No. 08-205

IN THE

 

____________

CITIZENS UNITED,

Appellant,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

____________

 

On Appeal from the United States 

District Court for the District of Columbia

____________

BRIEF OF AMICUS CURIAE JUDICIAL WATCH,

INC. IN SUPPORT OF APPELLANT

____________

Paul J. Orfanedes*

Dale L. Wilcox**

JUDICIAL WATCH, INC.

501 School Street, S.W., Suite 700

Washington, DC 20024

(202) 646-5172

Counsel for Amicus Curiae

* Denotes Counsel of Record

** Of Counsel
i

QUESTION PRESENTED

Whether, for the proper disposition of this case, the

Court should overrule either or both Austin v. Michigan

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

part of McConnell v. Federal Election Comm’n, 540 U.S.

93 (2003), that addresses the facial validity of Section

203 of the Bipartisan Campaign Reform Act of 2002, 2

U.S.C. § 441b.
ii

TABLE OF CONTENTS

QUESTION PRESENTED ..................... i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . iv

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

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

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

I. Political Speech Is at the Heart 

of the First Amendment and 

Is Entitled to the Broadest 

Protection ............................. 3

II. Unlike Contributions to Candidates, 

Independent Expenditures, Which 

Are Not Coordinated with a Candidate 

or Campaign, Do Not Pose a Danger 

of Corruption or its Appearance ........... 6
iii

TABLE OF CONTENTS (continued)

III. This Court Has Consistently 

Invalidated Legislative Attempts 

at Limiting or Restricting 

Corporate Expenditures as 

Violative of First Amendment 

Free Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

IV. Austin and McConnell Deviated 

from Established Precedent, And, 

as a Result, Should Be Overruled 

by this Court . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
iv

TABLE OF CITATIONS

Cases Page

Austin v. Michigan Chamber of Commerce, 

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

Buckley v. Valeo, 

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

Colorado Republican Campaign 

Committee v. FEC, 

518 U.S. 604 (1996) . . . . . . . . . . . . . . . . . . . . . . . 17

FEC v. Massachusetts Citizens 

For Life, Inc., 

479 U.S. 238 (1986) . . . . . . . . . . . . . . . . . . . . . . 5, 6

FEC v. National Conservative 

Political Action Committee, 

470 U.S. 480 (1985) . . . . . . . . . . 6, 7, 13, 14, 15, 17

First National Bank v. Bellotti, 

435 U.S. 765 (1978) . . . . . . . . . 6, 11, 12, 13, 17, 18

McConnell v. Federal Election Comm’n, 

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

Mills v. Alabama, 

384 U.S. 214 (1966) ........................ 4
v

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964) ........................ 4

Palko v. Connecticut, 

302 U.S. 319 (1937) ........................ 5

Red Lion Broadcasting Co. v. FCC, 

395 U.S. 367 (1969) . . . . . . . . . . . . . . . . . . . . . . . 18

Roth v. U.S., 

354 U.S. 476 (1957) ........................ 4

U.S. v. National Treasury 

Employees Union, 

513 U.S. 454 (1995) . . . . . . . . . . . . . . . . . . . . . . . 17

Whitney v. California, 

274 U.S. 357 (1927) ........................ 5

Constitutional Provisions

U.S. CONST. amend. I .................... passim

Statutes, Rules and Regulations

2 U.S.C. § 434(f)(3)(A)(i) . . . . . . . . . . . . . . . . . . . . . . 19

2 U.S.C. § 441b . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 19
vi

18 U.S.C. § 591(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Federal Election Campaign Act of 1971, 

86 Stat. 3, as amended 1974, 

88 Stat. 1263 . . . . . . . . . . . . . . . . 3, 6, 7, 10, 13, 19 

SUP. CT. R. 37.3(a) ............................ 1

Other Authorities Page

William Shakespeare, Hamlet, 

act 3, sc. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1

1

 Pursuant to Rule 37.3(a), letters of consent have been submitted

to the Clerk. All parties consent 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 , its members, or its counsel made a monetary

contribution to its preparation or submission.

