No. 08-205 

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

In The 

Supreme Court of the United States 

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CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

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

On Appeal From The 

United States District Court 

For The District Of Columbia 

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

BRIEF OF AMICUS CURIAE CALIFORNIA 

FIRST AMENDMENT COALITION 

IN SUPPORT OF APPELLANT 

ON SUPPLEMENTAL QUESTION 

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

GARY L. BOSTWICK

JEAN-PAUL JASSY* 

KEVIN L. VICK

BOSTWICK & JASSY LLP 

12400 Wilshire Blvd., Suite 400 

Los Angeles, CA 90025 

(310) 979-6059 

Counsel for Amicus Curiae 

California First Amendment Coalition 

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ................................... iv 

INTERESTS OF AMICUS CURIAE ..................... 1 

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

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

 I. AUSTIN SHOULD BE OVERRULED BECAUSE IT IMPOSES AN UNCONSTITUTIONAL BURDEN ON THE POLITICAL 

SPEECH OF NONPROFIT ENTITIES ...... 4 

A. MCFL Recognized The Importance Of 

Permitting Independent Expenditures 

By Nonprofit Entities ............................ 4 

B. Austin Read MCFL Too Narrowly And 

Did Not Give Adequate Breathing Room 

For Political Advocacy By Nonprofit 

Entities .................................................. 5 

1. Section 441b Is A Restriction On 

Political Speech, And It Is Subject 

To Strict Scrutiny ............................. 6 

2. The Statute Upheld In Austin Was 

Not Narrowly Tailored To Advance 

Any Purportedly Compelling State 

Interests, And The Decision In Austin

Should Not Control The Treatment 

Of Independent Nonprofit Entities 

Under Section 441b .......................... 7 
ii 

TABLE OF CONTENTS – Continued 

Page 

a. The “Specter Of Corruption” Is 

Not A Sufficient Reason To Prevent Independent Nonprofit Entities From Engaging In Political 

Speech ......................................... 7 

b. The Concern Over “Aggregated 

Wealth” Does Not Apply In The 

Case Of Independent Nonprofit 

Entities ....................................... 8 

c. This Court Repeatedly Has Rejected The Argument That The 

Government Has A Compelling 

State Interest In Restricting The 

Political Speech Of A Corporation In Order To Protect The Views 

Of Some Of Its Members ............ 12 

3. Austin Should Be Overruled And Replaced With A New Standard In Order 

To Give Breathing Room To Nonprofit Entities’ Political Speech ....... 13 

 II. McCONNELL SHOULD BE OVERRULED 

TO THE EXTENT IT UPHOLDS THE 

FACIAL VALIDITY OF SECTION 203 ....... 15 

A. On Its Face, Section 203 Is Unconstitutionally Overbroad ................................. 15 

B. Section 203 Facially Violates This 

Court’s Holding In MCFL ..................... 17 
iii 

TABLE OF CONTENTS – Continued 

Page 

C. An MCFL Exception Cannot Be Read 

Into Sections 203 And 204 Because 

An Express Purpose Of The Wellstone 

Amendment Was To Silence Nonprofit 

Entities .................................................. 18 

CONCLUSION ....................................................... 20 
iv 

TABLE OF AUTHORITIES 

Page 

CASES

Almendarez-Torres v. United States, 523 U.S. 

224 (1998) ................................................................ 19 

Austin v. Michigan Chamber of Commerce, 494 

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

Buckley v. Valeo, 424 U.S. 1 (1976) .................... 7, 8, 12 

FEC v. Massachusetts Citizens for Life, Inc., 

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

FEC v. National Conservative Political Action 

Comm., 470 U.S. 480 (1985) ..................... 7, 8, 12, 16 

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

449, 127 S.Ct. 2652 (2007) .................................. 5, 17 

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

765 (1978) .................................................... 6, 7, 8, 13 

Keyishian v. Board of Regents of Univ. of State 

of N.Y., 385 U.S. 589 (1967) .................................... 15 

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

CONSTITUTION

U.S. Const. amend. I .......................................... 2, 5, 19 

STATUTES

2 U.S.C. § 441b ................................................... passim

2 U.S.C. § 441b(c)(2) ................................................... 18 

2 U.S.C. § 441b(c)(6) ................................................... 18 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Bipartisan Campaign Reform Act of 2002 

(BCRA) § 203, Pub. L. No. 107-155, 116 Stat. 

