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 AMICUS CURIAE OF THE INSTITUTE 

FOR JUSTICE IN SUPPORT OF APPELLANT 

ON SUPPLEMENTAL QUESTION 

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

WILLIAM H. MELLOR

STEVEN M. SIMPSON* 

ROBERT W. GALL

INSTITUTE FOR JUSTICE

901 North Glebe Road, Suite 900 

Arlington, VA 22203 

(703) 682-9320 

*Counsel of Record 

Counsel for Amicus Curiae

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

SUMMARY OF ARGUMENT .............................. 1 

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

 I. This Court’s Decisions Have Allowed 

Campaign-Finance Law to Circumvent 

the First Amendment’s Protection of 

Political Speech ......................................... 3 

 II. Austin Upheld the Direct Regulation of 

Core Political Speech ................................. 9 

 III. Austin and McConnell Allow the Suppression of the Most Effective Speech .............. 13 

 IV. Austin and McConnell Allow Discrimination Against Speech Based on Its Content 

and the Identity of the Speaker ................ 16 

CONCLUSION ..................................................... 20 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

Austin v. Mich. Chamber of Commerce, 494 

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

Broward Coal. of Condos. v. Browning, No. 08-

445, 2009 U.S. Dist. LEXIS 43925 (N.D.Fla. 

May 22, 2009) .......................................................... 10 

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

FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431 (2001) ..................................... 6 

FEC v. Wis. Right to Life, Inc., 551 U.S. 449 

(2007) ................................................................... 1, 19 

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

765 (1978) .................................................... 13, 15, 16 

McConnell v. FEC, 540 U.S. 93 (2003) ............... passim

Meyer v. Grant, 486 U.S. 414 (1988) .......................... 15 

Mills v. Alabama, 384 U.S. 214 (1966) ........................ 7 

New York Times Co. v. Sullivan, 376 U.S. 254 

(1964) ......................................................................... 7 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 

(2000) ......................................................................... 6 

Randall v. Sorrell, 548 U.S. 230 (2006) ....................... 1 

Smith v. Ark. State Highway Employees, 441 

U.S. 463 (1979) ........................................................ 17 
iii 

TABLE OF AUTHORITIES – Continued 

Page 

SpeechNow.org v. FEC, No. 1:08-cv-00248 

(D.D.C. filed Feb. 14, 2008) .................................... 11 

CONSTITUTIONS

U.S. Const. amend. I .......................................... passim

Colo. Const. art. XXVIII, § 2(7)(a) ............................. 10 

 art. XXVIII, § 6(2) ................................. 11 

STATUTES

Alaska Stat. § 15.13.067 ............................................. 11 

 § 15.13.400(3) ........................................ 10 

 § 15.13.400(5) ........................................ 10 

 § 15.13.400(6) ........................................ 11 

 § 15.13.400(13) ...................................... 11 

 § 15.13.400(14) ...................................... 11 

Bipartisan Campaign Reform Act (BCRA) of 

2002, Pub. L. No. 107-155, § 203, 116 Stat. 

81, 91-92 (2002) ............................................... passim

Cal. Gov’t Code § 85310 .............................................. 10 

Conn. Gen. Stat. § 9-601b(a)(2) .................................. 10 

 § 9-613 ............................................ 11 

 § 9-614 ............................................ 11 

Fla. Stat. § 106.011(13) ............................................... 10 

 § 106.011(18)(a) .................................... 10, 11 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

Haw. Rev. Stat. § 11-207.6(c) ...................................... 10 

Idaho Code § 67-6602(f) ............................................. 10 

10 Ill. Comp. Stat. 5/9-1.14 .................................. 10, 11 

La. Rev. Stat. § 18:1463(C)(5) ..................................... 10 

N.C. Gen. Stat. § 163.278.82(a) .................................. 11 

Ohio Rev. Code Ann. § 3517.1011 .............................. 11 

 § 3517.1011(A)(7)(a) ................. 10 

Okla. Stat. tit. 74, App., 257:1-1-2 ....................... 10, 11 

 tit. 74, App., 257:10-1-2(d)(2) .................. 11 

Vt. Stat. Ann. tit. 17, § 2891 ....................................... 10 

Wash. Rev. Code § 42.17.020(20) ................................ 10 

W. Va. Code § 3-8-1a(12)(A) ........................................ 10 

OTHER AUTHORITIES

H.R. 158, 111th Cong. § 301 (2009) .............................. 6 

148 Cong. Rec. S2101 (Mar. 20, 2002) ......................... 8 

OTHER PUBLICATIONS

Supplemental Brief for the Appellee ......................... 12 

Plaintiffs’ Proposed Findings of Fact for Certification under 2 U.S.C. § 437h, SpeechNow. 

org v. FEC, No. 1:08-cv-00248 (D.D.C. Oct. 

