No. 08-205

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

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

————

SUPPLEMENTAL BRIEF OF AMICUS CURIAE

CENTER FOR COMPETITIVE POLITICS

IN SUPPORT OF APPELLANT

————

STEPHEN M. HOERSTING

Counsel of Record

CENTER FOR COMPETITIVE POLITICS

124 West Street South

Suite 201

Alexandria, VA 22314

(703) 894-6800 

Counsel for Amicus Curiae

July 31, 2009
(i)

TABLE OF CONTENTS

Page

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

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

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

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

I. CORPORATE POLITICAL SPEECH IS 

AN INTEGRAL PART OF DEMOCRATIC LIFE AND THE CONSTITUTIONAL REGIME ESTABLISHED 

BY THIS COURT IN CAROLENE 

PRODUCTS .............................................. 4

II. AUSTIN’S ANTI-DISTORTION RATIONALE IS BADLY OUT OF STEP WITH 

FREE SPEECH JURISPRUDENCE ....... 7

III. PROTECTING MINORITY SHAREHOLDERS’ INTERESTS CANNOT 

TRUMP MAJORITY SHAREHOLDERS’

FIRST AMENDMENT RIGHTS .............. 10

IV. THE PEDIGREE OF THE POLITICAL 

ACTIVITY BAN IS EXAGGERATED, 

PARTICULARLY IN REGARD TO INDEPENDENT EXPENDITURES ............ 11

V. AUSTIN CAN BE REPEALED AND 

REPLACED WITH A WORKABLE 

STANDARD THAT ACCORDS PRECEDENT, AND CURES AUSTIN’S IMPROPER IMPLICATIONS....................... 14
ii

TABLE OF CONTENTS—Continued

Page

VI. SECTIONS 201 AND 311 OF BCRA 

ARE UNCONSTITUTIONAL ASAPPLIED TO ISSUE ADVOCACY, BUT 

SHOULD BE FACIALLY INVALIDATED WITH THE REPEAL OF 

AUSTIN, AS CORPORATE EXPRESS 

ADVOCACY CAN BE DISCLOSED 

UNDER FECA .......................................... 17

CONCLUSION .................................................... 19
iii

TABLE OF AUTHORITIES

CASES Page

Austin v. Mich. State Chamber of Commerce, 494 U.S. 652 (1990) ......................passim

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

Colo. Republican Federal Campaign Comm.

v. Federal Election Comm’n, 518 U.S. 

604 (1996).................................................. 10

Daniel v. Family Sec. Life Ins. Co., 336 

U.S. 220, 224 (1949).................................. 5

Davis v. Federal Election Comm’n, 554 

U.S. _, 128 S. Ct. 2749 (2008)................... 8

Federal Election Comm’n v. Beaumont,

539 U.S. 146 (2003)..............................11, 15, 16

Federal Election Comm’n v. Colo. Republican Federal Campaign Comm., 533 U.S. 

431 (2001).................................................. 15

Federal Election Comm’n v. Mass. Citizens 

for Life, Inc., 479 U.S. 238 (1986)............. 13

Federal Election Comm’n v. Nat’l Conservative Political Action Comm., 470 U.S. 

480 (1985).................................................. 10

Federal Election Comm’n v. National 

Right to Work Comm’n, 458 U.S. 197 

(1982)......................................................... 11, 16

Federal Election Comm’n v. Wisconsin Right

to Life, Inc., 127 S. Ct. 2652 (2007) ......... 3, 17

First Nat’l Bank v. Bellotti, 435 U.S. 765 

(1978) ........................................................ 16

Gonzales v. Raich, 545 U.S. 1, 33 (2005)..... 5

McConnell v. Fed. Election Comm’n, 540 

U.S. 93 (2003) ........................................... 3

Monitor Patriot Co. v. Roy, 401 U.S. 265 

(1971)......................................................... 4

NAACP v. Alabama, 357 U.S. 449 (1958).... 18
iv

TABLE OF AUTHORITIES—Continued

Page

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

377 (2000).................................................. 15

Pacific Gas & Elec. Co. v. Public Util. 