INTEREST OF AMICUS CURIAE1

Judicial Watch, Inc. (“Judicial Watch”) is a 501(c)(3)

not-for-profit corporation that seeks to promote

transparency, accountability, and integrity in

government and fidelity to the rule of law. Since its

establishment in 1994, Judicial Watch has investigated

and monitored the activity of government officials and

politicians and reported its findings to the public

through radio, television, and print media and via the

Internet. Due to the nature of its mission, Judicial

Watch regularly discusses elected officials and

candidates for public office via a multitude of media, and

these discussions may happen to occur 30 to 60 days

before elections. Judicial Watch assiduously avoids any

type of electioneering or other advocacy for or against

the election of any particular candidate for federal office.

Nonetheless, Judicial Watch is concerned that, if the

ruling under review is allowed to stand, its watchdog

activities and public education efforts might be

misconstrued as trying to influence and/or having the

effect of influencing federal elections. Because such a

result could substantially and adversely impact how

Judicial Watch carries out its public interest mission, it
2

has an obvious interest in this matter and therefore

respectfully submits this Amicus Curiae Brief. 

SUMMARY OF ARGUMENT

The Court’s solicitude for free speech has led it to

fashion the fundamental principle that government may

curtail speech only to the degree necessary to meet a

particular, compelling interest and must avoid infringing

on speech that does not pose the danger that has

prompted regulation.

Until Austin, preventing corruption and the

appearance of corruption were the only legitimate

interests identified for restricting campaign finances.

This Court had held that independent expenditures,

which are not coordinated with a candidate or campaign,

do not pose a danger of corruption or its appearance,

and, as a result, cannot be limited or restricted, even

when made by a corporation. The Court had

consistently invalidated legislative attempts at limiting

or restricting corporate expenditures as violating the

First Amendment.

The Austin Court deviated from this precedent,

holding that independent expenditures made by

corporations, even when not coordinated with a

candidate or campaign, pose a danger of corruption or its

appearance. Likewise deviating from precedent, it

sanctioned the interest of equalizing the relative ability

of individuals and groups to influence the outcome of

elections. The McConnell Court compounded the error
3

made in Austin by expanding the scope of suppressed

speech to include any reference to a candidate that

might influence an election. Because this expansion is

in direct conflict with long-established precedent, Austin

and McConnell should be overruled.

ARGUMENT

I. Political Speech Is at the Heart of the First

Amendment and Is Entitled to the Broadest

Protection.

In Buckley v. Valeo, 424 U.S. 1, 14 (1976), this Court

declared that political speech is at the heart of the First

Amendment and is entitled to “the broadest protection.”

In reviewing certain provisions of the Federal Election

Campaign Act of 1971 (“FECA or Act”), 86 Stat. 3, as

amended 1974, 88 Stat. 1263, the Buckley Court stated:

The Act’s contribution and expenditure

limitations operate in an area of the most

fundamental First Amendment activities.

Discussion of public issues and debate on the

qualifications of candidates are integral to the

system of government established by our

Constitution. The First Amendment affords the

broadest protection to such political expression in

order to “assure [the] unfettered interchange of

ideas for the bringing about of political and social

changes desired by the people.”
4

424 U.S. at 14 (quoting Roth v. U.S., 354 U.S. 476, 484

(1957)).

The rationale underlying this broad protection has

two major aspects. First, the Framers of the First

Amendment specifically intended to protect political

speech: “there is practically universal agreement that a

major purpose of [the First] Amendment was to protect

the free discussion of governmental affairs.” Id. (quoting

Mills v. Alabama, 384 U.S. 214, 218 (1966)). The second

aspect is related to the first: the Framers intended to

protect political speech because they understood that it

was “integral to the operation of the system of

government established by our Constitution.” Id. That

is, representative government depends for its very

existence on “uninhibited, wide-open, and robust” debate

on public issues. Id. (quoting New York Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964)). As the Court

explained,

in a republic where the people are sovereign, the

ability of the citizenry to make informed choices

among candidates for office is essential, for the

identities of those who are elected will inevitably

shape the course that we follow as a nation.

