No. 08-205 

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

In The 

Supreme Court of the United States 

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

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTIONS COMMISSION, 

Appellee. 

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

On Appeal From The 

United States District Court 

For The District Of Columbia 

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

BRIEF OF THE MICHIGAN CHAMBER OF 

COMMERCE AS AMICUS CURIAE IN SUPPORT OF 

 APPELLANT AND REVERSAL OF AUSTIN v. 

MICHIGAN CHAMBER OF COMMERCE

ON SUPPLEMENTAL QUESTION 

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

JOHN D. PIRICH (P23204) 

ANDREA L. HANSEN (P47358) 

HONIGMAN MILLER SCHWARTZ

AND COHN LLP 

Attorneys for Amicus Curiae 

222 N. Washington Square, 

Suite 400 

Lansing, MI 48933 

(517) 484-8282 

*Counsel of Record 

RICHARD D. MCLELLAN*

 (P17503) 

GARY GORDON (P26290) 

W. ALAN WILK (P54059) 

JASON T. HANSELMAN

(P61813) 

DYKEMA GOSSETT PLLC 

Attorneys for 

Amicus Curiae

201 Townsend Street, 

Suite 900 

Lansing, MI 48933 

(517) 374-9181 

July 30, 2009 

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

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

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

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

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

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

 A. Austin Is Inconsistent with Established 

Supreme Court Precedent and Created 

Bad Law Severely Undermining the First 

Amendment ............................................... 3 

 B. The Outright Prohibition on Independent 

Expenditures by Corporations Upheld in 

Austin Violates the First Amendment ....... 6 

1. There Is No Compelling State Interest 

Justifying the Discrimination Against 

Corporations and Suppression of 

Their Political Speech ......................... 6 

a. The potential for corporations to 

amass great wealth is illogical and 

does not justify a restriction on 

core speech ...................................... 7 

b. Political equality is not required 

by the First Amendment and 

cannot be required by the government ................................................ 9 

2. Restricting All Independent Expenditures by For-Profit and Nonprofit 

Corporate General Treasuries Is Not 

Narrowly Tailored ............................... 11 
ii 

TABLE OF CONTENTS – Continued 

Page 

a. To survive strict scrutiny, the 

government must prove the restriction is narrowly tailored to 

further a compelling governmental 

interest ........................................... 11 

b. There is no evidence that corporate 

independent expenditures cause corruption ............................................ 12 

c. Prohibiting all for-profit and nonprofit corporate independent expenditures is not sufficiently narrowly 

tailored to pass constitutional 

muster ............................................. 15 

i. Independent expenditures by 

corporations should be permitted just like independent 

expenditures by individuals 

and political committees ........... 15 

ii. Austin censors speech by any 

corporation operated for-profit 

or whose members are operated for-profit ............................ 16 

d. Michigan could easily prevent 

corruption or “distortion” without 

censoring corporate political speech ... 19 

i. Government should regulate, 

rather than block, corporate 

speech ........................................ 19 
iii 

TABLE OF CONTENTS – Continued 

Page 

ii. The ban on independent expenditures is not properly tailored 

toward targeted entities ............. 20 

CONCLUSION ..................................................... 22 
iv 

TABLE OF AUTHORITIES 

Page 

CASES

Austin v. Michigan Chamber of Commerce, 494 

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

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

Colorado Republican Fed. Campaign Comm. v. 

F.E.C., 518 U.S. 604 (1996) ..................................... 17 

Columbia Broad. Sys., Inc. v. Democratic Nat’l 

Comm., 412 U.S. 94 (1973) ..................................... 13 

Consol. Edison Co. v. Public Serv. Comm’n, 447 

U.S. 530 (1980) ........................................................ 18 

Craig v. Boren, 429 U.S. 190 (1976) ........................... 13 

Edenfield v. Fane, 507 U.S. 761 (1993) ...................... 14 

F.E.C. v. Mass. Citizens for Life, 479 U.S. 238 

(1986) ....................................................................... 12 

F.E.C. v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480 (1985) ....................... 12, 15, 16 