28, 2008) .................................................................. 12 
v 

TABLE OF AUTHORITIES – Continued 

Page 

FEC’s Proposed Findings of Fact, SpeechNow. 

org v. FEC, No. 1:08-cv-00248 (D.D.C. Oct. 

28, 2008) .................................................................. 12 

Amy Blackwood et al., Urban Institute, The 

Nonprofit Sector in Brief—Facts and Figures 

from the Nonprofit Almanac 2008: Public 

Charities, Giving, and Volunteering 1, http:// 

nccsdataweb.urban.org/kbfiles/797/Almanac 

2008publicCharities.pdf (last visited July 27, 

2009) ........................................................................ 14 

Mike Allen & Michael Calderone, Washington 

Post Cancels Lobbyist Event Amid Uproar, 

Politico.com, July 2, 2009, http://www.politico. 

com/news/stories/0709/24441.html (last visited 

July 27, 2009) .......................................................... 19 

Michael Calderone & Andy Barr, Access 

Scandal Echoes Beyond the Washington Post, 

Politico.com, July 4, 2009, http://www.politico. 

com/news/stories/0709/24496.html (last visited 

July 27, 2009) .......................................................... 19 

John Eggerton, Kerry Takes Aim at ‘NRA-TV’, 

Broadcasting & Cable, Dec. 15, 2003 ..................... 18 

FairElections Oregon, Campaign Finance 

Reform: Why We Need It and How To Do It, 

http://fairelections.net/fe5.htm (last visited 

July 27, 2009) ............................................................ 6 

Internal Revenue Service, Statistics of Income: 

2006, Corporation Income Tax Returns (2009) ...... 14 
vi 

TABLE OF AUTHORITIES – Continued 

Page 

Susan Milligan, Senators Consider Options for 

Ailing Newspapers, Boston Globe, May 7, 2009 ....... 19 

Michael C. Munger, Locking Up Political Speech

5-8 (2009), http://www.ij.org/locking_up_ 

political_speech.pdf ........................................... 10, 11 

Bradley A. Smith & Jason Robert Owen, 

Boundary Based Media Restrictions in 

Boundless Broadcast Media Markets: 

McConnell v. FEC’s Underinclusive Overbreadth Analysis, 18 Stan. L. & Pol’y Rev. 

240 (2007) ................................................................ 15 

Mark Warda, How To Form A Nonprofit 

Corporation 14 (3d ed. 2004) .................................. 14 
1 

INTEREST OF AMICUS CURIAE1

 The Institute for Justice is a nonprofit publicinterest legal center dedicated to defending the 

essential foundations of a free society, including the 

right of all to speak out on elections and other 

matters of public import. Campaign-finance laws that 

burden speech threaten this right. For this reason, 

the Institute both litigates First Amendment cases 

that challenge campaign-finance regulations and files 

amicus curiae briefs in important cases, including 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 

(2007); Randall v. Sorrell, 548 U.S. 230 (2006); and 

McConnell v. FEC, 540 U.S. 93 (2003). It is through 

these efforts that the Institute hopes to persuade this 

Court and others of the need to return to first 

principles in the realm of freedom of speech. 

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

SUMMARY OF ARGUMENT 

1. A mere three decades after this Court held in 

Buckley v. Valeo that political speech enjoys the 

fullest protections of the First Amendment, the Court 

is now addressing whether the government may ban 

films and even books that identify a candidate before 

 

1

 No party counsel authored any of this brief, and no party, 

party counsel, or person other than Amicus or its counsel paid 

for brief preparation and submission. The parties consented to 

the filing of this brief. 
2 

an election. That this is an open question suggests 

something has gone terribly awry with this Court’s 

First Amendment jurisprudence. The problem lies in 

allowing the logic of campaign-finance laws to trump 

the First Amendment. Each new campaign-finance 

restriction has increased the value of the available 

alternatives for speech and political participation, 

resulting in efforts to close down those alternatives 

with additional restrictions. In upholding many of 

these restrictions, this Court’s jurisprudence has 

unfortunately exhibited far more concern for the 

circumvention of campaign-finance laws than for the 

circumvention of the First Amendment. The solution 

is to return to first principles. Overturning Austin v. 