81 (2002) ............................................ 3, 15, 16, 17, 18 

Bipartisan Campaign Reform Act of 2002 

(BCRA) § 204, Pub. L. No. 107-155, 116 Stat. 

81 (2002) ...................................................... 17, 18, 19 

I.R.C. § 501(c)(3) ........................................................... 1 

I.R.C. § 501(c)(4) ......................................................... 17 

I.R.C. § 527(e)(1) ......................................................... 17 

OTHER AUTHORITIES

147 Cong. Rec. S2846-S2847 (daily ed. Mar. 26, 

2001) .................................................................. 18, 20 
1 

INTERESTS OF AMICUS CURIAE1

The California First Amendment Coalition is a 

nonprofit organization (incorporated under California’s nonprofit law and tax exempt under Section 

501(c)(3) of the Internal Revenue Code) that is 

dedicated to freedom of expression – resisting censorship of all kinds – and to promotion of the “people’s 

right to know” about their government so that they 

may hold it accountable. The Coalition is supported 

mainly by grants from foundations and individuals, 

but receives some of its funding from for-profit news 

media, law firms organized as corporations, and other 

for-profit companies. Although the Coalition does not 

endorse candidates for political office, it is outspoken 

in its public advocacy and values its freedom, and the 

freedom of its members and supporters, to speak out 

on controversial issues, whether in the context of a 

regulated political campaign or otherwise. 

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1

 Appellee has consented to the filing of amicus curiae

briefs in support of either party, and its consent has been filed 

with the Clerk. Appellant has consented to the filing of this 

Amicus Curiae brief, and its consent letter is submitted to the 

Clerk concurrently with this brief. This brief was not written in 

whole or in part by counsel for any party, and no persons other 

than Amicus have made any monetary contribution to the 

preparation or submission of this brief. 
2 

SUMMARY OF ARGUMENT 

 The Court need not decide in this case whether 

compelling state interests invoked to justify limitations 

on corporate expenditures under 2 U.S.C. § 441b 

(“Section 441b”) may apply to speech by for-profit 

corporations and unions. That is an issue that is 

perhaps best left for another day. What is clear, 

however, is that the First Amendment protects from 

federal regulation the political speech of independent 

nonprofit entities and the corresponding right of 

citizens to hear that speech. There are no compelling 

state interests advanced by banning the political 

speech of a nonprofit entity that is independent – 

meaning that it is neither coordinated with a 

campaign nor controlled by a for-profit corporation or 

union. The speech of such an organization is no 

different, in principle or constitutional terms, from 

the speech of the people who belong to, contribute 

money to, or otherwise support it. 

 Section 441b, Amicus submits, may not apply to a 

nonprofit entity unless the Government proves, under 

a strict scrutiny analysis, that either: (a) the 

nonprofit entity is substantially controlled by one or 

more for-profit corporations or unions; or (b) the 

nonprofit entity is acting in coordination with a 

campaign. This test fosters political speech and also 

preserves an avenue for enforcing compelling state 

interests, if any, that may warrant restricting 

expenditures in other circumstances. Under this test, 

Appellant Citizens United’s speech could not be 

restricted unless the Government could prove that 
3 

Citizens United is controlled by one or more for-profit 

corporations or unions, or that Citizens United is 

acting in coordination with a campaign. 

 This new proposed standard may not, however, 

be squared with this Court’s decisions in Austin v. 

Michigan Chamber of Commerce, 494 U.S. 652 (1990), 

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

should be overruled in whole and in part, respectively. Although FEC v. Massachusetts Citizens for 

Life, Inc., 479 U.S. 238 (1986) (“MCFL”), provides a 

measure of protection for independent expenditures 

by nonprofit entities, Austin is unfaithful to those 

protections, and should be overruled because it 

permits restrictions on political speech that are not 

narrowly tailored to any compelling state interests. 

