No. 08-205 

IN THE 

Supreme Court of the United States 

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

On Appeal from the United States 

District Court for the District of Columbia 

BRIEF OF AMICUS CURIAE THE CATO INSTITUTE 

IN SUPPORT OF APPELLANT 

ILYA SHAPIRO 

CATO INSTITUTE 

1000 Massachusetts Avenue, NW 

Washington, DC 20001 

(202) 218-4600 

BENJAMIN D. WOOD

 Counsel of Record 

GLENN M. WILLARD 

KATHRYN BIBER CHEN 

CORDELL A. HULL 

JOHN C. HILTON 

PATTON BOGGS LLP 

2550 M Street, NW 

Washington, DC 20037 

(202) 457-6000 

Counsel for Amicus Curiae 
 

i 

TABLE OF CONTENTS 

Page
 

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

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

SUMMARY OF THE ARGUMENT............................2 

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

I. The First Amendment Protects 

Contributors’ Freedom of Anonymous

Expressive Association.................................... 3 

A. The First Amendment right of 

association secures contributors’ 

enumerated freedoms of speech,

assembly, and petition.................................3 

B. Freedom of association includes the 

right to control an association’s 

character and message. ...............................6 

C.	 The First Amendment protects the right 

of anonymous association. .........................10 

II. BCRA Section 201’s Compelled Disclosure

Requirements Infringe Contributors’ 

Freedom of Anonymous Expressive

Association, Warranting Strict Scrutiny....... 16 

A. Disclosure provisions that burden 

associational rights are subject to strict

scrutiny....................................................... 17 
ii 

B. BCRA’s compelled disclosure provisions

are subject to strict scrutiny here

because, by burdening expressive

association, they also burden political

speech—the “core” of First Amendment

protection.................................................... 20 

C. Lower courts need unambiguous

direction that disclosure provisions

infringing freedom of expressive

association must survive strict scrutiny. .. 25 

CONCLUSION........................................................... 27
 
iii 

TABLE OF AUTHORITIES 

Page(s) 

Cases: 

ACLU v. Heller, 

 378 F.3d 979 (9th Cir. 2004)........................... 15-16 

AFL-CIO v. FEC, 

 333 F.3d 168 (D.C. Cir. 2003) ...............................20
 

Austin v. Mich. Chamber of Commerce, 

 494 U.S. 652 (1990)...............................................24
 

Bates v. City of Little Rock, 

 361 U.S. 516 (1960) .........................................17, 19 

Bd. of Dirs. of Rotary Int’l v. Rotary Club of 

Duarte, 

 481 U.S. 537 (1987)...............................................24 

Boy Scouts of Am. v. Dale, 

 530 U.S. 640 (2000) ................................. 8-9, 10, 19 

Brown v. Socialist Workers ’74 Campaign 

Comm., 

 459 U.S. 89 (1982).................................................13 

Buckley v. Am. Constitutional Law Found., 

 525 U.S. 182 (1999)...............................................13 

Buckley v. Valeo, 

 424 U.S. 1 (1976) (per curiam) .....................passim 

Cal. Bankers Ass’n v. Shultz, 

 416 U.S. 21 (1974).................................................18 
iv 

Cal. Democratic Party v. Jones, 

 530 U.S. 567 (2000) ......................................... 6-7, 8 

Citizens Against Rent Control/Fair Hous. Coal. 

v. City of Berkeley, 

 454 U.S. 290 (1981) .............................................3, 4 

Citizens for Responsible Gov’t State PAC v. 

Davidson, 

 236 F.3d 1174 (10th Cir. 2000)....................... 25-26 

Davis v. FEC, 

 128 S. Ct. 2759 (2008)...........................................17 

Democratic Party v. Wisconsin ex rel. La Follette, 

 450 U.S. 107 (1981) .............................................5, 8 

FEC v. Mass. Citizens for Life, Inc., 

 479 U.S. 238 (1986) .........................................18, 24 

FEC v. Wisc. Right to Life, Inc., 

 127 S. Ct. 2652 (2007)..................................... 24-25 

First Nat’l Bank of Boston v. Bellotti, 

 435 U.S. 765 (1978)...............................................20 

Gibson v. Fla. Legislative Investigation Comm., 

 372 U.S. 539 (1963) ................................6, 10-11, 17 

Healy v. James, 

 408 U.S. 169 (1972) .........................................3, 4, 6 

Hurley v. Irish-American Gay, Lesbian & 

Bisexual Group of Boston, Inc., 

 515 U.S. 557 (1995).................................................9 

McConnell v. FEC, 

 540 U.S. 93 (2003).....................................12, 14, 26 
v 

McIntyre v. Ohio Elections Comm’n, 

 514 U.S. 334 (1995).......................................passim 

Minn. State Bd. for Cmty. Colls. v. Knight, 

 465 U.S. 271 (1984)...............................................11 

NAACP v. Alabama ex rel. Patterson, 

 357 U.S. 449 (1958).......................................passim 

Nat’l Ass’n of Mfrs. v. Taylor, 

 549 F. Supp. 2d 33 (D.D.C. 2008) .........................26 

N.C. Right to Life Comm. Fund for Indep. 

