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 

________ 

SUPPLEMENTAL BRIEF OF 

THE COMMITTEE FOR ECONOMIC DEVELOPMENT AS 

AMICUS CURIAE IN SUPPORT OF APPELLEE 

________ 

July 31, 2009 

PAUL M. SMITH

 Counsel of Record 

JAMES C. COX

ERIC R. HAREN

NICHOLAS O. STEPHANOPOULOS

JENNER & BLOCK LLP 

1099 New York Avenue, NW 

Suite 900 

Washington, DC 20001 

(202) 639-6000 

Attorneys for Amicus Curiae

 
i 

TABLE OF CONTENTS 

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

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

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

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

I. Long-Standing Restrictions On Using 

Corporate Treasury Funds In Campaigns 

Should Not Be Disturbed, Particularly In 

This Case................................................................3

A. Congress Has Prevented Significant 

Corporate Involvement in Federal 

Elections for More Than a Century .................4

B. Reversing Austin or McConnell Would 

Disregard the Deference Traditionally 

Accorded to Congressional Regulation of 

Corporate Electoral Expenditures ...................7

C. This Case Is a Particularly Poor Vehicle 

for Reversing Austin or McConnell..................9

II. Overruling Austin Or McConnell Would 

Harm, Not Help, Corporate Interests .................10

A. Corporations Would Spend on 

Electioneering to Secure Preferred 

Access to and Avert Retribution from 

Elected Officials, Not to Advance Ideas.........11
ii 

B. Because Corporate Spending on Behalf of 

Candidates Often Lacks an Ideological 

Purpose, It Erodes Public Confidence in 

Business ..........................................................15

III. Existing Rules Enable Corporations To 

Engage In Genuine Expression Without 

Exposing Them To Coercive Pressure To 

Advocate On Behalf Of Candidates.....................16

A. Issue Advocacy Provides a Healthy 

Outlet for Genuine Corporate 

Expression.......................................................17

B. Political Action Committees Are Robust 

Outlets for Corporate Views in 

Candidate Elections........................................18

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

TABLE OF AUTHORITIES 

CASES 

Austin v. Michigan Chamber of Commerce, 

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

Federal Election Commission v. Beaumont, 

539 U.S. 146 (2003)................................. 8, 17, 19 

Federal Election Commission v. 

Massachusetts Citizens for Life, Inc., 479 

U.S. 238 (1986)..............................................8, 20 

Federal Election Commission v. National 

Conservative Political Action Committee, 

470 U.S. 480 (1985)...........................................19 

Federal Election Commission v. National 

Right To Work Committee, 459 U.S. 197 

(1982)................................................... 7, 8, 17, 19 

Federal Election Commission v. Wisconsin 

Right to Life, 551 U.S. 449 (2007).............. 17, 18 

International Ass’n of Machinists v. Street, 

367 U.S. 740 (1961)...........................................18 

McConnell v. Federal Election Commission, 

251 F. Supp. 2d 176 (D.D.C. 2003), aff’d 

in part, rev’d in part, 540 U.S. 93 (2003).........12 

McConnell v. Federal Election Commission, 

540 U.S. 93 (2003)..................................... passim

United States v. International Union 

United Automobile Workers of America, 

352 U.S. 567 (1957).........................................4, 7 
iv 

STATUTES 

2 U.S.C. § 434(f)(3)..................................................6 

2 U.S.C. § 441b........................................................5 

2 U.S.C. § 441b(b)(2) ...............................................3 

2 U.S.C. § 441i.........................................................6 

Federal Corrupt Practices Act of 1925, ch. 

