No. 08-205 

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

In The 

Supreme Court of the United States --------------------------------- ♦ --------------------------------- 

CITIZENS UNITED, INC., 

Appellant, 

v. 

FEDERAL ELECTIONS COMMISSION, 

Appellee. 

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

On Appeal From The United States District Court 

For The District Of Columbia 

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

AMICUS CURIAE BRIEF OF PROGRAM 

ON CORPORATIONS, LAW & DEMOCRACY; 

WOMEN’S INTERNATIONAL LEAGUE FOR 

PEACE & DEMOCRACY; DEMOCRACY UNLIMITED 

OF HUMBOLDT COUNTY; SHAYS2: THE WESTERN 

MASSACHUSETTS COMMITTEE ON CORPORATIONS 

& DEMOCRACY; AND THE CLEMENTS FOUNDATION 

IN SUPPORT OF 

APPELLEE FEDERAL ELECTIONS COMMISSION 

ON SUPPLEMENTAL QUESTION 

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

JEFFREY D. CLEMENTS

Counsel of Record 

CLEMENTS LAW OFFICE, LLC 

Suite 4B-b 

9 Damonmill Square 

Concord, Massachusetts 01742 

(978) 287-4901 

Counsel for Amici Curiae Program on 

 Corporations, Law & Democracy; 

 Women’s International League for 

 Peace & Democracy; Democracy 

 Unlimited of Humboldt County; Shays2: 

 The Western Massachusetts Committee 

 on Corporations & Democracy; and 

 The Clements Foundation 

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

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES ................................... ii 

INTEREST OF AMICI CURIAE ........................... 1 

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

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

 I. AUSTIN AND McCONNELL REST ON 

TWO CENTURIES OF CONSTITUTIONAL 

LAW .............................................................. 3 

A. Corporations Are Subject to Control of 

the People .............................................. 3 

B. This Court Recognizes That Corporations Are Creations of Statute and Are 

Subject to Legislative Restrictions ....... 9 

C. First Amendment Speech Cases Involving Corporations Do Not Prohibit 

the Regulation of Corporate Political 

Activity ................................................... 15 

 II. OVERRULING AUSTIN WOULD IMPLICATE SIGNIFICANT FOURTEENTH 

AMENDMENT ISSUES .............................. 19 

CONCLUSION ....................................................... 22 
ii 

TABLE OF AUTHORITIES 

Page 

CASES

Austin v. Michigan Chamber of Commerce, 494 

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

Anderson v. City of Boston, 376 Mass. 178, 380 

N.E.2d 628 (1978) ................................................... 18 

Asbury Hosp. v. Cass County, 326 U.S. 207 

(1945) ................................................................. 12, 13 

Bank of Augusta v. Earle, 38 U.S. 519 (1839) ..... 11, 12 

Bank of the United States v. Deveaux, 9 U.S. (5 

Cranch) 57 (1809) .................................................... 10 

Bigelow v. Virginia, 421 U.S. 809 (1975) ................... 16 

Breithaupt v. The Bank of Georgia, 26 U.S. 238 

(1828) ....................................................................... 10 

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

Carden v. Arkoma Associates, 494 U.S. 185 

(1990) ................................................................. 10, 11 

Charlotte C & A Railway Co. v. Gibbes, 142 

U.S. 386 (1892) ........................................................ 21 

Central Hudson Gas & Electric Corporation v. 

Public Service Commission of New York, 447 

U.S. 557 (1980) ........................................................ 16 

Commercial & Railroad Bank of Vicksburg v. 

Slocomb, 39 U.S. (14 Pet.) 60 (1840) ...................... 10 

Connecticut Life Insurance Company v. Johnson,

303 U.S. 77 (1938) ............................................. 19, 21 
iii 

TABLE OF AUTHORITIES – Continued 

Page 

Covington & L. Turnpike Road Co. v. Sandford, 

164 U.S. 578 (1896) ................................................. 21 

Creek v. Village of Westhaven, 80 F.3d 186 (7th 

Cir. 1996) ................................................................. 18 

CTS Corp. v. Dynamics Corp. of America, 481 

U.S. 69 (1987) ............................................................ 5 

Day-Brite Lighting Inc. v. Missouri, 342 U.S. 

421 (1952) ................................................................ 13 

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

765 (1978) ........................................................ passim

First Nat. Bank of Boston v. Attorney General, 

371 Mass. 773, 359 N.E.2d 1262 (1977) ................. 17 

GM Leasing Corp. v. United States, 429 U.S. 

338 (1977) ................................................................ 14 

Greater New Orleans Broadcasting Ass’n, Inc. 

v. U.S., 527 U.S. 173 (1999) .................................... 16 

Gulf C & S.F. Ry. Co. v. Ellis, 165 U.S. 150 

(1897) ....................................................................... 21 

Head and Amory v. Providence Insurance Co., 6 

U.S. (2 Cranch) 127 (1804) ....................................... 6 

Hope Insurance Co. v. Boardman, 9 U.S. (5 

Cranch) 57 (1809) .................................................... 10 

International Dairy Foods Association v. 

