No. 08-205 

In the 

Supreme Court of the United States 

 

CITIZENS UNITED,

 Appellant

v.

FEDERAL ELECTION COMMISSION,

 Appellee. 

 

 

On Appeal from the 

the United States District Court 

for the District of Columbia 

 

BRIEF OF AMICUS CURIAE 

INDEPENDENT SECTOR 

IN SUPPORT OF NEITHER PARTY 

 

M. Devereux Chatillon 

 Counsel of Record

Michael E. Zolandz 

Benito Delfin, Jr. 

Jacob A. Sommer 

SONNENSCHEIN NATH & ROSENTHAL LLP 

1221 Avenue of the Americas 

New York, NY 10020-1089 

(212) 768-6700

Counsel for Amicus Curiae Independent Sector
i 

TABLE OF CONTENTS 

Page 

Interest of Amicus Curiae ............................... 1 

Summary of Argument .................................... 4 

I. Citizens United’s Communication Could 

Be Protected Under A Proper 

Understanding Of The MCFL

Exemption ................................................ 5 

A. Background ............................................. 5 

B. Non-Profit Corporations That Accept De 

Minimis Corporate Contributions Do Not 

Present Any Threat Of Being A Conduit 

For Corporate Monies .............................. 8 

1. The MCFL Exemption ...................... 8 

2. All Circuit Courts Have Found A De 

Minimis Exception Within The MCFL

Exemption .......................................10 

3. Citizens United Appears To Be 

Entitled To The De Minimis

Exception To The MCFL 

 Exemption .......................................11 

C. Citizens United’s De Minimis Corporate 

Contributions Create A Unique Factual 

Scenario That Should Not Form A Basis 

To Overrule Austin And McConnell .......13 

II. Overruling Austin And McConnell Is Not 

Appropriate In This Appeal ....................16 

Conclusion ......................................................20 
ii 

TABLE OF AUTHORITIES 

 

Page 

CASES 

Austin v. Mich. Chamber of Commerce, 

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

Beaumont v. FEC, 

278 F.3d 261 (4th Cir. 2002) rev’d on 

other grounds 539 U.S. 146 (2003) .................10 

Buckley v. Valeo, 

424 U.S. 1 (1976) ............................................. 6 

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

498 F.3d 1137 (10th Cir. 2007) ................. 10, 11 

Day v. Holahan, 

34 F.3d 1356 (8th Cir. 1994) ..........................10 

FEC v. Beaumont, 

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

FEC v. Colo. Rep. Federal Campaign 

Comm., 533 U.S. 431 (2001) ..................... 13, 19 

FEC v. Mass. Citizens for Life, 

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

FEC v. Nat’l Conservative Political Action 

Committee, 470 U.S. 480 (1985) .................... 13 

FEC v. Nat’l Rifle Ass’n of Am., 

254 F.3d 173 (D.C. Cir. 2001) ................... 10, 11 

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982) .................................... 5, 18 

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

 (2d Cir. 1995) .......................................... 10, 11 

FEC v. Wis. Right to Life, 

551 U.S. 449 (2007) ................................ passim

McConnell v. FEC, 251 F. Supp. 2d 176 

(D.D.C.), modified by 540 U.S. 93 (2003) ... 8, 16 

McConnell v. FEC, 

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

Minn. Citizens Concerned for Life v. FEC, 

 113 F.3d 129 (8th Cir. 1997) .........................11 
iii 

Montejo v. Louisiana, 

129 S. Ct. 2079 (2009) ....................................17 

New York State Club Assn., Inc. v. City of 

New York, 487 U.S. 1 (1988)) ........................17 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 

377 (2000) ......................................................18 

NLRB v. Jones & Laughlin Steel Corp., 301 

U.S. 1, 46 (1937)) ...........................................18 

United States v. Auto. Workers, 

 352 U.S. 567, 570 (1957) ........................... 5, 18 

United States v. Raines, 

 362 U.S. 17 (1960) .........................................18 

Virginia v. Hicks, 

 539 U.S. 113 (2003) .......................................17 

Wash. State Grange v. Wash. Republican Party, 

 128 S. Ct. 1184 (2008) ............................ 16, 17, 19 

STATUTES 

2 U.S.C. § 434 ....................................................... 6 

2 U.S.C. § 441b .................................................4, 6 

26 U.S.C. § 501(c)(3) .........................................1, 2 

26 U.S.C. § 501(c)(4) .................................. 2, 15, 16 

26 U.S.C. § 501(c)(6) ............................................15 

Bipartisan Campaign Reform Act, Pub. L. 