Id. at 14-15. Or, as the Court stated elsewhere in the

opinion, “[d]emocracy depends on a well-informed

electorate, not a citizenry legislatively limited in its

ability to discuss and debate candidates and issues.” Id.

at 49 n.55.
5

The Buckley Court thus was solicitous to protect

political speech not only as a matter of individual liberty,

and not only because it was the intention of the Framers,

but because political speech is crucial to the survival of

our representative government and its system of ordered

liberty. This principle, in turn, presupposes that First

Amendment protection of political speech is the

precondition of all other freedoms protected by the

Constitution. See FEC v. Massachusetts Citizens For

Life, Inc., 479 U.S. 238, 264 (1986) (“MCFL”) (“Freedom

of speech plays a fundamental role in a democracy . . .

[It] ‘is the matrix, the indispensable condition of nearly

every other form of freedom.’”) (quoting Palko v.

Connecticut, 302 U.S. 319, 327 (1937)).

The First Amendment protects speech not only

because it fosters free government, but because it fosters

the development of the individual by protecting freedom

of thought and conscience. Quoting Justice Brandeis,

this Court has stated:

Those who won our independence believed that

the final end of the State was to make men free to

develop their faculties; and that in its government

the deliberative forces should prevail over the

arbitrary. They valued liberty both as an end and

as a means.

MCFL, 479 U.S. at 258 n.10 ( quoting Whitney v.

California, 274 U.S. 357, 375 (1927)) (emphasis added).

Thus, free speech not only plays a vital role in protecting
6

democracy itself, but it allows people to develop their

faculties to the fullest extent possible.

Considering these fundamental truths, it is no

wonder that the Buckley Court was so avid of protecting

political speech against infringement by the FECA.

II. Unlike Contributions to Candidates, Independent

Expenditures, Which Are Not Coordinated with a

Candidate or Campaign, Do Not Pose a Danger of

Corruption or its Appearance. 

The Court’s solicitude for free speech caused it to

fashion the fundamental principle that “[w]here at all

possible, government must curtail speech only to the

degree necessary to meet the particular problem at hand,

and must avoid infringing on speech that does not pose

the danger that has prompted regulation.” MCFL, 479

U.S. at 265 (emphasis added). This principle is a

reformulation of the “strict scrutiny” test the Court

applies in all cases where a regulation is challenged as

a content-based restriction on speech. Id. at 251, 252;

see also Buckley, 424 U.S. at 24, 25; First National Bank

v. Bellotti, 435 U.S. 765, 786 (1978). In essence, because

as a nation we value free speech so highly, our

government is permitted to regulate it only where the

government’s interest is compelling and only to the

extent absolutely necessary to achieve that interest.

Until Austin, “preventing corruption or the

appearance of corruption” were the only “legitimate and

compelling interests” identified for restricting campaign
7

finances. FEC v. National Conservative Political Action

Committee, 470 U.S. 480, 496 (1985) (“ NCPAC”). In

NCPAC, the Court explained what it meant by

corruption:

Corruption is the subversion of the political

process. Elected officials are influenced to act

contrary to their obligations of office by the

prospect of financial gain to themselves or

infusions of money into their campaigns. The

hallmark of corruption is the financial quid pro

quo: dollars for political favors.

Id. at 497.

With this in mind, the Court in Buckley addressed

the contribution and expenditure limits imposed by the

FECA. Although the Court found that the FECA’s

contribution and expenditure limits implicate

fundamental First Amendment interests, Buckley, 424

U.S. at 14, it enunciated a constitutional distinction

between “contributions” and “independent expenditures.”

