No. 08-205 

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

In The 

Supreme Court of the United States 

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

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

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

On Appeal To The United States District Court 

For The District Of Columbia 

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

BRIEF OF PUBLIC GOOD AS 

AMICUS CURIAE IN SUPPORT OF APPELLEE 

ON SUPPLEMENTAL QUESTION 

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

SETH E. MERMIN

Counsel of Record 

THOMAS BENNIGSON

PUBLIC GOOD

3130 Shattuck Avenue 

Berkeley, CA 94705 

(510) 548-4064 

Counsel for Amicus Curiae

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TABLE OF CONTENTS

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

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

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

ARGUMENT......................................................2

I. CORPORATE SPEECH IS PROTECTED 

PRINCIPALLY TO SAFEGUARD 

LISTENERS’ INTERESTS..........................3

A. Corporate Speech Is Protected For the 

Sake of the First Amendment Interests of 

Natural Persons....................................4

B. Corporate Speech Is Not the Expression of 

the Views of Any Natural Person.............6

II. LISTENER INTERESTS ARE NOT 

PROTECTED TO THE SAME DEGREE AS 

SPEAKER SELF-EXPRESSION...................10

III. POLITICAL EXPENDITURES AND 

CONTRIBUTIONS BY BUSINESS 

CORPORATIONS MAY BE REGULATED IN 

WAYS THAT WOULD BE 

CONSTITIONALLY QUESTIONABLE IF 

APPLIED TO SELF-EXPRESSIVE 

SPEECH.................................................14
ii

IV. THE RESTRICTIONS OF BCRA ARE 

CONSTITUTIONAL AS APPLIED TO 

CITIZENS UNITED.................................16

A. Application of BCRA § 203 to Citizens 

United Does Not Infringe Rights to SelfExpression...........................................16

B. Because Application of § 203 Does Not 

Infringe Rights to Self-Expression, It is a 

Permissible Prophylactic Measure Against 

Political Corruption..............................18

V. IF REGULATIONS OF CORPORATE 

SPEECH ARE UNCONSTITUTIONAL AS 

APPLIED TO CITIZENS UNITED, THERE 

IS NO REASON TO REEXAMINE AUSTIN

AND McCONNELL..................................19

CONCLUSION.................................................20
iii

TABLE OF AUTHORITIES

Cases

Austin v. Mich. State Chamber of Commerce, 

494 U.S. 652 (1990)..................3, 7, 8, 15, 19, 20

Buckley v. Valeo, 424 U.S. 1 (1976).......10, 11, 12, 16

Consolidated Edison Co. of N.Y., Inc. v. Pub. Serv.

Comm’n, 447 U.S. 530 (1980)........................4, 5

Corbin v. Corbin, 429 F. Supp. 27 

(M.D. Ga. 1977).............................................8

De Jonge v. Oregon, 299 U.S. 353 (1937).................5

Edmondson v. Shearer Lumber Prods., 

75 P.3d 733 (Idaho 2003).................................9

FEC v. Beaumont, 539 U.S. 146 (2003)...7, 14, 15, 18

FEC v. Colorado Republican Fed. Campaign Comm., 

533 U.S. 431 (2001).......................................11

FEC v. Mass. Citizens for Life, 479 U.S. 238 

(1986)...................................................6, 7, 17

FEC v. Nat’l Conservative Political Action Comm., 

470 U.S. 480 (1985).......................................18

FEC v. Nat’l Right to Work Comm., 459 U.S. 197 

(1982).................................................7, 15, 18
iv

FEC v. Wisconsin Right to Life, Inc., 

551 U.S. 449, 127 S.Ct. 2652 (2007).............3, 20

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978).................................4, 5, 6

Garrison v. Louisiana, 379 U.S. 64 (1964)...............5

Hale v. Henkel, 201 U.S. 43 (1906)........................5

Harper & Row, Publishers v. Nation Enterprises, 

471 U.S. 539 (1985).......................................13

Korb v. Raytheon, 574 N.E.2d 370 (Mass. 1991).......9

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 

(2001)....10

Mandel v. Kleindienst, 408 U.S. 753 (1972)...........12

McConnell v. FEC, 540 U.S. 93 (2003)........15, 19, 20 

NAACP v. Alabama ex rel. Patterson, 

357 U.S. 449 (1958).................................15, 16

Pacific Gas & Elec. v. Pub. Utils. Comm’n, 

475 U.S. 1 (1986)...........................................4

Railroad Tax Cases, County of San Mateo v. 

