No. 08-205 

================================================================ 

In The 

Supreme Court of the United States 

--------------------------------- ♦ --------------------------------- 

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

--------------------------------- ♦ --------------------------------- 

On Appeal From The United States District Court 

For The District Of Columbia 

--------------------------------- ♦ --------------------------------- 

BRIEF OF AMICUS CURIAE NATIONAL RIFLE 

ASSOCIATION IN SUPPORT OF APPELLANT 

ON SUPPLEMENTAL QUESTION 

--------------------------------- ♦ --------------------------------- 

 CHARLES J. COOPER

 Counsel of Record

 DAVID H. THOMPSON

 DEREK L. SHAFFER

 DAVID LEHN

 COOPER & KIRK, PLLC 

 1523 New Hampshire Ave., NW 

 Washington, D.C. 20036 

July 31, 2009 (202) 220-9600 

Counsel for Amicus Curiae National Rifle Association 

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

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

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

INTRODUCTION AND SUMMARY OF ARGUMENT .................................................................. 1 

ARGUMENT ........................................................... 3 

 I. The Government’s Distinction of Nonprofit 

Advocacy Corporations Rings Hollow ......... 3 

 II. The Court Should Overrule Austin and 

McConnell at Least as to Nonprofit Advocacy Corporations’ Independent Expenditures Funded by Individuals ....................... 7 

 III. The Court Should Overturn Austin in Whole 

and McConnell in Part ................................. 11 

A. The Government Has Abandoned 

Austin’s Anti-Distortion Rationale........ 12 

B. Gratitude for Political Support Does 

Not Equate to Corruption ..................... 14 

C. No Other Rationale Justifies BCRA 

§ 203 ....................................................... 17 

CONCLUSION ....................................................... 21 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

Austin v. Michigan State Chamber of Commerce,

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

Buckley v. Valeo,

424 U.S. 1 (1976) ......................................... 15, 17, 18 

Davis v. FEC,

128 S.Ct. 2759 (2008) ........................................ 12, 18 

FEC v. Beaumont,

539 U.S. 146 (2003) ................................................... 6 

FEC v. Colorado Republican 

Fed. Campaign Comm.,

533 U.S. 431 (2001) ................................................. 16 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ............................. 3-4, 10, 17, 19 

FEC v. National Conservative Political 

Action Comm.,

470 U.S. 480 (1985) ..................................... 12, 17, 19 

FEC v. National Rifle Ass’n,

254 F.3d 173 (D.C. Cir. 2001) .................................... 4 

FEC v. Survival Educ. Fund, Inc., 

65 F.3d 285 (2d Cir. 1995) ......................................... 4 

FEC v. Wisconsin Right to Life, Inc., 

127 S.Ct. 2652 (2007) ........................... 2, 8, 11, 16-18 

First Nat’l Bank v. Bellotti,

435 U.S. 765 (1978) ............................................ 18, 19 
iii 

TABLE OF AUTHORITIES – Continued 

Page 

Leegin Creative Leather Prods. v. 

PSKS, Inc., 

127 S.Ct. 2705 (2007) .............................................. 11 

McConnell v. FEC,

251 F.Supp.2d 176 (D.D.C. 2003) ........................... 16 

McConnell v. FEC,

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

Nixon v. Shrink Missouri Gov’t PAC,

528 U.S. 377 (2000) ................................................... 7 

Renne v. Geary,

501 U.S. 312 (1991) ................................................. 14 

STATUTES

2 U.S.C. 

 § 441b(c)(2) ................................................................ 6 

 § 441b(c)(3)(B) ........................................................... 6 

 § 441b(c)(6) ................................................................ 6 

 § 501(c)(4) .............................................................. 3, 6 

REGULATORY AUTHORITIES

11 C.F.R. § 114.10(c) ..................................................... 4 

63 Fed. Reg. 29,359-29,360 (1998) ............................... 4 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