Political Expenditures v. Leake, 

 524 F.3d 427 (4th Cir. 2008).................................25 

Peterson v. Nat’l Telecomms. & Info. Admin., 

 478 F.3d 626 (4th Cir. 2007).................................15 

Ray v. Blair, 

 343 U.S. 214 (1952).................................................8 

Roberts v. U.S. Jaycees, 

 468 U.S. 609 (1984) ...........................................9, 19 

Shelton v. Tucker, 

 364 U.S. 479 (1960) ......................................... 4-5, 6 

Talley v. California, 

 362 U.S. 60 (1960).................................................12 

Tashjian v. Republican Party, 

 479 U.S. 208 (1986).................................................7 

United States v. Rumely, 

 345 U.S. 41 (1953)........................................... 20-21 

Wash. State Grange v. Wash. State Republican 

Party, 

 128 S. Ct. 1184 (2008).............................................7 
 

 

 

 

vi 

Regulations: 

11 C.F.R. § 104.20(b)-(c)....................................... 23-24 

Other Authorities: 

Evelyn Brody, Entrance, Voice, and Exit: The 

Constitutional Bounds of the Right of 

Association, 35 U.C. DAVIS L. REV. 821 (2002)........ 3-4 

Fed. Election Comm’n Ad. Op. 1990-13 ....................13 

Dick M. Carpenter II, DISCLOSURE COSTS:
 

UNINTENDED CONSEQUENCES OF CAMPAIGN 

FINANCE REFORM (Institute for Justice, Mar.

2007), available at
 

http://www.ij.org/images/pdf_folder/other_pubs/D

isclosureCosts.pdf (last visited Jan. 13, 2009).... 21-23 

FEC Electioneering Communications Brochure

(updated Apr. 2008), available at
 

http://www.fec.gov/pages/brochures/electioneerin

g.shtml (last visited Jan. 13, 2009) ...........................23 

Jason Mazzone, Freedom’s Associations, 

77 WASH. L. REV. 639 (2002) ....................................4, 5 

William McGeveran, Mrs. McIntyre’s Checkbook: 

Privacy Costs of Political Contribution 

Disclosure, 6 U. PA. J. CONST. L. 1 (2003) .................21 

Steve Simpson, If You Wanna Speak, You Better 

Have a Lawyer, NAT’L REVIEW ONLINE (Mar. 27,

2007) ...........................................................................23 

Laurence H. Tribe, AMERICAN CONSTITUTIONAL 

LAW (1978)....................................................................8 
vii 

Laurence H. Tribe, AMERICAN CONSTITUTIONAL 

LAW (2d ed. 1988) .........................................................4 
 

 

 

1 

INTEREST OF THE AMICUS CURIAE1 

The Cato Institute was established in 1977 as a 

nonpartisan public policy research foundation 

dedicated to advancing the principles of individual

liberty, free markets, and limited government. Cato’s 

Center for Constitutional Studies was established in 

1989 to help restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, the Cato Institute 

publishes books and studies, conducts conferences and 

forums, publishes the annual Cato Supreme Court 

Review, and files amicus briefs with the courts. This 

case is of central concern to Cato because it addresses 

the further collapse of constitutional protections for

political speech and activity, which lies at the very

heart of the First Amendment. 

1 Pursuant to this Court’s Rule 37.3(a), letters of consent from all 

parties to the filing of this brief have been submitted to the Clerk. 

Pursuant to this Court’s Rule 37.6, amicus states that this brief 

was not authored in whole or in part by counsel for any party, and

that no person or entity other than amicus or its counsel made a 

monetary contribution intended to fund the preparation or 

submission of this brief. 
2 

SUMMARY OF THE ARGUMENT 

Freedom of association is an important

independent right under the First Amendment—

securing and enabling the Amendment’s enumerated

rights—and it includes the right to associate 

anonymously and to control a group’s character and

message free from government intervention. As 

applied to groups engaging in political speech,

compelled disclosure of contributors’ identities 

infringes their freedom of expressive association, a

burden often no less severe than direct restraint on the 

group’s speech. Government curtailment of private

expressive association is thus subject to strict

constitutional scrutiny. Where that curtailment also 

inherently burdens the group’s political speech, it must 

survive strict scrutiny or else be held unconstitutional. 

The district court failed to afford sufficient value to the 

associational rights of Citizens United contributors

and, accordingly, failed to scrutinize appropriately

BCRA section 201’s unjustified infringement on those

rights. The district court’s judgment should be

reversed. 
3 

ARGUMENT 

I.	 The First Amendment Protects Contributors’ 

Freedom of Anonymous Expressive 

Association. 

A. The First Amendment right of 

association secures contributors’ 

enumerated freedoms of speech, 

assembly, and petition. 

Freedom of association is an important First

Amendment right, securing and rendering meaningful 

the enumerated freedoms of speech, assembly, and

petition. “[T]he practice of persons sharing common

views banding together to achieve a common end is

deeply embedded in the American political process.” 

Citizens Against Rent Control/Coal. for Fair Hous. v. 

City of Berkeley, 454 U.S. 290, 294 (1981). And while 

the concept of freedom of association “is not explicitly

set out in the [First] Amendment, it has long been held 

to be implicit in the freedoms of speech, assembly, and 

petition.” Healy v. James, 408 U.S. 169, 181 (1972).

Such primary rights are therefore crucial to the rights 

of individuals to associate freely with one another, and 

it is no surprise that the first cases to recognize

associational rights “reflected ancillary associational 

concerns—for example, defending the right of the

NAACP to hire a lawyer, and to ‘do business’ in the

Southern States without having to disclose its

membership lists.” Evelyn Brody, Entrance, Voice, 

and Exit: The Constitutional Bounds of the Right of 
 

 

 

 

4 

Association, 35 U.C. DAVIS L. REV. 821, 837 (2002).2 

Another scholar explains, “Freedom of association at

its core is a political right, a right of self-governance.

Associations empower citizens to exert political

influence and to keep government in check.” Jason 

Mazzone, Freedom’s Associations, 77 WASH. L. REV. 

639, 647 (2002). 

In NAACP v. Alabama ex rel. Patterson, this Court 

recognized, “Effective advocacy of both public and

private points of view, particularly controversial ones,

is undeniably enhanced by group association . . . [and 

there is a] close nexus between the freedoms of speech

and assembly.” 357 U.S. 449, 460 (1958). Immunity

from state scrutiny of the NAACP’s membership lists 

was “so related to the right of the members to pursue

their lawful private interests privately and to associate 

freely with others in so doing as to come within the

protection of the Fourteenth Amendment.” Id. at 466. 