S. Pac. R.R. Co., 13 F. 722 (D. Cal. 1883), 

writ dismissed, 116 U.S. 138 (1885))..............4, 5

Riley v. Nat’l Fed’n of Blind, 

487 U.S. 781 (1988).......................................13
v

United States v. CIO, 335 U.S. 106 (1948).........7, 15

Va. State Bd. of Pharmacy v. Va. Citizens 

Consumer Council, 425 U.S. 748 (1976)......10, 14

Wooley v. Maynard, 430 U.S. 705 (1977)...............10

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 

626 (1985)...................................................13

Constitutional Provisions

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

Statutes

2 U.S.C. § 441b.......................................16, 17, 20

2 U.S.C. § 441e............................................12, 17

Regulations

11 C.F.R. § 114.10.............................................17

Other Authorities

Am. Law Inst., Principles of Corporate 

Governance § 2.01 (1994, updated 

2009)..............................................................8

Randall P. Bezanson, Institutional Speech, 80 Iowa 

L. Rev. 735 (1995).............................................7
vi

William Meade Fletcher et al., 3A Fletcher 

Cyclopedia of the Law of Private Corporations

§ 1102 (updated 2008).......................................9

Robert Post, The Constitutional Status of 

Commercial Speech, 48 UCLA L. Rev. 1 

(2000)............................................................13

David Shelledy, Autonomy, Debate, and Corporate 

Speech, 18 Hastings Const. L.Q. 541 (1991)..........9
1

INTEREST OF AMICUS

Public Good submits this brief as amicus 

curiae in support of Appellee Federal Election 

Commission.1

Public Good is a public interest organization 

dedicated to the proposition that all are equal before 

the law. Through amicus participation in cases of 

particular significance for freedom of speech, 

consumer protection and civil rights, Public Good 

seeks to ensure that the protections of the law 

remain available to everyone. See, e.g., Brief in 

support of Petition for Certiorari in Frazier v. Smith

(cert. pending, No. 08-1351). As an organization 

with a particular interest in safeguarding free 

expression, Public Good submits this brief to explain 

why precedents that uphold the differential 

treatment of corporate and individual electioneering 

communications in order to preserve the integrity of 

the political process are consistent with the 

protections of the First Amendment.

SUMMARY OF ARGUMENT

The century-old practice of treating electionrelated expenditures and contributions by business 

corporations differently from those by individuals 

does not offend the First Amendment, because the 

political campaign speech of business corporations is 

 1 No counsel for a party authored this brief in whole or in 

part, and no person, other than amicus, its members, and 

its counsel, made a monetary contribution to its 

preparation or submission. The parties have consented to 

the filing of this brief.
2

protected principally for the sake of the interest of 

potential audiences in receiving the communication. 

Listener interests merit – and have generally 

received – protection less rigorous than that afforded 

speakers’ interest in self-expression.

The speech of business corporations is not selfexpression. Corporations, of course, have no 

interests of their own in personal self-expression, 

and their speech is not the self-expression of 

shareholders, directors, officers, or employees. 

Therefore, when the integrity of the political process 

is at stake, the expenditures and contributions of 

business corporations may be regulated in certain 

ways that might be unconstitutional if applied to 

individuals.

The right of individuals to group together to 

amplify their voices is undisputed. But a business 

corporation does not serve this function. Advocacy 

groups remain free to engage in electioneering 

communications, as long as they decline to accept 

funding from business corporations. Restrictions on 

receiving funds from business corporations do not 

diminish the constitutionally protected reach of 

advocacy groups’ voices; rather, they merely decline 

to give them special amplification.

ARGUMENT

 This Court has explained the 

constitutionality of campaign finance regulations 

that treat business corporations differently from 

individuals on the basis of particularly compelling 

state interests, either the particular threat of quid 

pro quo corruption – or the appearance thereof –
3

posed by corporate spending, or the distorting effects 

on the political process of wealth aggregated through 

the corporate form independent of public support for 

the corporation’s political views. See FEC v. 

Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 

2652, 2672 (2007) (WRTL) (summarizing earlier 

cases). These rationales, however, have been called 

into question. E.g. id., 127 S.Ct. at 2677-79 (Scalia, 

J., concurring in part and concurring in judgment);

Austin v. Mich. State Chamber of Commerce, 494 

U.S. 652, 680 (1990) (Scalia, J., dissenting).

Implicit in the opinions of this Court is 

another, perhaps sounder, justification: 

Communication protected primarily for its value to 

listeners is not protected identically to the selfexpressive communication which lies at the core of 

the First Amendment’s protections (hereinafter, 

“self-expression”). It is this distinction that explains 

why campaign spending and contributions by 

publicly traded for-profit corporations (hereinafter, 

“business corporations”) may constitutionally be 

subjected to different levels of regulation than 

spending and contributions by individuals or groups

organized for political expression and advocacy.

I. CORPORATE SPEECH IS PROTECTED 

PRINCIPALLY TO SAFEGUARD 

LISTENERS’ INTERESTS.

When this Court first held that corporate 

speech merits First Amendment protection, it made 

it clear that the First Amendment interests at stake 

were those of potential recipients of the speech, not 

those of speakers. Corporate speech is protected to 
4

afford “the public access to discussion, debate, and 

the dissemination of information and ideas.” First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783 

(1978). See also id. at 777 (corporate speech is 

protected because of “its capacity for informing the 

public”); Pacific Gas & Elec. v. Pub. Utils. Comm’n, 

475 U.S. 1, 8 (1986) (restrictions on corporate speech 

“limit[] the range of information and ideas to which 

the public is exposed”); Consolidated Edison Co. of 

N.Y., Inc. v. Pub. Serv. Comm’n, 447 U.S. 530, 534 

n.1 (1980) (the speech of a business corporation is 

protected for “the informative value of its opinions 

on critical public matters”).

A. Corporate Speech Is Protected For the 

Sake of the First Amendment 

Interests of Natural Persons.

Talk of the constitutional rights of business 

corporations has always been understood as a legal 

shorthand for the rights of actual people that might 

be abridged by certain regulations imposed by 

government on corporations. This was explicit in the 

earliest decisions imputing constitutional rights to 

corporations: The takings clause of the Fifth 

Amendment, for example, could apply to 

corporations, because “[t]o deprive the corporation of 

its property ... is, in fact, to deprive the corporators 

[shareholders] of their property.” Railroad Tax 

Cases, County of San Mateo v. S. Pac. R.R. Co., 13 F. 

722, 747 (D. Cal. 1883), writ dismissed, 116 U.S. 138 

(1885). In contrast, “the prohibition against the 

deprivation of life and liberty in the same clause of 

the fifth amendment does not apply to corporations, 

because . . . the lives and liberties of the individual 
5

corporators are not the life and liberty of the 

corporation.” Id. Similarly, some Fourth 

Amendment protections against unreasonable 

searches and seizures apply to corporations, because 

“[a] corporation is, after all, but an association of 

individuals under an assumed name.” Hale v. 

Henkel, 201 U.S. 43, 76 (1906).

When this Court concluded that the First 

Amendment applies to corporate speech, it employed 

similar reasoning: “The proper question ... is not 

whether corporations ‘have’ First Amendment 

rights.... Instead, the question must be whether [a 

regulation] abridges expression that the First 

Amendment was meant to protect.” Bellotti, 435 

U.S. at 776.

It is difficult to imagine how corporations 

could possess First Amendment interests of their 

own, independent of the interests of natural persons. 

The high value of freedom of speech is often 

explained in terms of “protect[ing] the individual’s 

interest in self-expression.” Consolidated Edison, 

447 U.S. at 534 n.2. It makes no sense to attribute 

such an interest to a corporation itself, independent 

of its members, owners, or managers. Most relevant 

here, speech concerning public affairs receives the 

highest degree of protection because “it is the 

essence of self-government.” Garrison v. Louisiana, 

379 U.S. 64, 75 (1964). Freedom of speech is 

protected “to the end that government may be 

responsive to the will of the people.” De Jonge v. 