Comm’n of Cal., 475 U.S. 1 (1986) ........... 17

Renne v. Geary, 501 U.S. 312 (1991) ........... 7

Republican Party of Minnesota v. White, 

536 U.S. 765 (2002)................................... 7

Randall v. Sorrell, 548 U.S. 230 (2006)....... 14

Speiser v. Randall, 357 U.S. 513 (1958)...... 9

United States v. Carolene Products Co., 304

U.S. 144 (1938)...................................2, 4, 5, 6, 7

United States v. CIO, 335 U.S. 106

(1948)....................................................12, 13, 15

United States v. UAW-CIO, 352 U.S. 567 

(1957)..............................................4, 5, 6, 11, 13

STATUTES

2 U.S.C. § 434(f) (BCRA § 201) .................3, 17, 18

2 U.S.C. § 441a ............................................ 15

2 U.S.C. § 441a(a)(7)(B) & (C)...................... 16

2 U.S.C. § 441b ............................................. 15, 17

2 U.S.C. §§ 441b(b)(2) & (c) (BCRA § 203) .3, 4, 18

2 U.S.C. §§ 441d(a) & (d) (BCRA § 311) ...3, 17, 18

Bipartisan Campaign Reform Act (BCRA), 

Pub. L. 107-155, 116 Stat. 81 (2002)........ 3

Labor Management Relations Act, ch. 120, 

§ 304 61 Stat. 159 (1947).......................... 12

REGULATIONS

Electioneering Communications, 72 Fed. 

Reg. 72,899 (Dec. 26, 2007) (codified at 

11 C.F.R. pt. 104, 114) ............................. 17, 18
v

TABLE OF AUTHORITIES—Continued

OTHER Page

Allison R. Hayward, Revisiting the Fable 

of Reform, 45 HARV. J. LEGIS 421 (2008).5, 6, 13

Bradley A. Smith, Unfree Speech: The 

Folly of Campaign Finance Reform, 

(2001)......................................................... 10, 12

David N. Mayer, The Myth of Laissez Faire 

Constitutionalism: Liberty of Contract 

During the Lochner Era, 36 HASTINGS 

CONST. L. Q. 217 (2009) ............................ 4

J. Skelly Wright, Politics and the Pollution 

of Politics: Is the First Amendment an 

Obstacle to Political Equality, 82 

COLUM. L. REV. 609 (1982)........................ 6

Jan Witold Baran, Election Law Primer for 

Corporations (5th ed. 2008)...................... 14

Mark Schmitt, Mismanaging Funds: How 

Small Dollar Fundraising Can Save 

Campaign Finance Reform, DEMOCRACY:

A JOURNAL OF IDEAS, Spring 2004, 

available at http:www.democracyjournal.

org/article2.php?ID=6516&limit=0&limi

t2=1500&page=1....................................... 6

PEW’S CENTER ON THE STATES & GOVERNING MAGAZINE, GRADING THE 

STATES 2008 (2008), available at http:

www.pewcenteronthestates.org/gpp_rep

ort_card.aspx............................................. 15

Stephan Katrowicz, Ben Tillman and the 

Reconstruction of White Supremacy 

(2001)......................................................... 12

Supp. Brief of Appellee, Citizens United v. 

Federal Election Comm’n, 08-205 (July 

24, 2009).................................................... 10, 11
IN THE

Supreme Court of the United States 

————

No. 08-205

————

CITIZENS UNITED, 

Appellant,

v.

FEDERAL ELECTION COMMISSION, 

Appellee.

————

On Appeal from the 

United States District Court 

for the District of Columbia

————

SUPPLEMENTAL BRIEF OF AMICUS CURIAE

CENTER FOR COMPETITIVE POLITICS

IN SUPPORT OF APPELLANT

————

INTEREST OF AMICUS CURIAE 1

The Center for Competitive Politics (“CCP”) is a 

non-profit 501(c)(3) organization founded in August 

2005. CCP’s mission, through legal briefs, academically rigorous studies, historical and constitutional 

 1 This brief is filed with the written consent of all parties. 

Appellant filed a letter of consent with this Court, and Appellee 

consented in writing to the filing of this amicus brief. No counsel for a party authored this brief in whole or in part, and no 

counsel or party made a monetary contribution intended to fund 

the preparation or submission of this brief.
2

analysis, and media communication, is to educate the 

public on the actual effects of money in politics, and 

the results of a more free and competitive electoral 

process. CCP is interested in this case because it 

involves a restriction on political communication that 

will hinder political competition and information flow.

SUMMARY OF THE ARGUMENT

1. After the Judicial Revolution of 1937, this 

Court assured Americans that a lower level of scrutiny for economic liberties would not lead to violations because an open political process would allow 

all to advocate how Congress should direct tax resources and regulate commerce. United States v. 

Carolene Products, 304 U.S. 144, 152 n.4 (1938). 

That assurance must again match reality with the 

repeal of Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990).