The Court echoed these concerns in Citizens 

Against Rent Control, noting that through “collective

effort individuals can make their views known, when 

individually, their voices would be faint or lost.” 454 

U.S. at 294. In Healy, a Connecticut college could not

prohibit the use of campus facilities to Students for a

Democratic Society without infringing the members’

associational rights. 408 U.S. at 194. And in Shelton 

v. Tucker, 364 U.S. 479 (1960), the Court invalidated a 

2 See also Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 

§ 12-26, at 1010 (2d ed. 1988) (This Court “has repeatedly 

described” freedom of association “as among the preferred rights 

derived by implication from the first amendment’s guarantees of 

speech, press, petition, and assembly.”). 
 

5 

state statute requiring teachers to file an annual

affidavit listing every organization to which the

teacher belonged or contributed during the preceding

five years. Finally, associational rights are important

to political parties because they permit like-minded

individuals to band together to address concerns with

the government. See, e.g., Democratic Party v. 

Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981).

Collectively, these cases stand for the principle that

“freedom of association is a necessary precondition to

free speech. It is therefore protected in order to

safeguard First Amendment speech interests.” 

Mazzone, 77 WASH. L. REV. at 650. 

Despite the strong ties to freedom of speech in

particular, it is easy to see how freedom of association 

is joined to rights other than free speech: citizens

cannot freely practice their religion, petition the

government, operate a free press, or assemble without

a robust right to associate with other citizens. Indeed, 

“in the early Republic it was against the right of

assembly and petition that associations were 

understood. On that score, consistent with the 

assembly and petition clause, freedom of association is

protected under the First Amendment because 

associations represent instances of popular

sovereignty.” Id. at 647. 

No matter the primary First Amendment principle

at stake, what becomes clear from the Court’s 

jurisprudence on associational rights is that 

governmental forces often attempt to infringe other

First Amendment freedoms by using the back-door

channel of regulating association. This can be 

accomplished by prohibitively raising the entry bar for 
6 

burgeoning groups by saddling them with cumbersome 

regulatory requirements, or by deterring members

from associating in the first place by denying their

right to associate privately. Healy is in the first 

category, while NAACP and Shelton are in the second. 

BCRA Section 201 implicates both categories. 

All such attempts to abridge rights should be

rejected. For purposes of this case, “associational 

rights” in the absence of robust rights to engage in

political speech, anonymous political speech, and 

anonymous association are “rights” in name only, and

vice versa. And lest the breadth of the rule be 

overlooked, “it is immaterial whether the beliefs 

sought to be advanced by association pertain to

political, economic, religious or cultural matters, and

state action which may have the effect of curtailing the 

freedom to associate is subject to the closest scrutiny.” 

NAACP, 357 U.S. at 460-61. In short, freedom of 

association is “highly prized, and need[s] breathing 

space to survive.” Gibson v. Fla. Legislative 

Investigation Comm., 372 U.S. 539, 544 (1963). 

B.	 Freedom of association includes the right 

to control an association’s character and 

message. 

The Court recently has reiterated the foundational

principles of its associational rights jurisprudence.

One particularly robust forum for the application of

these principles has been a series of cases addressing 

the associational rights of political parties in the

context of state primary election laws. In California 

Democratic Party v. Jones, 530 U.S. 567 (2000), for

instance, this Court held that California could not, 
 

7 

consistent with the First Amendment, use a “blanket”3 

primary to determine a political party’s nominee for

the general election. Examining the associational

rights and state interests involved, the Court found a

“severe and unnecessary” burden on the rights of

political association. Id. at 586. 

It is axiomatic that “[t]he freedom of association

protected by the First and Fourteenth Amendments

includes partisan political organization.” Tashjian v. 

Republican Party, 479 U.S. 208, 214 (1986). This 

Court has gone farther and deeper, however, in tying

the associational right to something fundamental not

only in our Constitution, but also in our Republic: 

Representative democracy in any populous

unit of governance is unimaginable without

the ability of citizens to band together in

promoting among the electorate candidates

who espouse their political views. . . .

Consistent with this tradition, the Court has 

recognized that the First Amendment protects 

‘the freedom to join together in furtherance of

common political beliefs . . . .’” 

Cal. Democratic Party, 530 U.S. at 574 (quoting 

Tashjian, 479 U.S. at 214-15). 

These cases thus capture the instrumental role of

associational rights in undergirding other 

Constitutional rights and democratic processes. They 

 In a blanket primary election, any voter may vote for any 

candidate, regardless of the voters’ political affiliation. See Wash. 

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

1187 n.1 (2008). 

3
8 

are, however, equally important in establishing the

prerequisites for the effective and meaningful exercise 

of associational rights in the first instance. In 

Wisconsin ex rel. La Follette, this Court held, “The 

freedom to associate for the common advancement of 

political beliefs necessarily presupposes the freedom to

identify the people who constitute the association, and 

to limit the association to those people only.” 450 U.S. 

at 122 (internal quotation marks omitted). This is so 

because “‘[f]reedom of association would prove an

empty guarantee if associations could not limit control

over their decisions to those who share the interests 

and persuasions that underlie the association’s being.’” 

Id. at 122 n.22 (quoting Laurence H. Tribe, AMERICAN 

CONSTITUTIONAL LAW 791 (1978)). Simply put, “a

corollary of the right to associate is the right not to 

associate.” Cal. Democratic Party, 530 U.S. at 574. 

In addition to affirming the foundational principles 

of the Court’s associational rights jurisprudence, these 

cases further articulate a right, not only affirmatively

to associate, but also defensively to define, confine, and 

control the association as necessary to preserve its

character, purpose, and effectiveness. See, e.g., Ray v. 

