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 AMICI CURIAE 

REPRESENTATIVES CHRIS VAN HOLLEN, DAVID 

PRICE, MICHAEL CASTLE, AND JOHN LEWIS IN 

SUPPORT OF APPELLEE 

BRADLEY S. PHILLIPS* 

KATE K. ANDERSON

JACOB S. KREILKAMP

AARON S. LOWENSTEIN

MUNGER, TOLLES & OLSON LLP 

355 South Grand Avenue 

Los Angeles, CA 90071 

(213) 683-9100 

Counsel for Amici Curiae

July 2009 *Counsel of Record
-iTABLE OF CONTENTS

Page

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

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

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

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

I. Overruling Austin and McConnell Would 

Transform the Conduct of Elections in This 

Country ............................................................................ 3 

A. Such a Ruling Would Usher in a New Era of 

Corporate Spending as a Dominant Force in 

American Politics ....................................................... 3 

B. Limitations on Corporate Expenditures Are 

Essential to Our Democracy ...................................... 4 

II. This Court Has, for Decades, Properly Exercised 

Judicial Restraint in Refusing to Invalidate Laws 

Proscribing Corporate Campaign Expenditures .............. 7 

A. Corporations Are Properly Subject to 

Regulation of Their Campaign Spending To 

Protect Against Unfair and Undue Influence ............. 8 

B. This Court’s Doctrine of Constitutional 

Avoidance Is Most Compelling in the Present 

Circumstances ............................................................ 9 

CONCLUSION .................................................................... 16 
-iiTABLE OF AUTHORITIES

Page(s)

CASES

Austin v. Mich. Chamber of Commerce, 

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

Bellotti v. First Nat’l Bank of Boston, 

435 U.S. 765 (1978) ................................................. 5, 8, 9 

Buckley v. Valeo, 

424 U.S. 1 (1976) ....................................................... 5, 14 

Ex parte Randolph, 

20 F. Cas. 242 (C.C.Va. 1833) ................................... 9, 11 

FEC v. Beaumont, 

539 U.S. 146 (2003) ................................................... 8, 10 

FEC v. Mass. Citizens for Life, 

479 U.S. 238 (1986) ......................................................... 8 

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982) ................................................... 2, 10 

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

127 S. Ct. 2652 (2007) ......................................... 2, 13, 14 

McConnell v. FEC, 251 F. Supp. 2d 176 (D.D.C. 2003) ................................. 9 

McConnell v. FEC, 540 U.S. 93 (2003) .................................................. passim 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 (2000) ....................................................... 10 

United States v. Congress of Indus. Orgs., 335 U.S. 106 (1948) ................................................ passim 

United States v.Int’l Union United Auto, Aircraft and 

Agr. Implement Workers of Am., 352 U.S. 567

(1957) ................................................. 7, 10, 12, 13, 14, 16 
-iiiTABLE OF AUTHORITIES 

(continued)

Page(s)

STATUTES AND RULES

Bipartisan Campaign Reform Act of 2002, Pub. L. 

107-155, 116 Stat. 81, codified at 2 U.S.C. 

§ 441b(b)(2) (2002) ............................................... passim 

CONGRESSIONAL RECORD

147 Cong. Rec. S2948 (statement of Sen. Kerry) 

(daily ed. Mar. 27, 2001) ................................................. 6 

147 Cong. Rec. S2954 (statement of Sen. Feingold) 

(daily ed. Mar. 27, 2001) ................................................. 6 

148 Cong. Rec. S2138 (statement of Sen. McCain) 

(daily ed. March 20, 2002) ............................................. 10 

OTHER AUTHORITIES

Andrew Zajac, Conservative Group Offered to Back 

FedEx, For a Price, L.A. TIMES, July 19, 2009 .............. 7 

Anthony Corrado & Thomas E. Mann, In the Wake of 

BCRA: An Early Report on Campaign Finance in 

the 2004 Elections, FORUM, June 2004 ............................ 4 

Constitutional Issues Impacting Campaign Reform: 

Hearings Before the S. Comm. On Rules and 

Administration,106th Cong. (2000) ............................... 10 

Craig Holman, The Bipartisan Campaign Reform Act: 

Limits and Opportunities for NonProfit Groups in 

Federal Elections, 31 N. KY. L. REV. 243, 286 

(2004) ............................................................................. 15 

Editorial, The Ever-Deepening Pension Mess, N.Y.