2. Austin’s “anti-distortion” rationale is deeply 

flawed and badly out of step with this Court’s line of 

speech cases.

3. Austin’s other interest, protecting minority 

shareholders unwilling to fund corporate messages, is 

a matter of corporate governance, and cannot trump 

the First Amendment rights of the majority.

4. The pedigree of the corporate activity ban is 

weak in regard to the banning of independent expenditures. Robust corporate and union political 

activity exists in several of America’s best governed 

states, and this Court has, until Austin, treated independent expenditure bans with considered caution 

and a healthy skepticism.

5. A clear and workable standard and return to 

first principles can be achieved by drawing the line at 
3

independence and leaving for another day the constitutionality of corporate or union contribution bans

(rather than contribution limits). Drawing the line 

at independence would accord precedent and cure 

Austin’s many improper implications, most notably 

its unnerving treatment of media corporations.

6. The Court should not permit the compelled disclosure of “genuine issue advocacy,” even if it falls 

with the statutory definition of “electioneering communication.” See Federal Election Comm’n. v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (WRTL 

II). If this Court correctly repeals Austin, however, 

BCRA §§ 201 and 311 should be invalidated. The 

disclosure of corporate or union independent expenditures (express advocacy) can be achieved in a workable manner, under the Federal Election Campaign 

Act, of 1971 (as amended) to further “informational”

interests. See Buckley v. Valeo, 424 U.S. 1, 81 (1976).

ARGUMENT

To properly dispose of this case, and prevent an 

unending train of tenuous exemptions to a corporate 

and union expenditure ban built of faulty assumptions, this Court should repeal Austin and, in doing 

so, repeal that portion of McConnell v. FEC, 540 

U.S. 93 (2003) that upheld § 203 of the Bipartisan 

Campaign Reform Act (BCRA), Pub. L. 107-155, 116 

Stat. 81 (2002), a hopelessly overbroad funding 

prohibition for “electioneering communications.” 2 

U.S.C. §§ 441b(b).

Additionally, the three ads the government stipulated are issue advocacy under Federal Election 

Comm’n. v. Wisconsin Right to Life, Inc., 551 U.S. 449 

(2007) (WRTL II) should not be subject to compelled 

disclosure under BCRA §§ 201 and 311. Amicus will 
4

not address the overbreadth of BCRA § 203, but will 

confine its brief to the question of Austin’s overruling.

I. CORPORATE POLITICAL SPEECH IS AN 

INTEGRAL PART OF DEMOCRATIC LIFE

AND THE CONSTITUTIONAL REGIME 

ESTABLISHED BY THIS COURT IN 

CAROLENE PRODUCTS

In our constitutional system predicated upon the 

sovereignty of the People, the most essential function 

of the First Amendment is to preserve the public’s 

right to discuss the qualifications and conduct of 

their elected representatives in order to exercise their 

right to self-government. Monitor Patriot Co. v. Roy, 

401 U.S. 265, 272 (1971) (First Amendment has 

“fullest and most urgent application” in context of 

elections). “It is therefore important—vitally 

important—that all channels of communication be 

open to the [people] during every election, that no 

point of view be restrained or barred, and that the 

people have access to the views of every group in the 

community.” U.S. v. UAW-CIO, 352 U.S. 567, 593 

(1957) (Douglas, J., dissenting).

Prior to the Civil War and for many decades 

thereafter, government played a minimal role in the 

economy. During this period, the Court reviewed 

alleged violations of economic and civil rights on the 

same plane. David N. Mayer, The Myth of Laissez 

Faire Constitutionalism: Liberty of Contract During 

the Lochner Era, 36 HASTINGS CONST. L. Q. 217, 228-

248 (2009). As economic regulation grew in the late 

19th and early 20th century, the Court sought a new 

paradigm of review, famously summarized in footnote 

4 of United States v. Carolene Products Co., 304 U.S. 

144, 152 n.4 (1938), which suggested that “exacting 
5

scrutiny” would be applied only to alleged violations 

of civil liberties, while economic liberties would be 

protected in “political processes, which can ordinarily 

be expected to bring about repeal of undesirable legislation.” Id.

2

But if such fundamental political processes are allowed to be prohibited by the very government to 

which they are directed, then the promise of political 

checks as adequate substitutes for constitutional 

checks rings hollow. The Constitutional regime 

since Carolene Products presumes that individuals—

whether organized in a corporation, a partnership or 

an unincorporated group, or speaking individually—

may not be lightly shut out of the political process. 

