NO. 08-205

In The

Supreme Court of the United States 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

SUPPLEMENTAL BRIEF OF FORMER

OFFICIALS OF THE AMERICAN CIVIL

LIBERTIES UNION AS AMICI CURIAE

ON BEHALF OF NEITHER PARTY

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

July 31, 2009

NORMAN DORSEN

 Counsel of Record

BURT NEUBORNE

40 WASHINGTON SQ. SOUTH

NEW YORK, NY 10012

(212) 998-6172

norman.dorsen@nyu.edu

Counsel for Amici Curiae
i

TABLE OF CONTENTS

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

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

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

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 4

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

I. HILLARY: THE MOVIE DOES NOT FALL

WITHIN THE COVERAGE OF BCRA ....... 4

A. The Communication Was Not “Targeted

to the Relevant Electorate” . . . . . . . . . . . 4

B. The Statute Contains an Implicit De

Minimis Exception . . . . . . . . . . . . . . . . . 8

C. The Court Should Follow the Statutory

Construction Principles Set Forth in

Northwest Austin Mun. Util. Dist. No.

One v. Holder, ___U.S.___, 129 S.Ct. 2504

(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. CITIZENS UNITED IS ENTITLED TO “AS

APPLIED” FIRST AMENDMENT

PROTECTION UNDER A PROPER READING

OF AUSTIN . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. NO REASON EXISTS TO RECONSIDER THE

FACIAL CONSTITUTIONALITY OF BCRA . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ii

TABLE OF AUTHORITIES

CASES

Abuelhawa v. United States, 

___U.S.___, 129 S.Ct. 2102 (2009) . . . . . . . . . . 11

Ashwander v. TVA, 

297 U.S. 288 (1936) . . . . . . . . . . . . . . . . . . . . . 16

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) . . . . . . . . . . . . . . . . 3, 12, 13

Board of Trs., State Univ. of N.Y. v. Fox, 

492 U.S. 469 (1989) . . . . . . . . . . . . . . . . . . . . . 15

Brockett v. Spokane Arcades, Inc., 

472 U.S. 491 (1985) . . . . . . . . . . . . . . . . . . . . . 15

Brown v. Socialist Workers ‘74 Campaign Comm.

(Ohio), 459 U.S. 87 (1982) . . . . . . . . . . . . . . . . 15

Buckley v. Valeo, 

424 U.S. 1 (1976) . . . . . . . . . . . . . . . . . . . . . . . 15

Burlington Northern & Santa Fe Ry. v. United

States,

___U.S.___, 129 S. Ct. 1870 (2009) . . . . . . . . . 11

Coates v. City of Cincinnati, 

402 U.S. 611 (1971) . . . . . . . . . . . . . . . . . . . . . 14

Colorado Right to Life Comm., Inc. v. Coffman, 

498 F.3d 1137 (10th Cir. 2007) ............. 9
iii

Daughterty County Bd. of Educ. v. White, 

439 U.S. 32 (1978) . . . . . . . . . . . . . . . . . . . . . . 11

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Const. Trades Council, 

485 U.S. 568 (1988) ...................... 7

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) . . . . . . . . . . . . . . 2, 8, 13, 15

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449, 127 S. Ct. 2652 (2007) . . . . . . 4, 15

Georgia v. Evans, 

316 U.S. 159 (1942) ...................... 6

Gooding v. Wilson, 

405 U.S. 518 (1972) . . . . . . . . . . . . . . . . . . . . . 14

Marbury v. Madison, 

5 U.S. (1 Cranch) 137, (1803) . . . . . . . . . . . . . 13

McConnell v. FEC, 

251 F. Supp. 2d 176 (D.D.C. 2003) .......... 6

McConnell v. FEC, 

540 U.S. 93 (2003) . . . . . . . . . . . . . . . . . . . . . 1, 4

NLRB v. Catholic Bishops of Chicago, 

440 U.S. 490 (1979) . . . . . . . . . . . . . . . . . . . . . 11

Northwest Austin Mun. Util. Dist. No. One v.

Mukasey, 

573 F. Supp. 2d 221 (D.D.C. 2008) . . . . . . . . . 10
iv

Northwest Austin Mun. Util. Dist. No. One v.