368, 43 Stat. 1080 ...............................................5 

Federal Election Campaign Act of 1971, 

Pub. L. No. 92-225, 86 Stat. 3 (1972) .................5 

Taft-Hartley Act of 1947, Pub. L. No. 80-

101, 61 Stat. 159 .................................................5 

Tillman Act, Pub. L. No. 59-36, 34 Stat. 864 

(1907)...................................................................4 

LEGISLATIVE MATERIAL 

147 Cong. Rec. 53,248 (Apr. 2, 2001)....................12 

OTHER AUTHORITIES 

Robert G. Boatright et al., Interest Groups 

and Advocacy Organizations After BCRA, 

in The Election After Reform: Money, 

Politics, and The Bipartisan Campaign 

Reform Act (Michael J. Malbin ed., 2006) ......5-6 

California Fair Political Practices 

Commission, Independent Expenditures

(June 2008), available at

http://www.fppc.ca.gov/ie/IEReport2.pdf. .. 14, 15 
v 

Committee for Economic Development, 

Investigating in the People’s Business: A 

Business Proposal for Campaign Finance 

Reform (1999)....................................................16 

Declaration of Wright H. Andrews, 

McConnell v. Federal Election 

Commission, 540 U.S. 93 (2003) (No. 02-

1674).......................................................11-12, 15 

Declaration of Gerald Greenwald, 

McConnell v. Federal Election 

Commission, 540 U.S. 93 (2003) (No. 02-

1674)..................................................................12 

Declaration of Alan K. Simpson, McConnell 

v. Federal Election Commission, 540 U.S. 

93 (2003) (No. 02-1674).....................................15 

David B. Magleby, The Importance of the 

Record in McConnell v. FEC, 3 Election 

L.J. 285 (2004). ...................................................9 

Jim McElhatton & Jennifer Haberkorn, 

Failed firms’ leaders gave big to 

politicians, Wash. Times, Sept. 19, 2008 .........16 

Mark Mellman & Richard Wirthlin, 

Research of Findings of a Telephone 

Study Among 1300 Adult Americans

(Sept. 23, 2002) .................................................15 

Robert E. Mutch, Before and After Bellotti: 

The Corporate Political Contributions 

Cases, 5 Elec L. J. 293 (2006).............................4 
vi 

Press Release, Committee for Economic 

Development, Senior Business 

Executives Back Campaign Finance 

Reform (Oct. 18, 2000)......................................13 

Press Release, Federal Elections 

Commission, Growth in PAC Financial 

Activity Slows (Apr. 24, 2009), available 

at http://www.fec.gov/press/press2009/ 

20090415PAC/20090424PAC.shtml.................19 

John Rauh & Dan Weeks, Take Wall Street 

out of Congress, Concord Monitor, Feb. 7, 

2009 ..............................................................15-16 

Burt Solomon, Forever Unclean, Nat’l J., 

Mar. 18, 2000, at 858........................................13 

Transcript of Oral Argument, Federal

Election Commission v. Colorado 

Republican Federal Campaign 

Committee, 533 U.S. 431 (2001) (No. 00-

191)....................................................................14 

Stephen R. Weissman & Ruth Hassan, 

BCRA and the 527 Groups, in The 

Election After Reform: Money, Politics, 

and The Bipartisan Campaign Reform 

Act (Michael J. Malbin ed., 2006) ......................6 

Edward Zuckerman, The Almanac of 

Federal PACs: 2008-2009 (2008)......................19 
 

INTEREST OF AMICUS CURIAE 1 

The Committee for Economic Development 

(“CED”) is a nonprofit, nonpartisan, and nonpolitical 

public policy organization directed by approximately 

200 senior corporate executives and university 

leaders. Since its founding in 1942, its mission has 

been to use the leadership of the corporate 

community to support policies that promote economic 

growth. CED is a leading advocate for business 

interests on issues ranging from health care to 

corporate governance. 

Businesses are the perceived beneficiaries of a 

rule allowing unfettered independent spending from 

corporate treasury funds to advocate the election or 

defeat of candidates for office. It is their First 

Amendment rights this Court supposedly would 

vindicate by reversing Austin v. Michigan Chamber 

of Commerce, 494 U.S. 652 (1990), and the relevant 

portions of McConnell v. Federal Election 

Commission, 540 U.S. 93 (2003). In this amicus 

curiae brief, CED seeks to counteract the assumption 

that corporations want more leeway to spend money 

on political campaigns. To the contrary, the business 

leaders who serve as CED’s trustees believe that a 

decision striking down the ban on corporate 

electioneering expenditures would severely harm 

corporate interests. 

 

1 The parties have consented to the filing of this 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. No person 

other than amicus curiae or its counsel made a monetary 

contribution to its preparation or submission. 
2 

Because this issue is critically important to this 

nation’s businesses, CED respectfully urges this 

Court not to disturb the well-established regulatory 

regime built around Austin and McConnell. 

SUMMARY OF ARGUMENT 

The question posed in this Court’s order 

regarding supplemental briefing is whether 

corporations have a First Amendment right to make 

independent expenditures from their treasury funds 

to support or oppose a candidate for public office. 

The recognition of such a right would have a 

profound and unwelcome impact on corporations and 

elections. This Court should leave in place its 

decisions in Austin and McConnell upholding 

restrictions on corporate electioneering. 