Amestoy, 92 F.3d 67 (2nd Cir. 1996) ....................... 16 

Kentucky Finance Corporation v. Paramount 

Auto Exchange Corporation, 262 U.S. 544 

(1923) ....................................................................... 21 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

Louis K. Liggett Co. v. Lee, 288 U.S. 517 

(1933) ............................................................... 6, 7, 13 

Lochner v. New York, 198 U.S. 45 (1905) ................... 13 

Lorillard v. Reilly, 533 U.S. 525 (2001) ..................... 16 

Louisville Railroad Co. v. Letson, 43 U.S. (2 

How.) 497 (1844) ................................................ 10, 11 

Marshall v. Baltimore and Ohio Railroad Co., 

57 U.S. 314 (1853) ................................................... 11 

McConnell v. Federal Election Comm’n, 540 

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

Minneapolis & S.L. Ry. Co. v. Beckwith, 129 

U.S. 26 (1889) .......................................................... 21 

Minneapolis & S.L. Ry. Co. v. Herrick, 127 U.S. 

210 (1888) ................................................................ 20 

Missouri Pac. Railway Co. v. Mackey, 127 U.S. 

205 (1888) ................................................................ 20 

Northwestern Nat’l Life Ins. Co. v. Riggs, 203 

U.S. 243 (1906) ........................................................ 15 

Ohio and Mississippi Railroad Co. v. Wheeler, 

66 U.S. 286 (1861) ................................................... 11 

Oklahoma Press Pub. Co. v. Walling, 327 U.S. 

186 (1946) ................................................................ 14 

Pacific Gas & Electric Co. v. Public Utilities 

Commission of California, 475 U.S. 1 (1986) ......... 16 

Paul v. Virginia, 75 U.S. 168 (1868) .................... 11, 13 
v 

TABLE OF AUTHORITIES – Continued 

Page 

Pembina Con. Silver Mining & Milling Co. v. 

Pennsylvania, 125 U.S. 181 (1888) ................... 12, 20 

Robert E. Rubin, Secretary of the Treasury v. 

Coors Brewing Company, 514 U.S. 476 

(1995) ....................................................................... 16 

Santa Clara County v. Southern Pacific 

Railroad Company, 118 U.S. 394 (1886) ................ 20 

Slaughter-House Cases, 83 U.S. 36 (1872) ................ 19 

Sullivan v. Fulton Steamboat Co., 19 U.S. (6 

Wheat.) 450 (1821) .................................................. 10 

Thompson v. Western States Medical Center, 

535 U.S. 357 (2002) ................................................. 16 

Trustees of Dartmouth College v. Woodward, 17 

U.S. 518 (1819) ................................................ 5, 9, 15 

United States v. Morton Salt Co., 338 U.S. 632 

(1950) ....................................................................... 14 

United States v. South-Eastern Underwriters 

Ass’n, 322 U.S. 533 (1944) ...................................... 12 

United States v. White, 322 U.S. 694 (1944) .............. 15 

Virginia Board of Pharmacy v. Virginia 

Citizens Consumer Council, 425 U.S. 748 

(1976) ....................................................................... 16 

Wheeling Steel Corp. v. Glander, 337 U.S. 562 

(1949) ....................................................................... 19 

44 LiquorMart, Inc. v. Rhode Island, 517 U.S. 

484 (1996) ................................................................ 16 
vi 

TABLE OF AUTHORITIES – Continued 

Page 

UNITED STATES CONSTITUTION

U.S. CONST. art III, § 2 ............................................... 10 

U.S. CONST. art IV, § 2 ................................................ 12 

U.S. CONST. amend. I .................................. 3, 15, 17, 18 

U.S. CONST. amend. IV ............................................... 14 

U.S. CONST. amend. XIV ............................. 3, 19, 20, 21 

STATUTES

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

5 U.S.C. §§ 1501-1508 ................................................ 18 

5 U.S.C. §§ 7321-7326 ................................................ 18 

MISCELLANEOUS

Harry G. Henn & John R. Alexander, Law of 

Corporations (3rd ed.) (West Hornbook Series 

1981) ...................................................................... 4, 5 

Oscar Handlin and Mary Flug Handlin, 

Commonwealth: A Study of the Role of 

Government in the American Economy, 

Massachusetts, 1774-1861 .................................... 5, 6 

E. Dodd, American Business Corporations 

Until 1860 (1954) ...................................................... 5 

2 J. Davis, Essays in the Earlier History of 

American Corporations (1917) .................................. 5 
vii 

TABLE OF AUTHORITIES – Continued 

Page 

Baldwin, American Business Corporations 

Before 1789, 1 Annual Rep’t of American 

Historical Ass’n, 253-274 (1902) ............................... 6 

James Wilson, Collected Works of James 

Wilson, ed. Kermit L. Hall and Mark David 

Hall, Vol. 2. Ch. X, Of Corporations (http:// 

oll.libertyfund.org/title/2074/166648/2957866, 

accessed 2009-07-22) ................................................. 7 

James Madison, The Writings of James 

Madison, ed. Gaillard Hunt (New York: G.P. 

Putnam’s Sons, 1900). Vol. 9, To J.K. 