OTHER AUTHORITIES

2 Alexis de Tocqueville, DEMOCRACY IN AMERICA

(P. Bradley ed. 1948) ................................................. 8 

THE FEDERALIST No. 35 (Hamilton) ............................ 15 

THE FEDERALIST No. 51 (Madison) .............................. 15 
1 

INTEREST OF AMICUS CURIAE1

 As detailed in its prior amicus brief, the National 

Rifle Association (“NRA”) is a nonprofit, voluntary 

membership corporation qualified as tax-exempt 

under 26 U.S.C. § 501(c)(4). Its nearly four million 

members are individual Americans bound by a common desire to preserve the Second Amendment right 

to keep and bear arms. The NRA funds its political 

speech almost exclusively with dues and contributions from individual members. The organization does 

not accept business corporations as members, and the 

contributions it receives from such corporations are 

negligible. See Br. of Amicus Curiae NRA in Support 

of Appellant (“NRA Amicus Br.”) 1-2. 

INTRODUCTION AND 

SUMMARY OF ARGUMENT 

 The Government has had an epiphany in response to the Court’s request for supplemental 

briefing: despite arguing to the contrary in case after 

case before this Court, the Government has now 

decided that nonprofit advocacy corporations whose 

“operations are financed ‘overwhelmingly’ by individual donations” – like Citizens United and the NRA – 

are, after all, “distinctly atypical” corporations when 

1

 The parties have consented to the filing of this brief. This 

brief was not authored in whole or in part by any counsel for a 

party to this case. No person or entity, other than amicus curiae, 

its members, or its counsel, made a monetary contribution to the 

preparation and submission of this brief. 
2 

it comes to regulating their political speech. Supplemental Br. for the Appellee (“FEC Suppl. Br.”) at 2-3 

& n.1. One might have hoped that the Government 

would confess error and join Citizens United and its 

brethren in their struggle to recover their political 

voices, lost since passage of BCRA. But, no – that 

would mark a substantial inroad into Title II in favor 

of core political speech, and so the Government 

instead only pays lip service to speech by nonprofits 

for the sake of keeping them mute. 

 Thus, the Government seems to argue that 

Citizens United, as a nonprofit advocacy corporation, 

is “distinctly atypical” enough to make this case a bad 

vehicle for overruling Austin v. Michigan State 

Chamber of Commerce, 494 U.S. 652 (1990), but not 

enough to actually qualify it for (ever-illusory) First 

Amendment protection. The upshot, according to the 

Government, is that this Court should hold against 

Citizens United on the basis of Austin without finding 

occasion actually to analyze Austin. Such reasoning 

would seem risible were the continued specter of 

criminal prosecution not lurking behind it. 

 “Enough is enough.” FEC v. Wisconsin Right to 

Life, Inc. (“WRTL II”), 127 S.Ct. 2652, 2672 (2007) 

(Roberts, C.J.). There is only one sure way finally to 

put an end to this and vindicate the First Amendment. It is to trace the Government’s tangled line of 

argument back to its source. In the pages that follow, 

Amicus NRA respectfully explains why this Court 

should overrule Austin and McConnell v. FEC, 540 

U.S. 93 (2003), at least to the extent they stand for 
3 

the arresting proposition that government may bar 

nonprofit advocacy corporations from using individual 

donations to fund political speech. Correspondingly, 

the Court should restore the provision of Title II (the 

Snowe-Jeffords provision) that expressly exempted 

501(c)(4) corporations funded by individuals from 

Section 203’s speech ban, by striking down the 

superseding provision (the Wellstone amendment) 

that placed 501(c)(4) corporations under the same 

cone of silence as for-profit business corporations. 

Alternatively, this Court should overrule Austin in 

whole and McConnell in part, holding that all 

corporations (for-profit and nonprofit alike) are no 

less entitled under the First Amendment than are 

other speakers to air their independent political 

speech to the public, including around election time. 

ARGUMENT 

I. The Government’s Distinction of Nonprofit 

Advocacy Corporations Rings Hollow 

 In discounting the burdens of Title II (while 

simultaneously defending them as sacrosanct), the 

Government has always trumpeted the exception 

for certain nonprofits established in FEC v. Massachusetts Citizens for Life, Inc. (“MCFL”), 479 U.S. 

238, 264 (1986). That exception has proved illusory in 

practice, particularly because the Government has 

been so begrudging in administering and so zealous 

in policing it. See NRA Amicus Br. 22-24. Indeed, the 

Government has gone to court repeatedly arguing 
4 

that corporations such as Citizens United and the 

NRA cannot claim the benefit of MCFL. See FEC v. 