It is in such instances that exacting scrutiny most 

urgently applies. United States v. Carolene Products 

Co., 304 U.S. 144, 152 n.4 (1938).

(“[L]egislation which restricts those 

political processes . . . is to be subjected to more exacting judicial scrutiny under the general prohibitions of the [First and] Fourteenth Amendment[s] 

than are most other types of legislation.”)

Rather than protect the speech of unpopular 

groups of citizens (corporations), as promised in 

Carolene, this Court instead has adopted a highly 

questionable history of “reform” recounted by Justice 

Frankfurter in United States v. UAW-CIO, 352 U.S. 

567 (1957) (Auto Workers); see also Allison R. Hay-

 2 See, e.g., Gonzales v. Raich, 545 U.S. 1, 33 (2005) (rejecting 

commerce clause challenge and suggesting resort to “the democratic process, in which the voices of voters allied with these 

respondents may one day be heard in the halls of Congress”); 

Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 224 (1949) 

(rejecting due process challenge and holding that the “forum 

for the correction of ill-considered legislation is a responsive 

legislature.”).
6

ward, Revisiting The Fable of Reform, 45 HARV. J.

LEGIS. 421 (2008) (discussing political opportunism 

unmentioned in the history of reform recounted by 

Justice Frankfurter). It has since used that questionable interpretation of history to justify deference 

to the legislature in precisely the area where Carolene’s footnote 4 assured citizens that scrutiny would 

be greatest.

Justice Frankfurter’s review of the history of 

“reform” led him to the conclusion “that aggregated 

capital unduly influenced politics.” Auto Workers, 

352 U.S. at 570-71. But “unduly” compared to what? 

Indeed, there is an instrumentalism in “reform.”

Various reformers have long believed that campaign 

finance reform is the one reform that makes all other 

reforms possible. See e.g. J. Skelly Wright, Politics 

and the Pollution of Politics: Is the First Amendment 

an Obstacle to Political Equality, 82 COLUM. L. REV. 

609, 618-19 (1982) (campaign finance reform is 

needed to obtain “windfall profits tax on oil companies, hospital cost containment, . . . a superfund for 

victims of toxic chemicals, or any other legislation 

that affects powerful interests”); see also Mark 

Schmitt, Mismanaging Funds: How Small Dollar 

Fundraising Can Save Campaign Finance Reform, 

DEMOCRACY: A JOURNAL OF IDEAS, Spring 2004, 

available at http://www.democracyjournal.org/article

2.php?ID=6516&limit=0&limit2=1500&page=1 (“After

several years on Capitol Hill working on education, 

urban development, welfare reform, and taxes, I 

became convinced that we were spinning our wheels. 

. . . [C]ampaign finance would be the reform that 

made all other reforms possible.”)

This Court assured Americans that its lower level 

of scrutiny for economic liberties would not lead to 
7

violations because an open political process would 

allow all to advocate how Congress should direct tax 

resources and regulate commerce. Carolene Products, 304 U.S. 144, 152 n.4 (1938). That assurance 

must again match reality. ‘“If [this Court] chooses to 

tap . . . the legitimizing power of the democratic 

process, it must accord the participants in that 

process . . . the First Amendment rights that attach 

to their roles.”’ Republican Party of Minnesota v. 

White, 536 U.S. 765, 788 (2002) (quoting Renne v. 

Geary, 501 U.S. 312, 349 (1991) (Marshall, J., 

dissenting)) (citation omitted). All Americans, including those who have joined together in common 

enterprise using the corporate form, must be allowed 

to speak.

II. AUSTIN’S ANTI-DISTORTION RATIONALE IS BADLY OUT OF STEP WITH 

FREE SPEECH JURISPRUDENCE

The “corruption” discussed in Austin is not that of 

Buckley, where the Court held that Congress may 

enact reforms that diminish legislative quid pro quos

or their appearance. Buckley v. Valeo, 424 U.S. 1 

(1976). Rather Austin’s “corruption,” known as the 

“anti-distortion” rationale, is the supposedly “corrosive and distorting effects of immense aggregations of 

wealth that are accumulated with the help of the corporate form and that have little or no correlation to 

the public’s support for the corporation’s political 

ideas.” See Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

When reduced to its essence, Austin’s anti-distortion premise is that some persons domiciled permanently in the United States, and bound by its laws, 

can be banned from its political processes because 

their speech, left unchecked, might persuade others. 
8

Despite the protestations of its majority opinion, 

Austin’s concern for “distort[ions]” and “corrosi[on]”

merely decries the absence of relatively equal resources for speech, and has nothing to do with preventing “corruption” of candidates and officeholders 

as the Court has elsewhere defined it. In short, Austin advances a rationale “wholly foreign to the First 

Amendment,” Buckley v. Valeo, 424 U.S. 1, 49 (1976); 

see also Davis v. FEC, 554 U.S. __, 128 S. Ct. 2749

(2008), and should be repealed.

