-iTABLE OF CONTENTS 

Page

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STATEMENT OF INTEREST................................ 1 

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

ARGUMENT ........................................................... 4 

I. Striking Down the Long-Standing 

Corporate Spending Restrictions 

Would Undermine the Very 

Architecture of Campaign Finance 

Law and Is Not Necessary to Protect 

Corporate Political Expression .................... 5 

A. The Federal Campaign Finance 

Laws Have Developed Through 

a History of Close Attention to 

the Differences Among Types of 

Spenders............................................. 6 

B. Corporations Have Ample and 

Effective Means of Political 

Participation, and Abrupt 

Revisiting of Established 

Restrictions on Their Spending 

Is Not Warranted............................... 9 

II. The Moment Is Wrong for the Court to 

Radically Reverse Established Law .......... 12 

A. The Moment Is Wrong for the 

Court to Open the Channels for 

Unlimited Corporate Spending....... 12 
 -iiTABLE OF CONTENTS

(continued) 

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24216-0004/LEGAL16585657.1 

B. The Moment Is Wrong for the 

Court to Upset a Regulatory 

and Constitutional Balance 

Now Featuring Unprecedented 

Participation by Small Donors........ 14 

III. The Court Lacks Any Record to 

Support the Sudden Review of Core 

Precedent on Corporate Spending, Nor 

Does It Have the Time on This 

Schedule to Address Complex 

Doctrinal Issues.......................................... 16 

CONCLUSION...................................................... 19 
 -iiiTABLE OF AUTHORITIES 

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Cases

Austin v. Mich. State Chamber of Commerce, 

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

Buckley v. Valeo, 424 U.S. 1 (1976) ............... 5, 7, 10 

FEC v. Beaumont, 539 U.S. 146 (2003)........... 17, 18 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 

238 (1986) ............................................. 5, 8, 17, 18 

FEC v. Nat’l Right to Work Comm., 459 U.S. 

197 (1982) ....................................................... 6, 17 

FEC v. Wis. Right to Life, Inc., 127 S. Ct. 

2652 (2007) ................................................... 17, 19 

First Nat’l Bank of Boston v. Bellotti, 435 

U.S. 765 (1978) ............................................... 7, 11 

McConnell v. FEC, 540 U.S. 93 (2003).............. 4, 10 

Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377 

(2000) .................................................................. 16 

Nw. Austin Mun. Util. Dist. No. One v. 

Holder, No. 08–322 (June 22, 2009) .................... 4 

Planned Parenthood of Se. Pa. v. Casey, 505 

U.S. 833 (1992) ..................................................... 5 

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008)........ 18 

United States v. Int’l Union United Auto 
 -ivTABLE OF AUTHORITIES 

(continued) 

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24216-0004/LEGAL16585657.1 

Workers, 352 U.S. 567 (1957)............................. 11 

Statutes

2 U.S.C. § 431(14)..................................................... 1 

2 U.S.C. § 4411e(a)(1)(A) ....................................... 18 

2 U.S.C. § 4411e(a)(1)(C) ....................................... 18 

2 U.S.C. § 441a............................................. 7, 10, 18 

2 U.S.C. § 441b(b)(2)(A) ......................................... 10 

2 U.S.C. § 441b(b)(2)(C) ......................................... 10 

2 U.S.C. § 441b(b)(4)(D)......................................... 10 

2 U.S.C. § 441i(a) ..................................................... 7 

2 U.S.C. § 441i(b) ..................................................... 7 

18 U.S.C. § 610......................................................... 6 

Taft-Hartley Act, 61 Stat. 136 (1947)...................... 6 

War Labor Disputes Act of 1943, 57 Stat. 167........ 6 

Regulations and Rules

11 C.F.R. § 113.4(c) ................................................ 11 

11 C.F.R. § 114.2(f)(2) ............................................ 11 

11 C.F.R. § 114.3(a)(1) ........................................... 10 

11 C.F.R. § 114.3(c)(4)............................................ 11 
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(continued) 