Holder, 

___U.S.___, 129 S.Ct. 2504 (2009) . . . . . 3, 10, 11

Renne v. Geary, 

501 U.S. 312 (1991) . . . . . . . . . . . . . . . . . . . . . 15

Rowland v. California Men’s Colony, 

506 U.S. 194 (1993) ...................... 6

United States v. Board of Cmm’rs of Sheffield, Ala., 

435 U.S. 110 (1978) . . . . . . . . . . . . . . . . . . . . . 11

United States v. Cooper Corp., 

312 U.S. 600 (1941) ...................... 6

United States v. Hayes, 

555 U.S. __, 129 S.Ct. 1079 (2009) . . . . . . . . . 11

United States v. Jin Foey Moy, 

241 U.S. 394 (1916) ...................... 7

United States v. Raines,

362 U.S. 17 (1960) . . . . . . . . . . . . . . . . . . . . . . 14

Virginia v. Hicks, 

539 U.S. 113 (2003) . . . . . . . . . . . . . . . . . . . . . 15

Will v. Michigan Dep’t of State Police, 

491 U.S. 58 (1989) ....................... 6

Yazoo & Mississippi Valley R.R. v. Jackson

Vinegar, 

226 U.S. 217 (1912) . . . . . . . . . . . . . . . . . . . . . 14
v

STATUTES

2 U.S.C. § 434(f)(3)(A)(i) . . . . . . . . . . . . . . . . . 2, 5, 6

2 U.S.C. § 434(f)(3)(C) . . . . . . . . . . . . . . . . . . . . . 2, 6

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

42 U.S.C. § 1973c(a) . . . . . . . . . . . . . . . . . . . . . . . 10

Tillman Act, ch. 420, 34 Stat. 864-865. . . . . . . . . 12

REGULATIONS

11 C.F.R. § 100.29(b)(3)(ii)(A) . . . . . . . . . . . . . . . 2, 5

OTHER AUTHORITIES

John Noonan, “Persons” and Masks of the Law:

Cardozo, Holmes, Jefferson and Wythe as

Makers of Masks (1976) ................... 6

Richard Fallon, Making Sense of Overbreadth, 100

Yale L.J. 853 (1991) . . . . . . . . . . . . . . . . . . . . . 14

S. Rep. No. 105-167, vol. 3 (1998) .............. 6

Sanford A. Schane, The Corporation is a Person:

The Language of a Legal Fiction, 61 Tul. L. Rev.

563 (1987). ............................. 7
1

1

 This brief is filed with the consent of the parties. Appellant’s

letter of consent has been lodged with the clerk of the court.

Appellee has granted blanket consent. No counsel for a party

authored this brief in whole or in part; nor did any person other

than amici or their counsel make a monetary contribution to the

preparation or submission of this brief.

2

 Norman Dorsen, Frederick I. and Grace Stokes Professor of Law

at NYU School of Law, served as ACLU General Counsel from

1969-1976, and as President of the ACLU from 1976-1991; Aryeh

Neier, President of the Open Society Institute, served as

Executive Director of the ACLU from 1970-1978; John Shattuck,

newly-appointed President of Central European University in

Budapest and former Assistant Secretary of State for Democracy,

Human Rights and Labor, served as ACLU National Legislative

Director from 1976-1984; Morton Halperin, Senior Advisor, Open

Society Institute, served as ACLU National Legal Director from

1984-1992; Burt Neuborne, Inez Milholland Professor of Civil

Liberties at NYU School of Law, served as NYCLU staff counsel

from 1967-1972, Assistant National Legal Director from 1972-

1974, and National Legal Director from 1982-1986.

INTEREST OF AMICI1

Amici, Norman Dorsen, Aryeh Neier, John

Shattuck, Morton Halperin, and Burt Neuborne, are

former officials of the American Civil Liberties Union

(ACLU) who have sought to achieve both a robust First

Amendment jurisprudence and effective reform of

campaign financing.2 Amici appeared before this Court

in McConnell v. FEC, 540 U.S. 93 (2003), in defense of

the facial constitutionality of the Bipartisan Campaign

Reform Act of 2002 (BCRA), urging that the

unavoidable tension between certain applications of

BCRA and the First Amendment should be resolved by

narrowly construing provisions of the Act and

recognizing “as applied” First Amendment exemptions

from its operation. 
2

This brief, filed in response to the Court’s order

dated June 29, 2009, reiterates amici’s belief that the

significant First Amendment issues raised by the

application of BCRA to the material before the Court

can – and should – be resolved by statutory

construction informed by respect for congressional

purpose and the canon of constitutional avoidance. If

constitutional adjudication is deemed necessary,

appellant’s First Amendment interests may be

protected by an “as applied” First Amendment ruling,

rendering it unnecessary to reconsider existing

precedent. 