 McConnell should be overruled to the extent that 

it upholds Section 203 of the Bipartisan Campaign 

Reform Act (“BCRA”), Pub. L. No. 107-155, 116 Stat. 

81 (2002), which amended Section 441b, because 

Section 203, on its face, does not have an MCFL

exception, or any other kind of meaningful exception, 

for nonprofit entities. Section 203 is overbroad, 

particularly when read in conjunction with Section 

204 of the BCRA, because it removes all protections 

for nonprofit entities’ “electioneering communications.” 

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4 

ARGUMENT 

I. AUSTIN SHOULD BE OVERRULED BECAUSE IT IMPOSES AN UNCONSTITUTIONAL BURDEN ON THE POLITICAL 

SPEECH OF NONPROFIT ENTITIES 

A. MCFL Recognized The Importance Of 

Permitting Independent Expenditures 

By Nonprofit Entities

The “central organizational purpose” of the 

nonprofit in MCFL was “issue advocacy, although it 

occasionally engage[d] in activities on behalf of 

political candidates.” Id. at 252 n.6. MCFL had “no 

shareholders or other persons affiliated so as to have 

a claim on its assets or earnings.” Id. at 264. It “was 

not established by a business corporation or a labor 

union,” and it did not “accept contributions from such 

entities.” Id. at 264. These facts led this Court to 

characterize MCFL as “not the type of ‘traditional 

corporatio[n] organized for economic gain,’ that has 

been the focus of regulation of corporate activity.” Id.

at 259 (citation omitted). 

 The same can be said for many nonprofit entities, 

even those that do not maintain their contribution 

procedures as scrupulously as MCFL. See generally 

id. at 263 (“[s]ome corporations have features more 

akin to voluntary political associations than business 

firms, and therefore should not have to bear burdens 

on independent spending solely because of their 

incorporated status”). MCFL should be the ceiling, 

not the floor, for protecting the political speech of 
5 

nonprofit entities. The principles of MCFL can and 

should be extended further. This Court’s decision in 

Austin, however, has restricted nonprofits’ political 

speech for nearly two decades in a manner that cannot 

be reconciled with MCFL or the First Amendment. 

B. Austin Read MCFL Too Narrowly And 

Did Not Give Adequate Breathing Room 

For Political Advocacy By Nonprofit 

Entities

In Austin, this Court did not extend MCFL, but 

instead read it narrowly to uphold “a direct restriction on the independent expenditure of funds for 

political speech for the first time in [this Court’s] 

history.” Austin, 494 U.S. at 695 (Kennedy, J., 

dissenting); FEC v. Wisconsin Right to Life, Inc., 551 

U.S. 449, 127 S.Ct. 2652, 2678 (2007) (WRTL II) 

(Scalia, J., concurring) (“[Austin] was the only preMcConnell case in which this Court had ever 

permitted the Government to restrict political speech 

based on the corporate identity of the speaker”). 

 The statute that was upheld in Austin prohibited 

nonprofit corporations from “making any ‘expenditure’ in connection with an election campaign for 

state office.” Austin, 494 U.S. at 696 (Kennedy, J., 

dissenting). The nonprofit entity in Austin was the 

Michigan Chamber of Commerce, which received more 

than three-quarters of its funding from business 

corporations, whose expenditures could be regulated. 

Id. 494 U.S. at 664. This Court held that “[b]ecause 

the Chamber accepts money from for-profit corporations, 
6 

it could . . . serve as a conduit for corporate political 

spending, . . . [and it] does not possess the features 

that would compel the State to exempt it from 

restriction on independent political expenditures.” Id.

at 664-665 (emphasis added). 

 Although the facts of MCFL were deemed 

“essential” to this Court’s holding, MCFL, 479 U.S. at 

263, it was not until Austin that this Court held that 

protection for nonprofits’ political speech is available 

only for those nonprofits to which all of the facts of 

MCFL apply, see Austin, 494 U.S. at 661-665. This 

interpretation of MCFL was overly restrictive, forcing 

nonprofits into a one-size-fits-all legal straightjacket. 