No. 107-155, 116 Stat. 81 ...........................6 ,7 

Federal Election Campaign Act of 1971, 

Pub. L. No. 92-225, 86 Stat. 3 (codified 

as amended at 2 U.S.C. §§ 431-455) ............... 6 

Ariz. Rev. Stat. § 16-901 .....................................17 

Ariz. Rev. Stat. § 16-919 .....................................17 

Ariz. Rev. Stat. § 16-920 .....................................17 

Colo. Const. art. XXVIII, § 3(4) ...........................17 

Conn. Gen. Stat. § 9-613 .....................................17 

M.G.L. c. 55, § 8 ..................................................17 

Mich. Comp. Laws § 169.254 ...............................17 

Minn. Stat. § 211B.15; 25 ....................................17 
iv 

Pa. Stat. Ann. § 3253-3254 ..................................17 

R.I. Gen. Laws § 17-25-10 ...................................17 

Tex. Elec. Code Ann. §§ 253.091-253.098 ............17 

Wis. Stat. § 11.38(1)(a)1 ......................................17 

Wis. Stat. § 11.01(16)(a)1 ....................................17 
In the 

Supreme Court of the United States

—————— 

No. 08-205 

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 INDEPENDENT SECTOR IN 

SUPPORT OF NEITHER PARTY 

—————— 

INTEREST OF AMICUS CURIAE 

—————— 

Independent Sector, a non-profit corporation 

organized under section 501(c)(3) of the Internal 

Revenue Code, is the nation’s foremost leadership 

forum for charities, foundations, and corporate 

giving programs committed to advancing the 

common good in America and around the world.1

 

1 This brief is filed with the consent of the parties. The 

Government has filed a blanket consent and a letter of 

consent from Citizens United has been filed with the Court. 
2 

Its nonpartisan coalition leads, strengthens, and 

mobilizes the charitable community to fulfill its 

vision of a just and inclusive society and a healthy 

democracy of active citizens, effective institutions, 

and vibrant communities. Independent Sector’s 

membership of over 500 organizations collectively 

represents tens of thousands of charitable groups 

serving every cause in every region of the country, 

as well as millions of donors and volunteers. 

The majority of Independent Sector’s members 

are 501(c)(3) organizations that engage in 

advocacy efforts to inform public policy debates on 

issues that affect their constituents’ and their 

ability to fulfill their charitable purposes. Such 

organizations are prohibited by law from 

participating in any political campaign on behalf 

of (or in opposition to) any candidate for public 

office. Some of Independent Sector’s members 

have affiliated 501(c)(4) organizations that are 

subject to the existing federal campaign finance 

regulations in the same manner as the Appellant. 

The advocacy efforts of Independent Sector’s 

members include informing the public about 

pending public policy issues, as well as engaging 

in grassroots activities that discuss specific 

elected officials and their stated policy positions. 

Organizations such as Independent Sector’s 

members cannot predict or control the timing of 

 

Pursuant to this Court’s Rule 37.6, Amicus affirms that no 

counsel for a party authored this brief in whole or in part, 

that no such counsel or party made a monetary contribution 

intended to fund the preparation or submission of this 

brief, and that no person other than Amicus and its counsel 

made such a monetary contribution. 
3 

when an issue will be considered by public 

officials in relation to election dates. Independent 

Sector members have called on the public to 

contact their congressional representatives about 

pending votes that affect the funding and eligibility requirements for specific government programs related to charitable purposes ranging from 

human services to health to the arts. Some of 

Independent Sector’s member organizations, for 

example, are concerned about the possibility of 

estate tax repeal because of the negative effect 

that would have on charitable giving. Their 

ability to encourage the public to contact their 

elected officials about a pending vote on the estate 

tax would be curtailed if the vote or hearings on 

the bill should be scheduled during an election 

period. Independent Sector members may find it 

necessary to run ads urging specific local actions, 

such as asking a local official to keep a particular 

shelter open, even though the official is also a 

candidate for federal office. 