SUMMARY OF ARGUMENT

1. Hillary: The Movie (hereafter “Hillary”) does not

fall within BCRA’s statutory ambit. It was not

“targeted to the relevant electorate” within the

meaning of 2 U.S.C. §§ 434(f)(3)(A)(i)(III), (C); 11

C.F.R. § 100.29(b)(3)(ii)(A). Nor, under the facts of this

case, does the presence of a de minimis trace of forprofit corporate funding cause Hillary to fall within

the definition of an electioneering communication paid

for in whole or part from for-profit corporate treasury

funds. 

Six powerful impediments to statutory coverage

exist. First, Hillary was produced and distributed by

Citizens United, a non-profit corporation analogous to

the exempt non-profit corporation in FEC v.

Massachusetts Citizens for Life, Inc., 479 U.S. 238,

263-64 (1986) (“MCFL”). Second, while Citizens United

reports receiving trace amounts of financial support

from for-profit corporations, over 99% of the funding

for Hillary is said to be derived from private

individuals. (Appellant’s Br. 32.) Third, no evidence
3

exists in the record that for-profit corporate donors

played any role in producing or editing the material.

Fourth, no evidence exists in the record concerning

whether Citizens United solicits funds from for-profit

corporations. Fifth, the video-on-demand distribution

mechanism contemplated by Citizens United required

potential hearers to request access to the material

affirmatively. Sixth, given such a volitional

distribution system, the material was not reasonably

likely to be viewed by more than 50,000 persons

eligible to vote in the relevant state Democratic

presidential primary. 

Given the six factors, and guided by Congress’s

purpose in enacting BCRA and by the well-established

canon of constitutional avoidance, the Court should

find that Hillary does not fall within the statutory

coverage of BCRA. See Northwest Austin Mun. Util.

Dist. No. One v. Holder, ___U.S.___, 129 S.Ct. 2504

(2009).

2. Assuming that statutory coverage exists, it is not

necessary to revisit settled Supreme Court doctrine in

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

652 (1990), to resolve the First Amendment issues

raised by this case. Given the indirect, de minimis

nature of the for-profit corporate funding, and the

voluntary nature of the contemplated distribution

mechanism, the First Amendment precludes the FEC

from prohibiting the material’s dissemination. 

3. Given the ample statutory and “as applied”

avenues open to the Court to protect the First

Amendment interests of Citizens United, there is no

reason to revisit the Court’s refusal in McConnell v.
4

3

 A First Amendment gloss requires the reference to the

presidential candidate to be the unquestioned functional

equivalent of a request to vote for or against the candidate. FEC

v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S. Ct. 2652,

2667 (2007) (“WRTL II”). Hillary appears to satisfy this criterion.

FEC, 540 U.S. 93 (2003) to invalidate an important

congressional regulatory scheme on its face. 

STATEMENT OF THE CASE

The narrative facts of the case are well stated in

the briefs of the parties. It is worth noting, however,

that neither party appears interested in seriously

considering whether Hillary actually falls within the

ambit of BCRA. Citizens United appears bent on

undermining the constitutional underpinning of

campaign finance regulation. The FEC appears bent

on stretching its regulatory authority to the breaking

point. The result is a case posing unnecessary tension

between BCRA and the First Amendment. 

ARGUMENT

I. HILLARY: THE MOVIE DOES NOT FALL

WITHIN THE COVERAGE OF BCRA

A. The Communication Was Not “Targeted to

the Relevant Electorate”

BCRA prohibits the dissemination of an

“electioneering communication” within thirty days of

a contested presidential primary if the communication:

(1) refers to a clearly identified presidential candidate;3

(2) is underwritten in whole or part by for-profit

corporate treasury funds; and (3) is “targeted to the
5

4

 The relevant statutory definition of an “electioneering

communication” falling within the FEC’s regulatory authority is

set forth in the Statutory Appendix to Appellant’s Brief on the

Merits at 16a-17a.