Austin’s other anti-distortion prongs fare no better, 

and combining them accomplishes little. See Austin, 

494 U.S. at 680-81 (Scalia, J., dissenting). The concern for “immense aggregations of wealth” on the 

“political process” is overinclusive, underinclusive 

and, therefore, poorly tailored. If aggregations of 

wealth were the harm to be hindered, wealthy individuals and unincorporated associations would 

be included in the ban—though they are not, see 

Buckley—and corporations that possess less “immense”

aggregations would escape the prohibition entirely. 

Yet, they do not. Austin, 494 U.S. at 680-81 (Scalia, 

J., dissenting). Why should an individual who has 

amassed wealth through the corporate form be able 

to spend it by withdrawing it from a corporation? 

The Buckley and Davis opinions affirmed the right of 

even wealthy individuals to deploy wealth in the 

political marketplace, though the individuals presumably earn their wealth in the economic marketplace. Buckley, 424 U.S. at 49-50; Davis, 128 S. Ct. at 

2771-72. Just as there is no reason to prohibit the 

independent individual or unincorporated association, there is no reason to prohibit the independent 

corporate speaker.
9

It is true that state law grants corporations special 

advantages, “[b]ut so are other associations and private individuals given all sorts of special advantages 

that the State need not confer, ranging from tax 

breaks to contract awards to public employment to 

outright cash subsidies.” Austin, 494 U.S. at 680-81, 

(Scalia, J., dissenting). Even for substantial advantages, the government cannot demand in exchange 

the forfeiture of First Amendment rights. Speiser v. 

Randall, 357 U.S. 513 (1958).

Finally, there is no reason why campaign expenditures should match popular support for the ideas expressed—quite the opposite: change is often brought 

about by intensity and determination. “[C]orrelati[ng]” quantities of speech to “public support” has 

no basis in our constitutional system. Buckley, 424 

U.S. at 48-49. It is not popular ideas that are in 

urgent need of expression. Indeed, this Court should, 

“reject any argument” that corporations “and their 

views are not of importance and value to the selffulfillment and self-expression of their members.” 

Austin, 494 U.S. at 711 (Kennedy, J., dissenting).

Even if, as this Court has held, a PAC’s speech reflects the actual support of its individual members, 

Austin, 494 U.S. at 660-61, the fact remains that the 

PAC is not the corporation. Not only does the 

funding ban sacrifice the corporation’s speech rights 

for no discernible benefit to the PAC members, 

valuable voices are lost to the political debate. 

Indeed, in Austin itself, the Michigan Chamber of 

Commerce offered a unique voice, “speaking as the 

voice of the larger Michigan business community, 

rather than a narrow group of businesses, a corporate 

PAC, or an individual. No substitute existed for the 

Chamber’s unique position and voice. Thus, a law 
10

intended to restrict certain voices perceived to 

‘dominate’ the debate merely kept a highly relevant 

voice from being heard.” Bradley A. Smith, Unfree 

Speech: The Folly of Campaign Finance Reform, 150 

(2001).

In its Supplemental Brief, the government all but 

abandons the “anti-distortion” rationale of Austin, 

arguing instead that independent spending by corporations is inherently corrupting. Supplemental Brief 

of Appellees at 8-9. In doing so, the government 

launches an uninvited frontal assault on Buckley’s 

core distinction between contributions and independent expenditures, 424 U.S. at 45-46, one reaffirmed 

regularly, see Federal Election Comm’n v. National 

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

(1985); Colorado Republican Federal Campaign 

Comm. v. Federal Election Comm’n, 518 U.S. 604 

(1996). The Court asked, in this case, for supplemental briefing on overruling Austin—not Buckley. Any 

claim that corruption exists in independent expenditures, contrary to Buckley, would seem, at a minimum, to require some basis in evidence which is not 

in the record here. If the government’s case truly 

relies on overruling Buckley, the government must 

lose.