TIMES, May 1, 2009 ........................................................ 6 
-ivTABLE OF AUTHORITIES 

(continued)

Page(s)

First Amendment and Restrictions on Political 

Speech: Hearing Before the Subcomm. on the 

Constitution of the H. Comm. on the Judiciary, 

106th Cong. (1999) ........................................................ 10 

Ray La Raja, Sources and Uses of Soft Money, in A

USER’S GUIDE TO CAMPAIGN FINANCE REFORM

(Gerald C. Lubenow ed., 2001) ................................... 3, 4 

Richard Briffault, Law and Democracy: A Symposium 

on the Law Governing Our Democratic Process, 

the 527 Problem . . . And the Buckley Problem, 73 

GEO. WASH. L. REV. 949, 993 (2005) .............................. 5 

Robert E. Mutch, Before and After Bellotti: The 

Corporate Political Contributions Cases, 5 

ELECTION L.J. 293 (2006) ................................................ 7 

Soft Money Backgrounder, Center for Responsive 

Politics, 

http://www.opensecrets.org/parties/softsource.php ......... 4
INTEREST OF AMICI CURIAE1

Representatives Chris Van Hollen, David Price, Michael 

Castle, and John Lewis are Members of Congress from, 

respectively, Maryland, North Carolina, Delaware, and 

Georgia. As Members of Congress, they know first-hand the 

importance of the Bipartisan Campaign Reform Act of 2002, 

Pub. L. 107-155, 116 Stat. 81 (codified at 2 U.S.C. § 

441b(b)(2) (2002)) (“BCRA”). Representatives Price, Castle, 

and Lewis filed an amicus curiae brief in McConnell v. FEC, 

540 U.S. 93 (2003), urging this Court to uphold this law.2 

Their interest is to inform the Court from the unique 

perspective of individuals who are both familiar with the 

effect of money on politics and legislation and deeply 

concerned about maintaining public trust in our democracy. 

 

1

 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 amici or 

their counsel made a monetary contribution to its preparation or 

submission. The parties have consented to the filing of this brief, and 

their letters of consent have been filed with the Clerk. 

2

 Representative Van Hollen was elected to Congress in 2002, after BCRA 

passed, but before it took effect. 
 2 

SUMMARY OF ARGUMENT 

Nearly twenty years ago, this Court confirmed that a 

legislature may constitutionally regulate for-profit 

corporations’ spending of their treasury money on campaigns 

for public office. Austin v. Mich. Chamber of Commerce, 494 

U.S. 652 (1990). Congress’s authority to target the corrosive 

effect of unlimited corporate expenditures on campaigns was 

reaffirmed in McConnell v. FEC, 540 U.S. 93 (2003) and, 

only two years ago, in FEC v. Wis. Right to Life, Inc., 127 S. 

Ct. 2652 (2007) (“WRTL”). These decisions are in accord 

with the belief and expectation held by generations of 

Americans that they have the power, through their elected 

representatives, to ensure the integrity of this nation’s 

electoral system. See United States v. Int’l Union United 

Auto, Aircraft and Agr. Implement Workers of Am., 352 U.S. 

567, 570 (1957) (“UAW-CIO”) (scrutiny of statute 

proscribing corporate campaign expenditures implicated “the 

integrity of our electoral process, and, not less, the 

responsibility of the individual citizen for the successful 

functioning of that process.”); FEC v. Nat’l Right to Work 

Comm., 459 U.S. 197, 208 (1982). 