Paulding (http://oll.libertyfund.org/title/1940/ 

119324, accessed 2009-07-22) ................................... 7 

Thomas Jefferson, University of Virginia, 

Thomas Jefferson Digital Archive, To George 

Logan (http://etext.virginia.edu/jefferson/ 

quotations/jeff5.htm, accessed 2009-07-22) ............. 7 

Andrew Jackson, 1833 Annual Message to 

Congress, University of Virginia, Miller Center of Public Affairs (http://millercenter.org/ 

scripps/archive/speeches/detail/3640) (“Miller 

Center,” all accessed 2009-07-15) ............................. 7

Martin Van Buren, 1837 Annual Message to 

Congress, Miller Center (http://millercenter. 

org/scripps/archive/speeches/detail/3589) ................ 8

Grover Cleveland, 1888 Annual Message to 

Congress, Miller Center (http://millercenter. 

org/scripps/archive/speeches/detail/3578) ................ 8
viii 

TABLE OF AUTHORITIES – Continued 

Page 

Theodore Roosevelt, An Autobiography, 

Charles Scribner & Sons, 1913 (1929 ed.) ............... 8 

Theodore Roosevelt, 1906 Annual Message to 

Congress, Miller Center (http://millercenter. 

org/scripps/archive/speeches/detail/3778) ................ 8

Felix Frankfurter, Distribution of Judicial 

Power between United States and State 

Courts 13 CORN. L. Q. 499, 523 (1928) ................... 11 

Carl Mayer, Personalizing the Impersonal: 

Corporations and the Bill of Rights, 41 

Hastings L.J. 577, 664-667 (1990) .................... 13, 19 

Department of Defense Directive 1344.10, 

February 19, 2008 ................................................... 18 

Morton J. Horowitz, The Transformation of 

American Law (1870-1960), Oxford University Press, Inc. (1992) .............................................. 19 

Constitutional Accountability Center, Correspondence to Senate Judiciary Committee, 

July 22, 2008 (http://www.theusconstitution. 

org/issues.php?id=9, accessed 2009-07-23) ............ 19 

Patton & Barlett, Corporate ‘Persons’ and 

Freedom of Speech: The Political Impact of 

Legal Mythology, 1981 WIS. L. REV. 494 ................ 19 

Richard L. Grossman and Frank T. Adams, 

Taking Care of Business, Citizenship and 

the Charter of Incorporation (Charter 1993) .......... 20 
ix 

TABLE OF AUTHORITIES – Continued 

Page 

Dean Ritz (ed.), Defying Corporations, Defining 

Democracy: A Book of History & Strategies

(Apex 2001) .............................................................. 20 

Charles Derber, Corporation Nation: How 

Corporations Are Taking Over Our Lives – 

And What We Can Do about It (St. Martin’s 

1998) ........................................................................ 20 

Thom Hartmann, Unequal Protection: The Rise 

of Corporate Dominance and the Theft of 

Human Rights (Rodale 2004) ................................. 20 

Jane Anne Morris, Gaveling Down the Rabble: 

How “Free Trade” is Stealing Our Democracy

(Apex 2008) .............................................................. 20 

Ted Nace, Gangs of America: The Rise of Corporate Power and the Disabling of Democracy 

(Berrett-Koehler 2003) ............................................ 20 
1 

INTEREST OF AMICI CURIAE

With the parties’ consent, Amici Curiae file this 

brief in support of Appellee Federal Elections Commission.1

 Program on Corporations, Law and Democracy 

(“POCLAD”) has instigated democratic actions concerning issues of corporations and democracy since 

1994. POCLAD offers seminars and publishing demonstrating how “corporate rights” doctrines undermine 

democracy. 

 Women’s International League for Peace and 

Freedom (“WILPF”) works to achieve disarmament, 

rights for women, racial and economic justice, and an 

end to violence. WILPF maintains a Corporations v. 

Democracy Issue Committee and a “Challenge Corporate Power, Assert the People’s Rights” campaign. 

 Democracy Unlimited of Humboldt County challenges undue corporate influence on democratic selfgovernment. In June 2006, Humboldt County, California banned financial contributions in local elections from non-local corporations. 

1

 Pursuant to Supreme Court Rule 37.6, Amici state that no 

counsel for a party authored this brief in whole or in part and 

that no person or entity other than Amici, their members, or 

their counsel contributed monetarily to preparation and submission of this brief. Counsel of record received timely notice of 

the intent to •le the brief under Rule 37.2(a), and granted 

consent. Pursuant to Rule 37.3, letters of consent to the filing of 

this brief have been filed with the Clerk of Court. 
2 

 Shays 2: The Western Massachusetts Committee 

on Corporations & Democracy, through education and 

peaceful action, challenges legal doctrines under 

which corporations are believed to undermine selfgovernment. 

 The Clements Foundation supports non-profit 

organizations involved in education, environmental 

responsibility, and the promotion of self-government 

and freedom. 

SUMMARY OF ARGUMENT 

The Court should not overrule Austin v. 

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

(“Austin”) or the part of McConnell v. Federal Election 

Comm’n, 540 U.S. 93 (2003), addressing the facial 

validity of Section 203 of the Bipartisan Campaign 

Reform Act of 2002, 2 U.S.C. § 441b (“McConnell”). 

Austin and McConnell rest on two hundred years of 

Constitutional jurisprudence. 

 While campaign finance laws refer to types of 

speech – “electioneering,” “issue advocacy,” “express 

advocacy” – the question raised by reconsideration of 

Austin and McConnell is not whether States and 

Congress may regulate a type of speech but whether 

they may regulate a type of statutory organization 

that people may, or may not, use to enhance their 

speech. Put differently, if the people’s elected 

representatives create legal structures for economic, 

charitable or other purposes, are they barred from 
3 

preventing misuse of those structures for nonpermitted purposes, such as political activity? 

 Corporations exist as a consequence of government policy, and governments may balance privileges 

and restrictions that accompany the corporate form. 

Representative governments best determine whether 

people may use corporations to influence elections. 

Austin and McConnell follow this Court’s jurisprudence to that effect, both before and after First Nat. 

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

 Moreover, Austin implicates Fourteenth Amendment considerations not otherwise present here. 