Oregon, 299 U.S. 353, 365 (1937). There is no 

similar constitutional mandate that government be 

responsive to the will of corporations, nor do 
6

corporations have a constitutional right to 

participate in the political process. No reasonable 

theory of democratic government requires that 

corporations be permitted to vote for candidates for 

public office. And no democracy has ever permitted 

it. 

B. Corporate Speech Is Not the 

Expression of the Views of Any 

Natural Person.

Corporate speech receives First Amendment 

protection not to protect the expressive interests of 

shareholders or some other natural persons, but to 

protect the interests of listeners. See Bellotti, 435 

U.S. at 777, 783. The speech of a business 

corporation is not the self-expression of any natural 

persons: not shareholders, officers, directors, or 

employees.

When a business corporation speaks on issues 

of political concern, it is not the shareholders who 

speak. A shareholder of a typical business 

corporation that contributes money to Citizens 

United is hardly more likely than any random 

member of the public to agree with (or hold any 

particular opinion about) the political views 

expressed in Hillary: The Movie. Even shareholders 

who happen to agree with the movie’s perspective 

are unlikely to have chosen their investments to 

express their political views. See FEC v. Mass. 

Citizens for Life, 479 U.S. 238, 258 (1986) (MCFL) 

(“The resources in the treasury of a business 

corporation . . . are not an indication of popular 

support for the corporation’s political ideas. They 
7

reflect instead the economically motivated decisions 

of investors and customers”); Austin, 494 U.S. at 686 

(Scalia, J., dissenting) (“A person becomes a member 

of ... a for-profit corporation in order to pursue 

economic objectives, i.e., to make money”); Randall 

P. Bezanson, Institutional Speech, 80 Iowa L. Rev. 

735, 786 (1995) (“it is likely that few IBM 

stockholders ... consciously purchased shares in the 

company with an intention that it would serve as an 

instrument for expressing their own views”).

The Court has repeatedly recognized this 

reality, holding that restrictions on corporate 

spending in connection with elections may be 

justified on the basis of the First Amendment 

interests of shareholders who might disagree with 

the corporation’s political speech. See FEC v. Nat’l 

Right to Work Comm., 459 U.S. 197, 207 (1982) 

(government has interest in protecting “individuals 

who have paid money into a corporation or union for 

purposes other than the support of candidates from 

having that money used to support political 

candidates to whom they may be opposed”); FEC v. 

Beaumont, 539 U.S. 146, 163 (2003) (independent 

political action committees make corporate political 

participation possible “without the temptation to use 

corporate funds for political influence, quite possibly 

at odds with the sentiments of some shareholders or 

members”); MCFL, 479 U.S. at 260 (need to protect 

shareholders from business corporations using their 

money “for purposes that [they] may not support” 

does not apply to advocacy membership corporation); 

United States v. CIO, 335 U.S. 106, 118 (1948) (1907 

law prohibiting corporations from making electionrelated contributions was motivated in part by idea 
8

that “corporate officials had no moral right to use 

corporate funds for contribution to political parties 

without the consent of the stockholders”). Even 

criticisms of this rationale for regulating corporate 

political spending have rested on the premise that 

shareholders need no protection against corporate 

political spending, precisely because they know that 

business corporations pursue profits, rather than 

expressing shareholders’ political views, and 

therefore they may take actions the shareholders 

“find politically or ideologically uncongenial.” 

Austin, 494 U.S. at 687 (Scalia, J., dissenting). 

Regardless of whether corporate political speech 

violates the First Amendment rights of shareholders, 

it is clear that it does not vindicate those rights—the 

political speech of a business corporation is not 

shareholder speech.

Nor is corporate political speech plausibly the 

political speech of the officers or directors who 

actually make the decision to spend corporate funds 

on political speech. To the contrary, corporate 

officers and directors have no more right to use 

corporate funds to broadcast their own views than 

they have to use them for their personal enrichment. 

See Corbin v. Corbin, 429 F. Supp. 276, 281 (M.D. 