F.E.C. v. Wisconsin Right to Life, Inc., 127 

S. Ct. 2652 (2007) ................................................ 6, 16 

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

765 (1978) ........................................................ 5, 9, 10 

McConnell v. F.E.C., 540 U.S. 93 (2003) .................... 12 

Meyer v. Grant, 486 U.S. 414 (1988) .................... 17, 18 

Schneider v. State of New Jersey, 308 U.S. 147 

(1939) ....................................................................... 19 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Tashjian v. Republican Party of Conn., 479 

U.S. 208 (1986) ........................................................ 22 

Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 

(1994) ................................................................. 12, 14 

STATUTES

Federal Election Campaign Act (FECA), 2 

U.S.C. § 431 et seq. ............................................ 15, 17 

MCL § 169.247 ............................................................ 20 

MCL § 169.251 ............................................................ 20 

MCL § 169.254 .............................................. 1, 2, 10, 20 

OTHER AUTHORITIES

U.S. Const. amend. I .......................................... passim
1 

INTEREST OF THE AMICUS1

The Court scheduled this matter for reargument 

and asked, in part, whether the Court should overrule Austin v. Michigan Chamber of Commerce, 494 

U.S. 652 (1990). The Michigan Chamber of Commerce, amicus herein, (“Michigan Chamber”) was the 

Plaintiff/Appellee in Austin, supra. The Michigan 

Chamber has been subject to the First Amendment 

speech restrictions of Section 54 of Michigan’s 

Campaign Finance Act (MCL § 169.254) (the “Act”) 

for the nineteen years since the Court’s March 27, 

1990 decision upholding the complete ban on corporate independent expenditures in support of or in 

opposition to political candidates. 

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

SUMMARY OF THE ARGUMENT 

In Michigan, subsequent to this Court’s decision 

in Austin, it continues to be a felony for nonmedia 

corporations to engage in fundamental First Amendment political speech. Under the Act, a corporation 

“shall not make a contribution or expenditure” in 

support of or in opposition to political candidates. 

MCL § 169.254(1). The State of Michigan applies 

1

 The parties’ written consents to the filing of this brief 

have been submitted to the Court. Amicus curiae certifies that 

no counsel for a party authorized this brief in whole or in part 

and no person or entity, other than amicus, its members, or its 

counsel, has made a monetary contribution to its preparation or 

submission. 
2 

Section 54(1) of the Act in a manner not only to 

prohibit corporate contributions and expenditures, 

but also independent expenditures in support of or in 

opposition to political candidates (hereafter “independent expenditures”). In Austin, the Michigan 

Chamber challenged the constitutionality of this 

provision, asserting that it was entitled by the First 

Amendment to make independent expenditures 

indicating its support for candidates. 

 Specifically, the Michigan Chamber sought to 

make a public statement through a one-quarter page 

advertisement in the Grand Rapids Press to support 

Richard Bandstra, a candidate for the Michigan 

House of Representatives.2 The Michigan Chamber’s 

statement in support of Bandstra would have been an 

independent expenditure because it was not at the 

direction or control of, or in coordination with, the 

candidate committee. Because of the felony provisions 

of Section 54(5) of the Act, the Michigan Chamber did 

not publish its statement and initiated the litigation 

that resulted in the Austin decision. 

 In a dramatic departure from all prior cases 

addressing the interplay between the government’s 

interest in regulating corruption and the appearance 

of corruption in the electoral process with corporations’ core First Amendment right to express themselves politically, including through independent 

2

 See appendix to opinion of Kennedy, J., dissenting in 

Austin. 
3 

expenditures that do not raise the same concerns as 

do contributions, the Austin Court created a new 

state interest designed to level the playing field 

between corporations and all others in the political 

process. 

 The Austin decision is based on a flawed analysis 

and creates bad law, discriminating against one 

speaker and suppressing the speech of corporations in 

a manner that unquestionably infringes upon 

fundamental First Amendment rights. Austin was 

wrongfully decided almost 20 years ago. That error 

should now be rectified by this Court. 