Whether the proper disposition of this case requires 

overruling Austin─and by extension McConnell’s upholding 

of Section 203 of BCRA─therefore implicates “issues not less 

than basic to a democratic society.” UAW-CIO, 352 U.S. at 

570. Should the Court overturn those precedents, it would 

displace long-standing legislation (both at the federal level 

and in those states that have chosen to impose similar 

restraints) and judicial precedent, and usher in a new era of 

corporate spending as a dominant force in politics. As 

Members of Congress, we believe this would engender great 

popular frustration and cynicism about our political process. 

Resolution of the narrow questions presented by Appellant 

in this case provides no justification for such an upheaval of 

our electoral system. The Court should abide by its past 

decisions in which it confronted challenges to Congress’s 
 3 

power to regulate corporate campaign expenditures and 

declined to entertain broad constitutional questions where 

narrower grounds for deciding the case existed. Such judicial 

restraint is especially appropriate here, where the parties and 

trial court have not fully developed the evidentiary record or 

arguments that would be crucial to consideration of such a 

dramatic change to our First Amendment jurisprudence. 

ARGUMENT 

I. OVERRULING AUSTIN AND MCCONNELL WOULD 

TRANSFORM THE CONDUCT OF ELECTIONS IN THIS 

COUNTRY

A. Such a Ruling Would Usher in a New Era of 

Corporate Spending as a Dominant Force in 

American Politics 

The dominant role that corporate treasury funds played in 

the soft money explosion of the 1990s indicates that voiding 

restrictions on independent corporate expenditures would 

unleash a flood of unregulated campaign money from 

corporations, dramatically altering candidate campaigns. 

In the years leading up to BCRA, soft money became an 

increasingly important means of skirting federal campaign 

finance laws. In 2000, soft money accounted for 54% and 

39%, respectively, of total receipts collected by the 

Democratic and Republican national parties. Ray La Raja, 

Sources and Uses of Soft Money, in A USER’S GUIDE TO 

CAMPAIGN FINANCE REFORM 83, 86 (Gerald C. Lubenow ed., 

2001). 

Business interests were the primary source of these funds. 

Id. at 84. In the election years between 1994 and 1998, 

business interests accounted for 62-64% of the soft money 

paid to both parties. Id. at 87-89. While corporate soft 

money expenditures remained relatively constant as a 
 4 

percentage of the totals during this period, in real dollars such 

spending more than doubled.3

 Id.

BCRA ended the soft money era, prohibiting contributions 

of corporate treasury funds to national party committees. The 

national parties now rely much more heavily on hard money 

donations from individuals. Anthony Corrado & Thomas E. 

Mann, In the Wake of BCRA: An Early Report on Campaign 

Finance in the 2004 Elections, FORUM, June 2004, at 4 

(discussing the parties’ success post-BCRA in raising money 

from small individual donors). 

We expect that, given the opportunity, many corporations 

would make vast expenditures from their general treasuries in 

an effort to influence federal election outcomes, just as they 

did on a grand scale through soft money spending prior to 

BCRA’s enactment. If this Court overrules Austin and 

invalidates existing restrictions on corporate treasury 

expenditures, it will open the floodgates of corporate 

campaign spending and transform our electoral system. 

B. Limitations on Corporate Expenditures Are 

Essential to Our Democracy 

We believe that such a dramatic transformation of the 

electoral process would harm our democracy. As amici who 

have special expertise with the workings of the electoral 

process and Congress, we believe that such a flood of 

corporate money would undermine the integrity of our 

 

3

 Federal Election Commission data indicates that, between 1992 and 

2002, more than two-thirds of soft money paid to the major parties came 

from organizations. See Soft Money Backgrounder, Center for Responsive 

Politics, http://www.opensecrets.org/parties/softsource.php. The data 

indicates that total organizational soft money spending over the course of 

these six election cycles exceeded one billion dollars. Id. Based on the 

data regarding business-interest spending from 1992-1998, one can infer 

that corporate spending accounted for the vast majority of this amount. 
 5 

democratic system and public confidence in that system 

because of corporations’ unique characteristics. 

