No. 08-205 

IN THE

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CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION,

Appellee.

_______________ 

On Appeal 

From The United States District Court 

For The District Of Columbia 

_______________

SUPPLEMENTAL REPLY BRIEF FOR APPELLANT 

_______________

MICHAEL BOOS

Citizens United General 

 Counsel 

4101 Chain Bridge Road 

Suite 313 

Fairfax, VA 22030 

(703) 691-7717 

THEODORE B. OLSON

 Counsel of Record

MATTHEW D. MCGILL

AMIR C. TAYRANI

JUSTIN S. HERRING

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 Counsel for Appellant 
RULE 29.6 STATEMENT 

The corporate disclosure statement included in 

the Brief for Appellant remains accurate. 
ii 

TABLE OF CONTENTS 

Page 

RULE 29.6 STATEMENT............................................i 

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

SUPPLEMENTAL REPLY BRIEF FOR 

APPELLANT ...............................................................1 

I. THE GOVERNMENT’S CRIMINALIZATION 

OF CORPORATE POLITICAL SPEECH 

CANNOT SURVIVE STRICT SCRUTINY ................3 

II. THIS CASE IS AN APPROPRIATE VEHICLE 

FOR REVISITING AND OVERRULING 

AUSTIN...........................................................10 

CONCLUSION ..........................................................12
iii 

TABLE OF AUTHORITIES 

 Page(s)

CASES

Austin v. Mich. State Chamber of 

Commerce, 494 U.S. 652 (1990).......................1, 11 

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) ......................1, 3, 4 

Caperton v. A.T. Massey Coal Co., 

129 S. Ct. 2252 (2009)............................................6 

Colo. Republican Fed. Campaign Comm. 

v. FEC, 518 U.S. 604 (1996) ..............................5, 7 

FEC v. Mass. Citizens for Life, 

479 U.S. 238 (1986)................................................5 

FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480 (1985) ..........................3, 5, 6 

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)........................................1, 5, 7 

McConnell v. FEC, 

540 U.S. 93 (2003)..............................................1, 6 

Minersville Sch. Dist. v. Gobitis, 

310 U.S. 586 (1940)..............................................11

N.Y. State Bd. of Elections v. Lopez 

Torres, 128 S. Ct. 791 (2008) .................................8 

Payne v. Tennessee, 

501 U.S. 808 (1991)..............................................10 

Republican Party v. White, 

536 U.S. 765 (2002)..............................................11 
iv 

Turner Broad. Sys., Inc. v. FCC, 

512 U.S. 622 (1994)................................................7 

W. Va. Bd. of Educ. v. Barnette, 

319 U.S. 624 (1943) .............................................11 

REGULATIONS

11 C.F.R. § 114.10 .......................................................2 

OTHER AUTHORITIES

Campaign Finance Institute, Individual 

Donors of $75,000 or More to Federal 

527s, at http://www.cfinst.org/ 

interest_groups/pdf/np527/ 

527_08_24M_Table3.pdf ........................................5 

Center for Political Accountability, 

Political Disclosure Hits 60 Companies 

(Mar. 24, 2009), at

http://www.politicalaccountability.net/ 

index.php?ht=display/ArticleDetails/ 

i/1890/pid/1883 .......................................................8 
SUPPLEMENTAL REPLY BRIEF 

FOR APPELLANT 

The government’s supplemental brief is tantamount to a confession of error. 

The government banned Citizens United’s Video 

On Demand distribution of Hillary on the strength of 

its asserted interest in preventing corporations from 

deploying “immense aggregations of wealth” to “influence unfairly the outcome of elections.” Austin v. 

Mich. State Chamber of Commerce, 494 U.S. 652, 

660, 669 (1990). 

But now that the Court has expressed a willingness to reexamine that rationale, the government, 

astoundingly, has abandoned it. Nowhere in the government’s supplemental brief will the Court find any 

mention of the “different type of corruption”—“the 

corrosive and distorting effects” purportedly accompanying any corporate or union participation in electoral politics—on which both Austin and McConnell

relied. 494 U.S. at 660; 540 U.S. 93, 205 (2003). Indeed, the very word “distortion”—so prominent in 

Austin—now seems to have fallen out of the government’s vocabulary altogether; it appears not once in 

the government’s supplemental brief. 