Blair, 343 U.S. 214, 221-22 (1952) (political parties 

may protect themselves from “intrusion by those with 

adverse political principles”). In so doing, these cases

dovetail with key pronouncements in the Court’s

expressive association jurisprudence. 

In Boy Scouts of America v. Dale, 530 U.S. 640 

(2000), this Court held that applying New Jersey’s

public accommodations law to require the Boy Scouts 

to admit Dale, an adult whose position as assistant 
 

 

 

9 

scoutmaster of a New Jersey troop was revoked when 

the Boy Scouts learned that he is an avowed

homosexual and gay rights activist, violated the Boy

Scouts’ First Amendment right of expressive

association. The Court noted that a group’s First

Amendment right of expressive association could be

unconstitutionally burdened in many ways, including

unwanted “intrusion into the internal structure or 

affairs of an association” such as a “regulation that

forces the group to accept members it does not desire.” 

Id. at 648 (quoting Roberts v. U.S. Jaycees, 468 U.S. 

609, 622 (1984)). The Court concluded that Dale’s 

presence as an assistant scoutmaster interfered with

the Scout’s “choice not to propound a view contrary to

its beliefs,” thereby “affect[ing] in a significant way the 

group’s ability to advocate public or private

viewpoints.” Id. at 648, 653.4 Under Dale, there are 

no requirements that the group associate for the

purpose of disseminating a certain message in order to 

be protected, nor for every member of the group to

agree on every view for the group’s policy to be

“expressive association.” Id. at 655. 

The Court’s jurisprudence traces a vivid evolution

from establishing the foundations for an associational

right, to articulating a formidable associational

interest in controlling its membership and message as 

4 The Court relied in part on Hurley v. Irish-American Gay, 

Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574-75 

(1995) (holding a parade’s exclusion of a homosexual group from 

marching behind their banner constitutionally protected because 

the decision to exclude “boils down to the choice of a speaker not to 

propound a particular point of view, and that choice is presumed 

to lie beyond the government’s power to control”). 
10 

against competing state interests. Where a group of

people have associated to express or amplify political

speech, as Citizens United has, this interest in

controlling their group and its message is a significant 

foundation for their right to express that message

anonymously. Furthermore, this Court has stated, “As 

we give deference to an association’s assertions

regarding the nature of its expression, we must also

give deference to an association’s view of what would

impair its expression.” Dale, 530 U.S. at 653. 

C. The First Amendment protects the right 

of anonymous association. 

The freedom to associate is meaningless without a

corresponding right to associate anonymously, whether 

as members of a group, participants in a joint venture, 

or contributors to a documentary film project. This 

Court repeatedly has recognized the undeniable

“deterrent effect on the free enjoyment of the right to

associate which disclosure of membership lists is likely

to have.” NAACP, 357 U.S. at 466. “It is hardly a

novel perception that compelled disclosure of 

affiliation with groups engaged in advocacy may

constitute . . . a restraint on freedom of association . . . 

[and] [t]his Court has recognized the vital relationship

between freedom to associate and privacy in one’s

associations.” Id. at 462. 

Moreover, a general right to anonymous

association is inextricably intertwined with the specific 

right to speak anonymously, especially within groups.

“A coming together is often necessary for 

communication—for those who listen as well as for 

those who speak.” Gibson, 372 U.S. at 564 (Douglas, 
11 

J., concurring). And “[j]oining a group is often as vital

to freedom of expression as utterance itself.” Id. at 

565; see also Minn. State Bd. for Cmty. Colls. v. 

Knight, 465 U.S. 271, 309 (1984) (“[T]his Court has 

recognized that the right to forward views might

become a practical nullity if Government prohibited

persons from banding together to make their voices

heard. Thus, the First Amendment protects freedom 

of association because it makes the right to express 

one’s views meaningful.”). Expressive association in

groups, like Citizens United, discussing political issues 

and qualifications of public officials, thus directly

serves and enables political speech that “occupies the 

core of the protection afforded by the First 

Amendment.” McIntyre v. Ohio Elections Comm’n, 514 

U.S. 334, 347 (1995); see also Buckley v. Valeo, 424 

U.S. 1, 14 (1976) (per curiam) (“First Amendment 

affords the broadest protection to such political

expression”). 

Given these cherished principles, it is unsurprising 

that anonymous speech—whether by individuals or

groups—is so highly valued in America’s marketplace

of ideas. The “historical evidence indicates that 

Founding-era Americans opposed attempts to require

that anonymous authors reveal their identities on the

ground that forced disclosure violated the ‘freedom of

the press.’” McIntyre, 514 U.S. at 361 (Thomas, J.,

concurring). Furthermore, “the interest in having

anonymous works enter the marketplace of ideas

unquestionably outweighs any public interest in

requiring disclosure as a condition of entry,” and thus

a speaker’s “decision to remain anonymous . . . is an 

aspect of the freedom of speech protected by the First 
12 

Amendment.” Id. at 342; see also McConnell v. FEC, 

540 U.S. 93, 275-76 (2003) (Thomas, J., concurring)

(same); Talley v. California, 362 U.S. 60, 64 (1960)

(“Anonymous pamphlets, leaflets, brochures, and even 

books have played an important role in the progress of 

mankind. Persecuted groups and sects from time to

time throughout history have been able to criticize

oppressive practices and laws either anonymously or

not at all.”). 

As the Court explained in McIntyre, great works of

literature frequently have been produced by authors

writing under assumed names, and “[d]espite readers’

curiosity and the public’s interest in identifying the 

creator of a work of art, an author generally is free to 

decide whether or not to disclose his or her true 

identity.” 514 U.S at 341. Indeed, “even the 

arguments favoring the ratification of the Constitution

advanced in the Federalist Papers were published

under fictitious names.” Id. at 342. 