Unregulated corporate expenditures would create serious 

concerns about undue influence for corporate donors. As this 

Court has found, such corporate expenditures, even if 

technically independent, are often no less appreciated by the 

candidate who reaps the benefit.4 “While the public may not 

have been fully informed about the sponsorship of so-called 

issue ads, the record indicates that candidates and 

officeholders often were. A former Senator confirmed that 

candidates and officials knew who their friends were and 

‘sometimes suggest[ed] that corporations . . . make donations 

to interest groups that run ‘issue ads’.’” McConnell, 540 U.S. 

at 128-29. As many current and former Members of 

Congress and candidates have attested, “[f]ederal candidates 

appreciate interest group electioneering ads . . . that benefit 

their campaigns just as they appreciate large donations that 

help their campaigns.” Decl. of Linda W. Chapin submitted 

in McConnell v. FEC, Civ. No. 02-0582 (D.D.C. Sept. 12, 

2002), www.campaignlegalcenter.org/attachments/704.pdf; 

see also, e.g., Decl. of Senator Dale Bumpers ¶ 16, 

www.campaignlegalcenter.org/attachments/702.pdf 

 

4

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

absence of any record to the contrary, that independent expenditures by 

individuals do not have the same corrupting effect as direct contributions. 

Id. at 46-47. The Court subsequently recognized, in Bellotti v. First Nat’l 

Bank of Boston, 435 U.S. 765, 788 n.26 (1978), and Austin, 494 U.S. at 

660, that a legislature might determine that there is “a danger of real or 

apparent corruption posed by such expenditures when made by 

corporations to influence candidate elections.” Buckley preceded the 

explosion of sophisticated independent expenditures by corporations in 

recent decades. Consequently, the Buckley Court lacked the copious 

evidence before the McConnell Court showing such expenditures’ 

potential influence. See Richard Briffault, Law and Democracy: A 

Symposium on the Law Governing Our Democratic Process, the 527 

Problem . . . And the Buckley Problem, 73 GEO. WASH. L. REV. 949, 993 

(2005). 
 6 

(“Members or parties sometimes suggest that corporations . . . 

make donations to interest groups that run ‘issue ads.’ . . . 

Members will also be favorably disposed to those who 

finance these groups when they later seek access to discuss 

pending legislation.”); Decl. of Joe Lamson ¶ 19, 

www.campaignlegalcenter.org/attachments/716.pdf (“In my 

experience as a federal election campaign manager, if you’re 

in a close race and there are interest groups out there helping 

you with things like broadcast ‘issue ads,’ you usually 

appreciate that support.”). 

Public cynicism about the role of money in the political 

process runs high. As Senator Kerry noted during debate on 

BCRA, a national poll found that “[e]ighty-seven percent of 

voters believe that money impacts Members of Congress, 

with 56 percent expressing the belief that it affects Members a 

lot.” 147 Cong. Rec. S2948 (daily ed. Mar. 27, 2001). 

Political contributors share this belief: Senator Feingold 

reported that seventy-five percent of senior corporate 

executives surveyed believed that their contributions to 

Members of Congress influenced legislation. 147 Cong. Rec. 

S2954 (daily ed. Mar. 27, 2001). 

Congress enacted BCRA to restore confidence in our 

democracy. BCRA’s definition of “electioneering 

communications” closed loopholes that had eviscerated 

decades-old restrictions on corporate and union expenditures. 

While imperfect, BCRA is an important bulwark in the battle 

to instill public faith in our system─one we need now as 

much as ever. We read every day about scandals that threaten 

the integrity of our system, from the pay-to-play scandals 

plaguing our public pension funds,5

 to interest groups’ 

 

5

 Editorial, The Ever-Deepening Pension Mess, N.Y. TIMES, May 1, 2009 

(describing alleged pay-to-play scandals involving New York State’s 

pension systems) 
 7 

allegedly offering to sell their influence for a million-dollar 

payment.6

As discussed above, we expect that a decision overturning 

Austin and McConnell would lead to vastly increased 

corporate expenditures in candidate elections. We are gravely 

concerned about the damage this would do to public 

confidence in our electoral system and our democracy. 