Independent Sector, and the charitable and 

philanthropic community as a whole, also have a 

fundamental interest in the integrity of our 

democratic system of government. The continuing 

influence of money in politics jeopardizes that 

integrity. Corruption and the appearance of 

corruption in the political process impairs the 

ability of citizens and charitable organizations to 

exercise their right to advocate for the causes they 

espouse and can discourage participation by 

individuals as well as charitable organizations. 

Independent Sector supports the principles of 

campaign finance reform legislation that aim to 

bring greater integrity to the electoral and 
4 

democratic processes. Campaign finance reform 

should protect and strengthen the ability of 

citizens and the charitable non-profit 

organizations they form not only to advocate for 

their cause, but also to ensure that the voices and 

aspirations of citizens and the organizations that 

represent their views receive a fair hearing in the 

political process. 

SUMMARY OF ARGUMENT 

This Court directed the parties to submit 

supplemental briefing on the question of whether 

the Court should “overrule either or both Austin 

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

(1990), and the part of McConnell v. FEC, 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?” 

Amicus respectfully submits that the answer to 

that question is no. There are ample narrower 

grounds on which to resolve any constitutional 

tension present in this case between Citizens 

United’s desire to distribute its film using general 

treasury funds through the medium of video on 

demand and the well-established compelling 

government interests in regulating corporate 

funding of elections. 
5 

ARGUMENT 

I. CITIZENS UNITED’S COMMUNICATION 

COULD BE PROTECTED UNDER A PROPER 

APPLICATION OF THE MCFL EXEMPTION 

A. Background 

For over a century, Congress has regulated the 

use of corporate monies in federal elections. “The 

current law grew out of a ‘popular feeling’ in the 

late 19th century ‘that aggregated capital unduly 

influenced politics, an influence not stopping 

short of corruption.’” FEC v. Beaumont, 539 U.S. 

146, 187 (2003) (quoting United States v. Auto. 

Workers, 352 U.S. 567, 570 (1957)). 

This Court has consistently recognized that the 

“‘careful legislative adjustment of the federal 

election laws’ . . . meant to strengthen the 

original, core prohibition on direct corporate 

contributions” was supported by the “public 

interest in ‘restrict[ing] the influence of political 

war chests funneled through the corporate form.’” 

Id. at 153 (quoting FEC v. Nat’l Right to Work 

Comm., 459 U.S. 197, 209 (1982)). As this Court 

further stated, “substantial aggregations of 

wealth amassed by the special advantages which 

go with the corporate form of organization should 

not be converted into political ‘war chests’ which 

could be used to incur political debts from 

legislators.” Nat’l Right to Work Comm., 459 U.S. 

at 207 (quoting Auto. Workers, 352 U.S. at 59). 

Corruption, the appearance of corruption, and 

ensuring the integrity of the election process 

through narrowly tailored restrictions on both 

direct and indirect contributions is central to 
6 

these regulations. In Buckley v. Valeo, 424 U.S. 1 

(1976), this Court upheld campaign contribution 

limits of the Federal Election Campaign Act of 

1971, Pub. L. No. 92-225, 86 Stat. 3 (codified as 

amended at 2 U.S.C. §§ 431-455) (“FECA”) out of 

concern that when “large contributions are given 

to secure a political quid pro quo from current and 

potential office holders, the integrity of our 

system of representative democracy is 

undermined . . . .” Id. at 26-27. 

Alongside Congress’s “careful legislative 

adjustment” in the campaign finance area, this 

Court has conscientiously evaluated each successive legislative effort, repeatedly upholding 

regulations that furthered core government 

interests and modifying or striking down those 

aspects that did not sufficiently further those core 

interests. The holding in FEC v. Massachusetts 

Citizens for Life, Inc. (“MCFL”), 479 U.S. 238, 

256-65 (1986), demonstrates the incremental and 

deliberative approach that this Court consistently 

has used in reviewing challenges to the campaign 

finance laws. In MCFL, supra, this Court 

invalidated federal restrictions on campaign ads 

by non-profit political organizations funded 

primarily by individual contributions. The Court 

balanced the governmental interest in preventing 

the use of such organizations as “conduits” 

against the specific characteristics of the 

organization before it, finding that the governmental interest was not sufficiently strong to 

uphold the regulations. Id. at 262. 