Michigan Chamber of Commerce and the portion of 

McConnell v. FEC upholding BCRA Section 203 is a 

necessary first step. 

2. Austin effectively overruled Buckley by obliterating the distinction between contributions and 

independent expenditures and by restoring the 

“fairness” rationale that Buckley had rejected. 

McConnell continued that radical expansion of the 

law, resulting in a rule that allows government to 

suppress the most effective political speech and to 

discriminate against speech based on its content and 

the identity of the speaker. Indeed, under Austin and 

McConnell, there is no principled bar to extending 

regulation to books, the Internet, other forms of 

communication, groups beyond corporations, or to 

ballot-issue elections. 

 
3 

3. It is time for the First Amendment to become 

more than an afterthought in this Court’s “campaignfinance” jurisprudence; only then will Americans have 

true protection from politicians’ endless quest to 

circumvent the right to free speech. Austin and 

McConnell have badly damaged the First Amendment, but this Court has the chance to repair that 

damage. 

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

ARGUMENT 

I. This Court’s Decisions Have Allowed 

Campaign-Finance Law to Circumvent the 

First Amendment’s Protection of Political 

Speech. 

 In Buckley v. Valeo, this Court stated that 

campaign speech enjoys the full protections of the 

First Amendment. “Advocacy of the election or defeat 

of candidates for federal office is no less entitled to 

protection under the First Amendment than the 

discussion of political policy generally or advocacy of 

the passage or defeat of legislation.” 424 U.S. 1, 48 

(1976). Indeed, according to this Court, the First 

Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political 

office.” Id. at 15. The Court has repeated this 

sentiment many times in the intervening years, but 

unfortunately its holdings have not always lived up to 

this ideal. The history of campaign-finance law marks 

the steady erosion of First Amendment rights. 
4 

 This case presents the question of whether the 

government may prohibit a corporation from spending its own money to distribute a film that criticizes a 

candidate in the months preceding an election. At 

oral argument, the government frankly admitted that 

the same precedents that allow this restriction of 

corporate speech would also logically apply to the 

publication and distribution of books. In previous 

cases, members of this Court have pointed out that 

the freedom of the press is in peril as well. See

McConnell v. FEC, 540 U.S. 93, 283-86 (2003) 

(Thomas, J., dissenting); Austin v. Mich. Chamber of 

Commerce, 494 U.S. 652, 690-92 (1990) (Scalia, J., 

dissenting). Although Congress has exempted certain 

media from the reach of the campaign-finance laws, 

this Court has never held that those exemptions are 

constitutionally required; indeed, it has implied 

repeatedly that they are not. See McConnell, 540 U.S. 

at 207-08 (referring to exemption for print and 

Internet communications as a “legislative choice”); id. 

at 208 (relying on Austin for distinction between 

media corporations and other corporations). 

 In sum, merely three decades after this Court 

assured us in Buckley that the First Amendment’s 

protections could accommodate regulations designed 

to prevent the alleged evils associated with campaign 

financing, this Court is now addressing whether the 

government may ban films and books, with freedom 

of the press more a matter of legislative grace than of 

right. The rhetoric of Buckley has simply not kept 

pace with the reality of campaign-finance law. 
5 

 The government and its supporting amici argue 

that BCRA Section 203 does not directly ban speech, 

and only requires corporations to finance that speech 

through separate segregated accounts. They will no 

doubt point out that individuals may still make 

unlimited independent expenditures, and that individuals can contribute to political committees and 

candidates. They will claim that concerns about book 

banning and media censorship are remote, that 

political debate remains robust, that free speech is 

safe. But these arguments should give no comfort 

to those concerned about the direction in which 

campaign-finance law is headed. Indeed, they represent the very mechanism by which the First Amendment has been eroded. 

 With every incremental advance in campaignfinance law, we have been assured that adequate 

alternative channels of communication and political 

participation remained. And yet, as the available 

alternatives were shut down one by one, and those 

who wished to speak and participate flocked to the 

remaining channels, the cries of campaign-finance 

“reformers” became louder and louder, and the list of 

alleged evils they sought to prevent became longer 

and longer. 