Ga. 1977) (“corporate funds simply cannot be used to 

meet an officer’s personal desires”). Instead, officers’ 

decisions about expenditures of corporate funds are 

to be guided by their fiduciary obligations to 

shareholders to pursue corporate profits. See Am. 

Law Inst., Principles of Corporate Governance § 

2.01(a) (1994, updated 2009) (“a corporation should 

have as its objective the conduct of business 

activities with a view to enhancing corporate profit 
9

and shareholder gain”); William Meade Fletcher et

al., 3A Fletcher Cyclopedia of the Law of Private 

Corporations § 1102 (updated 2008) (“fiduciary 

relation of ... corporate directors and officers to ... 

corporation and its stockholders ... forbids any act by 

them which wrongfully diverts the corporate assets 

from corporate purposes”). In fact, “fiduciary duty 

may require corporate managers to authorize speech 

on behalf of the corporation that differs from their 

personal views.” David Shelledy, Autonomy, Debate, 

and Corporate Speech, 18 Hastings Const. L.Q. 541, 

583 (1991).

Still less plausibly could corporate speech be 

considered the expression of employees. To the 

contrary, corporate speech may be at odds with 

employees’ political self-expression. See, e.g., 

Edmondson v. Shearer Lumber Prods., 75 P.3d 733 

(Idaho 2003) (upholding company’s termination of 

employee for engaging on own time in political 

speech and activity opposed to company’s interests); 

Korb v. Raytheon, 574 N.E.2d 370 (Mass. 1991) 

(same).

Thus, the speech of business corporations is 

not the speech of any natural persons. Though of 

course it is natural persons who compose and 

disseminate corporations’ speech, they do not do so 

in order to express their personal views. Rather, the 

speech of for-profit corporations is constrained by 

their corporate purpose. The First Amendment was 

not written to protect the “speakers” of such 

virtually preprogrammed speech any more than it 

was crafted to safeguard computers with digital 

voices. The speech of business corporations is 
10

protected not for speakers’ interests in selfexpression, but for the interests of potential 

audiences.

That is not to deny that business corporations 

have an interest in making certain communications. 

See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 

525, 564 (2001). And it is true that even speakers 

whose interests are “purely economic” are not 

“disqualifie[d] from protection under the First 

Amendment.” Va. State Bd. of Pharmacy v. Va. 

Citizens Consumer Council, 425 U.S. 748, 762 (1976). 

But communications that do not express the 

personal views of natural persons are ultimately 

peripheral to the “freedom of thought protected by 

the First Amendment.” Wooley v. Maynard, 430 U.S. 

705, 714 (1977).

II. LISTENER INTERESTS ARE NOT 

PROTECTED TO THE SAME DEGREE 

AS SPEAKER SELF-EXPRESSION.

It is an implicit cornerstone of this Court’s 

First Amendment jurisprudence that the rights of 

speakers to self-expression receive somewhat greater 

protection than the rights of listeners to receive 

speech.

In campaign finance law, the primacy of 

speakers’ rights of self-expression explains why 

restrictions on expenditures to disseminate one’s 

own speech are subject to more exacting scrutiny 

than are restrictions on contributions to support the 

speech of another. See Buckley v. Valeo, 424 U.S. 1, 

25, 44-45 (1976). Both kinds of restrictions burden 

listeners equally: if an individual is prevented from 
11

contributing a given sum to fund a candidate’s 

communications, listeners are deprived of the same 

quantity of communication as if the individual were 

prevented from spending that sum to broadcast her 

own views. Expenditure limits, however, “impose 

significantly more severe restrictions on protected 

freedoms of political expression.” Id. at 23. 

Contribution limits entail “only a marginal 

restriction upon the contributor’s ability to engage in 

free communication,” id. at 20-21, because 

“contributions ... involve[] speech by someone other 

than the contributor.” Id. at 21. This distinction is 

irrelevant to listener interests; its significance has to 

do with the relative burden on self-expression.2 See 

also FEC v. Colorado Republican Fed. Campaign 

Comm., 533 U.S. 431, 440 (2001) (“[r]estraints on 

expenditures generally curb more expressive and 

associational activity than limits on contributions 

do”).