In 2002, Congress passed the Bipartisan 

Campaign Reform Act (“BCRA”) in part to address 

the increasing problems created by soft money 
7 

and issue advertising. BCRA, Pub. L. No. 107-

155, 116 Stat. 81. Section 203 of BCRA 

broadened, inter alia, the FECA provisions 

originally applicable only to express advocacy to 

prohibit all “electioneering communications.” 2 

U.S.C. § 441b(c). BCRA defines “electioneering 

communication” as any “broadcast, cable, or 

satellite communication” that “refers to a clearly 

identified candidate for Federal office” and is 

made within 30 and 60 days of a primary and 

general election respectively (the “blackout 

period”). Id. at § 434(f)(3)(A)(i)(I)-(II)(bb). In 

McConnell, this Court upheld a broad facial 

challenge to BCRA, and reaffirmed the validity of 

the MCFL exemptions. 540 U.S. at 209-11. In 

FEC v. Wisconsin Right to Life, Inc. (“WRTL II”), 

551 U.S. 449 (2007), Chief Justice Robert’s 

controlling opinion held that the Constitution restricted Congress’s ability to regulate electioneering communications to those that expressly 

advocate for or against a candidate for federal 

office, or their functional equivalent. Id. at 469-

70. 

The resulting campaign finance regulations 

have focused on four characteristics: 1) the speaker (including the speaker’s corporate status and 

source and nature of funding); 2) the speech 

(whether it is express advocacy or its equivalent); 

3) the timing of the speech (including proximity to 

an election); and 4) the medium of the speech. 

Applying these factors, the District Court below 

held that Appellant’s documentary (the “Movie”) 

could not be distributed via video on demand 

during the blackout period because the Movie: 1) 

fell within the media regulated under BCRA; 2) 
8 

amounted to express advocacy; and 3) was funded 

in part by corporate contributions. If any of these 

three findings were improper, then the Court need 

not reach the facial invalidity question.2 

B. Non-Profit Corporations That Accept De 

Minimis Corporate Contributions Do Not 

Present The Threat Of Being A Conduit For 

Corporate Monies 

1. The MCFL Exemption 

While acknowledging the propriety of congressional concerns that “organizations that amass 

great wealth in the economic marketplace not 

gain unfair advantage in the political 

marketplace,” the MCFL Court also recognized 

that “[s]ome corporations have features more akin 

to voluntary political associations than business 

firms, and therefore should not have to bear 

 

2 In BCRA, Congress singled out broadcast, cable and 

satellite transmissions of electioneering communications 

because of their wide appeal to the voting public and 

because of their pervasiveness. See McConnell v. FEC, 251 

F. Supp. 2d 176, 569-70 (D.D.C.) modified by 540 U.S. 93 

(2003). If shown on video on demand, the Movie would be 

accessible only to cable subscribers who took affirmative 

steps to view the Movie, J.A. 256a, 258a, thus posing no 

risk that casual viewers would come across the Movie 

accidentally. Whether video on demand should fall within 

the media that BCRA was intended to regulate is 

questionable, and equally questionable whether the government’s compelling interest in regulating express advocacy 

on broadcast, cable or satellite would necessarily extend to 

video on demand. 
9 

burdens on independent spending solely because 

of their incorporated status.” Id. at 239, 263. 

Accordingly, the MCFL Court carved out an 

exemption from the FECA expenditure 

prohibitions for certain non-profit political 

corporations, and enumerated three factors (“the 

MCFL factors”) that were “essential” to its 

holding: 1) the entity was formed for the purpose 

of promoting political ideas, and did not engage in 

business activities; 2) it had no shareholders; and 

3) it was not formed by a corporation, and had a 

policy against accepting corporate contributions. 

Id. at 263-64. 

The Court balanced the burden on First 

Amendment rights posed by requiring MCFL to 

engage in express advocacy only through a 

separate fund against the compelling government 

interest at issue: 

Regulation of corporate political activity 

thus has reflected concern not about use of 

the corporate form per se, but about the 

potential for unfair deployment of wealth 

for political purposes. Groups such as 

MCFL, however, do not pose that danger of 

corruption. MCFL was formed to disseminate political ideas, not to amass 

capital. The resources it has available are 

not a function of its success in the economic 

marketplace, but its popularity in the 

political marketplace. . . . In short, MCFL 

is not the type of ‘traditional [corporation] 

organized for economic gain,’ NCPAC, 

supra, at 500, that has been the focus of 

regulation of corporate political activity. 
10 

Id. at 259. While the absence of corporate 

contributions was a factor in the Court’s decision, 

the Court by no means based its holding on that 

factor alone. The rationale of MCFL certainly 

allows for a more nuanced analysis of the 

structure and purpose of a non-profit than 

counting only the sources of its support. 