The Court found that contribution limits did not place

significant burdens on protected speech and

associational freedoms. The Court reasoned that 

a limitation upon the amount that any one person

or group may contribute to a candidate or political

committee entails only a marginal restriction on

the contributor’s ability to engage in free

communication.
8

Id. at 21, 22. This conclusion follows from the

fundamental differences between independent

expenditures and contributions. Whereas independent

expenditures entail expressive and articulate

communications to the public, a contribution to a

candidate merely “serves as a general expression of

support for the candidate and his views, but does not

communicate the underlying basis for the support.” Id.

at 21. Contributions thus are not “political speech” in

the same sense as independent expenditures because

their communicative effect provides only a “rough index

of the contributor’s support for the candidate.” Id. 

Moreover, contributions differ from independent

expenditures in that a limit on contributions does not

result in diminishing the quantity of political speech.

This principle is related to the idea that contributions do

not constitute political speech in the same sense as

independent expenditures. As the Court explained,

[t]he quantity of communication by the

contributor does not increase perceptibly with the

size of his contribution, since the expression rests

solely on the undifferentiated, symbolic act of

contributing.

Id. at 21. The Court’s reasoning in this regard was

essentially that, whereas increasing the amount of an

independent expenditure will result in more political

speech by the person or group making the expenditure,

increasing the size of a contribution (which by definition

is made directly to the candidate or campaign) will not
9

increase the amount of political speech by the person or

group making the contribution. This follows from the

fact that, while contributions may allow a candidate to

increase the amount that he spends on political speech,

they do not constitute “articulate” or “expressive”

political speech by the contributor as such. As the Court

explained:

While contributions may result in political

expression if spent by a candidate or an

association to present views to the voters, the

transformation of contributions into political

debate involves speech by someone other than the

contributor.

Id. The Court concluded, 

[a] limitation on the amount of money a person

may give to a candidate or campaign organization

thus involves little direct restraint on his political

communication, for it permits symbolic expression

of support evidenced by a contribution but does

not in any way infringe the contributor’s freedom

to discuss candidates and issues.

Id.

The Court also found that contributions could be

limited because they posed the danger of quid pro quo

corruption (and the appearance thereof) to the political

system. Independent expenditures by contrast, which

are not coordinated with a candidate or campaign, do not
10

pose a danger of corruption or its appearance. This is

because a candidate does not necessarily benefit from

(and may well even be harmed by) an expenditure that

is made independently of his campaign. As the Court

recognized,

[u]nlike contributions, such independent

expenditures may well provide little assistance to

the candidate’s campaign and indeed may prove

counterproductive. The absence of

prearrangement and coordination of an

expenditure with the candidate or his agent not

only undermines the value of the expenditure to

the candidate, but also alleviates the danger that

expenditures will be given as a quid pro quo for

improper commitments from the candidate.

Id. at 47. Thus, because as a practical matter the

candidate may well not benefit from an independent

expenditure made without coordination, the danger of a

quid pro quo is obviated. This not only alleviates the

danger of corruption, but the appearance of corruption as

well.

III. This Court Has Consistently Invalidated

Legislative Attempts at Limiting or Restricting

Corporate Expenditures as Violative of First

Amendment Free Speech.

In light of these principles, the Buckley Court

addressed the constitutionality of a FECA provision that

prohibited any “person” from making independent
11

expenditures above $1,000. The Act defined “person”

broadly to include corporations. 424 U.S. at 23, 39 n.45

(citing 18 U.S.C. § 591(g)). The Court found that the

government’s interest in preventing corruption and the

appearance thereof was not applicable to independent

expenditures because there was no threat of a political

quid pro quo with this type of core independent political

expression. Id. at 45-48. In other words, a candidate

could not be corrupted by expenditures of which he had

no knowledge, let alone any control. The Court held that

the limit on independent expenditures, including those

made by corporations, violated the First Amendment

because there was no compelling interest to justify the

burdens such restrictions imposed upon the exercise of

free speech and association. Id. at 39-51.