The freedom to publish anonymously clearly

extends beyond works of a strictly literary nature. In 

Talley, for instance, this Court held that the First 

Amendment protects the distribution of unsigned

handbills urging readers to boycott merchants who 

were engaging in discriminatory employment

practices. See Talley, 362 U.S. at 65. In Buckley v. 

Valeo, it further recognized that, under certain

circumstances, the disclosure requirements of the

Federal Election Campaign Act of 1971 could not be

applied to minor political parties, because the threat to

First Amendment rights would outweigh the 

insubstantial interest in disclosure by that entity. 424 
 

 

13 

U.S. at 71. Asserting that “[m]inor parties must be 

allowed sufficient flexibility in the proof of injury to

assure a fair consideration of their claim,” the Court 

concluded that “[t]he evidence offered need show only a 

reasonable probability that the compelled disclosure of 

a party’s contributors’ names will subject them to

threats, harassment, or reprisals from either 

Government officials or private parties.” Id. at 74. 

The Court affirmed this standard in Brown v. Socialist 

Workers ’74 Campaign Committee, exempting the

Socialist Workers Party from California state 

campaign disclosure requirements, and clarifying that

the exemption included the disclosure of the names of 

recipients of disbursements as well as the names of the

party’s contributors. 459 U.S. 89, 95 (1982). See also 

Fed. Election Comm’n Ad. Op. 1990-13 (renewing

Socialist Workers Party’s eligibility for reporting

exemptions and recounting history of such grants). Cf. 

Buckley v. Am. Constitutional Law Found., 525 U.S. 

182, 198-200 (1999) (holding that a state badge 

requirement for petition circulators chilled speech

because it exposed circulators to “the recrimination

and retaliation that bearers of petitions on ‘volatile’

issues sometimes encounter”). 

Although much of the well-known precedent on

this topic focuses on groups that apparently fear

violence or reprisal, there are multiple valid reasons

why speakers or writers may decline to disclose their

identities; protected anonymity ought not depend on

fear of reprisal.5 Indeed, “[t]he decision in favor of 

5 The Court previously suggested that “threats, harassment, or 

reprisals” could be sufficient to outweigh the asserted 
 

 

14 

anonymity may be motivated by fear of economic or 

official retaliation, by concern about social ostracism, 

or merely by a desire to preserve as much of one’s 

privacy as possible.” McIntyre, 514 U.S. at 341-42 

(emphasis added). As this Court has explained: 

On occasion, quite apart from any threat of

persecution, an advocate may believe her ideas 

will be more persuasive if her readers are

unaware of her identity. Anonymity thereby

provides a way for a writer who may be

personally unpopular to ensure that readers

will not prejudge her message simply because

they do not like its proponent. Thus, even in 

the field of political rhetoric, where the

identity of the speaker is an important

component of many attempts to persuade, the

most effective advocates have sometimes opted 

for anonymity. 

Id. at 342-43. 

governmental interests supporting BCRA Section 201 when

subjected to as-applied constitutional scrutiny. McConnell, 540 

U.S. at 198. It has not, however, held that violence or reprisal is 

required to demonstrate the initial burden on freedom of 

association that triggers constitutional scrutiny in the first 

instance. Whether that burden is unconstitutional depends on the 

governmental interest against which it is weighed, and while 

probable reprisal may be required to overcome certain government

interests it might be far more than is required to overcome others.

Because the FEC can demonstrate no government interest served 

by disclosing contributors to Citizens United—a group neither 

engaged in express advocacy nor its functional equivalent—a 

burden far less draconian than violence or reprisal is sufficient to 

render BCRA Section 201 unconstitutional as applied here. 
15 

There are few arenas in which this maxim holds 

truer than politics and governmental affairs. Citizens 

are inclined to adopt or reject opinions due in large

part to the speaker delivering the message: Keith

Olbermann’s opinions are unlikely to sway

conservatives, as Rush Limbaugh’s are unlikely to 

sway liberals. Likewise, it is entirely foreseeable that 

a well-known but highly controversial individual may

have something valuable to say—but is unable to

communicate effectively, other than anonymously,

because of his reputation. 

Citizens United contributors may well believe that 

their message is best delivered by the group, without

identifying individuals who contributed. They may

fear reprisal. They may simply prefer to maintain

privacy for themselves and their families, or believe

their message will be more readily consumed without

disclosure. All of these rationales are protected by the

Constitution. In parsing these questions, the Fourth

Circuit suggests the best method of determining

whether a speaker is entitled to anonymity is to ask

whether anonymity served as a “catalyst” for the

speech in question. See Peterson v. Nat’l Telecomms. & 

Info. Admin., 478 F.3d 626, 632 (4th Cir. 2007). That 

Citizens United sought a preliminary injunction to

maintain its contributors’ anonymity answers that

question in the affirmative, and the anonymity of their 

political speech should be protected vigorously. 

This Court and several lower courts have implied

that the basis for protecting anonymous speech does

not apply as clearly to groups as it does to individuals, 

because a group as a whole somehow lacks the same

“‘personal’ interest in its ‘thoughts.’” ACLU v. Heller, 
16 

378 F.3d 979, 990 (9th Cir. 2004) (quoting McIntyre, 

514 U.S. at 355). Nonetheless, the fact that 

individuals in a group, or an individual cooperating

with a group, “have shared their political thoughts

with the members of the group does not mean that

they have no privacy interest in concealing from the

general public their endorsement of those beliefs.” Id. 

This observation has particular force when the group

is “small enough that [recipients of its message] will

associate individual members with the thoughts

conveyed. Exposing the identity of the group

publishing its views, or of an individual publishing the 

views of a group, thus infringes to some degree on the

privacy interests of the individuals affiliated with the 

group.” Id. Here, BCRA specifically compels

disclosure of the identities of individual contributors, 

directly threatening their individual rights to free

expressive association. 