The impact of striking down the electioneering 

restrictions would be profound because it would 

allow sustained, substantial corporate involvement 

in elections for federal office for the first time in this 

nation’s history. When candidates devised new 

avenues to access corporate resources, Congress 

invariably closed those avenues quickly. Reversing 

Austin and McConnell would create the first major 

avenue for spending from corporate treasury funds 

that Congress could not close. 

Businesses would not welcome such a regime 

because it would expose corporations to corrupt 

shakedowns for political money. Corporations would 

face intense pressure to provide indirect financial 

support for candidates to attract the attention of, and 

avoid retribution from, elected officials. Corporate 

electioneering would harm public confidence in 
3 

business, fueling the perception that large 

corporations secure unfair advantages by purchasing 

political influence. Yet each corporation would be 

helpless to get out of the political game, fearful of 

losing out in the economic marketplace to 

competitors that were willing to play ball. 

Existing rules already give corporations the 

ability to speak on the issues that matter to them. 

Thus, the primary effect of overruling Austin or 

McConnell would be to promote political rentseeking, not genuine expression of ideas. Such a 

decision would hurt rather than help business 

interests. 

ARGUMENT 

I. Long-Standing Restrictions On Using Corporate 

Treasury Funds In Campaigns Should Not Be 

Disturbed, Particularly In This Case. 

This country’s political tradition features a firmly 

established separation between corporate funds and 

candidate elections. The provision restricting 

electioneering communications—§ 203 of the 

Bipartisan Campaign Reform Act of 2002 (“BCRA”), 

2 U.S.C. § 441b(b)(2)—is the latest in a long, 

unbroken line of statutes preserving that separation. 

This Court should not intervene to disturb the 

considered legislative judgment underlying § 203. 

That is especially true here because interested 

parties—litigants, Congress, and the business 

interests on whose behalf CED advocates—had no 

opportunity to assemble a factual record of the likely 

impact of striking down the electioneering ban. 
4 

A. Congress Has Prevented Significant Corporate 

Involvement in Federal Elections for More 

Than a Century. 

From 1907 to the present, Congress has never 

allowed corporations to use their resources freely to 

influence federal elections. In fact, every time that 

existing laws have seemed inadequate to restrict 

such a use of corporate funds, Congress has acted 

promptly to address the inadequacy. For more than 

a century, federal elections have taken place under a 

consistent policy of highly restricted corporate 

involvement. 

Businesses first began making significant 

campaign contributions in the late nineteenth 

century. See Robert E. Mutch, Before and After 

Bellotti: The Corporate Political Contributions 

Cases, 5 Elec L. J. 293, 295 & n.5 (2006). As popular 

unease grew over corporations’ electoral sway, 

Congress passed the Tillman Act in 1907. Pub. L. 

No. 59-36, 34 Stat. 864. Aimed at “purg[ing] national 

politics of . . . the pernicious influence of ‘big money’ 

campaign contributions,” this Act banned 

corporations from contributing money from corporate 

treasury funds in connection with federal elections. 

United States v. Int’l Union United Auto. Workers of 

Am., 352 U.S. 567, 572 (1957) (“Automobile 

Workers”). 

In the 1920s, politicians took advantage of the 

Tillman Act’s use of the term “money contribution,” 

which left a loophole allowing corporations to make 

unrestricted nonmonetary contributions (e.g., loans, 

in-kind assistance, or use of corporate facilities). 
5 

Congress hastily closed this loophole through the 

Federal Corrupt Practices Act of 1925, replacing 

“money contribution” with “anything of value.” Ch. 

368, 43 Stat. 1070. Likewise, when the political 

influence of labor unions grew in the 1940s, Congress 

passed the Taft-Hartley Act, which applied the 

corporate contribution ban to unions. Pub. L. No. 80-

101, 61 Stat. 159 (1947). Congress also prohibited 

both corporate and union independent expenditures 

for or against candidates. Id.

This regime held for almost half a century, 

though it was revised somewhat by the Federal 

Election Campaign Act of 1971 (“FECA”). Pub L. No. 

92-255, 86 Stat. 3 (1972). FECA clarified that 

corporations could use treasury funds to pay for 

internal communications, registration and get-outthe-vote drives aimed at stockholders, and the 

establishment and operation of political action 

committees. 2 U.S.C. § 441b. FECA did not alter the 

existing contribution and expenditure bans. 