5

 This regulation merely represents an application of the 50,000

person threshold statutory provision in BCRA to the presidential

context. 

relevant electorate.” 2 U.S.C. §§ 434(f)(3)(A)(i)(I)-(III),

441b(a)-(b)4

 In the context of a presidential primary

election, a communication is deemed “targeted to the

relevant electorate” if it “[c]an be received by 50,000 or

more persons in the State where a primary election...is

being held within 30 days.” 11 C.F.R.

§ 100.29(b)(3)(ii)(A).5

 A similar 50,000 person targeting

requirement exists for House and Senate races, with

elaborate statutory rules governing whether a given

radio or television communication satisfies the 50,000

person threshold. 2 U.S.C. § 434(f)(3)(A)(i)(II)(aa)-(bb).

The parties appear to assume that Hillary was

“targeted to the relevant electorate” because the

communication was technologically capable of being

downloaded on cable television by 50,000 or more

viewers in at least one of the states holding

Democratic presidential primaries in January, 2008.

In fact, the phrase “can be received by 50,000 or more

persons” imposes a more demanding jurisdictional

threshold. In order for Hillary to fall within BCRA’s

reach, the FEC must demonstrate a plausible

likelihood that the communication will be viewed by

50,000 or more potential voters in one of the relevant

state Democratic presidential primary elections.
6

6

 Congress found that corporations and unions used soft money to

finance a virtual torrent of televised election-related ads during

the periods immediately preceding federal elections, and that

remedial legislation was needed to stanch that flow of

money. McConnell v. FEC, 251 F. Supp. 2d 176, 569-573 (D.D.C.

2003) (Kollar-Kotelly, J.); id., at 799 (Leon, J.); S. Rep. No. 105-

167, vol. 3, at 4465, 4474-4481 (1998); 5 id. at 7521-7525.

7 Rowland v. California Men’s Colony, 506 U.S. 194, 198-211

(1993); Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64

(1989); Georgia v. Evans, 316 U.S. 159, 162-63 (1942); United

States v. Cooper Corp., 312 U.S. 600, 604 (1941). See John

Noonan, “Persons” and Masks of the Law: Cardozo, Holmes,

The clear purpose of the 50,000 “person” threshold

is to assure that a communication will reach a critical

mass of voters before subjecting it to federal

regulation. Print and Internet communications were

exempted from BCRA’s coverage because Congress

deemed communications on those two exempted media

less likely to reach a mass audience capable of

affecting the outcome of an election. Id. at 2 U.S.C.

§ 434(f)(3)(A)(i).6

 Similarly, Congress has provided a

safe harbor for radio and television communications

transmitted on media that cannot reach at least 50,000

persons in the relevant electoral area. Id. at 2 U.S.C.

§ 434(f)(3)(C).

Given such clear statutory structure and purpose,

the term “person” must mean a viewer who is eligible

to vote in the relevant election. An alleged

“electioneering communication” viewed principally by

infants, pre-teens, or otherwise electorally ineligible

recipients can hardly be described as “targeted to the

relevant electorate.” Construing the inherently

ambiguous term “person” in a congressional statute is

a judicial cottage industry.7

 In this case, a combination
7

Jefferson and Wythe as Makers of Masks (1976); Sanford A.

Schane, The Corporation is a Person: The Language of a Legal

Fiction, 61 Tul. L. Rev. 563 (1987). 

8 Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const.

Trades Council, 485 U.S. 568, 575 (1988); United States v. Jin

Foey Moy, 241 U.S. 394, 401 (1916). 

of the well-established canon of constitutional

avoidance8

 and respect for BCRA’s structure and

purpose should lead this Court to construe the term

“person” to mean a viewer who is eligible to vote in the

relevant election. 

Similarly, the phrase “can be received” must be

read as connoting more than a mere technological

capacity to reach the target audience. Given

Congress’s purpose, the phrase requires a reasonable

prospect that the communication will, in fact, reach

the target audience. In the context of the standard

thirty- or sixty- second political communication on the

television and radio, it makes good sense for BCRA to

ask whether the radio or television signal is

technologically capable of reaching 50,000 or more

persons, since that is a valid predictive measure of the

likely viewing audience. The theoretical reach of a

cable television signal is not, however, a reliable

predictor of the likely viewing audience of a ninetyminute video-on-demand requiring affirmative action

by a prospective viewer. Under such a volitional

distribution mechanism, a more searching inquiry is

required into the number of “persons” in the relevant

electorate who would be plausibly likely to download

the communication. Given the content and tenor of

Hillary, it is doubtful that 50,000 or more voters in a

state Democratic presidential primary would
8

9

 To the extent it is necessary to make factual findings needed to

determine whether the targeting threshold was met in this case,

or whether a de minimis exception is warranted, a remand to the

District Court appears appropriate. 

affirmatively elect to download a ninety-minute

political attack on one of the Democratic Party’s most

popular figures. 