2. All Circuit Courts Have Found A De 

Minimis Exception Within The 

MCFL Exemption 

Every Court of Appeals that has considered 

whether a 501(c)(4) non-profit corporation, such 

as Appellant, may accept any corporate 

contributions without violating BCRA has 

expressly found that a de minimis amount of 

corporate funding does not violate the MCFL

exemption. See Colo. Right to Life Comm., Inc. v. 

Coffman, 498 F.3d 1137, 1147-49, 1151 (10th Cir. 

2007); Beaumont v. FEC, 278 F.3d 261, 273 (4th 

Cir. 2002), rev’d on other grounds, 539 U.S. 146 

(2003); FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 

173, 192 (D.C. Cir. 2001); Minnesota Citizens 

Concerned for Life v. FEC, 113 F.3d 129, 130 (8th 

Cir. 1997); Day v. Holahan, 34 F.3d 1356, 1363-64 

(8th Cir. 1994); FEC v. Survival Educ. Fund, Inc., 

65 F.3d 285, 292-93 (2d Cir. 1995). 

For example, the Tenth Circuit held that a 

non-profit corporation that received less than one 

percent of its funding from corporations was 

entitled to an MCFL exemption because such a 

small amount of corporate funding “does not 

invite the creation of a political conduit for 

corporate funding of political activity.” Colo. 
11 

Right to Life Comm., 498 F.3d at 1151. The D.C. 

Circuit held that the National Rifle Association’s 

acceptance of $1000 in corporate contributions 

was de minimis and did not preclude the 

organization from receiving an MCFL exemption. 

Nat’l Rifle Ass’n, 254 F.3d at 192. Additionally, 

the Eighth Circuit twice held that a non-profit 

organization was entitled to an MCFL exemption 

when it had received “insignificant contributions 

from business corporations.” Minn. Citizens 

Concerned for Life, 113 F.3d at 130; see also Day, 

34 F.3d at 1364 (“The state goes too far in 

concluding that the factual findings of MCFL

translate into absolutes in legal application.”). 

The Second Circuit held that a non-profit 

corporation was entitled to an MCFL exemption 

when the minimal corporate funding it received 

was less than one percent of its overall revenue. 

Survival Educ. Fund, 65 F.3d at 292 (“[A] nonprofit political advocacy corporation, which in fact 

receives no significant funding from unions or 

business corporations, does not surrender its First 

Amendment freedoms for the want of such a 

policy.”) Accord Beaumont, 278 F.3d at 273 

(stating that eight percent of overall revenue was 

a “modest percentage” that did not convert the 

non-profit into a conduit for corporate spending). 

3. Citizens United Appears To Be 

Entitled To The De Minimis

Exception To The MCFL Exemption 

Here, both the record and the law suggest that 

Citizens United may be entitled to the de minimis 

exception recognized by the courts. The 
12 

Appellant’s Brief represents that “[m]ore than 

ninety-nine percent of the funding for [the Movie] 

came from individuals” and its overall funding is 

“predominantly by donations from individuals 

who support Citizens United’s ideological 

message” (Appellants Br. at 5, 32-33) (citing J.A. 

244a, 251a-52a). This insignificant level of 

corporate support appears consistent with the de 

minimis standard applied by every Circuit Court 

that has addressed this issue. Like the non-profit 

in MCFL, Citizens United was formed for the 

express purpose of promoting certain political 

ideologies.3 J.A. 11a. As such, Citizens United is 

unlikely to pose a threat of becoming a conduit for 

prohibited corporate contributions. Expressly 

adopting the de minimis exception here is entirely 

consistent with the Court’s prior rulings and 

Congress’s intent with respect to BCRA. 