More recently, in the 1990s, the explosive rise of 

issue advocacy and soft money challenged the 

tradition of separating corporate treasury funds from 

elections. “Issue advocacy” refers to advertisements 

that do not expressly call for the election or defeat of 

a specific candidate. “Soft money” refers to funds 

given to political parties for purposes such as 

registering voters, getting out the vote, and certain 

kinds of advertising. By the 2000 election cycle, 

corporate soft money contributions totaled 48% of all 

soft money receipts and often were given in sums of 

$100,000 or more by large companies. See Robert G. 

Boatright et al., Interest Groups and Advocacy 

Organizations After BCRA, in The Election After 
6 

Reform: Money, Politics, and The Bipartisan 

Campaign Reform Act 112-18 (Michael J. Malbin ed., 

2006). 

Again, Congress acted quickly, passing the 

Bipartisan Campaign Reform Act of 2002. BCRA 

banned parties and candidates from receiving or 

spending soft money. 2 U.S.C. § 441i. It also 

extended the prohibition on corporate contributions 

and expenditures supporting “electioneering 

communication[s]”—advertisements that refer to a 

candidate and that are broadcast within sixty days of 

a general election or thirty days of a primary. 2 

U.S.C. § 434(f)(3). 

BCRA succeeded not only in eliminating 

corporate soft money but also in minimizing 

corporate electoral involvement overall. In 2004, 

corporate donations to so-called “527 committees,” 

the main mechanism for circumventing the softmoney ban, totaled less than 13% of what 

corporations had given in soft money in 2000. 

Stephen R. Weissman & Ruth Hassan, BCRA and 

the 527 Groups, in The Election After Reform, supra, 

at 90. Corporate-funded advertising campaigns 

within the BCRA-designated time periods essentially 

vanished. See id. at 90. 

Congress thus has consistently attempted to keep 

corporate money out of federal elections for more 

than a century. Its efforts generally have worked. 

For decades at a time, most notably from 1947 until 

the 1980s, the dam against large-scale corporate 

funding of elections held, and elections were 

conducted with minimal financial influence from 

corporate treasury funds. While candidates 

occasionally have identified new loopholes to access 
7 

unregulated corporate resources, Congress has 

moved with impressive speed to close each spigot 

soon after it opened. Periods of unfettered 

corporate activity are clearly the historical exception, 

not the rule. 

B. Reversing Austin or McConnell Would 

Disregard the Deference Traditionally 

Accorded to Congressional Regulation of 

Corporate Electoral Expenditures. 

 This Court has repeatedly recognized that 

regulating corporate funds in elections is a delicate 

and difficult task better suited to legislative than 

judicial management. In Automobile Workers, for 

instance, the Court declined an opportunity to 

overturn the Taft-Hartley Act’s prohibition on 

corporate and union expenditures. The Court 

acknowledged “the long series of congressional 

efforts calculated to avoid the deleterious influences 

on federal elections resulting from the use of money 

by those who exercise control over large aggregations 

of capital.” Automobile Workers, 352 U.S. at 585. 

Because of Congress’s expertise and the sensitivity of 

the subject, “[r]efusal to anticipate constitutional 

questions [was] peculiarly appropriate.” Id. at 591. 

 Similarly, in Federal Election Commission v. 

National Right To Work Committee (“NRWC ”), 459 

U.S. 197 (1982), the Court held that the “careful 

legislative adjustment of the federal electoral laws, 

in a cautious advance, step by step, to account for the 

particular legal and economic attributes of 

corporations and labor organizations[,] warrants 

considerable deference.” Id. at 209 (quotation marks 
8 

omitted); see also id. at 210 (refusing to “second 

guess a legislative determination as to the need for 

prophylactic measures where corruption is the evil 

feared”); Austin, 494 U.S. at 661 (same); Fed. 

Election Comm’n v. Mass. Citizens for Life, Inc., 479 

U.S. 238, 258 n.11 (1986) (same). More recently, the 

Court stated that “our cases on campaign finance 

regulation represent respect for the legislative 

judgment that the special characteristics of the 

corporate structure require particularly careful 

regulation.” Fed. Election Comm’n v. Beaumont, 539 

U.S. 146, 155 (2003) (internal quotation marks 

omitted). This judicial respect for Congress’s special 

role should “discourage any broadside attack on 

corporate campaign finance regulation.” Id. at 156. 