Whether a corporation is a “person” under the 

Amendment is doubtful. The Court should give this 

issue full consideration when appropriate parties are 

before the Court. 

ARGUMENT 

I. AUSTIN AND McCONNELL REST ON TWO 

CENTURIES OF CONSTITUTIONAL LAW 

A. Corporations Are Subject to Control of 

the People

People vote. People represent other people by 

government service. People contest elections. Corporations do none of those things. 

 For two hundred years, the First Amendment did 

not preclude restrictions on corporate expenditures 
4 

to influence elections.2 In 1978, the Bellotti Court 

invalidated a state law limiting corporate political 

activity, stating: “If the speakers here were not 

corporations, no one would suggest that the State 

could silence their proposed speech.” 435 U.S. at 777. 

The “speakers,” however, are corporations. More 

precisely, some people wish to speak in a corporate 

capacity while avoiding regulation of that capacity. 

 A corporation is a structure for doing business, 

available only by statute. Harry G. Henn & John R. 

Alexander, Law of Corporations (3rd ed.) (West 

Hornbook Series 1981) at 14-35. The structure has 

advantages (shareholder limited liability, for instance) and disadvantages (taxation of corporate 

profits and shareholder dividends, for instance) as 

compared to other structures. Non-profit corporations 

have other statutory advantages (such as the ability 

to raise tax deductible money) and disadvantages 

(such as restrictions on political activity). 

Lawmakers deem a corporation to be a “person” 

for purposes of transacting business, suing and being 

sued, and other acts. That policy choice rests on 

perceived advantages of convenience and economic 

gains. The Constitution, however, does not enshrine 

particular policy choices. 

2

 U.S. CONST. amend. I provides: “Congress shall make no 

law ... abridging the freedom of speech, or of the press....” 
5 

 The corporate legal form is not fundamentally 

different today than when Chief Justice Marshall for 

the Court explained that a corporation, as a “mere 

creature of law ... possesses only those properties 

which the charter confers upon it....” Trustees of 

Dartmouth College v. Woodward, 17 U.S. 518, 636 

(1819). Corporations remain creatures of statute. 

CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 

89-91 (1987) (“state regulation of corporate governance is regulation of entities whose very existence 

and attributes are a product of state law”). 

 No evidence suggests that the framers of the 

Constitution or the American people intended to 

include corporations in the Bill of Rights. Indeed, the 

evidence is to the contrary. “Those who feel that the 

essence of the corporation rests in the contract among 

its members rather than in the government decree ... 

fail to distinguish, as the eighteenth century did, 

between the corporation and the voluntary association.” Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the 

American Economy, Massachusetts, 1774-1861 at 92 

and n.18. Cf. McConnell, 540 U.S. at 256 (Scalia, J., 

dissenting). 

 During the colonial period, only “a handful of 

native business corporations carried on business,” 

and only twenty business corporations were formed 

by 1787, when the American people convened the 

Constitutional Convention. Henn & Alexander, supra, 

at 24 and n.2, citing E. Dodd, American Business 

Corporations Until 1860 (1954); 2 J. Davis, Essays in 
6 

the Earlier History of American Corporations (1917); 

Baldwin, American Business Corporations Before 

1789, 1 Annual Rep’t of American Historical Ass’n, 

253-274 (1902). See also Handlin, supra, at 99, 162. 

Legislatures soon created more corporations but 

chartered these only for specific public purposes, 

often with limited time periods. Handlin, supra, at 

106-133; Louis K. Liggett Co. v. Lee, 288 U.S. 517, 

548-560 (1933) (Brandeis, J., dissenting). Restrictions 

on corporate purposes were the norm. Id.; Head and 

Amory v. Providence Insurance Co., 6 U.S. (2 Cranch) 

127, 166-167 (1804) (“corporation can only act in the 

manner prescribed by law”). 

 It is difficult to imagine that the Framers 

believed the Constitution to bar legislation to prevent 

corporate expenditures to influence politics. James 

Wilson – signer of the Declaration of Independence, 

member of the Continental Congress, a drafter of the 

Constitution, and among the nation’s first six Justices 

– expressed a prevailing view: 

A corporation is described to be a person in a 

political capacity created by the law ... It 

must be admitted, however, that, in too 

many instances, those bodies politick have, 

in their progress, counteracted the design of 

their original formation ... This is not mentioned with a view to insinuate, that such 

establishments ought to be prevented or 

destroyed: I mean only to intimate, that they 

should be erected with caution, and inspected 

with care. 
7 

Collected Works of James Wilson, Vol. 2. Ch. X, Of 

Corporations (ed. Kermit L. Hall and Mark David Hall) 

(http://oll.libertyfund.org/title/2074/166648/2957866, 

accessed 2009-07-22). 

 James Madison viewed corporations as “a necessary evil” subject to “proper limitations and guards.” 

Writings of James Madison, ed. Gaillard Hunt (New 

York: G.P. Putnam’s Sons, 1900), Vol. 9, To J.K. 

Paulding (http://oll.libertyfund.org/title/1940/119324, 

accessed 2009-07-22). Thomas Jefferson hoped to 

“crush in its birth the aristocracy of our moneyed 

corporations, which dare already to challenge our 

government to a trial of strength and bid defiance to 

the laws of our country.” University of Virginia, 

Thomas Jefferson Digital Archive, To George Logan 

(http://etext.virginia.edu/jefferson/quotations/jeff5.htm, 

accessed 2009-07-22). 