Thus, although Hillary was targeted to an

“electorate,” it was not “targeted to the relevant

electorate” – voters in an upcoming state Democratic

presidential primary. 

B. The Statute Contains an Implicit De

Minimis Exception

Although the factual record is sparse,9 Hillary does

not appear to fall within the category of corporatefunded electioneering communications that Congress

intended to regulate. First, the movie appears to have

been produced and distributed by a non-profit

advocacy corporation analogous to the exempt nonprofit corporation in MCFL, 479 U.S. 238, 263-64

(1986). Second, Citizens United reports that it receives

only a de minimis amount of financial support from

for-profit corporations, asserting that over 99% of the

funding for Hillary came from private individuals who

share its political beliefs. (Appellant’s Br. 32.) Third,

no evidence exists in the record that for-profit

corporate donors played a role in conceiving, producing

or editing the material. Finally, no evidence exists in
9

10 Appellee’s Supplemental Brief concedes the applicability of an

MCLF de minimis exception if an organization’s overall for-profit

funding sources are tiny: “If appellant’s overall operations are

financed ‘overwhelmingly’ by individual donations, as it asserts is

true of the financing of Hillary, appellant would appear to be

covered by these decisions.” (Appellee’s Supplemental Br. 3, n.1.)

the record concerning whether Citizens United solicits

funds from for-profit corporations.10

When the four factors are combined with the

volitional distribution mechanism contemplated by

Citizens United, the communication falls within an

implicit de minimis exception to statutory coverage.

One of the basic purposes of BCRA was to prevent forprofit corporations from deploying the massive

economic power of their corporate treasuries, which

derive from economic transactions unrelated to

politics, to influence electoral outcomes unfairly.

However, where, as here, an electoral communication

appears to be disseminated by a non-profit advocacy

group that is allegedly funded overwhelmingly by

personal donations, the accidental presence of a trace,

unsolicited corporate contribution to the advocacy

group should not trigger BCRA’s ban on for-profit

corporate electioneering communications. Under the

apparent facts of this case, the canon of constitutional

avoidance coupled with the Court’s duty to respect

BCRA’s context, structure and purpose should lead to

the recognition of an implicit de minimis exception to

statutory coverage. See Colorado Right to Life Comm.,

Inc. v. Coffman, 498 F.3d 1137, 1148-1151 (10th Cir.

2007) (recognizing de minimis exception).
10

C. The Court Should Follow the Statutory

Construction Principles Set Forth in

Northwest Austin Mun. Util. Dist. No. One

v. Holder, ___U.S.___, 129 S.Ct. 2504 (2009) 

Each of the exceptions to coverage urged by amici

requires construction of the statutory text. Recognizing

the “targeting” threshold advanced by amici requires

the Court to construe the statutory terms “person” and

“can be received” narrowly to exempt communications

that are not likely to reach the requisite number of

persons eligible to vote in the relevant election. 

Recognizing the de minimis exception to statutory

coverage urged by amici requires the Court to look to

the structure and purpose of BCRA, rather than apply

the text mechanically. 

In approaching both questions of statutory

interpretation, the Court should follow the approach of

the Court in Northwest Austin Mun. Util. Dist. No.

One v. Holder, ___U.S.___, 129 S.Ct. 2504 (2009). In

Northwest Austin, the Court was confronted with a

provision in the Voting Rights Act that appeared to

confine the ability to seek a judicial bailout from

Section 5 pre-clearance obligations to political

subdivisions that carry out voter registration. 42

U.S.C. § 1973c(a). Applying the literal text, the lower

court declined to consider the Utility District’s bailout

application. Northwest Austin Mun. Util. Dist. No. One

v. Mukasey, 573 F. Supp. 2d 221, 232 (D.D.C. 2008).

This Court reversed. 