 “Second guess[ing]” legislative judgment here is 

particularly unwise because reversing Austin and 

McConnell would leave Congress with few if any 

options to deal with the problem of corporate 

electioneering expenditures. The immediate result of 

such a decision would be predictable: just as 

candidates financed their campaigns almost entirely 

through contributions from corporate treasury funds 

before the Tillman Act, pursued vast nonmonetary 

contributions from corporations before the Federal 

Corrupt Practices Act, and relied on corporate soft 

money contributions to their parties before BCRA, 

candidates would depend on and encourage 

substantial independent expenditures made on their 

behalf and financed by corporate treasury funds. 

When this avalanche of new spending takes place, 

Congress would be powerless to stop it. Efforts to 

restrict the objects of this spending, to limit the time 

periods during which the funds can be deployed, or 
9 

perhaps even to require information about the funds’ 

sources and magnitude, could be held to violate the 

First Amendment. In this way, a subject 

particularly suited to legislative supervision would 

be removed from Congress’s effective control. 

C. This Case Is a Particularly Poor Vehicle for 

Reversing Austin or McConnell. 

This case is a particularly unsuitable vehicle for 

considering the question presented because the 

relevant record is poorly developed. The only 

evidence before this Court goes to the validity of 

§ 203 as applied. To decide whether to overrule 

Austin or McConnell, the Court would need to 

evaluate § 203’s facial validity without the benefit of 

the data, reports, affidavits, and testimony that the 

business community for which CED advocates (as 

well as the parties and Congress) would have 

compiled had they known that the statute was in 

constitutional jeopardy. 

In McConnell, the only previous decision 

involving a facial challenge to § 203, the Court often 

referenced the “ample” and “voluminous” record, 

which spanned 100,000 pages. 540 U.S. at 132, 145. 

The enormous record in McConnell “carried and 

framed the case,” providing a basis for the reasoning 

of both the majority and the dissent. David B. 

Magleby, The Importance of the Record in McConnell 

v. FEC, 3 Election L.J. 285, 285 (2004) (quotation 

marks omitted). 

Here, in contrast, the Court would appraise 

§ 203’s facial constitutionality without information 

about the burden it imposes, corporations’ other 
10 

options for electoral involvement, corporations’ own 

views on § 203, the likely effects of striking the 

provision, and countless other matters. That is 

because, as the Federal Election Commission notes 

in its supplemental brief, see Supp. Br. of Appellee 3-

4, Citizens United did not pursue a facial challenge 

to § 203 before the district court. None of the 

interested parties had any reason to assemble a 

factual record relevant to such a challenge, and none 

did so: the record assembled before the district court 

is replete with information about Hillary: The Movie

but bereft of information about the range of 

applications of § 203. 

The Court would thus be well-advised to defer the 

question until it is squarely presented in a case with 

a fully developed factual record. 

II. Overruling Austin Or McConnell Would Harm, 

Not Help, Corporate Interests. 

 As past and present executives of some of the 

nation’s largest companies, CED’s trustees have 

direct experience with solicitations for financial 

support from party leaders, elected officials, and the 

officials’ influential backers. Their experiences teach 

a simple lesson: corporate participation in elections 

is more transactional than ideological. It is forced by 

the competitive need to maintain access to and avoid 

retribution from elected officials of both parties. 

Thus, as McConnell recognized, prior to BCRA’s soft 

money ban, individual corporations commonly gave 

money to both parties, a pattern of giving explicable 

only as cynically pragmatic. See McConnell, 540 

U.S. at 124-25. 
11 

 Overruling Austin or McConnell would put 

corporations in the same prisoner’s dilemma that 

existed when soft-money contributions were 

permitted. While corporations generally would 

prefer not to divert their resources from running 

profitable businesses to funding politics, they would 

fear the consequences of remaining on the sidelines. 

The race to the bottom that occurred with direct 

contributions at the end of the nineteenth century 

and with soft money in the early 1990s would begin 

anew. And in addition to forcing corporations to 

waste overwhelming sums of shareholder wealth on 

independent electioneering, the new regime would 

undermine public trust in business by furthering the 

already extant belief that corporations are in bed 

with government officials. 

A. Corporations Would Spend on Electioneering 

to Secure Preferred Access to and Avert 

Retribution from Elected Officials, Not to 

Advance Ideas. 

Corporate support for political candidates is a 

fundamentally commercial process in which 

businesses feel compelled to participate. 

“Sophisticated political donors . . . are not in the 

business of dispensing their money purely on 

ideological or charitable grounds. Rather, these 

political donors typically are trying to wisely invest 

their resources to maximize political return.” 