III. PROTECTING THE INTERESTS OF 

MINORITY SHAREHOLDERS CANNOT 

TRUMP MAJORITY SHAREHOLDERS’

FIRST AMENDMENT RIGHTS

As the government argues, this Court has held in 

Austin and elsewhere that the bans on corporate or 

union expenditures and contributions have “always 

done further duty in protecting ‘the individuals who 

have paid money into a corporation or union . . . from 
11

having that money used to support political candidates to whom they may be opposed.’” Federal Election Comm’n v. Beaumont, 539 U.S. 146, 154 (2003), 

quoting Federal Election Comm’n. v. National Right 

to Work Comm., 459 U.S. 197, 208 (1982); see also 

Austin, 494 U.S. at 663.

The protection, however, of minority shareholders 

unwilling to fund certain messages urged by the majority should be a matter of corporate governance, not 

campaign finance law. Corporations, for example, 

fund a wide variety of speech, including gifts to museums that may run controversial exhibits, theatre 

companies that perform controversial plays, and universities that invite controversial speakers. States 

may wish to alter their corporate laws to protect 

minority interests, but they may not simply demand 

that the majority of shareholders who wish the corporation to engage in speech of one kind or another 

be silenced. See United States v. UAW-CIO, 352 U.S. 

567, 596 (1957) (Auto Workers) (Douglas J., dissenting). (“Perhaps minority rights need protection. But 

this way of doing it is, indeed, burning down the 

house to roast the pig. All union expenditures for 

political discourse are banned because a minority 

might object”). 

IV. THE PEDIGREE OF THE POLITICAL 

ACTIVITY BAN IS EXAGGERATED, PARTICULARLY IN REGARD TO INDEPENDENT EXPENDITURES

The government maintains that the corporate political activity ban enjoys a long and noble pedigree, 

with “corporate money in electoral politics” first 

banned “more than a century ago.” Supp. Brief of 

Appellee, at 7. This pedigree is neither strong nor 
12

noble in the banning of independent expenditures, 

but rather weak and spotty.

The original statute of which the government

speaks did not ban corporate independent expenditures, but only direct contributions to candidates. Id. 

Nor was it noble in origin: it was sponsored by 

a racist South Carolina Senator, “Pitchfork Ben”

Tillman, who depised the corporations that opposed 

his agrarian, segregationist agenda. Stephan 

Kantrowicz, Ben Tillman and the Reconstruction of 

White Supremacy (2001).

It is true that in 1947 the Taft-Hartley Act renewed the contribution ban and also barred both corporations and unions from using their treasury funds 

for ‘expenditure[s]’ on federal elections. Labor Management Relations Act, 1947, ch. 120, § 304, 61 Stat. 

159. The very next year, however, this Court expressed skepticism that Congress intended to ban a 

wide swath of political expenditures, noting that the 

term ‘“expenditure’ was added to eradicate the doubt 

that had been raised as to the reach of ‘contribution,’

not to extend greatly the coverage of the section.” 

United States. v. CIO, 335 U.S. 106, 122 (1948). Indeed, union attorneys at the time interpreted the 

earlier contribution ban of the Smith-Connally Act as 

not covering expenditures, even coordinated expenditures which, functionally speaking, are indirect contributions. See Smith, supra, at 28.

The CIO Court was “unwilling to say” that Congress “intended to outlaw” independent publications 

to the membership and “d[id] not think § 313[‘s ban] 

reache[d] such a use of corporate or labor organization funds.” CIO, 335 U.S. at 123-24. Justice Rutledge noted in dissent that the Court held “the 

section inapplicable” to independent expenditures 
13

“because applying [the ban] to this type of expenditure would raise ‘the gravest doubt’ of the section’s 

constitutionality.” CIO, 335 U.S. at 131 (Rutledge, J., 

dissenting).

Nine years later, in Auto Workers, the Court acknowledged that Congress probably intended, with 

Taft-Hartley, to ban independent speech by corporations and unions. 352 U.S. at 589. Justice Frankfurter, writing for the majority, cited every possible basis for ennobling the reform movement by detailing 

its alleged history. See Hayward, supra, 45 HARV. J.

LEGIS. 421 (2008). Still, the Court refused to consider 

the constitutionality of an outright ban on independent expenditures. Auto Workers, 352 U.S. at 590-94. 

Some 39 years after Taft-Hartley, this Court recognized that the Auto Workers Court had acknowledged Congress’ intent to ban independent corporate 

or union expenditures to the public, but did not address the constitutionality of the overall expenditure 

ban. Federal Election Commission v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238, 247-48 (1986) 

(MCFL). Rather, the Court invalidated the ban on 

narrower grounds, as-applied to what is now known 

as the “MCFL” corporation. Id.