In Bellotti, the Court again addressed a restriction on

corporate expenditures. The challenged statute

prohibited expenditures by corporations for the purpose

of influencing the vote on referendum proposals. The

Court framed the question presented as “whether the

corporate identity of the speaker deprives this proposed

speech of what otherwise would be its clear entitlement

to protection.” Belotti, 435 U.S. at 778. In this regard,

it noted, 

[i]f the speakers here were not corporations, no

one would suggest that the State could silence

their proposed speech. It is the type of speech

indispensable to decisionmaking in a democracy,

and this is no less true because the speech comes

from a corporation rather than an individual. The
12

inherent worth of the speech in terms of its

capacity for informing the public does not depend

upon the identity of its source, whether

corporation, association, union, or individual.

Id. at 777 (footnotes omitted). The Court concluded that

the corporate speech at issue was deserving of First

Amendment protection as there was no support in the

First or Fourteenth Amendment, or precedent, “for the

proposition that speech that otherwise would be within

the protection of the First Amendment loses that

protection simply because its source is a corporation . .

. .” Id. at 784.

The Court recognized that any such attempt by a

legislature to regulate who can speak is fraught with

peril to First Amendment freedom of speech:

In the realm of protected speech, the legislature is

constitutionally disqualified from dictating the

subjects about which persons may speak and the

speakers who may address a public issue. If a

legislature may direct business corporations to

“stick to business,” it also may limit other

corporations – religious, charitable, or civic – to

their respective “business” when addressing the

public. Such power in government to channel the

expression of views is unacceptable under the

First Amendment. 

Id. at 784-85 (citation and footnotes omitted).
13

As a result, the statute could stand only if the state

could demonstrate a “subordinating interest which is

compelling,” and it used “closely drawn” means to

further that interest. Id. at 786. The state argued that

it had an “interest in sustaining the active role of the

individual citizen in the electoral process and thereby

preventing diminution of the citizen’s confidence in

government.” Id. at 787. According to the state,

“corporations are wealthy and powerful and their views

may drown out other points of view.” Id. at 789. The

Court rejected this interest, as no evidence existed in the

record or legislative history that corporate speech

“threatened imminently to undermine democratic

processes.” Id. 

The state also argued it had an interest “in protecting

the rights of shareholders whose views differ from those

expressed by management on behalf of the corporation.”

Id. at 787. The Court again rejected the state’s

argument because assuming, arguendo, that protection

of shareholders is a “compelling” interest, it could find

“no substantially relevant correlation between the

governmental interest asserted and the State’s effort” to

prohibit corporations from speaking. Id. at 795 (citation

omitted). Because the state could not demonstrate that

the statute advanced any compelling interest or that it

was closely drawn to advance any alleged interest, the

statute was declared unconstitutional.

In NCPAC, 470 U.S. 480, the Court reviewed a FECA

provision that prohibited certain groups from making

independent expenditures above $1,000. The Court
14

rejected the state’s argument that the speech rights of

these groups were not entitled to full First Amendment

protection (i.e., that they could be treated differently)

simply because they were political action committees

(“PACs”). Id. at 494. It then recognized that PACs are

not corrupting simply because they are groups of

individuals; in other words, the structure of PACs does

not, ipso facto, make them corrupting. Id. at 497. The

Court held that the fact that PACs might be able to

make greater independent expenditures due to the

collective efforts of their members did not alter the

calculus: because independent expenditures were made

without the knowledge of candidates, there was no

danger of a quid pro quo between a PAC and an

(unknowing) candidate, regardless of the amount of the

expenditure. Id. at 497, 498. Because there was no

danger of corruption, the statute did not advance any

compelling interest; as a result, it was unconstitutional.

Clearly, this Court has consistently held that

independent expenditures are protected speech which

require the broadest protection by the First Amendment.

This Court has also consistently invalidated legislative

attempts at limiting or restricting corporate

expenditures as violative of First Amendment free

speech because the government’s interest in preventing

corruption and the appearance thereof is inapplicable to

independent expenditures, as there is no threat of a

political quid pro quo with this type of core independent

political expression. 