II. THIS COURT HAS, FOR DECADES, PROPERLY 

EXERCISED JUDICIAL RESTRAINT IN REFUSING TO 

INVALIDATE LAWS PROSCRIBING CORPORATE 

CAMPAIGN EXPENDITURES

Austin validated regulations of corporate expenditures in 

candidate elections that have now been an embedded feature 

of the American electoral system, at both the state and federal 

levels, for more than 100 years. See Robert E. Mutch, Before 

and After Bellotti: The Corporate Political Contributions 

Cases, 5 ELECTION L. J. 293, 293 (2006). During this long 

history, corporate and union interests have repeatedly 

launched First Amendment attacks on restrictions of their 

ability to make independent expenditures in federal elections. 

This Court, however, has never held that limits on spending 

by for-profit corporations in candidate elections 

unconstitutionally restrict protected speech. See UAW-CIO, 

352 U.S. at 589-93; United States v. Congress of Indus. Orgs., 

335 U.S. 106, 123-24 (1948) (“CIO”). Instead, in an 

unbroken line of precedent, this Court has erected two 

doctrines─one substantive and one prudential─that demand 

continued fidelity to Austin’s holding. 

 

6

 Andrew Zajac, Conservative Group Offered to Back FedEx, For a Price, 

L.A. TIMES, July 19, 2009 (describing alleged offer by the American 

Conservative Union to support FedEx’s legislative position and “rally 

[the] grassroots” in exchange for a fee of $2.1-$3.4 million). 
 8 

A. Corporations Are Properly Subject to Regulation 

of Their Campaign Spending To Protect Against 

Unfair and Undue Influence 

This Court has repeatedly recognized that the unique 

characteristics and advantages of for-profit corporations as 

creations of the state justify regulation of their spending in 

candidate elections. In FEC v. Mass. Citizens for Life, 479 

U.S. 238 (1986), the Court observed that “[d]irect corporate 

spending on political activity raises the prospect that 

resources amassed in the economic marketplace may be used 

to provide an unfair advantage in the political marketplace.” 

Id. at 257. In Austin, the Court reiterated that and held that 

“[c]orporate wealth can unfairly influence elections when it is 

deployed in the form of independent expenditures, just as it 

can when it assumes the guise of political contributions.” 494 

U.S. at 659, 660; see also FEC v. Beaumont, 539 U.S. 146, 

154, 155 (2003) (recognizing “the public interest in 

restrict[ing] the influence of political war chests funneled 

through the corporate form,” and the need to respect the 

“legislative judgment that the special characteristics of the 

corporate structure require particularly careful regulation”) 

(quotations omitted, alteration in original). 

Even in Bellotti, the Court recognized that restrictions on 

such spending in candidate elections could be justified. The 

Court took special care to make clear that its rationale for 

invalidating restrictions on corporate expenditures in 

connection with ballot measures did not extend to restrictions 

on such expenditures in candidate elections. Bellotti, 435 

U.S. at 788 n.26. 

[O]ur consideration of a corporation’s right to 

speak on issues of general public interest implies 

no comparable right in the quite different context 

of participation in a political campaign for 

election to public office. Congress might well be 

able to demonstrate the existence of danger of real 

or apparent corruption in independent 
 9 

expenditures by corporations to influence 

candidate elections. 

Id. Congress made this precise showing in enacting BCRA, 

as McConnell’s record amply indicates. See Section I.B., 

supra; see also McConnell v. FEC, 251 F. Supp. 2d 176, 622-

23 (D.D.C. 2003) (Kollar-Kotelly, J.) (“The [McConnell] 

record powerfully demonstrates that electioneering 

communications paid for with the general treasury funds of 

labor unions and corporations endears those entities to elected 

officials in a way that could be perceived by the public as 

corrupting.”). 

B. This Court’s Doctrine of Constitutional 

Avoidance Is Most Compelling in the Present 

Circumstances 

Amici respectfully submit that, in the present 

circumstances, it would be rash for the Court to consider 

overruling Austin and that portion of McConnell upholding 

BCRA’s Section 203. 

