiently compelling

reason to deny corporate speech full protection to

engage in electoral debates. This Court should not

hesitate to affirm the enduring importance of corporate

speech in our society.

CONCLUSION

Upon reviewing the Court’s decisions since

Buckley, Judge Patricia M. Wald presciently

questioned whether the rulings “have any real roots in

the values enshrined in the first amendment? Do

these fine distinctions contribute more to freedom of

association or to mass cynicism about how the electoral

system works?” Patricia M. Wald, Two Unsolved
18

Constitutional Problems, 49 U. Pitt. L. Rev. 753, 758

(1988).

The Court’s attempt to craft laws restricting

political speech in the name of campaign finance

reform has seen our precious free speech rights moving

further from the strong trunk at the center of the First

Amendment to a precarious balance on the outermost

branches and leaves. Today, the law of campaign

finance exists mostly as a series of distinctions in

which the First Amendment protection of free speech

grows ever more attenuated. By overruling Austin and

McConnell, this Court may both greatly simplify this

area of the law, and reinvigorate the core political

speech protections of our democracy.

DATED: July, 2009.

Respectfully submitted,

DEBORAH J. LA FETRA

Counsel of Record

DAMIEN M. SCHIFF

Pacific Legal Foundation

3900 Lennane Drive,

Suite 200

Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Amicus Curiae

Pacific Legal Foundation