The Government has rightly suggested that 

“the evidentiary record is inadequate to determine 

whether [the Movie] was in fact financed 

‘overwhelmingly’ by individual donations” since 

during discovery Citizens United “disclosed only 

those donations of $1000 or more that were made 

or pledged for the purpose of” producing the 

Movie. (Appellee Br. at 30) (citing J.A. 225a, 

244a) The record is also silent on the important 

question of Citizens United’s overall corporate 

funding as opposed to the funding for this 

particular film. In order to fully resolve this 

issue, remanding this case to the District Court 

 

3 The record is devoid of any indication that Citizens 

United had any shareholders. Therefore, MCFL’s concern 

over the interest of shareholders is inapplicable. 
13 

for a determination of the amount of corporate 

contributions and for an initial ruling on whether 

Citizens United has surpassed any de minimis

exception would be appropriate. 

C. Citizens United’s De Minimis Corporate 

Contributions Create A Unique Factual 

Scenario That Should Not Form A Basis To 

Overrule Austin And McConnell. 

This case does not present an appropriate 

vehicle to overrule Austin and McConnell. This is 

the first case before this Court in which a nonprofit political advocacy group with apparently de 

minimis donations from corporations sought an 

exemption from the limits on advertising imposed 

by BCRA. Although this might appear to be an 

insignificant distinction, in fact it goes to the 

heart of the motivation of the federal regulation 

at issue: “to ‘preven[t] corruption or the 

appearance of corruption[,]” Beaumont, 539 U.S. 

at 146 (quoting FEC v. Nat’l Conservative 

Political Action Comm’n, 470 U.S. 480, 496 

(1985)), and to protect against the organization’s 

“use as conduits for ‘circumvention of [valid] 

contribution limits.’” Id. at 155 (quoting FEC v. 

Colo. Republican Federal Campaign Comm., 533 

U.S. 431, 456 (2001)). 

The McConnell decision recognized the MCFL 

exemption, but the Court was not called upon to 

apply it. McConnell, 540 U.S. at 210-211. The 

Court’s discussion of MCFL was limited to its 

recognition that the absence of an explicit carveout for MCFL organizations from a specific section 

did not invalidate the entire section. Id. at 210-
14 

11. Indeed, the Court reasoned that the existence 

of the MCFL test “for many years before BCRA 

was enacted,” created the presumption that the 

legislators were aware that section 316(c)(6) could 

not have applied to MCFL organizations. 

McConnell, 540 U.S. at 211. Thus, McConnell

need not be overruled for the proper disposition of 

the instant case. 

Further, if the Court is inclined to exempt 

Citizens United from the advertising limits at 

issue here, it need not overrule Austin because it 

is not in conflict with this Court’s existing 

precedent, given the specific circumstances of that 

case. The organization in Austin, the Michigan 

State Chamber of Commerce (the “Chamber”), 

unlike Citizens United, had largely corporate 

members, creating precisely the type of “conduit” 

for corporate money that Congress has sought to 

restrict, and that this Court has upheld through 

decades of its jurisprudence. See MCFL, 479 U.S. 

at 256-65; Beaumont, 539 U.S. at 155, McConnell, 

540 U.S. at 211, WRTL II, 551 U.S. at 469-70. 

Relying on the MCFL Factors, the Austin 

Court found that the Chamber was an 

organization composed primarily of corporate 

members, was financed primarily by corporate 

contributions, and was dedicated to promoting 

economic conditions favorable to private 

enterprise. These corporations would be reluctant 

to withdraw as members regardless of the 

Chamber’s political expressions. Austin, 494 U.S. 

at 656. Citizens United, by contrast, is fairly 

characterized as having no purpose other than 

political advocacy, and its members have no 

economic incentive to remain a part of the 
15 

organization should they disagree with its 

political activities. J.A. 11a. 

The fundamentally different tax status of the 

Chamber and Citizens United is also significant. 

The Chamber is a 501(c)(6) organization. In 

addition to chambers of commerce, section 

501(c)(6) specifically encompasses business 

leagues, real estate boards, trade boards, and 

professional football leagues. Accordingly, these 

501(c)(6) organizations will almost inevitably 

count corporations among its members and 

primary supporters. In contrast, Citizens United 

is a section 501(c)(4) organization that must be 

“operated exclusively for the promotion of social 

welfare,” 26 U.S.C. 501(c)(4)(A) (emphasis added). 