This Court’s decision in Austin, which restricted 

political speech and served as a basis for the holding 

in McConnell, 540 U.S. at 205, cannot be justified. 

1. Section 441b Is A Restriction On 

Political Speech, And It Is Subject 

To Strict Scrutiny 

“Independent expenditures constitute expression 

at the core of our electoral process and of the First 

Amendment freedoms.” MCFL, 479 U.S. at 251 

(internal quotation marks omitted). Restrictions on 

independent expenditures, such as Section 441b, are 

unconstitutional unless the restrictions pass strict 

scrutiny – i.e., unless the government can show that 

the restriction is both narrowly tailored and 

supported by a compelling state interest. See First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 786 

 
7 

(1978) (Bellotti); WRTL II, 127 S.Ct. at 2664; Austin, 

494 U.S. at 657; see also MCFL, 479 U.S. at 265 

(“[w]here at all possible, government must curtail 

speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on 

speech that does not pose the danger that has 

prompted regulation”). 

2. The Statute Upheld In Austin Was 

Not Narrowly Tailored To Advance 

Any Purportedly Compelling State 

Interests, And The Decision In Austin

Should Not Control The Treatment 

Of Independent Nonprofit Entities 

Under Section 441b 

a. The “Specter Of Corruption” Is Not 

A Sufficient Reason To Prevent Independent Nonprofit Entities From 

Engaging In Political Speech 

Until Austin, the “specter of corruption” was 

“ ‘the only legitimate and compelling government 

interest[s] thus far identified for restricting campaign 

finances[.]’ ” Austin, 494 U.S. at 703 (Kennedy, J., 

dissenting) (quoting FEC v. National Conservative 

Political Action Comm., 470 U.S. 480, 496-497 (1985) 

(NCPAC)). There are no limits on a wealthy individual’s independent expenditures, Buckley v. Valeo, 

424 U.S. 1, 45 (1976), because such expenditures, not 

made in coordination with a campaign, have “no tendency to corrupt,” Austin, 494 U.S. at 703 (Kennedy, 

J., dissenting). There are also no such limits on an 
8 

“MCFL-nonprofit,” see MCFL, 479 U.S. at 263, or on a 

corporation spending money in connection with a 

referendum put to voters, Bellotti, 435 U.S. at 776-

777. In NCPAC, 470 U.S. at 497-498, this Court held 

that “the mere hypothetical possibility that candidates may take notice of and reward political action 

committee (PAC) expenditures by giving official 

favors was insufficient to demonstrate that the threat 

of corruption justified the spending regulation,” 

Austin, 494 U.S. at 703 (Kennedy, J., dissenting). See 

also MCFL, 479 U.S. at 263 (“[v]oluntary political 

associations do not suddenly present the specter of 

corruption merely by assuming the corporate form”). 

 There is no principled reason why the “specter 

of corruption” should serve as a compelling state 

interest to restrict the independent political speech of 

nonprofit entities when such an interest did not serve 

to justify the restrictions in Buckley, MCFL, Bellotti

or NCPAC. Where a nonprofit entity is acting independently of a candidate or campaign, there is no 

serious risk of corruption whether real or hypothetical. 

b. The Concern Over “Aggregated 

Wealth” Does Not Apply In The 

Case Of Independent Nonprofit 

Entities 

In Austin, this Court accepted another proffered 

compelling state interest: “the corrosive and distorting effects of immense aggregations of wealth that 
9 

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.” Austin, 

494 U.S. at 660.2

 The concern is not the mere 

aggregation of wealth itself, but the fear that it will 

be used to impact the political process adversely: 

“Direct corporate spending on political activity raises 

the prospect that resources in the economic marketplace may be used to provide an unfair advantage in 

the political marketplace.” MCFL, 479 U.S. at 257. 

 Even if this concern were compelling in the 

context of for-profit corporations, it does not apply to 

independent nonprofit entities because they do not 

“amass” resources in the “economic marketplace.” Id. 