 “[T]hroughout the greater part of our history,” 

the American people, state and federal governments, 

and this Court knew that corporations remained subject to democratic control. 288 U.S. at 548 (Brandeis, 

J., dissenting). President Jackson warned of partisan 

activity by the second Bank of the United States 

corporation: “[T]he question is distinctly presented 

whether the people of the United States are to govern 

through representatives chosen by their unbiased 

suffrages or whether the money and power of a great 

corporation are to be secretly exerted to influence 

their judgment and control their decisions.” 1833 

Annual Message to Congress, University of Virginia, 

 
8 

Miller Center of Public Affairs (http://millercenter.org/ 

scripps/archive/speeches/detail/3640) (“Miller Center,” 

all accessed 2009-07-15). President Van Buren spoke 

“of the dangers to which the free and unbiased 

exercise of political opinion ... would be exposed by 

any further increase of the already overgrown 

influence of corporate authorities.” 1837 Annual 

Message to Congress, Miller Center (http://miller 

center.org/scripps/archive/speeches/detail/3589). 

These warnings continued as corporations became dominant in our economy. “Corporations, which 

should be the carefully restrained creatures of the 

law and the servants of the people, are fast becoming 

the people’s masters,” wrote President Cleveland. 

1888 Annual Message to Congress, Miller Center 

(http://millercenter.org/scripps/archive/speeches/detail/ 

3578). Theodore Roosevelt sought to end “a riot of 

individualistic materialism” and remediate the “total 

absence of governmental control [that] led to a 

portentous growth in the financial and industrial 

world both of natural individuals and of artificial 

individuals – that is, corporations.” Theodore 

Roosevelt, An Autobiography (Scribner & Sons, 1913) 

(1929 ed.), at 423. “Let individuals contribute as they 

desire; but let us prohibit in effective fashion all 

corporations from making contributions for any 

political purpose, directly or indirectly.” 1906 Annual 

Message to Congress, Miller Center (http://miller 

center.org/scripps/archive/speeches/detail/3778). 

Austin and McConnell follow this understanding 

of the corporation and the practices of the American 
9 

people, and follow this Court’s jurisprudence over two 

hundred years holding that corporations do not 

possess the same rights as people. 

B. This Court Recognizes That Corporations Are Creations of Statute And Are 

Subject to Legislative Restrictions 

Austin concluded, “the unique state-conferred 

corporate structure that facilitates the amassing of 

large treasuries warrants the limit on independent 

expenditures.” 494 U.S. at 660. The Court upheld 

Michigan’s corporate political influence law based on 

the “state-created advantages” of the legal form. 494 

U.S. at 658-659. Similarly, McConnell upheld 

restrictions of corporate “electioneering communications” based on “legislative judgment that the special 

characteristics of the corporate structure require 

particularly careful regulation.” 540 U.S. at 205 

(quotations and citations omitted). The Court decided 

both cases correctly. 

 Since the beginning of the Republic, the Court 

has affirmed that elected governments of the states 

and nation may regulate, in an even-handed manner, 

“the corporate structure” because governments create 

that structure. Dartmouth College described the 

corporate entity as “an artificial being ... existing only 

in contemplation of law,” and created only for such 

“objects as the government wishes to promote.” 17 

U.S. at 636-637.
10 

The Court brought this understanding of the 

corporation to other Constitutional provisions, such 

as diversity jurisdiction under Article III and the 

judiciary statutes.3

 In the Founders’ era and beyond, 

the Court considered state citizenship of shareholders, not the corporation, to determine whether 

people who formed corporations could enter the 

federal courts in the corporate name. Bank of the 

United States v. Deveaux, 9 U.S. (5 Cranch) 61, 86 

(1809) (corporation is a “mere legal entity ... not a 

citizen”); Hope Insurance Co. v. Boardman, 9 U.S. (5 

Cranch) 57, 58 (1809); Sullivan v. Fulton Steamboat 

Co., 19 U.S. (6 Wheat.) 450 (1821); Breithaupt v. 

Bank of Georgia, 26 U.S. (1 Pet.) 238 (1828); 

Commercial & Railroad Bank of Vicksburg v. 

Slocomb, 39 U.S. (14 Pet.) 60 (1840). 

 Over time, the Court overruled these cases in 

part and developed a shortcut strictly limited to 

diversity jurisdiction. Carden v. Arkoma Associates, 

494 U.S. 185, 197 (1990) (“special treatment for 

corporations.”).4

Louisville Railroad Co. v. Letson, 43 

U.S. (2 How.) 497, 557-558 (1844), decreed that a 

corporation “is to be deemed” a citizen of the state of 

its creation. Nine years later, the Court followed 

3

 Article III provides “The judicial Power shall extend ... to 

Controversies ... between Citizens of different States....” U.S. 

CONST. art. III, § 2. 

4

 “Special treatment” refers to the fact that the Court and 

Congress do not extend the same treatment to non-corporate 

associations. 
11 

Letson but reiterated that “an artificial entity cannot 

be a citizen,” and “State laws by combining large 

masses of men under a corporate name, cannot repeal 

the Constitution.” Marshall v. Baltimore and Ohio 

Railroad Co., 57 U.S. (16 How.) 314, 327 (1853) 

(quotation and citation omitted).5

 The Court soon 

began simply to treat “a suit by or against a 

corporation in its corporate name, as a suit by or 

against citizens of the State which created the corporate body....” Ohio and Mississippi Railroad Co. v. 