The Chief Justice, writing for eight Justices, noted

that the Supreme Court, in deference to Congress’s

purpose in enacting the Voting Rights Act, had
11

11 A similar approach to statutory interpretation was applied this

Term in United States v. Hayes, 555 U.S. __, 129 S.Ct. 1079

(2009), when Justice Ginsburg, writing for seven Justices,

declined to read the statutory term “misdemeanor crime of

domestic violence” to require that domestic violence have been an

element of the predicate offense. Faced with punctuation and

grammar pointing in the other direction, Justice Ginsburg

reasoned that such a reading would “frustrate Congress’s manifest

purpose” in enacting the statute. 555 U.S. __, 129 S.Ct. 1079, 1081

(2009). Hayes was a more difficult statutory construction case

because the canon of constitutional avoidance was not available

to guide the Court’s deliberations. See also Abuelhawa v. United

States, ___U.S.___, 129 S.Ct. 2102 (2009) (construing “facilitate”);

and Burlington Northern & Santa Fe Ry. v. United

States,___U.S.___, 129 S. Ct. 1870 (2009) (construing “arrange”).

There is, of course, no argument for deference to the FEC’s

reading in a case involving the agency’s statutory jurisdiction,

especially in a First Amendment setting. See NLRB v. Catholic

Bishops of Chicago, 440 U.S. 490, 507 (1979). 

departed from the provision’s literal text on two

occasions to expand the scope of Section 5 coverage.

United States v. Board of Cmm’rs of Sheffield, Ala.,

435 U.S. 110 (1978); Daughterty County Bd. of Educ.

v. White, 439 U.S. 32 (1978). Given the serious

constitutional issues posed in Northwest Austin, the

Chief Justice invoked the canon of constitutional

avoidance to depart from the literal text yet a third

time in order to advance Congress’s overarching

purpose, this time enabling political subdivisions to

seek statutory bailout even though they do not conduct

voter registration. Similar respect for congressional

purpose and the canon of constitutional avoidance

should result, in this case, in the recognition of both

statutory exceptions to BCRA coverage discussed

supra.11
12

II. CITIZENS UNITED IS ENTITLED TO “AS

APPLIED” FIRST AMENDMENT

PROTECTION UNDER A PROPER READING

OF AUSTIN

If BCRA is construed to ban the dissemination of

Hillary within thirty days of a presidential primary

election solely because the film’s funding included

trace amounts of unsolicited corporate contributions to

Citizens United, a proper reading of Austin renders

the statute’s application unconstitutional “as applied.”

In Austin, an organization more than threequarters of whose members were for-profit business

corporations, produced a classic electioneering

communication expressly urging the election of a

named candidate in a local election. Austin v.

Michigan Chamber of Commerce, 494 U.S. 652, 664

(1990). Fearing that such direct for-profit corporate

participation in electoral debate risked destabilizing

the democratic process by permitting for-profit

corporations to deploy massive economic power

assembled through non-political economic

transactions, the Austin-Court upheld a state statute

that followed the settled national policy of limiting the

direct participation of for-profit corporations in the

electoral process, whether that participation takes the

form of corporate campaign contributions, banned

since 1907, or targeted “express advocacy” of the

election or defeat of a named candidate. Tillman Act,

ch. 420, 34 Stat. 864-865.

The speech at issue in this case carries none of the

dangers perceived in Austin. Unlike the

communication in Austin, the speech in this case

appears to have been paid for and disseminated by a
13

non-profit advocacy organization funded

overwhelmingly by like-minded individual donors. See

MCFL 479 U.S. 238, 263-64 (1986). In Austin, the

communication was funded by an organization 75% of

whose members were for-profit corporations. In this

case, more than 99% of the funding for Hillary appears

to have come from individual sources, and no for-profit

corporation appears to have played a role in

determining the substantive content of the material.

(Appellant’s Br. 32.) In Austin, the communication was

intended to be released on the eve of the election in a

form directed to all prospective voters. Austin, 494

U.S. at 656. In this case, the communication was

made available solely to those wishing to view it. 

It is not necessary to determine at what point such

differences render Austin inapplicable as precedent for

the FEC’s actions in this case. It is enough to note that

since none of the dangers that drove the Austin

decision are present in this case, the First Amendment

protects the speech in question. 

Given the ease with which this case can be disposed

of on “as applied” First Amendment grounds that are

fully consistent with Austin, it would be particularly

inappropriate to reconsider Austin in a case that bears

almost no resemblance to it.