There is a fundamental distinction between the forprofit corporation and the nonprofit: “resources in the 

treasury of a business corporation . . . are not an 

indication of popular support for the corporation’s 

political ideas,” whereas a nonprofit entity’s resources 

reflect “its popularity in the political marketplace.” 

Id. at 259. Thus, there is a correlation between even 

the rare nonprofit corporation that has “amassed 

wealth” and the public’s support for its ideas. 

2

 This interest has been articulated in many ways: “the 

need to restrict ‘the influence of political war chests funneled 

through the corporate form;’ to ‘eliminate the effect of aggregated wealth on federal elections;’ to curb the political influence 

of ‘those who exercise control over large aggregations of capital;’ 

and to regulate the ‘substantial aggregations of wealth amassed 

by the special advantages which go with the corporate form of 

organization.’ ” MCFL, 479 U.S. at 257 (citations omitted). 
10 

 Campaign finance laws such as Section 441b are 

supposedly designed to protect citizens from the 

effects of distorted political speech. What really 

distorts the “political marketplace,” however, is the 

exclusion of the collective voice of citizens who join 

together as an independent nonprofit entity.3

 Vocal, 

vibrant and independent nonprofits represent grassroots democracy at its best. Their political speech 

should be embraced, not shunned. 

 In Austin, Justice Kennedy stated that even if 

the “ ‘corrosive and distorting effects of immense 

aggregations of wealth’ ” could “justify restricting 

political speech by for-profit corporations, it is certain 

that it does not apply to nonprofit entities.” Austin, 

494 U.S. at 703 (Kennedy, J., dissenting). Justice 

Kennedy reasoned further that a nonprofit entity’s 

political speech should not be silenced merely because 

the nonprofit entity accepts corporate contributions: 

There is no reason that the free speech rights 

of an individual or of an association of 

individuals should turn on the circumstance 

that funds used to engage in the speech come 

3

 If the goal is to limit expenditures by corporations with 

“amassed” wealth, it would be a less restrictive alternative to 

limit “the expenditures of only those corporations with more 

than a certain amount of net worth or annual profit.” Austin, 

494 U.S. at 688 (Scalia, J., dissenting). By contrast, this Court 

has rejected the argument that the possibility of forming a PAC 

is an acceptable alternative means for a nonprofit to make 

independent expenditures. MCFL, 479 U.S. at 253-255; see also

Austin, 494 U.S. at 708 (Kennedy, J., dissenting). 
11 

from a corporation. Many persons can trace 

their funds to corporations, if not in the form 

of donations, then in the form of dividends, 

interest or salary. That does not provide a 

basis to deprive such individuals or associations of their First Amendment freedoms. 

The more narrow alternative of recordkeeping and funding disclosure is available. 

A wooden rule prohibiting independent 

expenditures by nonprofit corporations that 

receive funds from business corporations 

invites discriminatory distinctions. The 

principled approach is to acknowledge that 

where political speech is concerned, freedom 

to speak extends to all nonprofit corporations, not the special favorites of a 

majority of this Court. 

Id. at 707 (Kennedy, J., dissenting). Amicus advances 

a more modest approach that would apply to all 

independent nonprofit corporations, while leaving to 

another day consideration of whether regulation of 

the speech of for-profit corporations survives strict 

constitutional scrutiny. 

 The new standard proposed by Amicus resolves 

the concern that a nonprofit entity may be used as 

a conduit to funnel funds from for-profit corporations 

or unions to campaigns. In MCFL, this Court rejected 

the claim that “the inapplicability of § 441b to MCFL 

would open the door to massive undisclosed political 

spending by similar entities, and to their use as conduits for undisclosed spending by business corporations and unions.” MCFL, 479 U.S. at 262. MCFL, 
12 

this Court ruled, posed no threat “at all” to warrant 

“regulation of political activity.” Id. at 263. 