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

ARGUMENT 

A. Austin Is Inconsistent with Established 

Supreme Court Precedent and Created 

Bad Law, Severely Undermining the First 

Amendment. 

In Buckley v. Valeo, 424 U.S. 1 (1976), this Court 

recognized that political speech was “core” First 

Amendment activity, entitled to the greatest deference and “exacting scrutiny,” which requires a regulation to be struck down unless it is narrowly tailored 

to serve a compelling governmental interest. Buckley, 

424 U.S. at 44-45. The Court specifically determined 

that campaign finance regulation constitutes a direct 

restriction on political speech protected by the First 

Amendment because limitations on political contributions and expenditures “necessarily reduce the 
4 

quantity of expression by restricting the number of 

issues discussed, the depth of the exploration, and the 

size of the audience reached. This is because virtually 

every means of communicating in today’s mass 

society requires the expenditure of money.” 424 U.S. 

at 19. 

 The Buckley Court concluded that the “governmental interest in preventing corruption and the 

appearance of corruption” was not sufficient to 

warrant the limitation on independent expenditures. 

Moreover, the Court determined, abuses that might 

be generated by a large independent expenditure 

did not pose the same threat of corruption as did 

large contributions because the “absence of prearrangement or coordination by the expenditure with 

the candidate or his agent alleviates the danger that 

expenditures will be given as a quid pro quo for 

improper commitments from the candidates.” 424 

U.S. at 47. The Buckley Court flatly rejected the 

concept that government may impose regulations to 

promote fairness and equality among political 

participants stating that “[t]he First Amendment’s 

protection against governmental abridgement of free 

expression cannot properly be made to depend on a 

person’s financial ability to engage in public discussion.” Id. at 49; see also id. at 48-49 (“[T]he 

concept that government may restrict the speech of 

some elements of our society in order to enhance the 

relative voices of others is wholly foreign to the First 

Amendment”). 
5 

 Following Buckley, this Court, in First Nat’l Bank 

of Boston v. Bellotti, 435 U.S. 765 (1978), struck down 

a state statute prohibiting corporations from 

spending money in connection with a referendum, 

holding that the scope of First Amendment protection 

turns on the nature of the speech, not the identity of 

the speaker. The Bellotti Court recognized that 

political speech is no less valuable “because the 

speech comes from a corporation rather than an 

individual.” 435 U.S. at 777. Indeed, the Bellotti

Court specifically concluded that the fear that 

“corporations are wealthy and powerful and their 

views may drown out other points of view” cannot 

justify suppression of corporations’ political speech. 

Id. at 789. 

 In a dramatic shift from the principles set forth 

in Buckley and Bellotti, the Austin Court upheld a 

state statute prohibiting all corporations, for-profit 

and nonprofit, from making any independent 

expenditures to articulate a corporation’s opinion in 

support or opposition to a candidate. To reach this 

holding, the Court had to create a new compelling 

interest to justify this severe restriction on corporations’ First Amendment rights, concluding that the 

State had a compelling interest in forestalling the 

“corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help 

of the corporate form.” Austin, 494 U.S. at 660. 
6 

B. The Outright Prohibition on Independent 

Expenditures by Corporations Upheld in 

Austin Violates the First Amendment. 

Governmental restrictions on content-based 

speech, including the core political speech at issue 

here, unquestionably trigger the First Amendment 

and are subject to a strict scrutiny analysis, thereby 

requiring the government to prove that the restriction 

“furthers a compelling interest and is narrowly 

tailored to achieve that interest.” F.E.C. v. Wisconsin 

Right to Life, Inc., 127 S. Ct. 2652, 2664 (2007) 

(“WRTL II”). Given that the prohibition on independent expenditures by corporations suppresses not 

only who speaks (corporations), but also about what 

they may speak (candidates), core political speech is 

clearly at stake. 

1. There Is No Compelling State Interest 

Justifying the Discrimination Against 

Corporations and Suppression of Their 

Political Speech. 

There is no legitimate basis for suppressing the 

expression of core political speech based on (1) a 

corporation’s alleged and potential ability to amass 

great wealth, and (2) the desire to create equality 

among speakers or to protect members or shareholders of a corporation from political expression that 

may differ from their own. 
7 

a. The potential for corporations to 

amass great wealth is illogical and 

does not justify a restriction on core 

speech. 