Wheeler, 66 U.S. 286, 296 (1861). The Court confined 

this doctrine to diversity jurisdiction, and it has never 

been defended with enthusiasm for its soundness.6

 In Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 

(1839), and Paul v. Virginia, 75 U.S. 168 (1868), the 

Court refused to extend “special treatment” for 

5

 Marshall reflects grave concern about corporations and 

rights. See 57 U.S. at 329 (“The right of choosing an impartial 

tribunal is a privilege of no small practical importance, and 

more especially in cases where a distant plaintiff has to contend 

with the power and influence of great numbers and the 

combined wealth wielded by corporations in almost every 

State.”); 57 U.S. at 339 (Daniel, J., dissenting) (“citizens only ... 

men, material, moral, sentient beings, must be parties, in order 

to give jurisdiction”); 57 U.S. at 351, 352-353 (Campbell, J., 

dissenting) (courts should “repel[ ] these pretensions and 

expose[ ] [corporations’] perilous character ... ”; corporations are 

“disdainful” of legislators, ready “to make of them a prey; and to 

accomplish this, to employ corrupting and polluting 

appliances.”). 

6

 See Carden, 494 U.S. 185. See also Frankfurter, 

Distribution of Judicial Power between United States and State 

Courts 13 CORN. L. Q. 499, 523 (1928). 
12 

corporations to the protection of citizen rights under 

the Privileges and Immunities Clause of Article IV. 

Repeatedly, the Court has held that corporations are 

not citizens under that clause, or under the Privileges 

or Immunities Clause of the Fourteenth Amendment. 

Id.; Pembina Con. Silver Mining & Milling Co. v. 

Pennsylvania, 125 U.S. 181 (1888); Asbury Hosp. v. 

Cass County, 326 U.S. 207 (1945).7

 

 As the Industrial Revolution gathered pace, the 

Court maintained with clarity that “[t]he only rights 

[a corporation] can claim are the rights which are 

given to it in that character, and not the rights which 

belong to its members as citizens of a state....” Bank 

of Augusta, 38 U.S. at 587. The Court did not 

examine the Constitution to determine rights “given 

to it in that character” because the Constitution does 

not create corporate rights. In upholding corporate 

contracts outside the place of incorporation, Bank of 

Augusta declined to rest on any Constitutional 

provision, instead applying the law that created the 

corporation, the law of the state where the corporation wished to enforce a contract, and “comity.” 38 

U.S. at 586-590. 

 This Court has long known of the dominant role 

of corporations, but generally has not given that 

development Constitutional significance. Compare 

McConnell, 540 U.S. at 257-258 (Scalia, J. dissenting) 

7

 Unrelated part of Paul overruled by United States v. 

South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944). 
13 

with Liggett, 288 U.S. at 548 (Brandeis, J., dissenting) (“The prevalence of the corporation in 

America has led men of this generation to act, at 

times, as if the privilege of doing business in 

corporate form were inherent in the citizen; and has 

led them to accept the evils attendant upon the free 

and unrestricted use of the corporate mechanism as if 

these evils were the inescapable price of civilized life, 

and, hence, to be borne with resignation”). 

 By 1868, corporations had “multiplied to an 

almost indefinite extent. There is scarcely a business 

pursued requiring the expenditure of large capital, or 

the union of large numbers, that is not carried on by 

corporations. It is not too much to say that the wealth 

and business of the country are to a great extent 

controlled by them.” Paul, 75 U.S. at 181-182. The 

Court denied, however, the claim of corporations to 

the privileges and immunities of citizenship, as a 

corporation is “a mere creation of local law.” Id. at 

181.

 The Court, with exceptions during the era 

defined by Lochner v. New York, 198 U.S. 45 (1905), 

overruled by Day-Brite Lighting Inc. v. Missouri, 342 

U.S. 421 (1952), continued through the twentieth 

century to distinguish between the rights of people 

and corporations. In Asbury Hosp., for example, the 

Court, citing numerous cases and without dissent, 

rejected a Constitutional challenge to a state law 

requiring corporations holding land suitable for 

farming to sell the land within ten years. 326 U.S. 

207. Five years later, the Court again emphasized the 
14 

“public attributes” of corporations in turning aside 

corporate privacy claims: 

[C]orporations can claim no equality with 

individuals in the enjoyment of a right to 

privacy. They are endowed with public 

attributes. They have a collective impact 

upon society, from which they derive the 

privilege of acting as artificial entities. 

United States v. Morton Salt Co., 338 U.S. 632, 652 

(1950) (citations omitted). 

 The Court has recognized, in a limited fashion, 

assertions of corporate rights. See infra. n.8; Carl 

Mayer, Personalizing the Impersonal: Corporations 

and the Bill of Rights, 41 Hastings L.J. 577, 664-667 

(1990); GM Leasing Corp. v. United States, 429 U.S. 

338, 353 (1977) (corporations have “some Fourth 

Amendment rights”). As the Court has observed, 

however, a corporation has lesser Fourth Amendment 

rights because: 

Congress may exercise wide investigative 

power over them, analogous to the visitorial 

power of the incorporating state, when their 

activities take place within or affect interstate commerce. Correspondingly it has been 

settled that corporations are not entitled to 

all of the constitutional protections which 

private individuals have in these and related 

matters. 

Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 

204-205 (1946) (footnotes omitted). 
15 

 Accordingly, “it cannot be disputed that the mere 

creation of a corporation does not invest it with all 

the liberties enjoyed by natural persons....” Bellotti, 

435 U.S. at 823 (Rehnquist, J., dissenting) citing

United States v. White, 322 U.S. 694, 698-701 (1944). 