Declaration of Wright H. Andrews, attorney and 

lobbyist, ¶ 8, McConnell, 540 U.S. 93 (No. 02-1674) 
12 

(“Andrews Decl.”).2 As this Court recognized in 

McConnell, “many corporate contributions [are] 

motivated by a desire for access to candidates and a 

fear of being placed at a disadvantage in the 

legislative process relative to other contributors, 

rather than by ideological support for the candidates 

and parties.” 540 U.S. at 124-25.

 Politicians openly acknowledge the connection 

between money and access. Senator Carl Levin (DMich.) stated: “The parties advertise access. It’s 

blatant. Both parties do it.” 147 Cong. Rec. 53,248 

(Apr. 2, 2001). To insure access regardless of the 

political climate, corporations must contribute to 

both parties. In the 2000 election cycle, 35 of the 50 

largest soft-money donors gave to both parties, and 

28 of the 50 gave more than $100,000 to both parties. 

See McConnell, 540 U.S. at 124 n.12. As the 

McConnell Court recognized, this pattern is 

inconsistent with genuine expression of ideas. 

 The record in McConnell was replete with 

examples of cash for access. See, e.g., McConnell v. 

Fed. Election Comm’n, 251 F. Supp. 2d 176, 555-60 

(D.D.C. 2003), aff’d in part, rev’d in part, 540 U.S. 93 

(2003); Declaration of Gerald Greenwald, Chairman 

Emeritus of United Airlines and CED trustee, ¶ 12, 

McConnell, 540 U.S. 93 (No. 02-1674) (“Greenwald 

Decl.”) (“[B]usiness leaders believe—based on 

 

2 As noted above, see Part I.C, supra, the record in this case 

does not include evidence about the impact that striking down 

the electioneering restrictions would have on corporations and 

the political process. Nevertheless, the experiences of CED’s 

trustees, publicly available research, and the record assembled 

in McConnell provide ample reason to believe that this impact 

would be negative and substantial. 
13 

experience and with good reason—that . . . access [to 

politicians] gives them an opportunity to shape and 

affect governmental decisions.”); Press Release, CED, 

Senior Business Executives Back Campaign Finance 

Reform (Oct. 18, 2000) (showing that 75% of business 

leaders believe political contributions give them an 

advantage in shaping legislation). 

The McConnell record also showed the danger of 

retribution for corporations that do not participate. 

One Fortune 500 lobbyist described corporate 

spending on political campaigns in one simple word: 

“protection.” Burt Solomon, Forever Unclean, Nat’l 

J., Mar. 18, 2000, at 858 (“If you decline to give, 

you’re taking a risk of legislative retribution. . . . 

Companies are scared that on some critical issue, 

they’ll get hosed.”). This Court also approvingly 

quoted Mr. Greenwald’s statement that “[b]usiness 

and labor leaders believe, based on their experience, 

that disappointed Members, and their party 

colleagues, may shun or disfavor them because they 

have not contributed.” McConnell, 540 U.S. at 125 

n.13 (quoting Greenwald Decl.). 

“Independent” corporate expenditures would pose 

precisely the same risks posed by direct and soft 

money contributions. As Justice Scalia stated in a 

prior oral argument: 

I can understand why there’s . . . 

corruption if the donor gives the 

candidate money . . . . But you 

allow individuals to spend 

$100,000 in their own advertising 

for this candidate, and it says at 

the bottom of the ad, . . . paid for by 

Schwartz, and the candidate knows 
14 

Schwartz has bought hundreds of 

thousands of dollars of television 

advertising, that is perfectly okay, 

right? . . . I can’t understand that. 

That seems to me so fanciful to 

think that the one situation 

presents . . . an opportunity for 

corruption and the other doesn’t. 

You’re much better off if you want 

to corrupt Schwartz, spending the 

money on an advertisement that 

says . . . presented by XYZ 

Corporation. 

Tr. of Oral Argument at 5-6, Fed. Election Comm’n v. 

Colo. Republican Fed. Campaign Comm., 533 U.S. 

431 (2001) (No. 00-191). It is naïve to think that 

candidates and elected officials would be unaware of 

which corporations spend on their or their parties’ 

behalf. 