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11 C.F.R. § 114.4(c)(2)............................................ 11 

11 C.F.R. § 114.4(c)(4)-(5) ...................................... 10 

11 C.F.R. § 114.4(c)(6)............................................ 11 

11 C.F.R. § 114.5 .................................................... 10 

11 C.F.R. § 114.5(d)................................................ 10 

11 C.F.R. § 114.8 .................................................... 10 

Other Authorities

Ctr. for the Study of Elections & Democracy, 

The Change Election: Money, Mobilization, 

and Persuasion in the 2008 Federal 

Elections 1-56 (David B. Magleby ed., 

2009).................................................................... 16 

Institute for Politics Democracy & the 

Internet & Campaign Finance Institute, 

Small Donors and Online Giving: A Study 

of Donors to the 2004 Campaigns (Mar. 

2006), available at

http://www.ipdi.org/UploadedFiles/Small%

20Donors%20Report.pdf ..................................... 15

Simon Johnson, The Quiet Coup, The 

Atlantic, May 2009 ............................................. 13 

Matthew Josephson, The Politicos, 1865-

1896 (1938) ......................................................... 12 
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Richard A. Posner, A Failure of Capitalism: 

The Crisis of ’08 and the Descent into 

Depression (2009) ............................................... 13 

Theodore Roosevelt, State of the Union 

Message, December 5, 1905, available at

http://www.theodoreroosevelt.com/sotu5.html ................................... 13 
 -1- 

24216-0004/LEGAL16585657.1 

STATEMENT OF INTEREST 

The Democratic National Committee (DNC)1

is the organization which, by virtue of the bylaws of 

the Democratic Party of the United States, is 

responsible for the day-to-day operation of that 

party at the national level, within the meaning of 

§ 301(14) of the Federal Election Campaign Act. 2 

U.S.C. § 431(14). The DNC plans the Party’s 

quadrennial presidential nominating convention; 

promotes the election of Party candidates with both 

technical and financial support; and works with 

national, state, and local party organizations, 

elected officials, candidates, and constituencies to 

respond to the needs and views of the Democratic 

electorate and the nation. 

The DNC, the candidates that it supports, 

and its contributors must all comply with campaign 

finance laws. The DNC’s pursuit of its mission is 

heavily influenced, if not decisively shaped, by the 

long- and short-term structure and implementation 

of those laws. Accordingly, the DNC is, by 

necessity, deeply conversant with the laws and 

constitutional principles that the Court has 

requested parties and amici to address. 

 

1 The DNC submits this brief pursuant to the written 

consent of the parties. No party or counsel for a party has 

authored this brief in whole or in part, and no person or 

entity other than the DNC has made a financial contribution 

to its preparation or submission. 
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The Court has asked whether it need revisit 

a cornerstone of campaign finance regulation—the 

prohibition on corporate spending for express 

advocacy in federal elections. From its perspective 

as a major party organization, and drawing on 

decades of experience with an evolving regulatory 

scheme, the DNC will offer the Court its views on 

the consequences of sudden upheaval in the 

constitutional foundation of regulation. 

SUMMARY OF ARGUMENT 

This case is far from the right occasion for a 

convulsive change in campaign finance doctrine 

affecting corporations. The question posed by the 

Court—the scope of the corporate right to intervene 

directly in the political process—is one laden with 

consequence, particularly at this time. The 

relationship of corporation to government, and of 

profit motive to public responsibility, is an allconsuming topic in American politics and 

government, more so than at any time since the 

Great Depression. A decision now to sweep away 

long-standing corporate spending limitations would 

alter, much to the favor of one class of participants, 

the very terms on which this great national debate 

is being conducted. 