 2

 It is true that this Court in Buckley also considered the 

impact on listeners, opining that contribution limits 

would not dramatically decrease the quantity of political 

speech, because “[t]he overall effect . . . is merely to 

require candidates ... to raise funds from a greater 

number of persons and to compel people who would 

otherwise contribute amounts greater than the statutory 

limits to expend such funds on direct political 

expression.” Id. at 21–22. But that reasoning does not 

explain why the reverse is not permissible. Restricting 

direct expenditures, but not contributions, should 

similarly not diminish the quantity of speech: people 

could simply contribute greater sums. The decisive 

difference is the greater burden expenditure limits place 

on expressive interests. 
12

Similarly, no published decision calls into 

question the constitutionality of the prohibition on 

campaign contributions and expenditures by foreign 

nationals. 2 U.S.C. § 441e. It is difficult to see how 

this ban burdens listeners’ interest in unfettered 

debate any less than they would be burdened by a 

ban on spending by some citizens. But the latter 

could not pass constitutional muster. The difference 

can only be that the First Amendment does not 

protect the self-expressive interests of foreign 

nationals. Cf. Mandel v. Kleindienst, 408 U.S. 753, 

762-65 (1972) (recognizing First Amendment 

interests of those who wished to hear foreign 

speaker, but upholding visa denial). 

The priority of protection for self-expression is 

reflected in this Court’s insistence that “the concept 

that government may restrict the speech of some 

elements of our society in order to enhance the 

relative voice of others is wholly foreign to the First 

Amendment.” Buckley, 424 U.S. at 48-49. From the 

standpoint of listeners’ interests, it is hard to see 

why it would not sometimes be a good thing to 

suppress one source of information, if doing so would 

allow the same information, and more besides, to be 

received from another source. But a speaker’s 

freedom to expressing her views can plausibly be 

understood as a fundamental aspect of personal 

autonomy that should not be violated – no matter 

how benign the intended effects.

The primacy of speakers’ interest in selfexpression can also be seen in that, under most 

circumstances, the First Amendment prohibits 

compelled speech, even when listeners are eager to 
13

receive the communication, whereas the right to 

speak is protected, even when listeners do not wish 

to receive the communication. See, e.g, Harper & 

Row, Publishers v. Nation Enterprises, 471 U.S. 539, 

559 (1985) (the First Amendment “shields the man 

who wants to speak or publish when others wish him 

to be quiet [and] a concomitant freedom not to speak 

publicly”). See also Riley v. Nat’l Fed’n of Blind, 487 

U.S. 781, 797-98 (1988) (compelled statements of fact 

burden protected speech as do compelled statements 

of opinion). But from the standpoint of listeners’ 

interests, compelled speech might often be desirable. 

Compelled statements of fact would serve listeners’ 

interest in receiving information; requiring various 

speakers to state their opinions about issues of 

concern would serve listeners’ interest in hearing a 

diversity of viewpoints. Even if listeners’ and 

speakers’ interests were equally protected, it would 

make sense for the Court to engage in careful 

balancing to determine when to compel speech for 

the benefit of listeners. That such balancing is 

foreign to First Amendment jurisprudence 

underscores that speakers’ right to self-expression 

receives—and merits—higher protection than 

listeners’ interests in receiving information, ideas, or 

other communications.

Similarly, it has been persuasively argued 

that it is precisely because commercial speech is 

protected principally for the sake of listeners that it 

is less protected than core expressive speech. Robert 

Post, The Constitutional Status of Commercial 

Speech, 48 UCLA L. Rev. 1 (2000). See also 

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 

626, 651 (1985) (“[b]ecause the extension of First 
14

Amendment protection to commercial speech is 

justified principally by the value to consumers of the 

information such speech provides, appellant’s 

constitutionally protected interest in not providing 

any particular factual information in his advertising 

is minimal”); Va. Bd. of Pharmacy, 425 U.S. at 781 

(Stewart, J., concurring) (“the elimination of false 

and deceptive claims serves to promote the one facet 

of commercial . . . advertising that warrants First 

Amendment protection—its contribution to the flow 

of accurate and reliable information relevant to 

public and private decisionmaking”).