The government now attempts to reinvent Austin

and the pertinent portion of McConnell as supported 

by two different governmental interests—prevention 

of actual or apparent quid pro quo corruption and 

protection of dissenting shareholders—that this 

Court already has rejected as insufficient to justify 

suppression of electoral expenditures. See Buckley v. 

Valeo, 424 U.S. 1, 47-48 (1976) (per curiam); First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 794 

n.34 (1978). 
2

This is an insupportable reading of those decisions. And the government concedes as much when 

it argues that “[t]he Court did not decide in Austin or 

McConnell” whether “preventing actual or apparent 

corruption provides a constitutionally sufficient justification for prohibiting” corporate electioneering. 

FEC Supp. Br. 11. 

Moreover, the interests the government seeks to 

substitute for its anti-distortion rationale are manifestly inapplicable to the government’s suppression 

of Hillary. Citizens United has no shareholders, and 

neither the government nor its amici have advanced 

any remotely plausible theory as to how Video On 

Demand distribution of Hillary actually or apparently corrupted President Obama or Vice President 

Biden. Even to articulate a theory of quid pro quo

corruption arising out of Hillary is to deride it. 

Why would the government abandon the antidistortion rationale in favor of two rationales that 

cannot apply to Citizens United and its speech? 

Why, after resisting any enlargement of the MCFL

exception (see FEC Br. 30-32), would the government 

now, upon reflection, suggest that its one-corporatedollar-and-you’re-in-prison rule (11 C.F.R. § 114.10) 

violates the First Amendment as applied to entities 

that receive “de minimis sums from corporate donations or business revenue” and even offer that Citizens United “would appear to be” such an entity? 

FEC Supp. Br. 3 n.1. 

The answer is obvious and disturbing: The government will surrender Citizens United’s as-applied 

challenge if doing so will shield Austin and McConnell from scrutiny and enable the FEC to invoke 

those decisions to suppress political speech another 

day. 
3

This Court should not take the bait. As the government’s failure even to articulate (much less defend) it vividly illustrates, Austin’s anti-distortion 

rationale is bankrupt. And the interests the government has rushed into the breach are equally infirm. In the absence of a “constitutionally sufficient 

justification for prohibiting . . . corporate . . . independent electioneering” (FEC Supp. Br. 11), Austin

and the pertinent portion of McConnell should be 

overruled. 

I. THE GOVERNMENT’S CRIMINALIZATION OF 

CORPORATE POLITICAL SPEECH CANNOT 

SURVIVE STRICT SCRUTINY. 

A. The government acknowledges—as it must in 

view of Buckley and NCPAC—that independent political speech generally does not create a material 

risk of actual or apparent quid pro quo corruption. 

See Buckley, 424 U.S. at 47-48; FEC v. Nat’l Conservative Political Action Comm. (“NCPAC”), 470 U.S. 

480, 497 (1985). The government contends, however, 

that “electoral advocacy by for-profit corporations 

poses distinct risks” of quid pro quo corruption. FEC 

Supp. Br. 6. It claims that the “nature of business 

corporations makes corporate political activity inherently more likely than individual advocacy to cause 

quid pro quo corruption” and that the McConnell record “indicated” that, indeed, “corporate spending on 

candidate-related speech, even if conducted independently of candidates, had come to be used as a 

means of currying favor with and attempting to influence federal office-holders.” FEC Br. 9, 11. 

The government’s epiphany that it is only the political speech of “for-profit corporations” that poses 

“distinct risks” of corruption surely comes as welcome news to America’s labor unions, whose political 
4

speech has been criminalized for nearly as long as 

that of America’s corporations. But in seeking to 

hobble only for-profit corporations in the competition 

of political ideas, the government merely compounds 

its error, transmogrifying both BCRA § 203 and 2 

U.S.C. § 441b into measures the authoring Congresses would not conceivably have enacted. See 

Buckley, 424 U.S. at 108 (statute should be facially 

invalidated where it is “evident that the Legislature 

would not have enacted those provisions which are 

within its power, independently of that which is 

not”). 

But this Court need not decide whether the government’s apparent admission that it lacks a basis 

for suppressing union political speech overcomes the 

normal presumption of severability of unconstitutional applications, because the distinguishing features of for-profit corporations asserted by the government are not, in fact, distinct at all. 