In sum, Citizens United’s contributors have a 

constitutionally-protected right to expressive

association. They also have the right to associate and

to speak anonymously. Their reasons for desiring to

do so need not be based in fear of reprisal; contributors

may simply wish to maintain their privacy. The 

particular reasoning behind their decision should not

determine the bounds of their constitutional freedom. 

II. BCRA Section 201’s Compelled Disclosure 

Requirements Infringe Contributors’ 

Freedom of Anonymous Expressive 

Association, Warranting Strict Scrutiny. 

Infringement on freedom of association deserves no

less rigorous scrutiny than violations of the 
17 

enumerated rights that freedom secures. Accordingly, 

government action that curtails expressive

association—thereby restricting the speech of those

seeking to associate—should be subject to the same

strict scrutiny as direct burdens on speech. 

A. Disclosure provisions that burden 

associational rights are subject to strict 

scrutiny. 

Because compelled disclosure of contributors’

identities “can seriously infringe on privacy of

association and belief guaranteed by the First

Amendment,” the Court in Buckley subjected the

challenged FECA disclosure provisions to “exacting

scrutiny.” 424 U.S. at 64 (citing Bates v. City of Little 

Rock, 361 U.S. 516, 525 (1960) and Gibson, 372 U.S. at 

546). The Court held that where First Amendment 

freedoms are at issue, “the subordinating interests of

the State must survive exacting scrutiny.” Id.; see also 

Davis v. FEC, 128 S. Ct. 2759, 2775 (2008) (“[W]e have

closely scrutinized disclosure requirements . . . the 

governmental interest must survive exacting

scrutiny.”) (quotation omitted). Though using different

terminology, exacting scrutiny ultimately equates to

the “strictest standard of review.” McIntyre, 514 U.S. 

at 348. 

In Buckley, the Court reiterated, “Since NAACP v. 

Alabama we have required that the subordinating

interests of the State must survive exacting scrutiny 

. . . [and] insisted that there be a relevant correlation 

or substantial relation between the governmental

interest and the information required to be disclosed.”

424 U.S. at 64 (footnotes and quotation marks 
18 

omitted). This “exacting scrutiny” is “necessary even if 

any deterrent effect on the exercise of First 

Amendment rights arises, not through direct 

government action, but indirectly as an unintended

but inevitable result of the government’s conduct in

requiring disclosure.” Id. at 65. 

Exacting scrutiny both protects and promotes

effective advocacy by citizen groups and their 

members. See Buckley, 424 U.S. at 66 (“[G]roup

association is protected because it enhances ‘[e]ffective 

advocacy.’”) (quoting NAACP, 357 U.S. at 460).

Contributors to such groups have a protected right to

associational privacy; a freedom the Court has

recognized “may be as great when the information

sought concerns the giving and spending of money as

when it concerns the joining of organizations, for

‘[f]inancial transactions can reveal much about a

person’s activities, associations, and beliefs.’” Id. 

(quoting Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 78-

79 (1974) (Powell, J., concurring)); see also FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238, 261 (1986)

(association’s contributors are motivated “in part

because they regard such a contribution as a more

effective means of advocacy than spending the money

under their own personal direction”). 

Though using an “exacting scrutiny” label, the

Court in Buckley adhered to NAACP’s “strict test,” 

noting that it “is necessary because compelled

disclosure has the potential for substantially

infringing the exercise of First Amendment rights.”

424 U.S. at 66. The Court’s associational rights 

precedents, both before and after Buckley, employ the 
19 

traditional strict scrutiny lexicon, establishing that

“exacting” scrutiny, in this context, is equivalent to

strict scrutiny. See, e.g., NAACP, 357 U.S. at 460-61 

(government action curtailing freedom of association

“is subject to the closest scrutiny”); Bates, 361 U.S. at 

524 (when compelled disclosure abridges associational 

freedom “the State may prevail only upon showing a

subordinating interest which is compelling”); Roberts, 

468 U.S. at 623 (infringement on the right of

expressive association must “be justified by regulations

adopted to serve compelling state interests, unrelated

to the suppression of ideas, that cannot be achieved

through means significantly less restrictive of 

associational freedoms”); Dale, 530 U.S. at 657-58 

(freedom of expressive association must be weighed

against “a compelling state interest”). 

In Dale, the Court specifically rejected the

appellee’s contention that “intermediate” scrutiny was 

the appropriate standard of review, ultimately finding 

even the compelling government interest in 

eliminating discrimination insufficient to justify the

law’s intrusion on freedom of expressive association. 

Id. Similarly, in Buckley, the Court discussed the 

“least restrictive means” test, yet another indication

that exacting scrutiny is tantamount to strict scrutiny. 

424 U.S. at 68; see also id. at 64 (“significant

encroachments on First Amendment rights of the sort

that compelled disclosure imposes cannot be justified

by a mere showing of some legitimate governmental

interest”). Finally, in McIntyre, the Court directly

equated the two standards, clarifying that in applying

“‘exacting scrutiny,’ . . . we uphold the restriction only 

if it is narrowly tailored to serve an overriding state 
 

20 

interest.” 514 U.S. at 347 (citing First Nat’l Bank of 

Boston v. Bellotti, 435 U.S. 765, 786 (1978)). Whether 

denominated “exacting” or “strict” scrutiny, these

precedents establish that BCRA Section 201 is

unconstitutional, as applied to Citizens United, unless 

the FEC can demonstrate that it is narrowly tailored

to serve a compelling government interest.6 

B. BCRA’s compelled disclosure provisions 

are subject to strict scrutiny here 

because, by burdening expressive 

association, they also burden political 

speech—the “core” of First Amendment 

protection. 