Chief Justice Marshall wrote: 

No questions can be brought before a judicial 

tribunal of greater delicacy than those which 

involve the constitutionality of a legislative act. If 

they become indispensably necessary to the case, 

the court must meet and decide them; but if the 

case may be determined on other points, a just 

respect for the legislature requires that the 

obligation of its laws should not be unnecessarily 

and wantonly assailed. 

Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.Va. 1833) (No. 

11,558). 

This doctrine applies with particular force in the context of 

challenges to regulation of corporate financial participation in 

candidate elections. As this Court has repeatedly stressed, 
 10 

“Congress’ ‘careful legislative adjustment of the federal 

election 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.’” McConnell, 540 U.S. at 117 (quoting Nat’l 

Right to Work Comm., 459 U.S. at 209); Beaumont, 539 U.S. 

at 156-57; see also Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 

377, 403 (2000) (Breyer, J., concurring) (“[T]he legislature 

understands the problem─the threat to electoral integrity, the 

need for democratization─better than do we.”).7 Moreover, 

where, as here, the “integrity of the electoral process” and the 

“responsibility of the individual citizen for the successful 

functioning of that process” are implicated, UAW-CIO, 352 

U.S. at 570, constitutional scrutiny of regulations should not 

even begin unless such scrutiny is “absolutely necessary to a 

decision.” Id. at 590-91 (quotation omitted). 

The need for such judicial restraint is at its apex here. At 

no point prior to this Court’s raising the issue did any party 

offer a reasoned argument that overruling Austin or 

McConnell is necessary to decide this case.8

 The court below 

did not consider the implications of such a step. The parties 

neither conducted discovery nor created an evidentiary record 

directed to the broad constitutional questions. 

 

7

 Congress made extensive efforts in drafting BCRA to comply with this 

Court’s First Amendment precedents. See, e.g., Constitutional Issues 

Impacting Campaign Reform: Hearings Before the S. Comm. On Rules 

and Administration, 106th Cong. (2000) (hearing from over 50 witnesses 

over seven days); First Amendment and Restrictions on Political Speech: 

Hearing Before the Subcomm. on the Constitution of the H. Comm. on the 

Judiciary, 106th Cong. (1999); see also 148 Cong. Rec. S2138 (statement 

of Sen. McCain) (daily ed. March 20, 2002) (“We are acting today to fix a 

real problem and have made our best effort to do so in a way that will be 

upheld by the courts.”). 

8

 Appellant did ask this Court to overrule Austin─but not McConnell─in 

its brief, but Appellant chose to abandon this issue below and did not raise 

it in Appellant’s statement of issues to this Court. 
 11 

Indeed, that the need for this step has not previously been 

litigated in the case itself implies that the “other points” upon 

which the litigants have relied, Ex parte Randolph, 20 F. Cas. 

at 254, are sufficient to resolve the case. If the well-settled 

constitutionality of restrictions on corporate campaign 

spending is to be reexamined, it should be through an 

appropriate vehicle, where this Court may benefit from a 

complete evidentiary record, well-developed arguments by 

the parties based on that record, and findings and conclusions 

by a trial court. 

From the passage of the Tillman Act in 1907 until Austin, 

this Court repeatedly declined to rule on the facial validity of 

restrictions on corporate expenditures in elections. The 

Court’s rationale for judicial restraint in those cases strongly 

counsels against overturning Austin or McConnell here. 

First, in CIO, this Court declined to reach the facial validity 

of statutes that regulated corporate and union contributions 

and expenditures in connection with federal elections. The 

Court refused to admit “any duty . . . to pass upon” the facial 

constitutional challenge “except in cases of logical necessity.” 

CIO, 335 U.S. at 110. Acknowledging the “gravest doubt . . . 

in our minds as to [the statute’s] constitutionality,” if 

interpreted as the lower court had, the Court construed the 

statute narrowly and held that the indictment failed to allege a 

crime, thereby avoiding the constitutional issue. Id. at 121. 