 Thus, Buckley upheld contribution limits because 

they allegedly helped eliminate quid pro quo corruption and its appearance. Before long, corruption 

became “improper influence” and the “distorting 
6 

effects” of large aggregations of wealth,2 and still later 

any perceived “circumvention” of the regulatory 

scheme itself.3 Protections for issue advocacy led to 

claims that it was a “sham” effort to influence 

elections, and the ban on corporate express advocacy 

was expanded to include merely identifying a candidate near an election.4

 Several states have extended 

the regulation of this speech to include print and 

Internet communications, to groups beyond corporations, and even to those who speak out in ballotinitiative elections. See infra pp. 10-11. The growth of 

individual independent expenditures has resulted in 

calls to regulate them as well,5 to the extent that the 

FEC now takes the position that independent expenditures are “indirect contributions” to candidates that 

cause corruption. See infra pp. 11-12. 

 In short, every incremental advance in campaignfinance laws has laid the foundation for the next 

advance, with the result that today’s “alternative 

2

 See, e.g., Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377, 389 

(2000); Austin, 494 U.S. at 659-60. 

3

 See FEC v. Colo. Republican Fed. Campaign Comm., 533 

U.S. 431, 456 (2001).

4

 See McConnell, 540 U.S. at 185, 206. 5

 See, e.g., H.R. 158, 111th Cong. § 301 (2009) (proposing 

ban on independent expenditures); FairElections Oregon, 

Campaign Finance Reform: Why We Need It and How To Do It, 

http://fairelections.net/fe5.htm (last visited July 27, 2009) 

(calling for enactment of a ballot measure to limit individual 

independent expenditures to $10,000). 
7 

avenue of communication” inevitably becomes 

tomorrow’s loophole. 

 Indeed, virtually every principle that formed 

Buckley’s foundation now stands on shaky ground. 

Buckley relied on Mills v. Alabama, 384 U.S. 214 

(1966), in which this Court struck down a law 

banning express advocacy on election day. See 

Buckley, 424 U.S. at 14. Yet, today, state and federal 

law prevents many groups from so much as 

identifying a candidate a month before the election. 

Buckley relied on New York Times Co. v. Sullivan, 376 

U.S. 254 (1964), for the principle that the First 

Amendment ensures that public debates will remain 

“uninhibited, robust, and wide-open.” See Buckley, 

424 U.S. at 14. Yet, today, governments may bar 

corporations from urging citizens to vote for or 

against candidates out of concerns that corporate 

speech has a “corrosive and distorting effect” on the 

debate. Austin, 494 U.S. at 660. Buckley held that 

government may not limit speech in order to equalize 

the relative ability of speakers to influence elections. 

424 U.S. at 48-49. Yet the restrictions on corporate 

speech today rest on the notion that corporations 

allegedly have an “unfair advantage in the political 

marketplace.” Austin, 494 U.S. at 659. Buckley above 

all emphasized the importance of speech about candidates and campaigns. Yet political speech today is 

subjected to some of the most burdensome regulations 

imposed on any speech. 

 The notion that we have reached an end point—

that, having banned corporate-funded advertisements 
8 

and now films that identify a candidate at the wrong 

time, the government will not turn next to books, 

websites, magazines, and newspapers that do the 

same thing or more—is not merely naïve: it flies in 

the face of the last three decades of campaign-finance 

law. Indeed, the supporters of BCRA referred to it as 

merely “a modest step” that “does not even begin to 

address . . . the fundamental problems that exist with 

the hard money aspect of the system.” 148 Cong. 

Rec. S2101 (Mar. 20, 2002) (statement of Sen. 

Feingold). Consistent with this attitude, the 

majority of this Court in McConnell referred to the 

exemption for print and Internet communications 

from the electioneering-communications ban as a 

“legislative choice” and stated that “reform may take 

one step at a time, addressing itself to the phase of 

the problem which seems most acute to the legislative 

mind.” McConnell, 540 U.S. at 207-08. 

 This Court now asks whether it should overturn 

Austin and that portion of McConnell that upheld 

BCRA Section 203. In answering these questions, the 

Institute for Justice urges this Court to approach the 

First Amendment as the starting point of its analysis, 

not as an afterthought. The history of campaignfinance law shows that the words of the First 

Amendment—“Congress shall make no law . . . 

abridging the freedom of speech, or of the press”—

have too often been ignored. The question this Court 

now faces is whether to continue the steady march 

toward more regulation and less speech or to reaffirm 

the First Amendment principles on which Buckley
9 

relied. Austin and McConnell went far beyond those 

principles. Both cases should be overturned. 