But then came Austin and McConnell . . .
15

IV. Austin and McConnell Deviated from

Established Precedent, And, as a Result,

Should Be Overruled by this Court.

In Austin, the Court addressed a state statute that

prohibited corporations from using “corporate treasury

funds for independent expenditures in support of, or in

opposition to, any candidate in elections for state office.”

494 U.S. at 654. The Court first determined that the

statute burdened expressive activity. Id. at 658. The

Court rightly recognized that the mere fact that an

entity “is a corporation does not remove its speech from

the ambit of the First Amendment.” Id. at 657. As a

result, the statute could not stand unless the state could

demonstrate a compelling interest for its existence. Id.

at 658.

The state argued that the statute was necessary to

stem corruption or the appearance of corruption caused

by the unique legal and economic characteristics of

corporations that, in the Court’s words, permits them “to

use resources amassed in the economic marketplace to

obtain an unfair political advantage in the political

marketplace.” Id. at 659. The Court did not find that

the state had proven the existence of quid pro quo

corruption or its appearance, “the only legitimate and

compelling government interes[t] thus far identified for

restricting campaign finances,” NCPAC, 470 U.S. at 496,

497, but invented a new species of corruption: “the

corrosive and distorting effects of immense aggregations

of wealth that are accumulated with the help of the

corporate form and that have little or no correlation to
16

the public’s support for the corporation’s political ideas.”

Austin, 494 U.S. at 654. The Court stated 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.” Id. at 660. “Ay, there’s the rub.”

William Shakespeare, Hamlet, act 3, sc. 1. 

Not only did the Austin Court deviate from Buckley’s

clear pronouncement that corporate independent

expenditures, which are not coordinated with a

candidate or campaign, do not pose a danger of

corruption or its appearance, Buckley, 424 U.S. at 45-48,

it embarked upon a path refuted by Buckley.

Specifically, in Buckley, the government claimed its

independent expenditure limit served its alleged interest

of “equalizing the relative ability of individuals and

groups to influence the outcome of elections . . . .” Id. at

48. The Court, in no uncertain terms, rejected this

interest as incompatible with First Amendment free

speech:

But the concept that government may restrict the

speech of some elements of our society in order to

enhance the relative voice of others is wholly

foreign to the First Amendment, which was

designed to secure the widest possible

dissemination of information from diverse and

antagonistic sources, and to assure unfettered

interchange of ideas for the bringing about of

political and social changes desired by the people.

The First Amendment’s protection against
17

government abridgement of free expression

cannot properly be made to depend on a person’s

financial ability to engage in public discussion.

Id. at 48-49 (citations and internal quotation marks

omitted).

In Bellotti, the Court again rejected such an

argument, especially in light of the complete lack of

evidence that corporate wealth threatens to imminently

“undermine democratic processes.” 435 U.S. at 785, 786,

789. And to be sure, it is the suppressor of speech’s

burden to prove the actual existence of the alleged harm:

When the government defends a regulation on

speech . . . it must do more than simply posit the

existence of the disease sought to be cured. . . . It

must demonstrate that the recited harms are real,

. . . and that the regulation will in fact alleviate

these harms in a direct and material way.

U.S. v. National Treasury Employees Union, 513 U.S.

454, 475 (1995) (citation and internal quotation marks

omitted); see also Colorado Republican Campaign

Committee v. FEC, 518 U.S. 604, 618 (1996) (Striking

down a regulation of independent party expenditures

because the government failed to “point to record

evidence or legislative findings suggesting any special

corruption problem in respect to independent party

expenditures”); and NCPAC, 470 U.S. at 490

(Recognizing there must be real substance to the fear of

corruption; mere suspicion, i.e., “a tendency to
18

2

 The so-called “institutional press” is not deserving of special

protection as the First Amendment applies equally to all persons.