The conclusion that a corporation’s mere potential ability to amass great wealth as a consequence of 

its corporate form justifies a severe restriction on core 

political speech is deeply flawed in logic and law. As a 

threshold matter, there is no requirement that a 

corporation actually be wealthy, nor is there any 

requirement that, if a corporation is wealthy, such 

wealth was accumulated as a consequence of stateconferred benefits, which is the purported justification for this prohibition on a corporation’s exercise of 

its political speech. In fact, the Court failed to 

distinguish between for-profit and nonprofit corporations, even though nonprofits are required to use 

their funds to further their underlying charitable, 

political or social purpose, not to “amass” great 

wealth. Moreover, to treat similarly for these purposes all corporations regardless of wealth (for 

example, a publicly held mega corporation in the 

same manner as a small, closely held corporation or 

nonprofit ideological corporation) is overly broad and 

undermines the stated basis for permitting the direct 

infringement on corporations’ First Amendment 

rights. Most corporations do not amass great wealth, 

even among for-profits. Nonprofits, by definition, do 

not and cannot acquire significant treasuries. To 

penalize the majority based on the potential of a 
8 

minority is not a constitutional justification for a 

direct infringement on core First Amendment rights. 

 In addition, numerous entities other than 

corporations, including, for example, limited liability 

companies and partnerships, are afforded benefits, 

treatment or other positive consequences for forming 

in the state (including limited liability, perpetual 

existence, tax benefits, etc.). Yet the prohibition on 

independent expenditures applies only to corporations. A corporation should not have to choose 

between receiving a state-conferred benefit or the 

ability to exercise its First Amendment rights, particularly where a limited liability company, for 

example, does not have to make that choice. Nor 

should the government be able to dole out advantages 

conditioned upon abandoning the right to express 

oneself politically. 

 Further, the potential accumulation of large 

amounts of money does not necessarily lead to 

corruption in the political process. Independent 

expenditures, by definition, cannot be controlled or 

directed by a candidate, thereby negating any 

possibility of quid pro quo corruption. If an independent expenditure is independent, it cannot 

possibly corrupt the process. A candidate, in fact, may 

not even want the support provided by the corporation and deem it harmful to his or her campaign. 
9 

b. Political equality is not required by 

the First Amendment and cannot be 

required by the government. 

Although the Austin Court appeared to recognize 

that it could not require political equality given 

Buckley and Bellotti’s conclusion that to do so would 

violate the First Amendment, it attempted to achieve 

that very result by prohibiting corporations from 

speaking as a consequence of their potential wealth. 

The Court justified its conclusion by stating it was 

not seeking equality but, instead, protecting the 

members and shareholders, because a corporation 

might spend money on political matters that they as 

individuals may not support. 

 This conclusion is incorrect. A corporation is a 

voluntary association and its members and shareholders retain their free will and can terminate that 

relationship at any time. In contrast with, for 

example, integrated mandatory state bars or union 

shops, corporation participation is not mandatory. 

Appellee’s attempt to analogize unions with corporations in this context is flawed. See Appellee Supp. 

Brf. at 13. States require thousands of employees to 

belong to unions and pay dues for that membership. 

In contrast, the Michigan Chamber, along with all 

other corporations, is a voluntary organization, for 

which there exists no state compulsion to join. If a 

member does not agree with the Michigan Chamber’s 

advocacy, it can simply choose not to renew its 

membership. 
10 

 In addition, this reasoning cannot be reconciled 

with the fact that corporations can spend without 

restriction on ballot questions, often concerning 

controversial political issues, regardless of whether 

supported by its members, shareholders, etc., which 

the Bellotti Court deemed entirely within their First 

Amendment rights. In fact, corporations can contribute unlimited amounts on ballot questions, as can 

all other entities or individuals. Likewise, in 

Michigan, every person or entity other than a 

corporation3

 can make unlimited independent expenditures. It is irrational to conclude that it is unconstitutional to restrict a corporation from spending 

unlimited amounts of money on ballot questions 

regardless of member or shareholder support, but 

that those same members and shareholders must be 

protected from a corporation’s decision whether to 

make independent expenditures. 