 Likewise, there is no threat posed by nonprofit 

entities that are not substantially controlled by 

business corporations or campaigns. In Buckley, this 

Court held that the “absence of prearrangement and 

coordination of an expenditure with the candidate . . . 

alleviates the danger that expenditures will be given 

as a quid pro quo for improper commitments from the 

candidate.” Buckley, 424 U.S. at 47; see also NCPAC, 

470 U.S. at 497-498. By parity of reasoning, there is 

little, if any, danger that an independent nonprofit 

entity – i.e., one that does not prearrange or coordinate with for-profit corporations, unions or campaigns – will engage in corrupting practices. 

c. This Court Repeatedly Has Rejected The Argument That The 

Government Has A Compelling 

State Interest In Restricting The 

Political Speech Of A Corporation 

In Order To Protect The Views Of 

Some Of Its Members 

The Government has claimed that there is an 

interest in protecting those who contribute to 

nonprofit entities because those contributors, may 

not, for example, wish for their money to be used for 

electoral campaigns. See MCFL, 479 U.S. at 261. This 

Court dismissed such concerns in MCFL: “This 

concern can be met, however, by means far more 

narrowly tailored and less burdensome than § 441b’s 
13 

restriction on direct expenditures: simply requiring 

that contributors be informed that their money may 

be used for such a purpose.” Id.; see also Bellotti, 435 

U.S. at 792-793 (rejecting the similar argument that 

a prohibition on speech was needed to protect 

corporate shareholders “by preventing the use of 

corporate resources in furtherance of views with 

which some shareholders may disagree”). There are 

additional less restrictive alternatives to muzzling a 

nonprofit entity’s speech based on the professed 

desire to protect the disgruntled member of the nonprofit: “[t]o the extent that members disagree with a 

nonprofit corporation’s policies, they can seek change 

from within, withhold financial support, cease to 

associate with the group, or form a rival group of 

their own.” Austin, 494 U.S. at 710 (Kennedy, J., 

dissenting); see also id. at 687 (Scalia, J., dissenting). 

3. Austin Should Be Overruled And 

Replaced With A New Standard In 

Order To Give Breathing Room To 

Nonprofit Entities’ Political Speech 

Amicus’s proposed standard expands the political 

marketplace, while still allowing for the possibility 

that the government may be able to justify the regulation of some expenditures by for-profit corporations. 

Nonprofits must be free from restrictions on their 

political speech if they are independent of a regulated 

political campaign and are not substantially controlled by for-profit corporations or unions. For the 

vast majority of politically active nonprofits, this 
14 

formulation provides both clarity and a secure buffer 

against government intrusion.4

 

The government must bear the burden of demonstrating, with clear and convincing evidence, that a 

nonprofit organization is either substantially controlled by one or more for-profit corporations or unions 

or that it is coordinated with a campaign. This is, and 

should be, difficult to do. Even nonprofits whose 

biggest supporters are for-profit corporations regularly make decisions without regard to the wishes or 

perceived interests of those supporters. Some corporate contributors do not expect to wield influence over 

a nonprofit. Others may expect to, but are surprised 

to learn that they do not. Either way, the nonprofit’s 

independence should be presumed and its right to 

speak respected absent clear and convincing evidence 

of substantial control of the nonprofit entity by one or 

more for-profit corporations or unions. 

4

Amicus acknowledges that a standard based on who “substantially controls” a nonprofit entity does not provide a bright 

line as compared to the stringent components of the rare 

“MCFL-nonprofit” (i.e., nonprofits sharing the characteristics of 

the nonprofit in MCFL). “[T]he desire for a bright line rule” does 

not, however, “constitute a compelling state interest necessary to 

justify any infringement on First Amendment freedom.” MCFL, 

479 U.S. at 263 (emphasis in original). Austin’s rigid adherence 

to the facts in MCFL as the only circumstance for permitting 

nonprofit entities’ expenditures may be an easy rule in application, see Austin, 494 U.S. at 661-665, but it is not consistent with 

the First Amendment because it restricts too much speech. 
15 

 The holding in Austin is not compatible with 

Amicus’s proposed standard or the First Amendment 

because Austin presumes that the political speech of 

nonprofit entities should be restricted, not protected. 

Austin should be overruled. 