National Rifle Ass’n, 254 F.3d 173, 190-91 (D.C. Cir. 

2001); FEC v. Survival Educ. Fund, Inc., 65 F.3d 285, 

292-93 (2d Cir. 1995); 63 Fed. Reg. 29,359-29,360 

(1998) (collecting decisions). Against this backdrop, 

footnote 1 of the Government’s supplemental brief 

comes with poor grace. According to it, Citizens 

United “would appear to” come within certain lowercourt decisions (ruling against the Government) 

construing the MFCL exception because Citizens 

United’s “overall operations are financed ‘overwhelmingly’ by individual donations.” FEC Suppl. Br. 

3 n.1. In saying this, of course, the Government by no 

means acknowledges that “these decisions” are 

correct; to the contrary, it continues to maintain they 

are wrong. Nor does the Government agree that 

Citizens United in fact comes within them; it points 

only to an “appear[ance]” behind which the Government would surely poke over years of protracted 

litigation. 

 Indeed, the FEC’s regulations implementing 

MCFL categorically deny the exemption if the 

corporation receives even a penny from business 

entities, as Citizens United and the NRA do. MCFL, 

479 U.S. at 264 (corporation must have “policy not to 

accept contributions from” business corporations); 11 

C.F.R. § 114.10(c) (corporation must “not directly or 

indirectly accept donations of anything of value from 

business corporations”); NRA Amicus Br. 4, 24-25. 

Even setting that aside, Citizens United and the NRA 
5 

would also be disqualified from the MCFL exception 

simply because they maintain programs and benefits 

extending beyond their political mission, strictly 

defined. Id. Thus, the Government’s seeming concession marks nothing more than a last-minute 

maneuver by which to shield Austin from this Court’s 

scrutiny, offering the false promise of extending 

MCFL to additional nonprofit corporations today only 

so that the Government may withhold that exception 

and restrict their speech (along with all other corporations’ speech) tomorrow. 

 As the Government would now have it, “a nonprofit corporation whose stated purpose is expressly 

ideological” and whose electoral speech is funded 

“ ‘overwhelmingly’ from individual donations” is “a 

distinctly atypical corporation” because its general 

treasuries are not “unrelated to the dissemination of 

political ideas.” FEC Suppl. Br. 2-3. Such solicitude 

by the Government for the special case of nonprofits 

is sure to have been lost on attentive readers of all of 

its prior submissions to this Court. In those filings, 

the Government uniformly maintained that – outside 

the preexisting regulatory strictures of MCFL – 

nonprofits were no different from all other corporations. See Br. for the Appellee 29-32; Br. for the 

FEC 75, 78, 113, McConnell v. FEC, No. 02-1674 

(S.Ct. Aug. 2003). The Government did so, in fact, in 

direct opposition to arguments by the NRA and others 

that nonprofit advocacy corporations funded predominantly by individuals posed no meaningful risk of 

Austin-style distortion. NRA Amicus Br. 16; Br. for 
6 

Appellants the NRA, et al. 20-23, 28-33, NRA v. FEC, 

No. 02-1675 (S.Ct. July 8, 2003); FEC v. Beaumont, 

539 U.S. 146, 159 (2003) (“advocacy corporations are 

generally different from traditional business corporations in the improbability that contributions they 

might make would end up supporting causes that 

some of their members would not approve”). 

 Lest there be any doubt, the Government defended a provision of Title II that specifically targeted

nonprofit corporations such as Citizens United and 

the NRA for restriction, notwithstanding their funding from individual supporters. As the NRA explained 

in its prior amicus brief, Congress initially accounted 

for the distinctive status of corporations like Citizens 

United and the NRA. Specifically, Congress enacted 

the Snowe-Jeffords provision to exempt from BCRA 

§ 203 independent expenditures by a nonprofit 

501(c)(4) corporation, provided that “the communication is paid for exclusively by funds provided 

directly by individuals,” 2 U.S.C. § 441b(c)(2); and, if 

the corporation receives funds from “business 

activities” or other corporations, provided that the 

funds used for the communication are kept in “a 

segregated account to which only individuals can 

contribute,” § 441b(c)(3)(B). 