 The risk of member or shareholder opposition to 

independent candidate-related expenditures by a 

nonprofit is inconsequential. A nonprofit corporation 

is limited by its articles and bylaws to spending 

money to support its members’ goals and stated 

purposes for joining the corporation in the first place. 

Realistically, most members of ideological nonprofit 

corporations expect the corporation to advocate in 

3

 The prohibition on corporations has since been extended 

to labor organizations and domestic dependent sovereigns under 

Michigan law. MCL § 169.254. 
11 

support of the ideology underlying the nonprofits’ 

interests. 

 For-profit corporations are likewise limited by 

the fact that they must make decisions based on what 

is best for the corporation financially, which benefits 

the shareholder financially, and is the sole purpose of 

a for-profit corporation. A shareholder invests in a 

corporation to make money, not to share its personal 

political views. A particular member or shareholder’s 

political views are irrelevant to that purpose and he 

or she can always make contributions and expenditures to support their personal views with their 

own funds. 

2. Restricting All Independent Expenditures by For-Profit and Nonprofit Corporate General Treasuries Is Not Narrowly Tailored. 

a. To survive strict scrutiny, the government must prove the restriction is 

narrowly tailored to further a compelling governmental interest.

The First Amendment states that “Congress shall 

make no law . . . abridging the freedom of speech.” 

U.S. Const. amend. I. To constitutionally restrict 

corporate political speech, the government must not 

only demonstrate a compelling state interest, 

discussed supra, but it must also show that the 

regulation is narrowly tailored to meet that interest. 

 
12 

McConnell v. F.E.C., 540 U.S. 93 (2003). To 

demonstrate that a particular law is narrowly 

tailored, the government must offer actual evidence of 

a real problem that the law is designed to remedy. 

Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 680 

(1994). The subject law must curtail speech only to 

the degree necessary to remedy that problem and 

“must avoid infringing on speech that does not pose 

the danger that has prompted regulation.” F.E.C. v. 

Mass. Citizens for Life, 479 U.S. 238, 265 (1986). Akin 

to bringing a bazooka to a fist fight, the Michigan 

Legislature’s prohibition of all independent expenditures from corporate treasuries is an example of the 

government choosing “too blunt an instrument for 

such a delicate task.” Id. 

b. There is no evidence that corporate 

independent expenditures cause corruption. 

A regulation must be “narrowly tailored to the 

evil that may legitimately be regulated.” F.E.C. v. 

Nat’l Conservative Political Action Comm., 470 U.S. 

480, 496 (1985) (“NCPAC”). The Austin Court 

determined that the corporation’s “unique stateconferred structure,” which has the potential for 

facilitating the amassing of large amounts of wealth, 

could lead to an inequality of political influence, 

thereby corrupting the electoral process as a whole. 

There was, however, no evidence that this potential 

harm had actually occurred or that it was even likely 

to occur, particularly given that most Michigan 
13 

corporations are either nonprofit or closely held. The 

government cannot undertake prophylactic measures 

absent evidence that corporate expenditures will 

actually corrupt the process. Austin and its progeny 

embraced an unproven myth that if corporations are 

allowed to make independent expenditures, corruption of the process will necessarily occur. Repeating 

that myth for twenty years does not make it true, and 

any evidence that corporate independent expenditures have or will cause corruption, or even the 

appearance of corruption, still fails to exist. As noted 

in Appellee’s Supplemental Brief at n.3, less than half 

the states prohibit the use of treasury funds for 

electioneering, meaning that in more than half, such 

expenditures are permitted. There has never been 

any evidence presented that these more than twenty 

states have a corrupt or distorted political process as 

a consequence thereof. 

 The government must draw classifications based 

upon reality, not stereotypes. Craig v. Boren, 429 U.S. 