The FEC discounts the burdens of disclosure. See 

FEC Mot. Dismiss Affirm at 14-17 (U.S., filed Oct. 17,

2008) (“FEC J.S. Br.”); FEC Mem. Supp. Mot. Summ. 

J. at 25-30 (D.D.C., filed June 6, 2008). But this Court 

and numerous lower courts have “long recognized that

compelled disclosure of political affiliations and

activities can impose just as substantial a burden on

First Amendment rights as can direct regulation.” 

AFL-CIO v. FEC, 333 F.3d 168, 175-76 (D.C. Cir. 2003)

(citing Buckley and NAACP); see also Buckley, 424 U.S. 

at 64 (“[W]e have repeatedly found that compelled

disclosure, in itself, can seriously infringe on privacy of

association and belief guaranteed by the First

Amendment.”); United States v. Rumely, 345 U.S. 41 

6 Though beyond the scope of this brief, we agree with the 

Appellant that applying BCRA’s disclosure requirements to 

Citizens United serves no recognized governmental interest, 

compelling or otherwise, and thus cannot survive any level of 

constitutional scrutiny. See Appellant’s Br. at 42-45, 51-56. 
 

 

 

21 

(1953) (compelled disclosure of group membership lists 

infringes members’ rights of associational privacy). 

BCRA’s compelled disclosure provisions inevitably 

burden the associational rights of groups like Citizens

United and its contributors. See, e.g., Buckley, 424 

U.S. at 68 (“It is undoubtedly true that public

disclosure of contributions . . . will deter some 

individuals who otherwise might contribute.”); 

NAACP, 357 U.S. at 463 (compelled disclosure of

members’ identities “may induce members to withdraw

. . . and dissuade others from joining”). In so 

burdening advocacy groups’ expressive association

right, the disclosure provisions also inherently burden

their political speech—and do so based upon the

content of that speech. A recent study by the Institute

for Justice quantifies this burden in the campaign 

finance context, showing how disclosure both chills

association and diminishes associational speech. See 

Dick M. Carpenter II, DISCLOSURE COSTS: 

UNINTENDED CONSEQUENCES OF CAMPAIGN FINANCE 

REFORM (Institute for Justice, 2007)7 (“IJ Study”).8 

The IJ Study examined public opinion among 2221 

respondents stratified across “six states with ballot 

7 Available at http://www.ij.org/images/pdf_folder/

other_pubs/DisclosureCosts.pdf (last visited Jan. 13, 2009). 

8 The IJ Study is particularly useful because, as has been noted 

in the academic commentary, “[t]here is very little empirical 

evidence to determine how often or how much the prospect of 

disclosure discourages would-be campaign contributors.” William 

McGeveran, Mrs. McIntyre’s Checkbook: Privacy Costs of 

Political Contribution Disclosure, 6 U. PA. J. CONST. L. 1, 21 & 

n.106 (2003) (citing unpublished manuscripts). 
22 

issues” in the November 2006 election. IJ Study at 2,

6. The study was conducted across geographically and

ideologically diverse states with laws that “require

disclosure of issue campaign contributors,” including

“name, address, contribution amount and name of 

employer.” Id. at 6. 

The study found that “mandatory disclosure

appears to enjoy support among citizens—until the

disclosed information includes their own personal

information.” Id. The majority of respondents opposed 

disclosure when their personal information is made

publicly available. See id. (“More than 56 percent of

respondents opposed disclosure when it includes their

name, address and contribution amount.”). That 

number increased even further when the respondent’s

employer is disclosed. See id. (“Opposition rose to

more than 71 percent when an employer’s name must

be disclosed.”). “This opposition,” the study concludes, 

“translates into a lower likelihood of becoming involved 

in political activity through donations, meaning that

mandatory disclosure ‘chills’ citizens’ speech and

association.” Id. 

The IJ Study shows empirically the chilling effect

disclosure has on people’s willingness to exercise First 

Amendment rights of association and speech. For 

example, nearly 60% of survey respondents agreed

that “[i]f by contributing to a ballot issues campaign

my name and address were released to the public by

the state, I would think twice about donating money.” 

Id. at 7, Table 1. “When asked why they would think 

twice, respondents cited, among other things, privacy

and safety concerns, fear of retribution, and the 
 

 

23 

revelation of their secret vote.” Id. at 2; see also Steve 

Simpson, If You Wanna Speak, You Better Have a 

Lawyer, NAT’L REVIEW ONLINE (Mar. 27, 2007)

(“[C]itizens themselves admit disclosure laws have a

chilling effect on their free-speech rights, making them

less likely to exercise those rights by contributing to a

cause they believe in.”). 

Moreover, BCRA’s disclosure and reporting

requirements—complex, time-sensitive, and carrying

potential civil and criminal liability—impose

additional burdens on groups, like Citizens United,

whose speech qualifies under the broad definition of

electioneering communications.9 To comply, groups 

9 Entities making electioneering communications that aggregate 

more than $10,000 in the calendar year must file a “24 Hour 

Notice of Disbursements/Obligations for Electioneering

Communications” (FEC Form 9) with the Commission within 24 

hours of the disclosure date. See 11 C.F.R. § 104.20(b). The form 

must be received by the Commission by 11:59 p.m. on the day 

following the disclosure date. See id. As the FEC’s own guidance

proclaims, this 24-hour rule “requires continuous reporting.” FEC 

Electioneering Communications Brochure (updated Apr. 2008), 

available at http://www.fec.gov/pages/brochures/

electioneering.shtml (last visited Jan. 13, 2009). Similarly, the 

reports’ required content is burdensome. The Form 9 requires

that the entity list: (1) the identity of the person making the 

disbursement; (2) the identity of any person exercising control 

over the activities of the person making the disbursement; (3) the 

identity of the custodian of books and accounts from which the 

disbursement was made; (4) the amount of each disbursement or 

amount obligated in excess of $200 during the period covered by

the statement, the date of the disbursement, and the person who 

received the funds; (5) the identity of the candidates mentioned in

the communication and the elections in which they are

candidates; (6) the disclosure date; and, most pertinent, (7) the 

name and address of each donor who, since the first day of the 
 

24 

are compelled to dedicate significant time and

resources, and thus must “abandon or alter” other 

First Amendment-protected activities. See Bd. of Dirs. 