 But Congress then decided to cast a wider net. It 

later enacted the Wellstone amendment, § 441b(c)(6), 

which nullified Snowe-Jeffords, for fear that 

 
7 

“negative attack ads” from these nonprofits would 

continue to threaten incumbents.2

 The Wellstone 

amendment has stood out like an unconstitutional 

sore thumb ever since – it serves an illegitimate, 

content-based purpose and Austin’s anti-distortion 

aim could be achieved through the less-restrictive 

alternative of Snowe-Jeffords. See NRA Amicus Br. 5-

6, 9-16; McConnell, 540 U.S. at 248-50, 260, 262-64 

(Scalia, J., dissenting) (Section 203 “cuts to the heart 

of what the First Amendment is meant to protect: the 

right to criticize the government.”). 

II. The Court Should Overrule Austin and 

McConnell at Least as to Nonprofit Advocacy Corporations’ Independent Expenditures Funded by Individuals

 In Austin, the Court thought the restriction on 

independent corporate expenditures was necessary 

to prevent “the corrosive and distorting effects of 

immense aggregations of wealth that are accumulated with the help of the corporate form and that 

have little or no correlation to the public’s support 

for the corporation’s political ideas.” 494 U.S. at 

660. In McConnell, the Court relied upon Austin’s 

anti-distortion rationale, without critical analysis, to 

2

 As an additional measure of protection, Congress further 

leveraged the “media-related advantages of incumbency” by 

exempting media corporations from BCRA § 203’s restrictions. 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 404 (2000) 

(Breyer, J., concurring). 
8 

uphold BCRA § 203 on its face. 540 U.S. at 205. Far 

from preventing a nonprofit advocacy group’s political 

voice from being unfairly inflated by funds derived 

from the economic marketplace, however, Section 203 

has artificially deflated the strength of such a group’s 

voice in the political marketplace vastly below its 

“contributors’ support for the corporations’ political 

views” and has, perversely, “concentrat[ed] more 

political power in the hands of the country’s 

wealthiest individuals.” Austin, 494 U.S. at 660-61; 

WRTL II, 127 S.Ct. at 2686-87 (Scalia, J., concurring); 

see NRA Amicus Br. 2-3, 11-16; McConnell, 540 U.S. 

at 255-58 (Scalia, J.). 

 The NRA respectfully reiterates that it and 

Citizens United, along with other nonprofit advocacy 

organizations funded by individuals, have always 

been constitutionally distinct from business 

corporations. Indeed, “associations” are essential for 

vigorous public debate in a democracy because they 

“circulate” “opinions or sentiments” to “the multitude” 

and possess a voice loud enough to be heard and thus 

to check governmental impingement upon rights. 2 

Alexis de Tocqueville, DEMOCRACY IN AMERICA 109 (P. 

Bradley ed. 1948). If anything, therefore, speech by 

corporations – particularly nonprofit corporations 

funded by like-minded individuals of modest means – 

deserves a special place under the First Amendment. 

Consequently, independent expenditures by such 

groups should be categorically exempt from limitation.
9 

 There simply is no answer to this reality. The 

Government nonetheless purports to offer one, 

positing that it may limit independent expenditures 

by nonprofit advocacy corporations because the nonprofits might otherwise “serve as conduits for 

spending by for-profit corporations.” FEC Suppl. Br. 

6-7. Of course, Snowe-Jeffords solves that problem 

completely by limiting a nonprofit advocacy corporation’s funding of electioneering communications to 

the amount of donations it receives from individuals. 

The prospect of nonprofit corporations becoming mere 

conduits for Austin-type distortion would thus be nil. 

 Certainly, fidelity to Austin by no means 

mandates the miserly delineation of a nonprofit 

exemption that the FEC has taken from MCFL. In 

Austin, the Court was concerned that there was “little 

or no correlation” between the corporation’s wealth 

and its contributors’ “support for the corporation’s 

political ideas” because 75 percent of the corporate 

speaker’s contributors were business corporations. 