Bellotti, 435 U.S. at 782 (“the press does not have a monopoly on

either the First Amendment or the ability to enlighten”); see also

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) (“It is

the purpose of the First Amendment to preserve an uninhibited

marketplace of ideas in which truth will ultimately prevail, rather

than to countenance monopolization of that market, whether it be

by the Government itself or a private licensee.”) (citations omitted).

demonstrate distrust . . . is not sufficient,” no matter

how widely the suspicion is shared.). In Austin, the

state utterly failed to make this showing.

The underinclusiveness of the statute only confirms

the statute exists to quiet the voices of certain segments

of society. While the statute suppresses the voices of

corporations whose wealth allegedly “can unfairly

influence elections,” Austin, 494 U.S. at 660, it leaves

uninhibited, inter alia, wealthy individuals, many of

whom gained their wealth through the corporate form,

and mega media corporations (some of which are owned

by for-profit non-media corporations), who undoubtedly

“pose a much more realistic threat to valid interests than

do . . . similar entities not regularly concerned with

shaping popular opinion on public issues.” Bellotti, 435

U.S. at 796, 797 (Burger, C. J., concurring); see also id.

at 797 (“In Tornillo [418 U.S. 241, 250 (1974)], for

example, we noted the serious contentions advanced that

a result of the growth of modern media empires ‘has

been to place in a few hands the power to inform the

American people and shape public opinion.’”).2
19

In McConnell, the Court upheld against a First

Amendment challenge Congress’ amendment of the

FECA provision prohibiting corporate independent

expenditures, 2 U.S.C. § 441(b), which, until McConnell,

were defined as expenditures that in “explicit” words or

“express terms advocate the election or defeat of a

clearly identified candidate,” i.e., express advocacy.

Buckley, 424 U.S. at 43, 44. The Court upheld Congress’

amended provision that not only prohibits corporate

express advocacy, but any corporate “electioneering

communication,” which it defines broadly as any

“broadcast, cable, or satellite communication” that:

(I) refers to a clearly identified candidate for

Federal office; 

(II) is made within-- 

(aa) 60 days before a general, special, or runoff

election for the office sought by the candidate; or

(bb) 30 days before a primary or preference

election, or a convention or caucus of a political

party that has authority to nominate a candidate,

for the office sought by the candidate; and 

(III) in the case of a communication which refers

to a candidate other than President or Vice

President, is targeted to the relevant electorate. 

2 U.S.C. § 434(f)(3)(A)(i). The Court reasoned that the

“justifications for the regulation of express advocacy

apply equally to ads aired during those periods if the ads

are intended to influence the voters’ decisions and have

that effect.” McConnell, 540 U.S. at 206. Herein lies the

error. 
20

Buckley clearly stated that issue advocacy, which

unquestionably cannot be restricted in any way

consonant with the First Amendment, may include

discussion of candidates, including discussion that

incidentally advocates a candidate’s success or defeat:

Public discussion of public issues which also are

campaign issues readily and often unavoidably

draws in candidates and their positions, their

voting records and other official conduct.

Discussion of those issues, as well as more

positive efforts to influence public opinion on

them, tend naturally and inexorably to exert some

influence on voting at elections.

* * *

So long as persons and groups eschew

expenditures that in express terms advocate the

election or defeat of a clearly identified candidate,

they are free to spend as much as they want to

promote the candidate and his views. 

Buckley, 424 U.S. at 43 n.50 and 45 (emphasis added). 

In short, McConnell suppresses speech that this

Court has unambiguously held cannot be suppressed. It

“compounds the error made in Austin [], and silences

political speech central to the civic discourse that

sustains and informs our democratic processes.”

McConnell, 540 U.S. at 323 (Kennedy, J., Rehnquist,

C.J., and Scalia, J., dissenting).
21

CONCLUSION

For the foregoing reasons, Judicial Watch respectfully

submits that the Court should overrule Austin and

McConnell.

Respectfully submitted,

Paul J. Orfanedes*

Dale L. Wilcox**

JUDICIAL WATCH, INC.

501 School Street, S.W.,

Suite 700

Washington, DC 20024

(202) 646-5172

Counsel for Amicus Curiae

* Denotes Counsel of Record

* Of Counsel