If Austin were overruled, corporations would use 

electioneering expenditures, made directly or 

through bundling organizations, to the same massive 

extent they would make direct contributions absent 

regulation. For example, after California limited the 

amount of direct contributions in 2000, independent 

expenditures increased by 6144% in legislative 

elections. See California Fair Political Practices 

Commission, Independent Expenditures 4 (June 

2008), available at http://www.fppc.ca.gov/ie/ 

IEReport2.pdf. Seventy-two percent of the 

independent expenditures were made by a mere 25 

independent expenditure groups, largely 

representing the interests of corporations, labor 

unions, and tribal casinos. Id. In many state races, 
15 

these expenditures “accounted for more than 50% of 

the total spent in the campaign.” Id. Given the 

fungibility of electioneering expenditures and direct 

contributions, this Court should not disturb 

Congress’s effort to shield corporations from 

compelled political participation. 

B. Because Corporate Spending on Behalf of 

Candidates Often Lacks an Ideological 

Purpose, It Erodes Public Confidence in 

Business. 

When corporations spend money to elect or defeat 

specific candidates, the public loses confidence in the 

integrity of business, and of government. “[M]illions 

of Americans are convinced that lobbyists and the 

interests we represent are unprincipled ‘sleaze balls’ 

who, in effect, use great sums of money to bribe a 

corrupt Congress.” Andrews Decl., ¶ 20. 

 The polls and Members of Congress recognize 

Americans’ belief that corporate interests control 

Congress. See, e.g., Mark Mellman & Richard 

Wirthlin, Research of Findings of a Telephone Study 

Among 1300 Adult Americans (Sept. 23, 2002). 

Former Senator Alan Simpson (R-Wyo.) observed 

that, “[b]oth during and after my service in the 

Senate, I have seen that citizens of both parties are 

as cynical about government as they have ever been 

because of the corrupting effects of unlimited soft 

money donations.” Declaration of Alan K. Simpson, 

¶ 14, McConnell, 540 U.S. 93 (No. 02-1674). 

 There is a widespread perception that corporate 

coziness with government officials “contributed to the 

current crisis in the financial system.” John Rauh & 
16 

Dan Weeks, Take Wall Street out of Congress, 

Concord Monitor, Feb. 7, 2009; see also Jim 

McElhatton & Jennifer Haberkorn, Failed firms’ 

leaders gave big to politicians, Wash. Times, Sept. 

19, 2008, at A1 (“[S]uch donations were made by 

company executives eager to keep government 

regulation out of their business and . . . Americans 

must now be left wondering whether the largesse 

influenced the decision to rescue the companies when 

they failed.”). This perception is harmful to the 

business community. As leaders in that community, 

CED’s trustees are particularly concerned about the 

potential for unlimited corporate expenditures to 

elect or defeat a candidate to further undermine the 

public’s trust in corporations. 

 As CED has said before, businesses “wish to 

compete in the marketplace, not in the political 

arena.” See CED, Investing in the People’s Business: 

A Business Proposal for Campaign Finance Reform 1 

(1999). Overruling Austin or McConnell would 

impair the ability of corporate leaders to stick to 

their core economic mission by dragging them into 

politics. 

III. Existing Rules Enable Corporations To Engage 

In Genuine Expression Without Exposing Them 

To Coercive Pressure To Advocate On Behalf Of 

Candidates. 

All of this is not to say that companies do not 

value their right to speak on issues important to 

their economic activities. The current statutory 

regime, however, does not meaningfully impinge on 

corporate political speech or even on corporate 
17 

involvement in elections. It restricts (1) only 

electioneering communications, not issue advocacy 

and (2) only the use of corporate treasury funds, not 

the organization of segregated funds structured to 

facilitate political participation. Consequently, the 

current regime strikes an appropriate balance 

between protecting corporations from coerced 

support for candidates and permitting corporations 

to engage in genuine expression. 

This Court consistently has affirmed the 

importance of maintaining that balance. See NRWC, 

459 U.S. at 209 (recognizing that “particular legal 

and economic attributes of corporations” might 

require “careful legislative adjustment of the federal 

electoral laws”); Beaumont, 539 U.S. at 153 (“Today, 

as in 1907, the law focuses on the special 

characteristics of the corporate structure that 

threaten the integrity of the political process.”) 

(internal quotation marks and citations omitted). It 

should do so again here. 

A. Issue Advocacy Provides a Healthy Outlet for 

Genuine Corporate Expression. 

The first way in which § 203 balances corporate 

expression against compelled candidate support is by 

distinguishing electioneering communications from 

genuine issue advocacy. 