Indeed, its express purpose is to “reassert the 

traditional American values of limited 

government, freedom of enterprise, strong 

families, and national sovereignty and security.” 

J.A. 11a. 

These factual distinctions are sufficiently 

broad to distinguish the holding in Austin with 

respect to the first two MCFL factors. With 

respect to the third factor, clarifying that a de 

minimis exception to the MCFL exemption exists

preserves the rationale behind Austin and WRTL 

II, while preventing the use of such organizations 

as conduits for circumvention of valid limits on 

political spending by corporations. This 

clarification offers ample support for the 

protection of atypical organizations like Citizens 

United, which do not expressly prohibit corporate 

donations, but are overwhelmingly supported by 

individuals. 
16 

II. OVERRULING AUSTIN AND MCCONNELL 

IS NOT APPROPRIATE IN THIS APPEAL 

This litigation began as a challenge to the 

constitutionality of BCRA’s regulation of electioneering communications as applied to a specific 

film produced by one 501(c)(4) entity to be 

distributed at a particular time by way of video on 

demand. J.A. 9a As noted above, to the extent 

that the Court is inclined to limit BCRA’s 

regulation of electioneering communications in 

the specific context of this case, there are ample 

narrower constitutional grounds on which to 

reach this result. Amicus respectfully submits 

that this Court should apply its well-established 

prudential doctrines–especially in the campaign 

finance context–and decline to expand this 

specific challenge to every possible application of 

section 203 of BCRA. See Wash. State Grange v. 

Wash. State Republican Party, 128 S. Ct. 1184, 

1191 (2008) (“[F]acial challenges threaten to 

short circuit the democratic process by preventing 

laws embodying the will of the people from being 

implemented in a manner consistent with the 

Constitution.”). 

Overruling recent precedent to sustain a facial 

challenge to complex legislation such as BCRA 

presents a number of practical and jurisprudential problems, especially where that 

precedent is in accord with decades of prior 

decisions. BCRA was the result of seven years of 

congressional hearings, fact-finding, consideration 

and careful drafting. See McConnell, 540 U.S. at 

129-34. Just six years ago, this Court upheld the 

constitutionality of the basic structure of that 
17 

statute. Id. As a result of Congress’s careful 

drafting and this Court’s express approval, many 

states have modeled their own regulation of 

election-related financing by corporations on the 

federal statutes.4 BCRA and McConnell have not 

proved “unworkable,” as this Court’s prior 

precedents require to overrule such a key and 

recent decision, Montejo v. Louisiana, 129 S. Ct. 

2079, 2089 (2009), nor has it been demonstrated 

on the record that the statute’s overbreadth is 

substantial compared to its plainly legitimate 

sweep. Wash. State Grange, 128 S. Ct. at 1191, 

n.6.5 Rather, in this particularly sensitive area of 

elections, core to the Nation’s democracy and 

constitutional values, a step-by-step evaluation of 

 

4 See e.g. Ariz. Rev. Stat. §§ 16-901, 16-919, & 16-920; 

Colo. Const. art. XXVIII, § 3(4); Conn. Gen. Stat. § 9-613; 

M.G.L. c. 55, § 8; Mich. Comp. Laws § 169.254; Minn. Stat. 

§ 211B.15; 25 Pa. Stat. Ann. § 3253-3254; R.I. Gen. Laws § 

17-25-10; Tex. Elec. Code Ann. §§ 253.091-253.098; Wis. 

Stat. § 11.38(1)(a)1 & Wis. Stat. 11.01(16)(a)1 (regulating 

corporate contributions). 

5 The absence of any factual record on the overbreadth 

issue is a sufficient ground in and of itself for the Court to 

pass on any such challenge. As this Court has repeatedly 

held, “[t]he overbreadth claimant bears the burden of 

demonstrating ‘from the text of [the law] and from actual 

fact,’ that substantial overbreadth exists.” Virginia v. 

Hicks, 539 U.S. 113, 122 (2003) (quoting New York State 

Club Assn., Inc. v. City of New York, 487 U.S. 1, 14 (1988)) 

(emphasis added). In contrast, the factual record before the 

Court in support of the facial challenge to this statute in 

McConnell consumed 100,000 pages including testimony 

and declarations of over 200 fact and expert witnesses. See

McConnell, 251 F.Supp.2d at 208-09. 
18 

the constitutional limits on financial restrictions 

in the context of elections with consequently 

narrow constitutional holdings is more than 

appropriate, it is imperative. Nixon v. Shrink Mo. 