II. Austin Upheld the Direct Regulation of 

Core Political Speech. 

Austin held that corporate independent expenditures may be restricted because corporations enjoy 

state-created “advantages” that allow them to 

accumulate large amounts of wealth. This wealth is 

allegedly not commensurate with popular support for 

a corporation’s ideas, thus giving corporations an 

“unfair” advantage in political debates. 494 U.S. at 

659-60. This holding effectively overruled Buckley on 

two key points. First, it obliterated the distinction 

between direct contributions to candidates and expenditures by candidates and others. Second, Austin

reintroduced “fairness” as a rationale for limiting 

speech. Id. at 679 (Scalia, J., dissenting). Austin’s 

holding was ostensibly limited to the corporate 

context, but the overarching principle that emerged 

from the case is clear: Anyone who can be said to have 

an “unfair” advantage in affecting political outcomes 

may have all of their expenditures for political 

speech, and thus their speech itself, limited. 

 The most obvious example of this principle in 

action is BCRA’s ban on electioneering communications, which this Court upheld in McConnell. After 

all, if Congress may ban corporate express advocacy 

because of corporations’ “unfair advantage” in 

affecting election outcomes, there is no doctrinal 
10 

reason that Congress may not ban a portion of 

corporations’ non-express advocacy as well. That is 

precisely what Section 203 does—it prevents 

corporations from merely mentioning a candidate in 

the weeks leading up to an election, whether they 

engage in express advocacy or not. 

 But the logical extension of Austin’s rationale 

has not been limited to federal restrictions on 

corporations’ independent electoral advocacy. In the 

wake of McConnell, ten states passed restrictions on 

“electioneering communications”—bringing the total 

number of such state laws to fifteen. Michael C. 

Munger, Locking Up Political Speech 5-8 (2009), http:// 

www.ij.org/locking_up_political_speech.pdf. These laws 

far surpass even BCRA’s restrictions. The majority of 

state laws apply to a larger range of media, including 

print media or the Internet.6 Several states regulate 

electioneering communications over a longer period of 

time before an election,7 and some even regulate 

6

 Alaska Stat. § 15.13.400(3), (5); Cal. Gov’t Code § 85310; 

Colo. Const. art. XXVIII, § 2(7)(a); Conn. Gen. Stat. § 9-

601b(a)(2); Fla. Stat. § 106.011(13), (18)(a); Haw. Rev. Stat. § 11-

207.6(c); Idaho Code § 67-6602(f); 10 Ill. Comp. Stat. 5/9-1.14; 

Okla. Stat. tit. 74, App., 257:1-1-2; Vt. Stat. Ann. tit. 17, § 2891; 

Wash. Rev. Code § 42.17.020(20); W. Va. Code § 3-8-1a(12)(A). 

Florida’s law was recently struck down as unconstitutional. 

Broward Coal. of Condos. v. Browning, No. 08-445, 2009 U.S. 

Dist. LEXIS 43925 (N.D.Fla. May 22, 2009). 

7

 Cal. Gov’t Code § 85310; Conn. Gen. Stat. § 9-601b(a)(2); 

La. Rev. Stat. § 18:1463(C)(5); Ohio Rev. Code Ann. 

§ 3517.1011(A)(7)(a); Wash. Rev. Code § 42.17.020(20). 
11 

speech about ballot issues.8 Six states ban corporate 

electioneering communications entirely and, of these, 

two even ban speech by non-corporate groups like 

partnerships and trade associations.9

 When the fifteen states’ laws do not ban electioneering communications outright, they indirectly ban many civic 

groups’ speech by imposing on them onerous regulations with which they lack the resources to comply. 

See Munger, supra, at 2. 

Austin’s rationale has even been used to attack 

protections for independent expenditures as such. 

The FEC has taken the position in a case currently 

pending in the U.S. District Court for the District of 

Columbia that independent expenditures amount to 

“indirect contributions” to candidates and can cause 

corruption. The case, SpeechNow.org v. FEC, No. 