In Federal Election Commission v. Wisconsin 

Right to Life, 551 U.S. 449 (2007), this Court limited 

BCRA’s ban on the use of treasury funds to pay for 

electioneering communications to ads that are 

“susceptible of no reasonable interpretation other 

than as an appeal to vote for or against a specific 
18 

candidate.” Id. at 470. Corporations thus are free to 

advocate regarding issues that they view as 

important without the pressure of a system where 

access and preferred legislative outcomes hinge on 

that spending. Independent expenditures on issue 

advertising also are difficult for candidates to track: 

generally, they are not directed to particular districts 

and do not advocate the election or defeat of a 

specific candidate (or even a party). 

The First Amendment understandably protects 

issue advocacy, because corporations can make truly 

voluntary choices about whether to participate and 

also can advocate positions based on actual beliefs 

and interests, not fear of retribution. But the First 

Amendment should not protect a system that forces 

corporations to choose whether to pay to play or be 

shunned by Congress. Cf. Int’l Ass’n of Machinists v. 

Street, 367 U.S. 740 (1961). 

B. Political Action Committees Are Robust 

Outlets for Corporate Views in Candidate 

Elections. 

Section 203 also balances these competing 

interests by allowing corporations to use segregated 

funds known as political action committees, or PACs, 

to contribute to candidates or parties and pay for 

electioneering communications. By requiring that 

corporate political expenditures come from individual 

donations, not corporate treasury funds, PAC 

requirements drastically limit corporations’ exposure 

to compelled expenditures. 

This Court has, in a variety of contexts, upheld 

requirements that corporations use PACs rather 
19 

than treasury funds to participate in politics. See, 

e.g., McConnell, 540 U.S. 93; Beaumont, 539 U.S. 

146; NRWC, 459 U.S. 197. In doing so, it has 

recognized that such requirements provide 

corporations with ample opportunity to engage in 

genuine political expression. See Beaumont, 539 

U.S. at 162. Crucially, PACs are “wholly controlled” 

by their parent corporation, which also may fund a 

PAC’s administrative expenses. Id. at 149, 162-63. 

PACs enjoy robust First Amendment protections and 

are free to engage in express advocacy, electioneering 

communications, and political contributions. See 

Fed. Elec. Comm’n v. Nat’l Conservative Pol. Action 

Comm., 470 U.S. 480 (1985). 

As of 2006, over 1,800 corporate PACs were 

registered with the FEC. See Edward Zuckerman, 

The Almanac of Federal PACs: 2008-2009 (2008). 

Moreover, experience has demonstrated that PACs 

are versatile vehicles of political expression, having 

accounted for about $135 million in independent 

expenditures in the 2007-08 election cycle alone. See 

Press Release, Federal Election Commission, Growth 

in PAC Financial Activity Slows (Apr. 24, 2009), 

available at http://www.fec.gov/press/press2009/ 

20090415PAC/20090424PAC.shtml. This Court was 

thus correct to conclude in McConnell that, 

“[b]ecause corporations can still fund electioneering 

communications with PAC money, it is ‘simply 

wrong’ to view [§ 203] as a ‘complete ban’ on 

expression rather than a regulation.” 540 U.S. at 

204 (quoting Beaumont, 539 U.S. at 162).3

 

3 This Court has recognized that the “practical effect” of certain 

segregated fund requirements “may be . . . to make engaging in 
20 

CONCLUSION 

On behalf of its trustees, including CEOs of major 

corporations, amicus respectfully suggests that this 

Court think twice before embarking on an uncharted 

and dangerous course that will harm organizations 

whose rights the Court would purport to vindicate. 

This Court should not disturb Austin or McConnell. 

Respectfully submitted, 

July 31, 2009 

PAUL M. SMITH

 Counsel of Record 

JAMES C. COX

ERIC R. HAREN

NICHOLAS O. STEPHANOPOULOS

JENNER & BLOCK LLP 

1099 New York Avenue, NW 

Suite 900 

Washington, DC 20001 

(202) 639-6000 

Attorneys for Amicus Curiae

 

protected speech a severely demanding task” for nonprofit, 

nonstock ideological corporations. See Mass. Citizens for Life, 

479 U.S. at 256. However, this concern applies with far less 

force to sophisticated for-profit corporations and thus does not 

compel reconsideration of Austin or McConnell. At most, such a 

concern counsels toward applying Austin’s exception for 

corporations with “features more akin to voluntary political 

associations than business firms” to § 203. See Austin, 494 U.S. 

at 661.