494 U.S. at 660. Austin did not address whether 

nonprofit advocacy corporations with a smaller 

positive percentage of for-profit contributors would be 

beyond the Government’s reach. Clearly, however, if a 

nonprofit’s political expenditure is funded solely by 

contributions from individuals who are “informed 

that their money may be used for [a particular 

electioneering] purpose,” the funds provide not only a 

“rough barometer” but a near perfect correlation of 

the public’s support for the corporation’s political 

view. MCFL, 479 U.S. at 258, 261. Likewise, where 
10 

the funds come overwhelmingly from informed 

individuals, there is a strong “correlation to the 

public’s support for the corporation’s political ideas.” 

Austin, 494 U.S. at 660.3

 Such is the case here, where 

less than one percent of the funds for Hillary came 

from for-profit corporations and Citizens United “is 

funded predominantly by donations from individuals 

who support [its] ideological message.” Br. of 

Appellant at 5, 7; JA 244a, 251a-52a.4

 In sum, an independent electoral expenditure 

like Hillary – paid for by a nonprofit corporation 

overwhelmingly with contributions from informed 

individual supporters – is categorically exempt from 

Section 203, because the expenditure “accurately 

reflects members’ support for the organization’s 

political views.” Austin, 494 U.S. at 666. This Court 

should overrule both Austin and McConnell insofar as 

necessary to vindicate the ability of Citizens United, 

 

3

 The percentage of business contributions rather than the 

absolute amount is the appropriate measure of the correlation. 

See NRA Amicus Br. 24. 

4

 Thus, it should not matter that Citizens United used a de 

minimis amount of business funds to finance Hillary or comingled its funds rather than strictly comply with SnoweJeffords, which was not the operative standard at the time. As 

long as a nonprofit corporation’s contributions by informed 

individuals are equal to all or all but a de minimis amount of its 

independent electoral expenditures, there is no constitutionally 

significant risk of Austin-style distortion. 
11 

the NRA, and other nonprofit advocacy groups to use 

donations from like-minded individuals to fund 

electoral speech. 

III. The Court Should Overturn Austin in 

Whole and McConnell in Part

 More generally, the Court would be amply 

justified in overturning Austin in whole and that 

portion of McConnell upholding Section 203 on its 

face. The doctrine of stare decisis does not stand in 

the way. See Leegin Creative Leather Prods. v. PSKS, 

Inc., 127 S.Ct. 2705, 2734 (2007) (Breyer, J., 

dissenting) (“Justice Scalia, writing [in WRTL II, 127 

S.Ct. at 2685-86], well summarizes [the] law” of stare 

decisis). As Justice Scalia observed recently, “[t]his 

Court has not hesitated to overrule decisions offensive to the First Amendment ... and to do so promptly 

where fundamental error was apparent.” WRTL II, 

127 S.Ct. at 2684-85. Austin and McConnell employed 

flawed reasoning to sanction an unworkable regime – 

one that shunts most corporate electoral speech into a 

world of post-litigation irrelevance and skews the 

political marketplace in favor of wealthy individuals 

and media conglomerates. The two decisions are 

recent aberrations in an otherwise robust First 

Amendment tradition of assiduously protecting 

political speech and leaving it to flow free. Groping 

for precedent, the Government notes that “since 1947 

[Congress] has barred the use of corporate treasury 

funds for independent expenditures in federal 

election campaigns,” FEC Suppl. Br. 7, 16, but the 
12 

Court “expressly declined to pronounce upon the 

constitutionality of such restrictions” until Austin. 

WRTL II, 127 S.Ct. at 2685-86 (Scalia, J.). And 

reversal of Austin and McConnell would not disrupt 

any contractual or property interests formed in 

reliance upon those decisions. 

A. The Government Has Abandoned Austin’s 

Anti-Distortion Rationale

 The Government, in grasping for strands of 

doctrine and reasoning that might ground Austin’s 

holding, does not even mention the anti-distortion 

rationale that expressly undergirds it. This is not 

surprising, for that anti-distortion rationale has 

never found meaningful existence or explication outside Austin itself, apart from McConnell’s unexamined reliance thereon. 