In a compelling concurrence, Justice Frankfurter explained 

that the constitutionality of federal statutes can be decided 

appropriately only “after full argument in contested cases,” 

for “it is only with the light afforded by real contest that 

opinions on questions of the highest importance can safely be 

rendered.” Id. at 125. Frankfurter contrasted cases where 

“the issues were formulated so broadly as to bring 

gratuitously before the Court that for which there is no 

necessity for decision, or [that] invite formulation of a rule of 

constitutional law broader than is required by the precise facts 
 12 

of the situation or the terms of the assailed legislation.” Id. at 

126. 

Frankfurter concluded: 

[The] grave constitutional questions 

[here] . . . come before us not shaped by the 

record and by the proceedings below as to bring 

those powers before this Court as leanly and as 

sharply as judicial judgment upon an exercise of 

congressional power requires. . . . [T]here [must] 

be presented to a District Court the most effective 

and the least misapprehending legal grounds for 

supporting what Congress has enacted, while at 

the same time constitutional adjudication is 

sedulously resisted by presenting to the District 

Court alternative constructions of what Congress 

has written so as to avoid, if fairly possible, 

invalidation of the statute. 

Id. at 126-27. 

This Court again declined to reach the constitutionality of 

campaign spending restrictions in UAW-CIO, which also 

involved a challenge to a statute regulating corporate and 

union contributions and expenditures in federal elections. 

UAW-CIO, 352 U.S. at 590. In doing so, the Court explained 

that “[t]he impressive lesson of history confirms the wisdom 

of the repeated enunciation, the variously expressed 

admonition, of self-imposed inhibition against passing on the 

validity of an Act of Congress unless absolutely necessary to 

a decision of the case.” Id. (internal citation and quotation 

omitted). The Court invoked Dred Scott as an example of 

“the rare occasions when the Court, forgetting the fallibility 

of the human judgment, has departed from its own practice,” 

noting that such cases “have rightly been characterized as 

among the Court’s notable self-inflicted wounds.” Id. at 590-

91 (internal citations and quotations omitted). 
 13 

The reasons the Court gave for its judicial restraint are 

strikingly relevant to the question posed today: 

[T]hese questions come to us unillumined by the 

consideration of a single judge─we are asked to 

decide them in the first instance . . . [O]nly an 

adjudication on the merits can provide the 

concrete factual setting that sharpens the 

deliberative process especially demanded for 

constitutional decision . . . . Matter now buried 

under abstract constitutional issues may, by the 

elucidation of a trial, be brought to the surface, 

and in the outcome constitutional questions may 

disappear. 

Id. at 591-92; see also id. at 592 (listing questions and 

issues for trial court consideration that would ultimately aid 

the Court in addressing the constitutional question). 

In these cases, this Court had not yet passed on the 

constitutionality of regulating corporate or union expenditures 

to influence candidate elections. Today, the constitutionality 

of such regulation has been settled for decades. The 

considerations that militated against reaching the 

constitutional issue when it remained an open question weigh 

even more heavily now, as a shift in course would 

additionally require consideration of stare decisis. See, e.g., 

WRTL, 127 S. Ct. at 2704 (Souter, J., dissenting). 

Even if this Court were tempted to revisit its own 

precedents, the Court’s earlier words addressing almost 

identical challenges echo loudly today. It cannot credibly be 

claimed that “an active clash of views, based upon an 

adequate formulation of issues,” CIO, 335 U.S. at 125 

(Frankfurter, J., concurring), as to the validity of Austin and 

BCRA’s Section 203 has been marshaled on the present 

record. This is a paradigmatic example of a constitutional 

issue that would be brought “gratuitously before the Court” 

and for which there is “no necessity for decision.” Id. at 126. 
 14 

As in CIO, there has been no development in the trial court of 

a record and arguments that could “bring [Congress’s] powers 

before this Court as leanly and as sharply as judicial judgment 

upon an exercise of congressional power requires.” Id. And, 

as in UAW-CIO, the constitutional issue comes to the Court 

“unillumined by consideration of a single judge.” UAW-CIO, 

352 U.S. at 591-92. 

The Court should adhere to its historic restraint with respect 

to the constitutionality of Congress’s long-standing 

restrictions on corporate expenditures in elections. This case 

can be resolved without revisiting the validity of Austin and 

Section 203. Only two years ago, this Court announced a 

standard to be used for as-applied challenges such as this one. 