190, 202 (1976). The “potential danger” of corruption, 

the amassing of great wealth or the expenditure of 

funds contrary to the interests of its members or 

shareholders are insufficient to justify a restriction 

absent evidence of actual problems. See, e.g.,

Columbia Broad. Sys., Inc. v. Democratic Nat’l Comm., 

412 U.S. 94, 127 (1973) (stating that the “sacrifice 

[of ] First Amendment protections for so speculative a 

gain is not warranted[.]”). The mere possibility that 

an organization may “potentially” engage in misconduct is not a sufficient reason to ban large 
14 

quantities of political expression. Hypothetical harms 

do not justify infringement on First Amendment 

freedoms. See, e.g., Edenfield v. Fane, 507 U.S. 761, 

770-71 (1993). 

 The Michigan Legislature has never provided a 

record supporting the existence of actual or perceived 

corruption resulting from corporate independent 

expenditures and certainly did not demonstrate that 

any special corruption would result from corporate 

independent expenditures. Such a showing is necessary to survive constitutional scrutiny. See Turner 

Broad. Sys., Inc., 512 U.S. at 664 (“When the Government defends a regulation on speech as a means to 

. . . prevent anticipated harms, it must do more than 

simply ‘posit the existence of the disease sought to be 

cured.’ ”) (internal citation omitted). 

 In Austin, the record reflected no evidence of 

corruption caused by corporate expenditures. In fact, 

the record indicates that the State of Michigan’s key 

witness, Edward M. Epstein, political scientist and 

author of the book “The Corporation in American 

Politics,” acknowledged that there had been no 

evidence in Michigan that corporate expenditures had 

a corruptive influence in elections. Austin, Joint 

Appendix at 86a. The Michigan Legislature, therefore, appears to have based its conclusion regarding 

corruption merely upon a hunch. To restrict speech 

based upon hunches, hypotheticals, and hyperbole 

tears the very fabric of First Amendment protections. 
15 

c. Prohibiting all for-profit and nonprofit corporate independent expenditures is not sufficiently narrowly 

tailored to pass constitutional muster. 

i. Independent expenditures by corporations should be permitted 

just like independent expenditures 

by individuals and political committees.

In Buckley, this Court struck down the Federal 

Election Campaign Act’s (FECA) limitation on 

individuals’ independent expenditures because this 

Court found no tendency in such expenditures, 

uncoordinated with the candidate or his campaign, to 

corrupt or give the appearance of corruption. 

Subsequently, in NCPAC, this Court struck down the 

FECA’s limitation on independent expenditures by 

political committees. NCPAC, 470 U.S. at 496. In 

NCPAC, this Court examined whether corruption can 

taint the political process, stating that “[t]he 

hallmark of corruption is the financial quid pro quo: 

dollars for political favors.” Id. at 497. This Court 

went on to differentiate independent expenditures 

from corruptive political contributions, summarizing 

Buckley’s conclusion that “there was a fundamental 

constitutional difference between money spent to 

advertise one’s views independently of the candidate’s 

campaign and money contributed to the candidate. . . .” 

Id.

Austin assumes that expenditures by corporations might someday be demonstrated to beget quid 
16 

pro quo corruption. As Justice Scalia acknowledged in 

WRTL II, however, “[t]hat someday has never come. 

No one seriously believes that independent

expenditures could possibly give rise to quid-pro-quo

corruption without being subject to regulation as 

coordinated expenditures.” WRTL II, 127 S. Ct. at 

2678, n.4 (Scalia, J., concurring in part) (emphasis in 

original). Just as NCPAC determined that limiting 

independent expenditures by PACs was fatally 

overbroad in response to the perceived evil of 

corruption or the appearance thereof, this Court 

should now overrule the prohibition against corporate 

independent expenditures. Corporations independently 

communicating ideas with the public should be 

encouraged as a fundamental facet of democratic free 

speech, not condemned as hypothetical corruption. 

Austin should be reversed, allowing corporations the 

same constitutional protection recognized for individuals and political committees in Buckley and 

NCPAC. By failing to craft a solution that is designed to 

fix a narrow potential problem, the Michigan 

Legislature’s blanket prohibition against all corporate 

independent expenditures is unconstitutional. 

ii. Austin censors speech by any 

corporation operated for-profit 

or whose members are operated 

for-profit. 