1:08-cv-00248 (D.D.C. filed Feb. 14, 2008), involves a 

challenge to contribution limits that apply to a group 

of individuals that wish to pool their money and 

purchase advertisements that call for the election or 

8

 Florida’s, Illinois’s, and Oklahoma’s electioneeringcommunications regulations extend to speech about ballot 

issues. See Fla. Stat. § 106.011(18)(a); 10 Ill. Comp. Stat 5/9-

1.14; Okla. Stat. tit. 74, App. 257:1-1-2. 

9

 Corporate electioneering communications are banned in 

Alaska (Alaska Stat. 15.13.067; 15.13.400(6), (13)-(14)); Colorado 

(Colo. Const. art. XXVIII, § 6(2)); Connecticut (Conn. Gen. Stat. 

9-613, -614); North Carolina (N.C. Gen. Stat § 163.278.82(a)); 

Ohio (Ohio Rev. Code Ann. § 3517.1011); and Oklahoma (Okla. 

Stat. tit. 74, App., 257:10-1-2(d)(2)). Connecticut’s and North 

Carolina’s bans extend to non-corporate groups. 
12 

defeat of candidates. The group is an unincorporated 

association that will make only independent 

expenditures. It will be financed only by individual 

contributions—meaning that it will accept no 

corporate or union funds—and it will not make 

contributions to candidates nor will it coordinate its 

communications with them. Plaintiffs’ Proposed 

Findings of Fact for Certification under 2 U.S.C. 

§ 437h at 3-4, SpeechNow.org v. FEC, No. 1:08-cv00248 (D.D.C. Oct. 28, 2008). 

 The FEC has taken the position that independent 

expenditures made even by non-corporate groups 

amount to “indirect contributions” to candidates that 

cause corruption. FEC’s Proposed Findings of Fact 

at 39-47, SpeechNow.org v. FEC, No. 1:08-cv-00248 

(D.D.C. Oct. 28, 2008). Although the FEC has used 

this argument to justify limits on contributions to the 

group, the implication is that all independent expenditures, by every kind of speaker, may be limited. 

Indeed, the FEC argues in this case that corporate 

independent expenditures are corrupting, and therefore may be limited, because candidates may feel 

gratitude towards the speaker. See Supplemental 

Brief for the Appellee at 8-9. But that same rationale 

can be extended to any expenditure or action that can 

be said to result in a candidate’s gratitude. 

 These developments should not be surprising. 

The states and the FEC have applied not only the 

rationale of Austin and McConnell, but this Court’s 

express statement in McConnell that the particular 

restrictions at issue in that case were mere 
13 

“legislative choice[s]” and that “reform may take one 

step at a time, addressing itself to the phase of the 

problem which seems most acute to the legislative 

mind.” 540 U.S. at 207-08. Indeed, as Justice Scalia 

noted in his dissent in Austin, the majority’s rationale 

logically extends to everyone who receives special 

advantages under federal or state tax laws, including 

individuals and non-corporate groups, such as LLCs. 

See 494 U.S. at 679. 

 The notion that everyone’s political speech about 

elections can be regulated is a radical one, but as 

radical as it is, it follows logically from Austin and 

McConnell. So long as they remain the law of the 

land, there is no principled basis for this Court to 

turn back political censorship, including banning 

books. 

III. Austin and McConnell Allow the Suppression of the Most Effective Speech. 

 This Court has made clear that the purpose of 

electoral advocacy is to affect the outcome of elections. “To be sure, corporate advertising may influence the outcome of the vote; this would be its 

purpose. But the fact that advocacy may persuade the 

electorate is hardly a reason to suppress it. . . .” First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 790 

(1978). Yet, under Austin and McConnell, some of the 

most effective speakers and the most effective speech 

are limited or barred from the debate entirely. 
14 

 This Court has repeatedly stated that, in today’s 

world, it takes money to speak effectively. See, e.g.,

Buckley, 424 U.S. at 19 (“[V]irtually every means of 

communicating ideas in today’s mass society requires 

the expenditure of money.”). Corporations generally 

have more money than individuals, so they can reach 

a larger audience. For Tax Year 2006, more than 5.8 

million for-profit corporations filed tax returns with 

the IRS. Internal Revenue Service, Statistics of 

Income: 2006, Corporation Income Tax Returns 2 

(2009). Also, incorporation is the most common 

organizational method for the 1.4 million nonprofit 

groups in America. Amy Blackwood et al., Urban 

Institute, The Nonprofit Sector in Brief—Facts and 

Figures from the Nonprofit Almanac 2008: Public 

Charities, Giving, and Volunteering 1 (2008), 

available at http://nccsdataweb.urban.org/kbfiles/797/ 

Almanac2008publicCharities.pdf (last visited July 27, 

2009); see also Mark Warda, How To Form A Nonprofit Corporation 14 (3d ed. 2004). These numbers 

illustrate both the ease with which corporations are 

formed and that corporations provide numerous 

opportunities for Americans to associate with others 

who share common goals, views, or interests. 