of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 

548 (1987). That compulsion not only infringes their

right of expressive association, see id., but also reduces 

the quantity and quality of political speech as some

groups are forced to divert resources to compliance and

other smaller groups are precluded from forming

altogether. See Mass. Citizens for Life, 479 U.S. at 254 

(“Detailed recordkeeping and disclosure obligations . . . 

impose administrative costs that many small entities 

may be unable to bear”). 

The IJ Study shows that compelled disclosure, by

infringing freedom of expressive association, also

burdens the underlying expression for which the

individuals sought to associate. This content-based 

burden on political speech, “the core of the protection

afforded by the First Amendment,” McIntyre, 514 U.S. 

at 346, requires that, as applied to advocacy groups

like Citizens United, BCRA’s disclosure requirements

must survive strict scrutiny. See, e.g., Austin v. Mich. 

Chamber of Commerce, 494 U.S. 652, 657 (1990) (a

statute that “burdens the exercise of political speech”

is constitutional only if “narrowly tailored to serve a 

compelling state interest”); FEC v. Wisc. Right to Life, 

Inc., 127 S. Ct. 2652, 2664 (2007) (when a contentpreceding calendar year, has donated in the aggregate $1000 or 

more to the person making the disbursements, or to the 

segregated bank account if the disbursements were paid 

exclusively from that bank account. See 11 C.F.R. § 104.20(c). 
25 

based provision “burdens political speech, it is subject 

to strict scrutiny”). 

C. Lower courts need unambiguous 

direction that disclosure provisions 

infringing freedom of expressive 

association must survive strict scrutiny. 

Reconciling or distinguishing strict scrutiny and

exacting scrutiny has proven problematic for lower 

courts reviewing compelled disclosure provisions. For 

example, the Fourth Circuit recently held that North

Carolina campaign disclosure provisions were subject

to a relaxed standard of scrutiny. N.C. Right to Life 

Comm. Fund for Indep. Political Expenditures v. 

Leake, 524 F.3d 427, 439 (4th Cir. 2008) (“Reporting

and disclosure requirements in the campaign finance

realm must survive exacting scrutiny. The plaintiffs

argue that ‘exacting scrutiny’ in this context is

equivalent to strict scrutiny (requiring narrow 

tailoring to a compelling state interest), but this

argument is inconsistent with Buckley and subsequent

cases.”). Examining Buckley, the Fourth Circuit 

erroneously concluded that “the Court did not engage

in the type of narrow tailoring analysis that the

plaintiffs ask us to apply to the disclosure 

requirements at issue in this case,” ultimately

upholding the North Carolina regulations using a less

strict standard of review. 

By contrast, the Tenth Circuit applied traditional

strict scrutiny to a Colorado disclosure law. Citizens 

for Responsible Gov’t State PAC v. Davidson, 236 F.3d 

1174 (10th Cir. 2000). After reviewing this Court’s 

freedom of association jurisprudence, the court of 
 

26 

appeals concluded, “Strict scrutiny is employed where

the quantum of speech is limited due to restrictions on

. . . the anonymity of [ ] supporters [of a candidate or 

initiative].” Id. at 1197 (quotation marks omitted).

The court upheld the challenged provisions, but only

after finding them “supported by three compelling

governmental interests.” Id. 

Most recently, the U.S. District Court for the

District of Columbia, regarding lobbying disclosure

provisions, specifically equated “exacting scrutiny”

with strict scrutiny. See Nat’l Ass’n of Mfrs. v. Taylor, 

549 F. Supp. 2d 33, 51-52 (D.D.C. 2008) (“[A]s 

Defendants correctly argue, neither Buckley nor 

McConnell utilized the traditional language of the

strict scrutiny standard. However, in other contexts, 

the Supreme Court has indicated that ‘exacting’ and

‘strict’ scrutiny are one and the same.”). Quoting 

McIntyre, the court agreed that “‘[w]hen a law burdens 

core political speech, we apply ‘exacting scrutiny’ and

we uphold the restriction only if it is narrowly tailored

to serve an overriding state interest.’” Id. at 51. The 

court upheld the disclosure provision, but only after

“appl[ying] strict scrutiny.” Id. at 52. 

The lower federal courts have been inconsistent in 

reconciling the exacting scrutiny and strict scrutiny 

standards when reviewing compelled disclosure 

provisions. This Court should clarify that when such

provisions infringe on First Amendment rights of

expressive association, as does BCRA Section 201

when applied to Citizens United, strict scrutiny is the 

appropriate standard of review. 
 

 

27 

CONCLUSION

BCRA Section 201 is unconstitutional as applied to 

Citizens United; the district court’s judgment should

be reversed. 

Respectfully submitted, 

ILYA SHAPIRO BENJAMIN D. WOOD 

CATO INSTITUTE Counsel of Record 

1000 Massachusetts Ave., GLENN M. WILLARD 

NW KATHRYN BIBER CHEN 

Washington, DC 20001 CORDELL A. HULL 

(202) 218-4600 JOHN C. HILTON 

PATTON BOGGS LLP 

2550 M Street, NW 

Washington, DC 20037 

(202) 457-6000 

Counsel for Amicus Curiae The Cato Institute 

January 14, 2009