III. NO REASON EXISTS TO RECONSIDER

THE FACIAL CONSTITUTIONALITY OF

BCRA

In Marbury v. Madison, 5 U.S. (1 Cranch) 137,

(1803), Chief Justice Marshall stressed that the power

of this Court to review the constitutionality of

congressional legislation is rooted in the Court’s duty
14

to resolve the “case or controversy” before it.

Accordingly, in the vast bulk of cases, the Court

applies the Constitution to the facts before it, but

declines to decide whether the statute could be

constitutionally applied in other settings. Yazoo &

Mississippi Valley R.R. v. Jackson Vinegar, 226 U.S.

217 (1912); United States v. Raines, 362 U.S. 17 (1960).

A major exception to the Court’s “as applied”

approach grew out of a concern that the mere existence

of certain statutes, especially state statutes not subject

to a narrowing construction by the Court, might

operate to limit the free speech rights of non-parties

who lacked the resources or sophistication to secure

their own “as applied” protection. Accordingly, the

Court developed a practice in the First Amendment

area of invalidating statutes on their face in settings

where: (1) a substantial number of applications would

be unconstitutional; and (2) targets of the statutes

were unlikely to be able to protect their own First

Amendment rights. See Richard Fallon, Making Sense

of Overbreadth, 100 Yale L.J. 853 (1991). Not

surprisingly, the Court often opted for facial review in

settings involving state statutes where it lacked power

to construe the statute narrowly to avoid collision with

the First Amendment. Coates v. City of Cincinnati, 402

U.S. 611 (1971); Gooding v. Wilson, 405 U.S. 518

(1972).

In McConnell, this Court upheld BCRA against a

facial challenge, while allowing for future “as applied”

review. The Court rejected the facial challenge for

three reasons. First, whatever BCRA’s difficulties at

the margins, the statute’s core applications are clearly

constitutional. For every Citizens United testing the

outer margins of the statute and its relationship to the
15

First Amendment, there are innumerable garden

variety applications that prevent massive inflows of

corporate and private wealth with the capacity to

corrupt the electoral process. Virginia v. Hicks, 539

U.S. 113, 119-20 (2003).

Second, the targets of FEC enforcement under

BCRA’s regulations governing for-profit corporate

speech are generally well-funded and sophisticated

speakers fully competent to protect their First

Amendment rights through an “as applied” challenge

to FEC regulation. See Renne v. Geary, 501 U.S. 312,

323-24 (1991); Board of Trs., State Univ. of N.Y. v. Fox,

492 U.S. 469, 484-85 (1989); Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 504-505 (1985). 

In fact, the “as applied” review process has worked

well in the context of campaign finance regulation to

permit both effective regulation and robust First

Amendment protection. This Court began the “as

applied” process in Buckley v. Valeo, 424 U.S. 1 (1976)

(per curiam), continued it in Brown v. Socialist

Workers ’74 Campaign Comm. (Ohio), 459 U.S. 87

(1982) and in MCFL, 479 U.S. 238, 264 (1986),

expanded it in WRTL II, 551 U.S. 449, ___, 127 S. Ct.

2652, 2659 (2007) and has the ability in this case to

further refine the constitutionally permissible scope of

the statute. Accordingly, there is no need to depart

from classic principles of “as applied” review in this

case, especially when such a departure would require

overruling settled Supreme Court precedent, and risk

a general destabilization of the law in many areas.

Finally, as amici have demonstrated, BCRA is

subject to at least two narrowing constructions capable

of advancing Congress’s purpose, while protecting the
16

free speech interests of Citizens United. Under

Ashwander v. TVA, 297 U.S. 288, 345-49 (1936), it is

clearly preferable to explore such a non-constitutional

approach before considering overturning settled

constitutional precedent, and departing from the

Court’s long-standing commitment to “as applied”

constitutional review.

CONCLUSION

For the above-stated reasons, amici urge that the

decision below be vacated, and the case be remanded

to consider whether BCRA applies to this case. In the

alternative, amici urge the Court to recognize that the

First Amendment, as applied, prevents the FEC from

prohibiting the dissemination of Hillary: The Movie in

the context of a presidential primary election. 

Dated: July 31, 2009

New York, New York 

 Respectfully submitted,

Norman Dorsen

(Counsel of Record) 

Burt Neuborne

40 Washington Sq. South

New York, N.Y. 10012

(212) 998-6172

norman.dorsen@nyu.edu

Attorneys for Amici Curiae