WRTL, 127 S. Ct. at 2655 (ad is “functional equivalent of 

express advocacy only if the ad is susceptible of no 

reasonable interpretation other than as an appeal to vote for or 

against a specific candidate”). The parties have set forth 

well-developed arguments as to how this case can be resolved 

within that framework. 

We believe that the judgment below should be affirmed. If 

the Court concludes that the facts at issue here cast new 

doubts on the facial validity of Section 203 (or Austin itself), 

however, the Court should at most remand for further 

proceedings that will allow the parties and trial court to 

develop a comprehensive record relevant to the broad 

constitutional questions. 

Even if the Court suspects that the interests identified in 

Austin may no longer adequately support regulation of 

corporate expenditures under the First Amendment, or that 

Section 203 is not sufficiently tailored to advance those 

interests, any conclusion to that effect should be based on a 

well-developed factual record. Cf. Buckley, 424 U.S. at 26-27 

(in holding that the anti-corruption interest justified FECA’s 

contribution limits, noting that modern electioneering 

methods made fundraising essential and that abuses 

uncovered after the 1972 elections showed that Congress’s 
 15 

concerns were real). In McConnell, the district court had 

before it over 100,000 pages of evidence, including 12 expert 

reports and 92 fact witness declarations. These materials 

addressed, among other things, empirical questions about 

“corruption, party building, voter turnout, and the impact of 

BCRA on genuine issue advocacy” and examined “the risk of 

corruption and the appearance of corruption of federal 

candidates and officeholders that arises when large financial 

contributions are made to state and local political parties.” 

Defendants’ Witness Designations, McConnell v. FEC, Civ. 

No. 02-0582 (D.D.C. 2002), 

http://www.camlc.org/attachments/95.pdf. Such evidence 

was essential to understanding the questions at issue before 

the Court. 

This Court cannot simply rely here on the McConnell

record, because no party in that case challenged Austin. 

McConnell, 520 U.S. at 203. That record does not, therefore, 

sufficiently address key issues bearing on Austin’s validity. 

Moreover, facts relating to political corruption and the role of 

corporate money in public elections have changed 

significantly since─and because of─McConnell. For 

example, there has been debate about whether funding 

through “527 groups” has replaced soft money contributions 

as a means for corporations to obtain influence with elected 

officials. See, e.g., Craig Holman, The Bipartisan Campaign 

Reform Act: Limits and Opportunities for Non-Profit Groups 

in Federal Elections, 31 N. KY. L. REV. 243, 286 (2004). 

Such empirical issues would need to be thoroughly developed 

before the Court considers overturning Austin or the portion 

of McConnell that upheld Section 203 of BCRA.

It is this Court’s duty to our citizens to consider such a 

complete evidentiary record before contemplating the step 

that the Court’s question suggests. That is the lesson of this 

Court’s historic treatment of the constitutionality of corporate 

campaign expenditures. If the Court does not exercise 

judicial restraint here, it may cause another “self-inflicted 
 16 

wound,” UAW-CIO, 352 U.S. at 591 (internal quotation and 

citation omitted), by reversing a century of legislative policy 

on an issue that is both central to our system of democratic 

governance and peculiarly within Congress’s expertise. 

CONCLUSION 

For the reasons set forth above, the Court need not and 

should not overrule Austin or the part of McConnell

upholding the facial validity of Section 203 to properly 

dispose of this case. 

Respectfully submitted, 

BRADLEY S. PHILLIPS* 

KATE A. ANDERSON 

JACOB S. KREILKAMP 

AARON S. LOWENSTEIN 

Munger, Tolles & Olson LLP 

355 South Grand Avenue 

35th Floor 

Los Angeles, CA 90071 

(213) 683-9100 

Counsel for Amici Curiae 

*Counsel of Record 

JULY 2009