See also Northwestern Nat. Life Ins. Co. v. Riggs, 203 

U.S. 243, 255 (1906) (“The liberty referred to in that 

[Fourteenth] Amendment is the liberty of natural, not 

artificial, persons”). 

 Nearly a decade after Bellotti, the Court rejected 

a Commerce Clause challenge to an anti-takeover 

statute. CTS Corp., 481 U.S. 69. Quoting Dartmouth 

College and noting Justice Rehnquist’s dissent in 

Bellotti, the Court concluded: “It thus is an accepted 

part of the business landscape in this country for 

States to create corporations, to prescribe their 

powers, and to define the rights that are acquired by 

purchasing their shares.” Id. at 89-91. 

 That insight about corporations is correct. The 

First Amendment and the Commerce Clause implicate different Constitutional interests but nothing in 

the First Amendment requires that States, Congress, 

or this Court ignore the capacity of the speaker. 

C. First Amendment Speech Cases Involving Corporations Do Not Prohibit the 

Regulation of Corporate Political Activity 

Until Bellotti, the First Amendment had never 

barred regulation of corporate political activity. 435 
16 

U.S. at 822-823 (Rehnquist, J. dissenting). In the 

mid-1970s, however, an unprecedented “commercial 

speech” doctrine began to emerge. The Court invalidated a state prohibition on abortion advertising, 

Bigelow v. Virginia, 421 U.S. 809 (1975), and “the 

notion of unprotected ‘commercial speech’ all but 

passed from the scene.” Virginia Board of Pharmacy 

v. Virginia Citizens Consumer Council, 425 U.S. 748, 

759 (1976). Justice Rehnquist dissented. 425 U.S. at 

784 (“[N]othing in the United States Constitution ... 

requires the Virginia Legislature to hew to the 

teachings of Adam Smith ... ”).8

 Corporations then challenged a Massachusetts 

prohibition on corporate expenditures to influence 

ballot questions, except questions “materially affecting any of the property, business or assets of the 

corporation.” Bellotti, 435 U.S. 768. Mindful of 

Virginia Pharmacy and Buckley v. Valeo, 424 U.S. 1, 

14 (1976), the Massachusetts Supreme Judicial Court 

nevertheless rejected the challenge, noting, “a 

8

 This new doctrine has led to invalidation of numerous 

democratically enacted public welfare measures in recent years. 

See Central Hudson Gas & Electric Corporation v. Public Service 

Commission of New York, 447 U.S. 557 (1980); Pacific Gas & 

Electric Co. v. Public Utilities Commission of California, 475 

U.S. 1 (1986); Robert E. Rubin, Secretary of the Treasury v. Coors 

Brewing Company, 514 U.S. 476 (1995); 44 LiquorMart, Inc. v. 

Rhode Island, 517 U.S. 484 (1996); Greater New Orleans 

Broadcasting Ass’n, Inc. v. U.S., 527 U.S. 173 (1999); Lorillard v. 

Reilly, 533 U.S. 525 (2001); Thompson v. Western States Medical 

Center, 535 U.S. 357 (2002); International Dairy Foods Association v. Amestoy, 92 F.3d 67 (2nd Cir. 1996). 
17 

corporation does not have the same First Amendment 

rights to free speech as those of a natural person....” 

First Nat. Bank of Boston v. Attorney General, 371 

Mass. 773, 784-785, 359 N.E.2d 1262 (1977). 

 This Court reversed. Citing First Amendment 

cases that involved corporations, the Court labeled 

the Massachusetts arguments “extreme” and “an 

artificial mode of analysis.” 435 U.S. at 778-779 and 

n.14. Justice Rehnquist disagreed: 

A State grants to a business corporation the 

blessings of potentially perpetual life and 

limited liability to enhance its efficiency as 

an economic entity. It might reasonably be 

concluded that those properties, so beneficial 

in the economic sphere, pose special dangers 

in the political sphere. 

435 U.S. at 825-826. 

 “Corporations” cases are not “speech” cases. None 

of the First Amendment cases cited in Bellotti

involved a regulation directed at problems found by a 

legislature to arise from the corporate form itself. See 

435 U.S. at 778 and n.14. None concerned a law 

distinguishing between corporations and people. The 

speech cases cited in Bellotti happened to involve 

corporate parties but they concerned generally 

applicable restrictions. In contrast, Austin and 

McConnell concern legislative definitions of impermissible activities of corporations as corporations. 

 Judicial deference to elected representatives in 

corporate regulation cases says nothing about the 
18 

“worth” of certain speech. Cf. 435 U.S. at 776-777. 

Where the “speaker” exists only as a result of government policy, regulation based on “what” rather than 

“who” speaks is commonplace. Municipal corporations 

– “persons” for some purposes – have no First Amendment right to spend municipal funds to support 

candidates, oppose perceived enemies, or influence 

ballot questions. See Anderson v. City of Boston, 376 

Mass. 178, 380 N.E.2d 628 (1978); Creek v. Village of 

Westhaven, 80 F.3d 186, 192-193 (7th Cir. 1996). 

 The Hatch Act restricts the political activity of 

certain government employees. 5 U.S.C. §§ 7321-

7326; 5 U.S.C. §§ 1501-1508. Our Armed Forces 

accept the obligations of political neutrality without 

complaint. See Department of Defense Directive 

1344.10, Political Activities By Members of the Armed 

Forces, February 19, 2008 (www.dtic.mil/whs/directives/ 

corres/pdf/134410p.pdf, accessed 2009-07-24). 