1. The government alleges that for-profit corporations are uniquely likely to seek to corrupt officeholders with independent expenditures because 

“[t]he economic stake of corporations” in legislation 

“generally dwarfs that of any set of individuals” and 

because, where the game is “pay to play,” for-profit 

corporations are more likely than others to be able to 

afford the “ante.” FEC Supp. Br. 9. But it is hardly 

just for-profit corporations that have significant 

stakes in pending legislation: Consider, for example, 

the interest of a multi-millionaire in estate tax reform, or the interest of an author in a proposed extension of the copyright term. 

And while it is true that some for-profit corporations have great amounts of wealth at their disposal, 

most of the several million corporations in the 
5

United States lack the financial wherewithal to corrupt officeholders. In that sense, corporations are 

reflective of America’s individuals: While the government is doubtless correct that most individuals 

cannot afford officeholders’ “ante,” the 2008 election 

cycle demonstrates that many can. See Campaign 

Finance Institute, Individual Donors of $75,000 

or More to Federal 527s, at 

http://www.cfinst.org/interest_groups/pdf/np527/527_ 

08_24M_Table3.pdf (the 139 largest individual donors to federal 527s contributed more than $62 million). 

The government also argues that for-profit corporations are uniquely likely to corrupt legislators 

because they are “artificial persons” who can use 

their perpetual life to “amass great wealth” that can 

be deployed in the form of corruption-inducing independent expenditures. FEC Supp. Br. 9. But MCFL

entities and PACs are no less “artificial” and their 

lives are no less perpetual, yet this Court has held—

and the government accepts—that independent expenditures by such entities pose no threat of quid pro 

quo corruption. See FEC v. Mass. Citizens for Life 

(“MCFL”), 479 U.S. 238, 256 (1986); NCPAC, 470 

U.S. at 497. If, as the government seems to assume, 

the First Amendment protects only a “natural person’s ideas,” then it is not just the speech of for-profit 

corporations that is at risk (but see Bellotti, 435 U.S. 

at 795), but also that of MCFL entities (but see 

MCFL, 479 U.S. at 263), PACs (but see NCPAC, 470 

U.S. at 501), and, indeed, political parties (but see 

Colo. Republican Fed. Campaign Comm. v. FEC, 518 

U.S. 604, 618 (1996) (plurality opinion of Breyer, J.)). 

2. The government’s efforts to backstop its assertions with “indicat[ions]” from the McConnell record are equally flawed. Even on the government’s 
6

telling, the McConnell record “indicated” not quid 

pro quo corruption, but rather that “federal officeholders and candidates were aware of and felt indebted to corporations . . . that financed electioneering advertisements on their behalf.” FEC Supp. Br. 

8. But McConnell itself recognized that “mere political favoritism or opportunity for influence alone is 

insufficient to justify regulation” of electoral speech. 

540 U.S. at 153. Indeed, the “fact that candidates 

and elected officials may alter or reaffirm their own 

positions on issues in response to political messages 

paid for by [campaign supporters] can hardly be 

called corruption, for one of the essential features of 

democracy is the presentation to the electorate of 

varying points of view.” NCPAC, 470 U.S. at 498.1

Perhaps sensing that “indications” of “influence” 

might be an insufficient basis upon which to criminalize political speech, the government argues that it 

is entitled to a remand for additional “evidentiary 

proceedings” so that it might convince members of 

Congress to admit that they made quid pro quo exchanges with corporate campaign supporters—or 

perhaps extorted “protection” payments from corporations in the form of electoral expenditures. Yet, if 

Austin and McConnell are still controlling, the remand would be meaningless; the government would 

seek and obtain summary judgment as it did below. 

 

1 Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), 

says nothing to the contrary. While “mere . . . favoritism” toward a campaign supporter is perfectly acceptable in legislative 

and executive branch settings (McConnell, 540 U.S. at 153), 

comparable “favoritism” toward a judicial campaign supporter 

is constitutionally intolerable in light of the due process guarantee of judicial “neutrality.” Caperton, 129 S. Ct. at 2260. 
7

But the government is not entitled to a remand 

in any event. It is axiomatic that “‘[w]hen the Government defends a regulation on speech as a means 

to . . . prevent anticipated harms, it must do more 

than simply posit the existence of the disease sought 

to be cured’”; it must “point to record evidence of legislative findings” supporting its proffered compelling 

interest. Colo. Republican, 518 U.S. at 618 (plurality 

opinion of Breyer, J.) (quoting Turner Broad. Sys., 

Inc. v. FCC, 512 U.S. 622, 664 (1994) (ellipses in 

original)). Perhaps unsurprisingly, the government 

is unable to point to any congressional finding that 

corporate expenditures result in the corruption of 

legislators. And the experience of the 26 States that 

currently permit corporations to make unlimited independent expenditures in state elections (see U.S. 