 Austin’s anti-distortion rationale does not square 

with the Court’s considered judgments in prior and 

subsequent cases. Just over a year ago, the Court 

stated that “preventing corruption or the appearance 

of corruption are the only legitimate and compelling 

government interests thus far identified for restricting campaign finances.” Davis v. FEC, 128 S.Ct. 2759, 

2773 (2008). “The hallmark of corruption is the financial ‘quid pro quo’: dollars for political favors.” 

FEC v. National Conservative Political Action Comm. 

(“NCPAC”), 470 U.S. 480, 497 (1985). Austin-style 

distortion has no connection to actual or apparent 

corruption of public officials, as even Austin recognized. 
13 

494 U.S. at 659-60 (calling distortion “a different type 

of corruption” from “financial quid pro quo”). Indeed, 

the Government now appears to concede as much. 

FEC Suppl. Br. 11 (“The Court did not decide in 

Austin or McConnell whether the compelling interest 

in preventing actual or apparent corruption provides 

a constitutionally sufficient justification for prohibiting the use of corporate treasury funds for 

independent electioneering.”). 

 Rather, “[t]he only effect ... that the ‘immense 

aggregations’ of wealth will have (in the context of 

independent expenditures) on an election is that they 

might be used to fund communications to convince 

voters to select certain candidates over others” – that 

is, “to convince voters of the correctness of their 

ideas.” McConnell, 540 U.S. at 274 (Thomas, J., 

dissenting). Legislation that suppresses the ability to 

compete effectively in the marketplace of political 

ideas “is antithetical to everything for which the First 

Amendment stands.” Id.; id. at 324 (Kennedy, J., 

dissenting). Moreover, such distortion is “especially” 

“unlikely [under Title II because] disclosure requirements tell the people where the speech is coming 

from.” Id. at 258-59 (Scalia, J., dissenting). 

 Finally, if mitigating Austin-style distortion were 

a compelling governmental interest, Section 203 

would be impermissibly underinclusive because expenditures by wealthy political activists are no less 

likely to distort than ones by corporations. 
14 

 In sum, the Government is correct to abandon 

Austin’s anti-distortion rationale.5

 We respectfully 

urge this Court to follow suit. 

B. Gratitude for Political Support Does 

Not Equate to Corruption 

 With the anti-distortion rationale moribund, the 

Government scurries to justify Title II as the antidote 

for actual or apparent corruption. The Government 

posits that “federal office-holders and candidates 

[might be] aware of and [feel] indebted to corporations and unions that financed electioneering 

advertisements on their behalf or against their 

opponents.” FEC Suppl. Br. 8. This argument is as 

misplaced as it is familiar. The gratitude a candidate 

feels to his supporters “is not a corruption of the 

democratic political process; it is the democratic 

political process.” Renne v. Geary, 501 U.S. 312, 349 

(1991) (Marshall, J. dissenting). The fear that a 

candidate may feel grateful for political support – 

whether a vote, an endorsement, an independent 

issue ad, or an independent ad extolling the candidate’s virtues or decrying the opponent’s vices – is, in 

a real sense, a fear of democracy itself. Those who 

5

 The Government’s revisionist attempt to justify Title II as 

protection for corporate shareholders, FEC Br. at 12, which is 

generally flawed for reasons discussed below, specifically makes 

no sense as applied to nonprofit advocacy organizations such as 

Citizens United and the NRA, whose speech naturally attracts 

only those individuals who support it. 
15 

provide such support naturally expect that, if the 

campaign succeeds, the official will cast votes in a 

way that reflects the shared views that inspired the 

support in the first place. 

 This is a founding principle of our Republic. As 

Publius explained, not only is it “natural” that a 

candidate for office “should be willing to allow [his 

‘fellow-citizens’] their proper degree of influence upon 

his conduct,” but also such “dependence on the 

people” is a central virtue of democracy, for it is “the 

primary control on the government.” THE FEDERALIST

No. 35, at 221 (Hamilton); id. No. 51, at 349 

(Madison). Or, as Justice Kennedy more recently put 

it: “It is well understood that a substantial and 

legitimate reason, if not the only reason, to cast a 

vote for, or to make a contribution to, one candidate 

over another is that the candidate will respond by 

producing those political outcomes the supporter 

favors. Democracy is premised on responsiveness.” 