For-profit corporations were given the least 

amount of First Amendment protection in Austin, 

while nonprofit ideological corporations having no 
17 

for-profit corporations as members or shareholders 

were given the most protection in WRTL. The Michigan Chamber is the middle-ground, as a nonprofit 

ideological corporation with corporate members but, 

because of Austin, has not been afforded the same 

rights as recognized in WRTL. In Colorado Republican Fed. Campaign Comm. v. F.E.C., this Court 

rejected the FECA’s political party independent 

expenditure limit, stating that “[w]e do not see how a 

Constitution that grants to individuals, candidates, 

and ordinary political committees the right to make 

unlimited independent expenditures could deny the 

same right to political parties.” 518 U.S. 604, 618 

(1996). Austin, however, concluded that corporations 

were not entitled to the same First Amendment 

protection as others who have the same ability to 

amass wealth to use for political speech. 

 Although the Austin Court stated that corporate 

speech is not stifled because corporations can 

establish separate segregated funds (“SSFs”) whose 

independent expenditures are not limited, SSFs do 

not provide the same rights as direct corporate speech 

because SSFs are separate entities whose speech does 

not necessarily reflect that of the corporation. Indeed, 

that inherent separateness effectively serves as a 

muzzle to limit or quash such speech. This Court has 

held that restricting the “most effective, fundamental 

and perhaps economical avenue of political discourse” 

while leaving open “more burdensome” avenues of 

communication fails to nullify its burden on First 

Amendment expression. Meyer v. Grant, 486 U.S. 
18 

414, 424 (1988). The First Amendment protects not 

only the right of corporations to advocate a cause but 

also “to select what they believe to be the most 

effective means for so doing.” Id. 

 Because corporations have a constitutional right 

to engage directly in political speech, forcing them to 

speak only through an SSF is inadequate. Consol. 

Edison Co. v. Public Serv. Comm’n, 447 U.S. 530, 541 

n.10 (1980) (this Court has “consistently rejected the 

suggestion that a government may justify a contentbased prohibition by showing that speakers have 

alternative means of expression.”). The First Amendment protects not only the right to speak, but also the 

right to choose the most effective means of doing so. 

Meyer, 486 U.S. at 424 (“That appellees remain free to 

employ other means to disseminate their ideas does 

not take their speech . . . outside the bounds of First 

Amendment protection.”). 

 Because SSFs cost money, many small or midsize 

corporations (the majority of corporations in Michigan) cannot afford the cost to create and administer 

an SSF and are, therefore, blocked entirely from 

political speech.4

 Even for those corporations that can 

afford this added expense, it creates an administrative burden to speech, restricts the use of those 

funds, and often diminishes the message, because it 

cannot come directly from the corporation. As this 

4

 See Testimony of Woodward Sidney Smith in Austin Joint 

Appendix at 91a-94a. 
19 

Court has explained, “one is not to have the exercise 

of his liberty of expression in appropriate places 

abridged on the plea that it may be exercised in some 

other place.” Schneider v. State of New Jersey, 308 

U.S. 147, 163 (1939). In addition, the SSF requirement also diminishes the right of members who wish 

to support the corporation’s advocacy efforts but are 

prohibited from doing so because they are not among 

the very small list of persons who may contribute to 

an SSF. 

d. Michigan could easily prevent corruption or “distortion” without censoring corporate political speech. 

A less blunt instrument could be used to craft 

alternative solutions allowing corporations to exercise 

their First Amendment rights, while still accomplishing the purported goal of preventing theoretical 

corruption or distortion. 

i. Government should regulate, rather 

than block, corporate speech. 

Permitting independent expenditures with reporting requirements prevents corruption using 

transparency, rather than a gag. Regulation and 

disclosure of corporate speech provides a more narrowly tailored response to alleged corruption. Reporting mechanisms already are in place in Michigan 

if corporations are allowed to make independent 

 
20 

expenditures. Section 47 of the Act requires a 

disclaimer identifying the sponsor of any communication, and Section 51 of the Act mandates disclosure of many other aspects of independent expenditures. MCL § 169.247 and MCL § 169.251. Such a 

solution permits corporate speech, but identifies and 

discloses those corporate expenditures. 