Chamber Supp. Br. 8 & n.5) suggests strongly that 

no such finding is in the offing: The government is 

unable to point to a single incident in any of those 

jurisdictions where a corporation used independent 

expenditures to solicit quid pro quo favors. 

B. Alternatively, the government contends that 

prohibiting corporate independent expenditures is 

necessary to “protect the individuals who have paid 

money into a corporation . . . for purposes other than 

the support of candidates.” FEC Supp. Br. 12. The 

government points to no congressional finding that 

even remotely suggests that this was actually one of 

Congress’s objectives in enacting FECA or BCRA. 

But see Colo. Republican, 518 U.S. at 618 (plurality 

opinion of Breyer, J.) (strict scrutiny requires analysis of the government’s actual objective, not post hoc

rationales). In any event, Bellotti explicitly rejected 

protecting a “dissenting shareholder’s wishes” as a 

justification for suppressing corporate political 

speech. 435 U.S. at 794 n.34. 
8

Thus, just as dissenting party members must 

“protect” their own views either through the procedures afforded by party by-laws, or by leaving the 

party (see N.Y. State Bd. of Elections v. Lopez Torres, 

128 S. Ct. 791, 799 (2008)), dissenting shareholders 

must “protect” their own views, either by invoking 

the “procedures of corporate democracy” (Bellotti, 

435 U.S. at 794), or by selling their shares. And, in 

fact, forty members of the S&P 100 allow shareholders to do just that through policies that require full 

disclosure of the corporations’ political activities in 

order to facilitate shareholder oversight. Center 

for Political Accountability, Political Disclosure 

Hits 60 Companies (Mar. 24, 2009), at 

http://www.politicalaccountability.net/index.php?ht= 

display/ArticleDetails/i/1890/pid/1883. 

C. The government also fails utterly to show 

that restrictions on corporate independent expenditures are narrowly tailored to its asserted objectives. 

Restricting the speech of all corporations (except 

MCFL entities and members of the institutional media) is not remotely necessary to mitigate the “distinct risks” assertedly inherent in the electoral advocacy of for-profit corporations. 

Certainly, the “protection” of dissenting shareholders does not require prohibiting the speech of 

corporations like Citizens United that have no shareholders, or the speech of the vast majority of U.S. 

corporations that have only one shareholder (who 

presumably does not dissent from her own views). 

And likewise, banning all corporations from making 

independent expenditures is not remotely necessary 

to address the “distinct risks” supposedly posed by 

“[t]he nature of business corporations.” FEC Supp. 

Br. 6, 9. 
9

The government cites its fear that nonprofit corporations could become “conduits” for the speech of 

business corporations. But the government’s speculation that some nonprofits might be used in this 

manner is hardly an adequate justification for banning nonprofit corporations funded predominantly by 

individuals from engaging in political speech (as the 

government now—quite belatedly—seems ready to 

admit). If business corporations are the concern, the 

narrowly tailored response would be legislation that 

prohibits those entities alone from directly or indirectly funding campaign expenditures. 

D. Tellingly, the principal defenders of the antidistortion rationale are those who have the most to 

gain by corporations’ continued silence: incumbent 

politicians. See generally DNC Supp. Br.; McCain 

Supp. Br.; Van Hollen Supp. Br. According to the 

DNC, for example, it would be inappropriate to reject 

Austin’s anti-distortion rationale because the “relationship of corporation to government” is currently 

“an all-consuming topic in American politics” and 

overruling Austin “would alter, much to the favor of 

one class of participants, the very terms on which 

this great national debate is being conducted.” DNC 

Supp. Br. 2. The irony in this argument is impossible to miss: The anti-distortion rationale—which is 

nominally premised on equalizing the relative voice 

of participants in the political process—is now being 

invoked as a basis for completely excluding corporations from a political debate about their future place 

in society. Far from equalizing political speech, it is 

Austin itself that has distorted political discourse by 

silencing some of the Nation’s most important economic actors and ideological activists. 