McConnell, 540 U.S. at 297; see also id. at 259 

(Scalia, J.). “Evil corporate (and private affluent) 

influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by 

the politician’s fear of being portrayed as ‘in the 

pocket’ of so-called moneyed interests.” Id. 

 The Government tries to blur the line between 

ordinary political gratitude and quid pro quo 

transactions, but the Court has drawn the line straight, 

bright, and firm. In Buckley v. Valeo, the Court 

concluded that “independent expenditure ceiling[s] ... 

fail[ ] to serve any substantial governmental interest 
16 

in stemming the reality or appearance of corruption 

in the electoral process.” 424 U.S. 1, 47-48 (1976) 

(emphases added); see also, e.g., FEC v. Colorado 

Republican Fed. Campaign Comm., 533 U.S. 431, 

440-41 (2001). Citing Judge Kollar-Kotelly’s opinion 

from the three-judge district court in McConnell, the 

Government here asserts that the “record in 

McConnell ... indicated that ... federal office-holders ... 

felt indebted to corporations ... that financed 

[favorable] electioneering advertisements.” FEC Suppl. 

Br. 8. Tellingly, no other judge on the McConnell

panel joined Judge Kollar-Kotelly’s skimpy collection 

of evidence and no Justice later ratified it. More 

importantly, as Judge Kollar-Kotelly admitted, “the 

record [did] not have any direct examples of votes 

being exchanged for” independent electioneering 

communications, in marked contrast to the robust 

evidentiary record supporting Title I. Compare 

McConnell v. FEC, 251 F.Supp.2d 176, 555-60, 623-24 

(D.D.C. 2003) (Kollar-Kotelly, J.), with McConnell, 

540 U.S. at 129-30, 143-52, 155-56. Today, “[n]o one 

seriously believes that independent expenditures could 

possibly give rise to quid-pro-quo corruption without 

being subject to regulation as coordinated expenditures.” WRTL II, 127 S.Ct. at 2678 n.4 (Scalia, J.).

 Moreover, the gratitude “rationale has no 

limiting principle,” and would leave independent 

political expenditures of every stripe exposed to 

regulatory suppression. McConnell, 540 U.S. at 329 

(Kennedy, J.). Under the Government’s theory, 

“Congress would have the authority to outlaw even 
17 

pure issue ads,” independent expenditures by individuals, and independent expenditures by PACs 

“because they, too, could endear their sponsors to 

candidates who adopt the favored positions.” Id. But 

the Court has rightly rejected each of those 

restrictions. See WRTL II, 127 S.Ct. at 2672; Buckley, 

424 U.S. at 51; NCPAC, 470 U.S. at 498; McConnell, 

540 U.S. at 275 n.8 (Thomas, J.).6

 In short, the 

Government’s false equation of gratitude to corruption rings no truer now than it did before. 

C. No Other Rationale Justifies BCRA 

§ 203 

 None of the Government’s other asserted 

rationales for limiting independent expenditures by 

corporations should carry the day. 

 First, Austin’s anti-distortion theory ultimately 

seems to reflect a desire to “level the playing field” 

between wealthy and non-wealthy political speakers. 

That is most certainly not a legitimate government 

6

 According to the Government, “[t]he nature of business 

corporations makes corporate political activity inherently more 

likely than individual advocacy to cause quid pro quo corruption 

or the appearance” thereof. FEC Suppl. Br. 9. There is no reason 

to suppose, however, that wealthy, powerful, or influential 

individuals cannot provide assistance comparable to that of 

business corporations when it comes to helping candidates win 

office. And there certainly is no reason to suppose that 

“corporate political activity” by a PAC, which all agree cannot be 

stifled, does not pose precisely the same risk of corruption or the 

appearance thereof. 
18 

objective. Davis, 128 S.Ct. at 2773-74; MCFL, 479 

U.S. at 257; Buckley, 424 U.S. at 48-49; WRTL II, 127 

S.Ct. at 2677 (Scalia, J.). 