 Corporate capacity, as with other governmentcreated capacities, may carry statutory restrictions 

on political activity. Austin and McConnell correctly 

deferred to “the legislative judgment that the special 

characteristics of the corporate structure require 

particularly careful regulation,” McConnell, 540 U.S. 

at 205, and should not be overruled. 
19 

II. OVERRULING AUSTIN WOULD IMPLICATE 

SIGNIFICANT FOURTEENTH AMENDMENT 

ISSUES 

Overruling Austin would raise significant Fourteenth Amendment issues not otherwise present here. 

Bellotti, 435 U.S. at 826 and n.6 (Rehnquist, J., 

dissenting). “Neither the history nor the language of 

the Fourteenth Amendment justifies the belief that 

corporations are included within its protections.” 

Connecticut Life Insurance Company v. Johnson, 303 

U.S. 77, 85-86 (1938) (Black, J., dissenting). The 

notion that the Fourteenth Amendment can be interpreted to include corporations within the Amendment’s references to “persons” does not stand up to 

examination. Id. See also Slaughter-House Cases, 83 

U.S. 36 (1872); Wheeling Steel Corp. v. Glander, 337 

U.S. 562, 581 (1949) (Douglas, J. dissenting); Morton 

J. Horowitz, The Transformation of American Law

(1870-1960), Oxford University Press, Inc. (1992); 

Mayer, supra. 

 Challenges to “corporate rights” doctrines 

increase. See Constitutional Accountability Center, 

Correspondence to Senate Judiciary Committee, July 

22, 2008 (“the Court’s recent trend toward constraining the right of people to hold corporations 

accountable ... runs opposite to the text, history, and 

structure of our Constitution and the ideals upon 

which our country was founded.” (http://www.theus 

constitution.org/issues.php?id=9, accessed 2009-07-23); 

Patton & Barlett, Corporate ‘Persons’ and Freedom of 

Speech: The Political Impact of Legal Mythology, 1981 
20 

WIS. L. REV. 494; Richard L. Grossman and Frank T. 

Adams, Taking Care of Business, Citizenship and the 

Charter of Incorporation (Charter 1993); Dean Ritz 

(ed.), Defying Corporations, Defining Democracy: A 

Book of History & Strategies (Apex 2001); Charles 

Derber, Corporation Nation: How Corporations Are 

Taking Over Our Lives – And What We Can Do About 

It (St. Martin’s 1998); Thom Hartmann, Unequal 

Protection: The Rise of Corporate Dominance and the 

Theft of Human Rights (Rodale 2004); Jane Anne 

Morris, Gaveling Down the Rabble: How “Free Trade” 

is Stealing Our Democracy (Apex 2008); Ted Nace, 

Gangs of America: The Rise of Corporate Power 

and the Disabling of Democracy (Berrett-Koehler 

2003). 

 The Fourteenth Amendment corporate “person” 

doctrine rests on an uncertain foundation. Bellotti, 

435 U.S. at 822-3 (Rehnquist, J. dissenting). Santa 

Clara County v. Southern Pacific Railroad Company, 

118 U.S. 394 (1886), did not decide that or any federal 

Constitutional question. Id. at 416 (“As the judgment 

can be sustained upon this [state law] ground it is not 

necessary to consider any other questions raised by 

the pleadings and the facts found by the court”). 

 Following Santa Clara, the Court asserted in 

five cases, without explanation, that a corporation is 

a person under the Fourteenth Amendment None 

found a Fourteenth Amendment violation. See 

Pembina, 125 U.S. at 188-189; Missouri Pac. Railway 

Co. v. Mackey, 127 U.S. 205 (1888); Minneapolis 

& S.L. Ry. Co. v. Herrick, 127 U.S. 210 (1888);
21 

Minneapolis & S.L. Ry. Co. v. Beckwith, 129 U.S. 26 

(1889); Charlotte C & A Railway Co. v. Gibbes, 142 

U.S. 386 (1892). The Court later stated, again 

without explanation, that corporations could make 

Fourteenth Amendment claims. See Covington & L. 

Turnpike Road Co. v. Sandford, 164 U.S. 578 (1896); 

Gulf C & S.F. Ry. Co. v. Ellis, 165 U.S. 150 (1897); 

Kentucky Finance Corp. v. Paramount Auto Exch. 

Corp., 262 U.S. 544 (1923). 

 Not until 1938 would an opinion, albeit dissenting, review the issue. Justice Black, dissenting in 

Connecticut Life, carefully reviewed the words, 

context, and history of the Fourteenth Amendment, 

and found no basis to find that a corporation is a 

“person” under the Amendment. Justice Black 

concluded, “this Court should now overrule previous 

decisions which interpreted the Fourteenth Amendment to include corporations.” 303 U.S. at 85. 

 Serious doubt remains about a basis for Fourteenth Amendment restraint on state governments’ 

regulation of the partisan role of corporations in state 

elections, and Austin should stand. 
22 

CONCLUSION 

For the foregoing reasons, the Court should not 

overrule Austin or McConnell and should affirm the 

judgment below. 

Respectfully submitted, 

JEFFREY D. CLEMENTS

Counsel of Record 

CLEMENTS LAW OFFICE LLC 

Suite 4B-b 

9 Damonmill Square 

Concord, Massachusetts 01742 

(978) 287-4901 

Counsel for Amici Curiae 

JULY 2009