Moreover, they illustrate the wide variety of voices 

Congress and state legislatures have been allowed to 

silence during election season. Indeed, for many 

Americans, the only way their voices will be heard is 

if they can speak through corporations of which they 

are either members, supporters, shareholders, or 

customers. Thus, the ironic result of Austin’s fairness 

rationale is that it ultimately shuts thousands of 
15 

Americans out of meaningful participation in the 

political process. 

It is no answer to say that people can speak 

through means other than corporations that may 

be less effective. “The First Amendment protects 

appellees’ right not only to advocate their cause but 

also to select what they believe to be the most 

effective means for so doing.” Meyer v. Grant, 486 

U.S. 414, 424 (1988). Nor does it matter that 

corporations are free to speak about candidates 

during other times of the year. Obviously, the ability 

to speak effectively about an election includes being 

able to speak when people are paying the most 

attention. In its zeal to strip this ability from 

corporations, Congress mutes their speech for long 

periods of time. For example, during a presidentialelection race, Section 203 bans at least 120 days of 

speech about the candidates in every jurisdiction. 

Bradley A. Smith & Jason Robert Owen, Boundary 

Based Media Restrictions in Boundless Broadcast 

Media Markets: McConnell v. FEC’s Underinclusive 

Overbreadth Analysis, 18 Stan. L. & Pol’y Rev. 240, 

261 (2007). In multi-state media markets, the ban 

can cover as many as 217 days. Id. at 257, 261. 

 By allowing the government to censor speech 

because of its effectiveness, Austin and McConnell

assume that Americans need to be protected from it. 

Before Austin, this patronizing assumption was 

regularly rejected by this Court. See, e.g., Bellotti, 435 

U.S. at 791 (“[T]he people in our democracy are 

 
16 

entrusted with the responsibility for judging and 

evaluating the relative merits of conflicting arguments.”). It is time to reject it again, once and for all. 

IV. Austin and McConnell Allow Discrimination Against Speech Based on Its Content 

and the Identity of the Speaker. 

 It is fundamental that the government cannot 

regulate speech based on either its content or the 

identity of the speaker. See Bellotti, 435 U.S. at 777. 

But Austin and McConnell allow regulation of corporate speech on both grounds. A corporate speaker 

can use its treasury funds to communicate about 

everything except candidates for office, their positions 

on the issues, and whether or not they deserve 

election or defeat. And discrimination against corporations is allowed by virtue of the fact they are 

corporations. 

 The government and self-styled “reformers” warn 

that ending discrimination against corporate speech 

will result in a “flood” of money into political 

campaigns. This argument, like Austin itself, wrongly 

conflates contributions with independent expenditures. And it is based on the notion that there is a 

monolithic corporate viewpoint that, left unchecked, 

will promote policy outcomes many will find 

disagreeable. Of course, even if all corporations spoke 

with one voice, and those who disagreed with their 

ideas could never succeed in accomplishing their 

policy goals, that would be no reason to censor 
17 

corporate speech. “The First Amendment right to 

associate and to advocate provides no guarantee that 

a speech will persuade or that advocacy will be 

effective.” Smith v. Ark. State Highway Employees, 

441 U.S. 463, 464-65 (1979) (internal citations 

omitted). 

 But there obviously is no such thing as a 

monolithic corporate viewpoint. True, if Austin and 

the portion of McConnell upholding BCRA Section 

203 are overturned, corporations such as AIG, GM, 

and Chrysler may spend large sums of money to elect 

candidates who have benefitted them. But other 

voices, both corporate and non-corporate, will almost 

certainly spend money for the opposite purpose. Thus, 

for example, while AIG may run advertisements 

supporting candidates who opposed attempts to 

regulate it, other financial-services corporations that 

did not receive favorable treatment and nonprofit 

watchdog groups will be able to run ads opposing 

those candidates. Likewise, while Chrysler will be 

able to spend freely on ads supporting candidates who 

worked to give it favorable treatment in bankruptcy 

court, the institutional investors who owned Chrysler 

bonds will be able run ads opposing those candidates. 