Gov’t PAC, 528 U.S. 377, 402-03 (2000) (Breyer, 

J., concurring); Nat’l Right to Work Comm., 459 

U.S. at 209 (“This careful legislative adjustment 

of the federal electoral laws, in a ‘cautious 

advance, step by step,’ . . . to account for the 

particular legal and economic attributes of 

corporations and labor organizations warrants 

considerable deference”) (quoting NLRB v. Jones 

& Laughlin Steel Corp., 301 U.S. 1, 46 (1937)). 

In WRTL II, this Court engaged in just such an 

analysis, narrowing Section 203 of BCRA to 

regulate express advocacy or the functional 

equivalent of express advocacy by corporations or 

labor unions. 551 U.S. at 469-70 (Opinion of 

Roberts, J.). Since 1947, this Court has upheld 

congressional power to regulate such corporate 

campaign contributions, including express 

advocacy and its equivalent in federal elections. 

Beaumont, 539 U.S. at 152 (“[a]ny attack on the 

federal prohibition of direct corporate political 

contributions goes against the current of a 

century of congressional efforts to curb 

corporations’ potentially ‘deleterious influences on 

federal elections,’ which we have canvassed a 

number of times before”) (quoting Auto. Workers, 

352 U.S. at 585); accord, MCFL, 479 U.S. at 246-

49; National Right to Work Comm., 459 U.S. at 

209. Reversing McConnell would result in a 

reversal of federal and state regulation of such 

corporate contributions that began more than 

sixty years ago. (See Appellee Supp. Br. at 16-19) 
19 

Contrary to Citizens United’s argument, 

(Appellant Supp. Br. at 3-6), the compelling 

government interests in these regulations 

repeatedly articulated by this Court remains “to 

prevent corruption or the appearance of 

corruption” and as a safeguard “against their use 

as conduits for ‘circumvention of [valid] 

contribution limits.’” Beaumont, 539 U.S. at 154-

55 (quoting Colo. Rep. Fed. Campaign Comm., 533 

U.S. at 456). 

As this case, the statute at issue, and the most 

recent set of presidential elections all 

demonstrate, the means of communication of 

election messages and the possibilities that those 

means offer for increasing and decreasing the risk 

of corruption in the electoral processes are 

changing rapidly. What impact the Internet, for 

example, will have on campaign fund-raising, on 

political communications, on corporate participation in the electoral process is unclear and has 

changed dramatically with each election cycle. 

That is all the more reason to avoid rigid and 

broad constitutional restraints on the abilities of 

the various levels of government to reach 

accommodation between free and open dialogue 

about issues and candidates and reasonable 

regulation of corporate and labor union money in 

the context of elections. See e.g., Wash. State 

Grange, 128 S. Ct. at 1191 (“Exercising judicial 

restraint in a facial challenge ‘frees the Court not 

only from unnecessary pronouncement on 

constitutional issues, but also from premature 

interpretations of statutes in areas where their 

constitutional application might be cloudy.’” 
20 

(quoting United States v. Raines, 362 U.S. 17, 22 

(1960))).

CONCLUSION 

Amicus Independent Sector has long been 

committed both to the integrity of the electoral 

process and the freedom of governmental officials 

from financial pressures and corruption necessitated by the inevitable fund raising that is part 

of the electoral process over the recent past. 

Independent Sector is also deeply conscious of the 

need for robust debate on the issues that affect 

the country, the people, non-profit and for profit 

corporate entities, and the tension between full 

realization of both goals. Accordingly, 

Independent Sector respectfully urges the Court 

not to overrule Austin or McConnell, but instead 

to rule narrowly to resolve the specific challenge 

before the Court. 

Respectfully submitted, 

M. Devereux Chatillon 

 Counsel of Record

Michael E. Zolandz 

Benito Delfin, Jr. 

Jacob A. Sommer 

SONNENSCHEIN NATH & ROSENTHAL 

LLP 

1221 Avenue of the Americas 

New York, NY 10020-1089 

(212) 768-6700 

Counsel for Amicus Curiae Independent Sector