Thus, this Court never before Austin (1990) recognized any basis for banning independent political 

speech. Where the Court once went well out of its 

way to dodge the thorny issue of independent speech 

bans in Auto Workers and CIO, or to avoid reaching it 

on other grounds in MCFL, in Austin it ratified for 

the first time a statutory reach beyond contributions 

and coordinated expenditures to ban independent 

communications made by corporations and unions. 

494 U.S. at 659. The Court should undo this unwise 

ratification and restore the principal that indepen-
14

dent political speech is protected for all speakers save 

government.3

V. AUSTIN CAN BE REPEALED AND REPLACED WITH A STANDARD THAT IS 

WORKABLE, IN ACCORDANCE WITH 

PRECEDENT, AND CURES AUSTIN’S 

IMPROPER IMPLICATIONS

A. The workable standard and meaningful distinction found in every case from CIO in 1948 through 

Buckley in the mid-1970s to the Randall opinion of 

today, Randall v. Sorrell, 548 U.S. 230 (2006) (expenditure limits unconstitutional), is that independent political speech is to be protected for all speakers save governments. This standard can easily be 

restored by repealing Austin and McConnell, the only 

exceptions to the standard.

It important to note, first, that the government 

lacks an evidentiary basis for banning corporate or 

union independent expenditures. Such expenditures 

in the several states suggest that corporate and 

union participation in politics increases the depth of 

voter knowledge and, far from corrupting the political 

process, coincides with some of the best governed 

states in the nation. Twenty-eight states and the 

District of Columbia allow not just corporate independent expenditures, but direct corporate contributions to candidates, apparently with no deleterious 

effects. Jan Witold Baran, Election Law Primer for 

Corporations, p. 287 (5th ed. 2008). These include 

 3 Nothing in Buckley limited to individuals the Court’s discussion of independent expenditures and their inability to corrupt 

candidates and officeholders. The Buckley holding should, 

therefore, apply equally to independent expenditures of groups 

that avail themselves of the corporate form. Austin, 494 U.S. at 

682 (Scalia J., dissenting).
15

Utah, Virginia, and Washington, which were recently 

rated the best governed states in the nation. PEW’S 

CENTER ON THE STATES & GOVERNING MAGAZINE,

GRADING THE STATES 2008 (2008), available at: http:

//www.pewcenteronthestates.org/gpp_report_card.aspx.

Second, it is of no consequence that the anti-distortion and minority-shareholder-protection interests of 

Austin have justified bans on corporate contributions 

in other opinions beginning with United States v. 

CIO, 335 U.S. 106, 122 (1948). The constitutionality 

of corporate contribution bans (as opposed to the constitutionality of corporate contribution limits already 

upheld for all entities in Buckley) is a question not 

before the Court in this case.

Indeed, in Federal Election Comm’n. v. Beaumont, 

539 U.S. 146 (2003) the Court held that, “quite aside 

from war-chest corruption, . . . restricting contributions by various organizations hedges against their 

use as conduits ‘for circumvention of [valid] contribution limits.’” Id. at 155, (quoting Federal Election 

Comm’n. v. Colorado Republican Federal Campaign 

Comm., 533 U.S. 431, 456, and n.18 (2001)). But 

“circumvention” is not a problem in independent 

expenditures. Corporate and union contributions to 

candidates and political party committees will remain banned or, perhaps in a future case, subject to 

applicable limits.4

 4 It would seem that speech egalitarianism, “anti-distortion,”

or “war-chest corruption” does not justify contribution bans 

(over contribution limits) any more than it justifies bans on 

independent expenditures. The “less rigorous review” the Court 

gives to contribution restrictions, see Nixon v. Shrink Mo. Gov’t 

PAC, 528 U.S. 377 (2000), may lead to the conclusion that 

corporate contribution limits prevent quid pro quo corruption 

and better protect associational rights than do bans. Nonethe-

 See 2 U.S.C. §§ 441b & 441a. 
16

Coordinated expenditures still will be treated as 

contributions. See 2 U.S.C. §441a(a)(7)(B) & (C).

Third, this Court’s upholding of corporate-solicitation bans for nonprofit and for-profit corporations, 

alike, in Federal Election Comm’n. v Nat’l Right to 

Work Comm., 459 U.S. 197 (1982), also is no barrier 

to repealing Austin. The workable standard to be 

drawn in this case is not between for-profit and notfor-profit corporations. Rather the standard is between independent political expenditures and direct 

or indirect political contributions. Beaumont, 539 

U.S. at 163-64 (Kennedy, J. concurring) (voting to 

uphold a ban on contributions by non-profit corporations while rejecting the anti-distortion and minorityshareholder-interest rationales found in Austin and 

other cases.)