III. POLITICAL EXPENDITURES AND 

CONTRIBUTIONS BY BUSINESS 

CORPORATIONS MAY BE REGULATED 

IN WAYS THAT WOULD BE 

CONSTITIONALLY QUESTIONABLE IF 

APPLIED TO SELF-EXPRESSIVE 

SPEECH.

In summary, because the political speech of 

business corporations is protected principally for the 

benefit of potential audiences, regulation of 

corporate speech calls for less stringent scrutiny 

than is required for regulation of speakers’ selfexpression. “Within the realm of contributions 

generally, corporate contributions are furthest from 

the core of political expression, since corporations’ 

First Amendment ... interests are derived largely 

from those of ... the public in receiving information.” 

Beaumont, 539 U.S. at 159.3 By the same reasoning, 

 3

 The Court noted that corporate speech is also protected 

on behalf of the speech and expressive interests of the 

corporation’s members. Beaumont, 539 U.S. at 159 
15

while restrictions on expenditures merit more 

stringent review than restrictions on contributions, 

within the realm of expenditures generally, 

corporate expenditures are furthest from the core of 

political expression. That is why the government’s 

interest in preventing corruption4 or the appearance 

of corruption may constitutionally “be accomplished 

by treating unions, corporations, and similar 

organizations differently from individuals.” Right to 

Work, 459 U.S. at 210-11.

Therefore, this Court’s decisions in Austin and 

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

in upholding such differential treatment. See also

Beaumont, 539 U.S. 146 (upholding ban on direct 

corporate campaign contributions, as applied to 

nonprofit corporation); Right to Work, 459 U.S. 197 

(upholding ban on solicitation of funds for campaign 

contributions from non-members by political action 

committee associated with corporation). Indeed, 

older decisions took for granted the permissibility of 

restrictions on corporate political campaign 

contributions and expenditures. See, e.g., CIO, 335 

U.S. 106.

 

(citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 

458-59 (1958)). But that rationale does not apply to 

business corporations, as it does to incorporated advocacy 

organizations like the NAACP.

4

 Corruption in this context includes undue influence of 

concentrated wealth on officeholders’ judgment. 

Beaumont, 539 U.S. at 156.
16

IV. THE RESTRICTIONS OF BCRA ARE 

CONSTITUTIONAL AS APPLIED TO 

CITIZENS UNITED.

A. Application of BCRA § 203 to Citizens 

United Does Not Infringe Rights to 

Self-Expression.

Constitutionally permissible regulation of 

business corporations’ direct campaign-related 

expenditures and contributions remains 

constitutional as applied to expenditures and 

contributions routed through such entities as 

Citizens United.

If the communications of the donor 

corporation are not the speech of its shareholders, 

officers, directors, or employees, see supra Part I.B, 

still less do communications of the recipient 

organization amount to speech of those same 

shareholders, officers, directors, or employees. 

Therefore, no self-expressive interests of the donor 

corporation are infringed.

With respect to the recipient corporation, the 

issue is more complex. It is undisputed that the 

First Amendment guarantees the right of “likeminded persons to pool their resources in 

furtherance of common political goals” through an 

organization such as Citizens United. Buckley, 424 

U.S. at 22. See also NAACP v. Alabama ex rel. 

Patterson, 357 U.S. 449, 460 (1958). The First 

Amendment does not, however, guarantee to such a 

group the right to use other people’s business 

investments as a subsidy for its speech, when the 

investors have not consented.
17

The members of Citizens United – separate 

from the organization – are free to circulate a 

political documentary at any time, as well as engage 

in any other electioneering communication. Citizens 

United itself would be free to do the same, if it 

declined funding from business corporations and 

labor unions. See 11 C.F.R. § 114.10(c)-(d). Given 

that Citizens United’s acceptance of corporate 

funding is freely chosen, it is disingenuous for 

Citizens United to characterize government 

regulation as an “effort to criminalize Citizens 

United’s political documentary.” Reply Brief at 1. 

Citizens United might be able to broadcast its 

electioneering communications more widely if 

allowed unlimited corporate donations,5 but it is 

equally true that it could disseminate those 

messages more widely if it were allowed to receive 

contributions from, for example, foreign nationals. 

See 2 U.S.C. § 441e(a)(1)(C)-(2) (prohibiting such 

contributions). It does not follow that Citizens 

United’s rights are thereby violated.