Moreover, there is absolutely no indication that 

permitting corporations to participate in this politi-
10

cal dialogue would overwhelm the voices of other 

participants. The government is unable to point to 

any evidence that corporations dominate or otherwise “distort” the political process in the 26 States 

that permit corporate independent expenditures. See 

supra pg. 7. And, on the federal level, it is telling 

that in 2008—after this Court had held that corporations may spend unlimited funds on electioneering 

communications authorized under WRTL II—

political parties and PACs still spent 25 times more 

than corporations on electoral advocacy. Compare

FEC Supp. Br. 17, with id. at 22. 

* * * 

Ultimately, the government’s refusal to defend 

Austin’s anti-distortion rationale is tantamount to a 

concession that the decision was “badly reasoned” 

and is in need of reconsideration. Payne v. Tennessee, 501 U.S. 808, 827 (1991). Because the government has failed in its effort to shore up that decision 

by proposing alternative grounds for prohibiting corporate independent expenditures, Austin should be 

overruled. And because the government has pinned 

the fate of McConnell’s facial validation of BCRA 

§ 203 on its defense of Austin (FEC Supp. Br. 19), 

McConnell too must fall. 

II. THIS CASE IS AN APPROPRIATE VEHICLE 

FOR REVISITING AND OVERRULING AUSTIN. 

Unable to formulate a persuasive—let alone compelling—justification for the criminalization of corporations’ core political speech, the government ultimately retreats to a series of prudential considerations that purportedly militate in favor of leaving 

Austin and McConnell on the books. None of those 
11

purely discretionary factors is a sufficient basis for 

allowing those wrongly decided cases to stand. 

The government and its amici resort repeatedly 

to the fact that the federal government has regulated 

corporate campaign contributions since 1907 and 

corporate independent expenditures since 1947. See, 

e.g., FEC Supp. Br. 7, 16. But, when it comes to restrictions on core political speech, longevity is no 

substitute for a compelling governmental interest. 

See, e.g., Republican Party v. White, 536 U.S. 765 

(2002). 

Moreover, the reliance interests identified by the 

government and its amici are decidedly overblown. 

Many of the States that currently restrict corporate 

independent expenditures had enacted their restrictions before this Court held for the first time in Austin that the anti-distortion rationale is a sufficient 

basis for prohibiting corporate independent expenditures. See J.S. at 16 n.13, Austin (No. 88-1569). 

Similarly, the fact that Congress, in reliance on Austin, may have expended legislative resources when 

enacting BCRA cannot itself insulate that decision’s 

unconstitutional holding from re-examination. See, 

e.g., W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624 

(1943) (overruling Minersville School District v. Gobitis, 310 U.S. 586 (1940), even though States had 

explicitly relied on that decision to enact classroom 

pledge-of-allegiance requirements). 

The government contends that this case is an inappropriate one in which to undertake that reexamination because Citizens United is an ideologically oriented organization funded almost exclusively 

by individuals and thus a “distinctly atypical corporation.” FEC Supp. Br. 2. It is the government, however, that has placed Austin squarely at issue by sub-
12

jecting Citizens United to the same speech restrictions as those applicable to more “typical,” for-profit 

corporations. 

Finally, it is sheer hyperbole for the government’s 

amici to suggest that a decision overruling Austin or 

McConnell “could threaten the Court’s legitimacy.” 

McCain Supp. Br. 12. As the government itself emphasizes (at 5), Austin’s anti-distortion rationale was 

not challenged in McConnell. This Court has therefore never had occasion to examine whether Austin

was correct to depart from this Court’s prior campaign finance jurisprudence. Rejecting that decision’s utterly inadequate rationale for impairing corporations’ fundamental First Amendment freedoms—and the unworkable campaign finance 

framework it has generated—could only bolster this 

Court’s standing as the final bulwark against governmental abridgment of constitutional rights. 

CONCLUSION 

The judgment of the district court should be reversed. 

Respectfully submitted. 

MICHAEL BOOS

Citizens United General 

 Counsel 

4101 Chain Bridge Road 

Suite 313 

Fairfax, VA 22030 

(703) 691-7717 

THEODORE B. OLSON

 Counsel of Record

MATTHEW D. MCGILL

AMIR C. TAYRANI

JUSTIN S. HERRING

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 955-8500 

Counsel for Appellant 

August 19, 2009