 Second, Austin and the Government evince a 

distrust of corporate speech and participation in the 

political process. See FEC Suppl. Br. 9-10. But the 

Court has repeatedly recognized that express 

advocacy is “at the heart of the First Amendment’s 

protection” and is “indispensable to decisionmaking 

in a democracy”; this is “no less true because the 

speech comes from a corporation rather than an 

individual.” First Nat’l Bank v. Bellotti, 435 U.S. 765, 

776-77 (1978); Buckley, 424 U.S. at 45, 50, 187 

(striking down restriction on independent expenditures by “persons,” which included “corporation[s]”); 

see also WRTL II, 127 S.Ct. at 2677-78 (Scalia, J.). 

Indeed, in Bellotti the Court squarely rejected the 

idea that corporate participation “would exert an 

undue influence on the outcome of a referendum vote” 

by “drown[ing] out other points of view” and 

“destroy[ing] the confidence of the people in the 

democratic process.” 435 U.S. at 789. 

 Third, Austin expressed concern, which the 

Government echoes, for shareholders, whose 

“purchase of [for-profit] corporate stock does not 

imply any intent to subsidize electoral advocacy.” 

FEC Suppl. Br. 12-13; Austin, 494 U.S. at 663. But 

shareholders necessarily delegate some authority to 

the corporation to act in a way that maximizes the 

shareholders’ return. Presumably, if a business 

corporation engages in political speech, it does so to 
19 

serve its business interests and thus benefit its 

shareholders. If shareholders nonetheless disagree 

with the way in which the corporation exercises its 

authority, they are protected by the “procedures of 

corporate democracy,” as well as the “free[dom] to 

withdraw [the] investment at any time and for any 

reason.” Bellotti, 435 U.S. at 794-95 & n.34; see 

McConnell, 540 U.S. at 324-25 (Kennedy, J.); id. at 

275 (Thomas, J.). Likewise, a contribution to a nonprofit advocacy corporation, such as Citizens United 

or the NRA, “necessarily involves at least some 

degree of delegation of authority to use such funds in 

a manner that best serves the shared political 

purposes of the organization and contributor,” and a 

member “dissatisfied with how funds are used can 

simply stop contributing.” MCFL, 479 U.S. at 261. Of 

course, “contributors obviously like the message they 

are hearing from these organizations and want to add 

their voices to that message; otherwise they would 

not part with their money. To say that their collective 

action in pooling their resources to amplify their 

voices is not entitled to full First Amendment 

protection would subordinate the voices of those of 

modest means as opposed to those sufficiently 

wealthy to be able to buy expensive media ads with 

their own resources.” NCPAC, 470 U.S. at 494-95. 

 Finally, when enacting BCRA § 203, Congress 

fretted “that there is too much money spent on elections.” McConnell, 540 U.S. at 261 (Scalia, J.). But 

Congress was not concerned that this money was 

being spent running disciplined ads supporting 
20 

re-election of incumbents. Rather, as explained above, 

Congress enacted Title II for the utterly impermissible purpose of suppressing speech that threatened 

incumbents – that is, Congress itself. Id. at 261-64. 

Nonprofits were a particular target but not the only 

one; Title II “prohibits the criticism of Members of 

Congress by those entities most capable of giving 

such criticism loud voice: national political parties 

and corporations, both of the commercial and the notfor-profit sort.” Id. at 248-50; see NRA Amicus Br. 9-

10. 

* * * 

 Section 203 is, therefore, invalid in its origins, 

design and operation. And it is due to be struck down 

along with the anomalous and misconceived 

precedents that paved its way. 
21 

CONCLUSION 

 For the reasons stated here, in the NRA’s prior 

amicus brief, and in Citizens United’s briefs, the 

judgment of the district court should be reversed, and 

Title II’s prohibition on corporate funding of electioneering communications either should be held categorically unconstitutional as applied to nonprofit 

corporations that fund their electioneering communication with contributions from individuals informed 

of the corporation’s political purpose, or else should be 

held unconstitutional on its face. 

Respectfully submitted, 

CHARLES J. COOPER

 Counsel of Record 

DAVID H. THOMPSON

DEREK L. SHAFFER

DAVID LEHN

COOPER & KIRK, PLLC 

1523 New Hampshire Ave., NW 

Washington, D.C. 20036 

(202) 220-9600 

Counsel for Amicus Curiae National Rifle Association 

July 31, 2009