And if Chrysler and GM run ads supporting 

candidates who helped bail them out, then other 

corporations, such as Ford, or advocacy groups that 

promote fiscal conservatism can run ads opposing 

those candidates. And, lest it be forgotten, unions, to 

whom Section 203 also applies, will also be able to 

speak out on these issues and others. 
18 

 With the demise of Austin and McConnell’s 

upholding of Section 203, all corporations will have 

the same opportunity that media corporations now 

enjoy to endorse and talk about candidates during 

election season. But if those precedents remain in 

place, then censorship of even media corporations—

which “flood” the public arena with money in the form 

of endorsements and coverage of candidates—will 

inevitably occur in the name of preventing circumvention of Section 203. As this Court noted in 

Austin, the media’s exemption from restrictions on 

corporate speech is discretionary, not mandatory. 494 

U.S. at 668. McConnell noted the same in regard to 

Section 203 and even hinted that Congress could, in 

the future, legitimately curb media companies’ speech 

as part of the next “phase” of “stanch[ing] [the] flow” 

of corporate speech. 540 U.S. at 207-08. 

 This future could be sooner than we think. At 

least one corporation, the NRA, has established a 

media company to avoid Section 203’s ban. John 

Eggerton, Kerry Takes Aim at ‘NRA-TV’, Broadcasting & Cable, Dec. 15, 2003. Nothing prevents 

Congress from responding to similar efforts by 

narrowing the media exemption to include only 

“mainstream” or “established” companies. 

 But even these are shifting categories that 

provide little protection for the media. Recently, D.C. 

was abuzz over the Washington Post’s now-cancelled 

plan to host a salon at the home of the Post’s 

publisher. For $25,000, lobbyists and corporate 

executives would be granted exclusive access to 
19 

administration officials, members of Congress, and 

Post journalists. Mike Allen & Michael Calderone, 

Washington Post Cancels Lobbyist Event Amid 

Uproar, Politico.com, July 2, 2009, http://www.politico. 

com/news/stories/0709/24441.html (last visited July 

27, 2009). This “scandal” brought to light that other 

news publications regularly host such events. Michael 

Calderone & Andy Barr, Access Scandal Echoes 

Beyond the Washington Post, Politico.com, July 4, 

2009, http://www.politico.com/news/stories/0709/24496. 

html (last visited July 27, 2009). If Congress decides 

that media corporations are too politically involved, 

have a “corrosive and distorting effect” on public 

debate, or can garner too much “gratitude” from 

candidates, then Austin and McConnell would allow 

Congress to censor them. The same is true should 

Congress determine that media corporations have an 

“unfair” advantage as a result of the state-created 

benefits it is now considering giving to them to help 

them stay afloat. See Susan Milligan, Senators 

Consider Options for Ailing Newspapers, Boston 

Globe, May 7, 2009, at 14. 

 “Enough is enough.” FEC v. Wis. Right to Life, 

Inc., 551 U.S. 449, 478 (2007). To restore free speech 

on all topics and by all speakers as a right rather 

than a privilege, this Court should overturn Austin

and the portion of McConnell upholding BCRA 

Section 203. 

--------------------------------- ♦ ---------------------------------
20 

CONCLUSION 

 For too long, the First Amendment has been an 

afterthought in campaign-finance cases, as the 

government and often this Court have placed concern 

for circumventing campaign-finance laws above the 

concern that those laws were circumventing the First 

Amendment. The result has been an inexorable erosion 

of free speech to the extent that, today, we are seriously 

discussing whether government may prevent the 

distribution of films and even books, and the laws that 

have led to this discussion are treated as mere starting 

points in what will promise to be an endless effort to rid 

politics of any taint of “corruption.” 

 To reverse this trend, this Court should return to 

first principles and overturn Austin and the portion of 

McConnell upholding BCRA Section 203. To leave 

unrepaired any longer the damage these cases have 

inflicted means continued erosion of the freedom of 

speech and, ultimately, the demise of the First 

Amendment. 

Respectfully Submitted, 

WILLIAM H. MELLOR

STEVEN M. SIMPSON* 

ROBERT W. GALL

INSTITUTE FOR JUSTICE

901 North Glebe Road, 

 Suite 900 

Arlington, VA 22203 

(703) 682-9320 

*Counsel of Record 

Counsel for Amicus Curiae