II. McCONNELL SHOULD BE OVERRULED 

TO THE EXTENT IT UPHOLDS THE 

FACIAL VALIDITY OF SECTION 203

A. On Its Face, Section 203 Is Unconstitutionally Overbroad 

In McConnell this Court affirmed Section 203’s 

prohibition of “electioneering communications” and 

advertisements that are the “functional equivalent of 

express advocacy” during critical times just before 

elections occur. McConnell, 540 U.S. at 203-209. This 

portion of McConnell should be overruled. On its face, 

Section 203 restricts the political speech of all corporations, including nonprofit corporations, in a 

manner that is unconstitutionally overbroad and is 

not narrowly tailored to any compelling state 

interest. 

 This Court has long recognized that “where 

statutes have an overbroad sweep” and prohibit more 

core political speech than necessary, “the hazard of 

loss or substantial impairment of those precious 

rights may be critical, since those covered by the 

statute are bound to limit their behavior to that 

which is unquestionably safe.” Keyishian v. Board of 

Regents of Univ. of State of N.Y., 385 U.S. 589, 609 
16 

(1967) (internal citation and quotation marks 

omitted). In NCPAC, this Court struck down as 

unconstitutionally overbroad a statute that sought to 

subject political committees to the same restrictions 

on political speech that applied to for-profit corporations. NCPAC, 470 U.S. at 500. The Court so held 

because the statute “indiscriminately lump[ed]” the 

two groups together, and applied “a flat, across-theboard criminal sanction” to all political committees 

despite their not posing the same threat of corruption 

as for-profit corporations. Id. at 496, 500. 

 Here, Section 203 is guilty of the same type of 

indiscriminate lumping of dissimilar groups that this 

Court found unconstitutional in NCPAC. Restrictions 

on the speech of for-profit corporations and unions 

may be narrowly tailored to meet the government’s 

interests in preventing quid pro quo corruption and 

the perceived distortion of the political marketplace 

through corporate fortunes amassed in the economic 

marketplace. See McConnell, 540 U.S. at 205. Section 

203, however, goes much further. 

 Section 203 restricts the political speech of 

nonprofit entities that are neither controlled by forprofit corporations or unions nor coordinated with 

any campaign. As explained, supra, restrictions on 

these types of nonprofit entities are unconstitutionally overbroad because they do not serve any 

identified governmental interests, they are not 

narrowly tailored to ensure that the least restrictive 

means are used, and they have the practical effect of 

silencing political speech during the most critical 
17 

times in the electoral process. Indeed, “[i]f § 203 has 

had any cultural impact, it has been to undermine 

the traditional and important role of grassroots 

advocacy in American politics by burdening the 

‘budget-strapped nonprofit entities upon which many 

of our citizens rely for political commentary and 

advocacy.’ ” WRTL II, 127 S.Ct. at 2686 (Scalia, J., 

concurring) (quoting McConnell, 540 U.S. at 340 

(Kennedy, J., concurring in part, dissenting in part)). 

B. Section 203 Facially Violates This 

Court’s Holding In MCFL 

In MCFL, this Court held that Section 441b’s 

restrictions on political speech violated the First 

Amendment rights of at least some nonprofit entities. 

See MCFL, 479 U.S. at 264-265. Despite this Court’s 

constitutional command in MCFL, Congress enacted 

Sections 203 and 204 of the BCRA, which further 

expanded the scope of speech restrictions on nonprofit 

corporations and provided no statutory exceptions for 

any nonprofit corporations, even “MCFL-nonprofits”. 

 While Section 203 of the BCRA was originally 

drafted to except a very narrow class of nonprofits 

from the speech restrictions,5 Congress subsequently 

5

 Prior to the Wellstone Amendment, a portion of Section 

203 known as the Snowe-Jeffords Amendment had created a 

limited exemption for nonprofits incorporated under Internal 

Revenue Code § 501(c)(4) and § 527(e)(1) so long as their political speech was paid for exclusively from funds from individuals 

(Continued on following page) 
18 

enacted Section 204, the so-called “Wellstone Amendment,” which ensured that all corporations – including, without exception, all nonprofit corporations – 

were subjected to the same prohibitions on political 

speech that apply to for-profit corporations, despite 

this Court’s contrary holding in MCFL. See 2 U.S.C. 