As the Court has observed, the campaign 

finance laws have developed over time, by a process 

of incremental adjustment and with careful 

attention to differences among types of 

organizations and political actors. A decision to 

abruptly recast the foundation of the laws, by 
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24216-0004/LEGAL16585657.1 

reversing the corporate spending restrictions, 

would reverberate throughout the campaign 

finance system, materially and profoundly affecting 

the position of other speakers, including political 

parties such as the DNC and individual donors. In 

considering so momentous a step, the Court does 

not have at its disposal anything approaching the 

necessary extensive evidentiary inquiry—for which 

an expedited briefing schedule is no substitute. 

The parties and amici cannot manufacture this 

record now, and two months’ time is not enough. 

Also lacking on this schedule is the opportunity for 

the Court to fully consider complex doctrinal issues 

it has never before addressed. 

Any such radical adjustment to the intricate 

structure of the law also threatens to arrest a trend 

in progress toward the empowerment of the 

individual “small donor” who contributes to 

candidates and to parties such as the DNC. The 

campaign laws protect the political participation of 

individuals, as volunteers and otherwise, in the 

political process. They also provide numerous 

outlets for corporate, including for-profit, political 

expression. But only now, through the interaction 

of the law and new technologies, have small 

individual givers grown in importance, closer than 

ever before to matching the aggregate, but 

modestly constrained, giving power and associated 

influence of corporations and other institutional 

actors. 
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A rough balance in the operation of the law, 

just recently established, would not survive the 

sudden revision of the rules to the great and 

instant advantage of the for-profit corporate 

community. The predictable outcome would be a 

heightened risk of corruption—both corruption in 

fact and corruption in appearance. 

ARGUMENT 

Reconsidering Austin v. Michigan State 

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

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

unnecessary in this case. The issues presented by 

the type of nonprofits and activity before the Court 

are quite separate from the large questions posed 

for reargument. Not even the Appellant, in the 

first round of briefing before the Court, suggested 

that the relief it seeks turns on confronting those 

questions. 

Just last Term the Court held: “[T]he 

importance of the question does not justify our 

rushing to decide it. Quite the contrary: Our usual 

practice is to avoid the unnecessary resolution of 

constitutional questions.” Nw. Austin Mun. Util. 

Dist. No. One v. Holder, No. 08–322, at 2 (June 22, 

2009). 

That is the rule followed in the case of open 

constitutional issues. It applies even more 

compellingly to settled ones, where the established 

law has been applied to a number of different 

statutory iterations over many years, and where 

the federal and state legislatures have been part of, 
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and have relied on, a larger dialogue with the 

Court that has influenced the course of 

constitutional interpretation. Cf. Planned 

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-

56 (1992). 

Campaign finance regulation, as this Court 

has noted, has proceeded incrementally, and the 

Court has reviewed the constitutional issues as 

necessarily—and only as necessarily—presented. 

See FEC v. Mass. Citizens for Life, Inc., 479 U.S. 

238, 258, n.11 (1986). As evident from Buckley v. 

Valeo, 424 U.S. 1, 25 (1976) (per curiam), to the 

present day, the Court has been mindful of the 

pressures on the Congress to fashion regulation 

sensitive to the complexity of the political process 

and to constitutional constraints. The law as it 

stands today, and in its fundamental parts, 

represents a laboriously wrought balance, a historic 

component of which is control on corporate political 

spending. 

I. Striking Down the Long-Standing 

Corporate Spending Restrictions Would 

Undermine the Very Architecture of 

Campaign Finance Law and Is Not 

Necessary to Protect Corporate 

Political Expression 

Especially where the law has evolved in this 

way, institutional modesty, as well as fairness to 

the other branches, counsels great hesitation when 

considering an abrupt reversal in the law’s 
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direction without thorough consideration of the 

consequences. 

A. The Federal Campaign Finance Laws 

Have Developed Through a History of 

Close Attention to the Differences 

Among Types of Spenders 

As Justice Rehnquist wrote for a unanimous 

Court, “the differing structures and purposes of 

different entities may require different forms of 

regulation in order to protect the integrity of the 

electoral process.” FEC v. Nat’l Right to Work 

Comm., 459 U.S. 197, 210 (1982) (internal 

quotation marks and citation omitted). In 

regulating campaign finance within the limits 

established by the Court, Congress has paid proper 

heed to the differences among spenders and the 

interrelationship of rules established for each. 