B. The line between independent expenditures and 

direct or indirect contributions has proven workable 

for at least thirty years. See Buckley, 424 U.S. at 45-

46. Moreover, the line would accord the long-held 

principal that corporations enjoy the same speech 

rights as other entities. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 777 (1978) (“If the 

speakers here were not corporations, no one would 

suggest the State could silence their proposed speech. 

It is . . . speech indispensable to decisionmaking in 

a democracy, and this is no less true because the 

speech comes from a corporation.”) It would accord 

the principle that speech jurisprudence turns on the 

nature of the speech in question and not on the iden-

 

less, the Court should leave for another day the constitutionality 

of corporate and union contribution bans in the absence of the 

anti-distortion rationale, and affirm now that all independent 

political speakers deserve constitutional protection. 
17

tity of the speaker. Pacific Gas & Elec. Co. v. Public 

Util. Comm’n. of Cal., 475 U.S. 1, 8 (1986) (“identity 

of speaker . . . not decisive in determining whether 

speech is protected”). Focusing on independence 

would remedy, by removing, the unnerving proposition that Congress may exempt media corporations 

from otherwise applicable expenditure bans despite 

the Equal Protection Clauses, see Austin, 494 U.S at 

666-68, and replace it with a much wiser, more workable standard, this time on First Amendment 

grounds: government cannot prohibit media corporations (or any other corporation) from engaging in independent political speech, period.

VI. SECTIONS 201 AND 311 OF BCRA ARE 

UNCONSTITUTIONAL AS-APPLIED TO 

ISSUE ADVOCACY, BUT SHOULD BE 

FACIALLY INVALIDATED WITH THE 

REPEAL OF AUSTIN, AS CORPORATE 

EXPRESS ADVOCACY CAN BE DISCLOSED UNDER FECA

Prior to this Court’s opinion in WRTL II, supra, 

there was no need for corporations to disclose disbursements for “electioneering communications” because such disbursements could never be made: 

BCRA § 203 banned corporate disbursements for 

such communications entirely. Of course, corporate 

express advocacy was likewise banned. 2 U.S.C. 

§441b; Austin, 494 U.S. at 661. After WRTL II exempted certain corporate communications from the 

funding prohibitions of § 203, 551 U.S. 449 (2007), 

the FEC required those corporate issue-advocacy 

communications that fell within the electioneeringcommunication definition to be disclosed under BCRA 

§§ 201 and 311. See Electioneering Communications,
18

72 Fed. Reg. 72,899, 72901 (Dec. 26, 2007) (codified at 

11 C.F.R. pt. 104, 114.5

If this Court repeals Austin, and invalidates § 203 

as unconstitutional, it should make equally clear that 

non-express advocacy communications are not subject 

to reporting under §§ 201 and 311, and, indeed, 

should strike those sections entirely. In Buckley, this 

Court recognized the burden that compelled disclosure places on issue advocacy, see Buckley, 424 U.S. 

at 64 (citing NAACP v. Alabama, 357 U.S. 449 

(1958)), and held that disclosure could apply only to 

express advocacy and disbursements by “political 

committees.” 424 U.S. at 78-79.

If Austin is repealed, corporations and unions 

making independent expenditures (as opposed to issue ads) would be subject to the disclosure requirements of 2 U.S.C. §§ 434(c) and 441d(a). The FEC already has proven that a workable method exists for 

corporations to disclose and disclaim these communications.6

 5 The FEC required disclosure of issue-advocacy communications carved from the source prohibition by WRTL II largely 

because plaintiff Wisconsin Right to Life did not challenge 

BCRA §§ 201 and 311. 

6 See Electioneering Communications 72 Fed. Reg. at 72911.
19

CONCLUSION

For the foregoing reasons, the Court should overrule Austin v. Michigan Chamber of Commerce, overrule the relevant portion of McConnell v. FEC supporting BCRA § 203, and reverse the United States 

District Court for the District of Columbia.

Respectfully submitted,

STEPHEN M. HOERSTING

Counsel of Record

CENTER FOR COMPETITIVE POLITICS

124 West Street South

Suite 201

Alexandria, VA 22314

(703) 894-6800 

Counsel for Amicus Curiae

July 31, 2009