§ 441b(c)(6) (withdrawing even narrow class of exemptions for certain nonprofit corporations in the 

case of “targeted communications,” which is defined 

coextensively with the broader meaning of proscribed 

“electioneering communications”); see also McConnell, 

540 U.S. at 209-210; see also id. at 338-339 (Kennedy, 

J., concurring in part and dissenting in part); 147 

Cong. Rec. S2846-S2847 (daily ed. Mar. 26, 2001). In 

enacting Sections 203 and 204, Congress ignored this 

Court’s holding in MCFL, and placed facially 

unconstitutional restrictions on the political speech of 

all nonprofit entities. 

C. An MCFL Exception Cannot Be Read 

Into Sections 203 And 204 Because An 

Express Purpose Of The Wellstone 

Amendment Was To Silence Nonprofit 

Entities 

In McConnell, this Court acknowledged that 

Sections 203 and 204 did not, on their face, exempt 

even MCFL-type organizations, let alone a broader 

who were United States citizens, nationals or permanent 

residents. See 2 U.S.C. § 441b(c)(2). 
19 

range of nonprofit corporations whose First Amendment rights might otherwise be violated. See id. at 

211. Nonetheless, this Court “presume[d] that the 

legislators who drafted [Section 204] were fully aware 

that the provision could not validly apply to MCFLtype entities,” and then construed the statute to 

exempt such entities in order to avoid constitutional 

infirmities. Id. Amicus respectfully submits that the 

attempt to salvage Sections 203 and 204 through the 

constructional canon of constitutional avoidance was 

an error. Constitutional avoidance only applies where 

the statute in question is “genuinely susceptible to 

two constructions,” and where construction to avoid 

constitutional infirmities would “maintain[ ] a set of 

statutes that reflect, rather than distort, the policy 

choices that elected representatives have made.” 

Almendarez-Torres v. United States, 523 U.S. 224, 238 

(1998). 

 The plain language of the BCRA, along with the 

legislative history surrounding the enactment of the 

Wellstone Amendment, demonstrate that Congress 

unambiguously chose not to exempt MCFL-type 

nonprofit corporations – or any other nonprofit entities 

– from speech restrictions that this Court found 

objectionable in MCFL. See McConnell, 540 U.S. at 

209 n.90; see also id. at 339 (Kennedy, J., concurring 

in part and dissenting in part). Indeed, Senator 

Wellstone himself explained that the purpose of his 

eponymous amendment was to ensure that nonprofit 

entities such as “the NRA, it can be the Christian 

right, it can be the Sierra Club” would be subject to 
20 

the same restrictions on speech as for-profit corporations and unions. 147 Cong. Rec. S2846-S2847. 

 Thus, the BCRA “could be understood only as a 

frontal challenge to MCFL.” McConnell, 540 U.S. at 

339 (Kennedy, J., concurring in part and dissenting in 

part). Under these circumstances, the canon of constitutional avoidance should not have been applied, and 

the facial unconstitutionality of Sections 203 and 204 

should have been remedied by striking down the 

objectionable portions of 2 U.S.C. § 441b. 

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

CONCLUSION 

To properly dispose of this case, the Court should 

overrule Austin and overrule the portion of McConnell

addressing the facial validity of Section 203 of the 

BCRA. 

 Appellant Citizens United is a nonprofit entity 

that takes some money from for-profit corporations. 

Appellant’s Br. at 5. Under the standard articulated 

by Amicus, Citizens United is presumptively free to 

disseminate films such as Hillary: The Movie. Distribution could be barred only if the government could 

meet its burden of showing, by clear and convincing 

 
21 

evidence, that Citizens United is substantially controlled by for-profit corporations that are themselves 

subject to regulation. 

Respectfully submitted, 

GARY L. BOSTWICK

JEAN-PAUL JASSY*

KEVIN L. VICK

BOSTWICK & JASSY LLP 

12400 Wilshire Blvd., 

 Suite 400 

Los Angeles, CA 90025 

(310) 979-6059 

Counsel for Amicus 

 Curiae California First 

 Amendment Coalition

*Counsel of Record