Regulation in this field is not a “one size fits all” 

proposition, nor is the rule established for one type 

of organization, in conducting any particular 

activity, without consequences for the rules 

established for other types of organizations and 

their operations. 

The statutory prohibition implicated in this 

case is a fitting example, for Congress, having 

imposed source restrictions on corporations, 

concluded that it should extend them to labor 

organizations as well. See Hatch Act, 18 U.S.C. 

§ 610; War Labor Disputes Act of 1943, ch. 144, § 9, 

57 Stat. 167; Taft-Hartley Act, 61 Stat. 136 (1947). 

In the Bipartisan Campaign Reform Act of 2002 
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(BCRA), Pub. L. No. 107-155, 116 Stat. 81, §§ 202, 

214 (codified at 2 U.S.C. § 441a), Congress 

distinguished even among types of political party 

committees, setting out different financing rules for 

national parties, on the one hand, and state 

parties, on the other. Compare 2 U.S.C. § 441i(a) 

with id. § 441i(b). 

These and other distinctions are grounded in 

the concern to prevent corruption or its appearance. 

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

765, 787 n.26 (1978) (opinion of Powell, J.) (“The 

importance of the governmental interest in 

preventing [the problem of corruption of elected 

representatives through the creation of political 

debts] has never been doubted.”). But such 

distinctions also serve the requirement that 

restrictions must be closely tailored to the 

constitutional source of government authority. 

Buckley, 424 U.S. at 25. The result is a scheme of 

varied limits, built around different organizational 

characteristics and sources of funding. 

Spenders adjust to and function under rules 

that, if radically altered, have immediate and farreaching effects on political competition. The full 

impact over time of a tectonic shift in the 

constitutional balance is unknowable. That there 

will be an impact is certain, and the 

consequences—for the rights and relative influence 

of spenders within the political system—are sure to 

be profound. There can be no question that 

revisiting the core constitutional law governing 
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corporate spending, and particularly Austin, would 

be just such a radical step of vast consequence. 

A major political party such as the DNC, 

closely regulated in its activities, does not function 

in isolation from the spending of other political 

actors. Whether as allies or adversaries, other 

organizations raise and spend money within the 

same political process to influence the same 

elections. Should the corporate sector as a whole be 

freed to make use of its large aggregations of 

wealth to influence voter choice, the very terms on 

which political parties compete to be heard will 

undergo dramatic, wholesale revision. 

Some aspects of what this would mean are 

foreseeable. For-profit, statutorily-created 

corporations could devote unlimited sums, 

generated through business activity, to express 

advocacy. Parties could respond, where response is 

required, only with funds raised contributor by 

contributor, within meaningful limits, including 

restrictions on the universe of lawful contributors. 

Parties are indeed limited in their fundraising 

reach by the power of their political appeal. Unlike 

corporations, their donors must choose to give, as 

contributors; parties are not free to set up ancillary 

lines of business and generate funds by 

establishing a “customer” base from which funds, 

gathered in commercial exchange, may be tapped 

for political purposes. 

Of course, not all corporations are alike, as 

the Court has affirmed. See Mass. Citizens for Life, 
 -9- 

24216-0004/LEGAL16585657.1 

479 U.S. at 259. Since l907, the corporate sector 

has become more differentiated, and nonprofit 

corporations have proliferated. The Court has 

distinguished for-profit corporations, with wealth 

accrued without regard to levels of political 

support, from nonprofit corporations established for 

ideological purposes and independent of 

commercial firms. The case before the Court falls 

into this latter category. Resolution of this case 

does not compel the Court to revisit, much less 

overturn, its decisions validating Congressional 

controls on for-profit corporate spending on 

elections. 