 Permitting independent expenditures with reporting requirements is precisely the type of scalpel 

required to satisfy the narrowly tailored standard of 

strict scrutiny, unlike the hatchet employed by the 

Michigan Legislature. Where such a simple solution 

exists that both achieves the government’s purported 

purpose of preventing the appearance of corruption, 

while still allowing constitutionally guaranteed free 

speech, that solution should be implemented. Absent 

such a solution, the law fails the strict scrutiny test 

and must be struck down. 

ii. The ban on independent expenditures is not properly tailored 

toward targeted entities. 

If the purpose of restricting corporate speech is 

to prevent behemoth conglomerates from disproportionately influencing the political process (from “too 

much speech” as Justice Kennedy stated during oral 

arguments in Austin) then, rather than a complete 

prohibition on independent expenditures from all 

corporations, a narrowly tailored approach would be 
21 

to prohibit independent expenditures only from those 

for-profit entities with significant financial resources. 

 The Michigan Chamber contends that no outright ban on corporate independent expenditures 

passes constitutional muster. Rather than blocking 

all corporate expenditures, however, a possible 

narrowly tailored approach would be to prohibit 

expenditures only by “large” for-profit entities, by 

publicly traded companies, by those whose treasury 

balance exceeds a certain monetary threshold, or 

those not established for an ideological or political 

purpose. Instead, the Michigan Legislature prohibited all corporations, regardless of purpose, size, 

wealth, or even nonprofit status, from direct political 

speech. Michigan’s law should only limit independent 

expenditures by those with the capability to perpetrate the alleged harm. 

 Because nearly all businesses in Michigan are 

small, privately held companies, their ability to 

exercise “too much speech” is minimal.5

 The risk of 

corruption by those corporate expenditures is, like the 

individual independent expenditures analyzed in 

Buckley, insufficient to justify limits, let alone a ban, 

on such spending. Although it may be easier for the 

government to limit all speech by corporate entities 

based upon an amorphous theory of the potential for 

5

 In 2008, 63% of Michigan Chamber members employed 

fewer than 49 employees and 90% employed fewer than 249 

employees. 
22 

corruption of the process, rather than limiting only 

that speech that may actually result in corruption, 

administrative convenience cannot justify an infringement upon fundamental First Amendment 

speech. Tashjian v. Republican Party of Conn., 479 

U.S. 208, 218 (1986). 

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

CONCLUSION 

Corporations possess the same First Amendment 

protections as individuals and all other associations 

of persons. Yet, as a result of Austin, only corporations are prohibited from making independent 

expenditures in support of a candidate. An independent expenditure is, by definition, made without 

direction or control by a candidate and, therefore, 

cannot lead to corruption. As such, no compelling 

state interest justifies a direct infringement on one 

speaker’s rights based on hypothetical and imagined 

harms. In reality, most corporations do not amass 

great wealth or make decisions contrary to the 

interests and views of their shareholders and 

members. 

 
23 

 For the foregoing reasons, the Michigan Chamber 

submits that Austin was decided wrongly, based on 

flawed logic and analysis, and should be overruled. 

Respectfully submitted, 

JOHN D. PIRICH (P23204) 

ANDREA L. HANSEN (P47358) 

HONIGMAN MILLER SCHWARTZ

AND COHN LLP 

Attorneys for Amicus Curiae 

222 N. Washington Square, 

Suite 400 

Lansing, MI 48933 

(517) 484-8282 

*Counsel of Record 

RICHARD D. MCLELLAN* 

 (P17503) 

GARY GORDON (P26290) 

W. ALAN WILK (P54059) 

JASON T. HANSELMAN

(P61813) 

DYKEMA GOSSETT PLLC 

Attorneys for 

Amicus Curiae

201 Townsend Street, 

Suite 900 

Lansing, MI 48933 

(517) 374-9181 

July 30, 2009