 5

 Citizens United alleges that its speech is like the selfexpressive speech in found protected in MCFL, 479 U.S. 

238, because only a tiny fraction of its funding comes 

from business corporations. Appellant’s Brief at 32. But 

if that is true, Citizens United’s ability to disseminate its 

message would be diminished only minimally by doing 

without corporate funding.
18

B. Because Application of § 203 Does Not 

Infringe Rights to Self-Expression, It 

is a Permissible Prophylactic Measure 

Against Political Corruption.

This Court has repeatedly recognized the 

constitutionality of “restricting contributions by 

various organizations [in order to] hedge[] against 

their use as conduits for circumvention of valid 

contribution limits.” Beaumont, 539 U.S. at 155. 

Even if only very small contributions by business 

corporations were allowed, a large business 

corporation could spread small contributions among 

many non-profit advocacy groups working for or 

against a particular candidate, and thereby 

circumvent restrictions intended to limit its ability 

to exert improper influence.

When no self-expressive interests are at stake, 

as with spending by business corporations, Congress 

has greater latitude to determine the appropriate 

scope of restrictions aimed at preventing 

circumvention of campaign finance laws. See Right 

to Work, 459 U.S. at 210 (“[W]e accept Congress’ 

judgment that it is the potential for such influence 

that demands regulation. Nor will we second-guess 

a legislative determination as to the need for 

prophylactic measures where corruption is the evil 

feared”). Such deference to Congress is appropriate 

with respect to restrictions on contributions by 

“traditional corporations organized for economic 

gain,” but not with respect to similar restrictions on 

“groups and associations ... designed expressly to 

participate in political debate.” FEC v. Nat’l 

Conservative Political Action Comm., 470 U.S. 480, 
19

500 (1985). While Citizens United may be a “group 

designed expressly to participate in political debate,” 

the restriction at issue here concerns contributions 

to it by “traditional corporations organized for 

economic gain.”

V. IF REGULATIONS OF CORPORATE 

SPEECH ARE UNCONSTITUTIONAL 

AS APPLIED TO CITIZENS UNITED, 

THERE IS NO REASON TO 

REEXAMINE AUSTIN AND 

McCONNELL.

If this Court nevertheless concludes that the 

reasons for treating election contributions and 

expenditures by business corporations differently 

from those by individuals do not extend to a 

nonprofit corporation like Citizens United that relies

principally on individual contributions, this case is 

resolved. There is no reason to go further. Judicial 

modesty counsels against overturning precedent 

governing constitutionally permissible regulation of 

business corporations, when doing so is not 

necessary to decide the case.

This case is an inappropriate one for 

reexamining precedents establishing the 

permissibility of regulation of election-related 

communications by business corporations, not only 

in that, according to Appellants, the corporate 

funding at issue in this case is so minimal, 

Appellants’ Brief at 5, 7, but also in several other 

respects: (1) no factual record has been developed 

concerning the quantity, sources, and effects of 

corporate funding of either Hillary: the Movie or of 
20

Citizens United in general; (2) the case presents an 

unusual sort of political advertising, near the border 

of regulable electioneering, in that it concerns a 

feature-length video made available to viewers who 

actively seek to receive the communication rather 

than having it thrust upon them as with typical 

electioneering advertising, see Tr. Oral Arg. at 46 

(March 24, 2009); and (3) no factual record has been 

developed as to whether the implementation of the 

as-applied standard for section 203 of BCRA, set 

forth by this Court in WRTL, 127 S.Ct. 2652, 

“impermissibly chills political speech.” Id. at 2674 

(Alito, J., concurring).

CONCLUSION

This Court’s precedents distinguishing 

corporate and individual speech are firmly rooted in 

bedrock First Amendment doctrine. There is no 

need, and no reason, to overrule either Austin or any 

part of McConnell in resolving this case.

Respectfully submitted,

SETH E. MERMIN

Counsel of Record

THOMAS BENNIGSON

PUBLIC GOOD

3130 Shattuck Avenue

Berkeley, CA 94705

(510) 548-4064

Counsel for Amicus Curiae

July 30, 2009