Distinctions of this kind have supplied the 

analytic tools for the Court’s (and the Congress’s) 

labors in this field. Disposing of the Appellant’s 

claim does not require disregarding such 

distinctions. And to disregard them would lead the 

Court to demolish virtually overnight one of the 

foundations of federal and many state campaign 

finance laws. 

B. Corporations Have Ample and Effective 

Means of Political Participation, and 

Abrupt Revisiting of Established 

Restrictions on Their Spending Is Not 

Warranted 

In no event need the Court be concerned 

that, absent radical surgery on the campaign 

finance laws, corporations will be shut out of the 

political process by a misguided application of 

notions of “equality.” The statute analyzed in 
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Austin and BCRA § 203 as analyzed in McConnell

represent “marginal restriction[s].” Buckley, 424 

U.S. at 20. Indeed, one can hardly say that the 

development of the campaign finance laws since 

Austin has rendered corporations voiceless or 

without the means of participating in the federal 

elections process. Nothing before the Court—either 

argued directly or intimated—would suggest that 

for-profit corporations, though restricted by law, 

have been silenced by it, suffering injury 

disproportionate to the rationale for regulation. 

Corporations may finance political action 

committees (PACs) and may devote considerable 

resources to these vehicles for expressing their 

preferences among electoral choices. 2 U.S.C. 

§ 441b(b)(2)(C); 11 C.F.R. § 114.5. PAC funds are 

supplied by executives and shareholders, yet they 

are a corporate enterprise through which the 

monies on hand are controlled by corporate 

managers, in the corporate interest. 11 C.F.R. 

§ 114.5(d). 

Corporations are similarly able to fund 

unlimited communications on political topics with 

their executives and shareholders. 2 U.S.C. 

§ 441b(b)(2)(A); 11 C.F.R. § 114.3(a)(1). They may 

fund additional PAC activity through trade 

associations of which they are members, 2 U.S.C. 

§ 441b(b)(4)(D); 11 C.F.R. § 114.8; they may 

distribute voting guides and voting records, 11 

C.F.R. § 114.4(c)(4)-(5); and they may underwrite 

both partisan and nonpartisan voter registration 
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and turn-out activity, id. §§ 114.3(c)(4), 114.4(c)(2). 

They may host fundraising events for candidates, 

fully associating themselves with specific partisan 

causes. Id. §§ 113.4(c), 114.2(f)(2). They may even 

publicly endorse candidates. Id. § 114.4(c)(6). 

No one has suggested to the Court that for 

the last 102 years, following passage of the Tillman 

Act, American corporations have been absent from 

the political process, somehow rendered mute. 

However, as state-created mechanisms for 

artificially large aggregations of wealth, they have 

been subject to limits on the use of that wealth to 

prevent them from dominating and corrupting the 

political process. Austin, 494 U.S. at 658. 

The Court poses its question directly about 

Austin, but the law constraining corporate general 

treasury express advocacy was settled well before 

Austin. The Court has long defended Congress’s 

efforts to protect the electoral process “from what it 

deemed to be the corroding effect of money 

employed in elections by aggregated power.” 

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

352 U.S. 567, 582 (1957). For decades, “the 

[i]mportance of the governmental interest in 

preventing this occurrence has never been 

doubted.” Bellotti, 435 U.S. at 787 n.26. 
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II. The Moment Is Wrong for the Court to 

Radically Reverse Established Law 

A. The Moment Is Wrong for the Court to 

Open the Channels for Unlimited 

Corporate Spending 

The Court’s decisions are not rendered in a 

vacuum. It would be strange indeed if historic 

limits on the political use of artificially aggregated 

wealth were summarily swept away at a time of 

heightened national concern about corporate social 

and political accountability. 

In this regard, the current environment is 

much like that of a century ago, when the same 

concerns first resulted in limitations on the use of 

corporate wealth in campaigns. As trusts and 

corporate wealth grew, so did corporate 

contributions, beginning in earnest in the 1896 

presidential election. See Matthew Josephson, The 

Politicos, 1865-1896 at 699 (1938). Responding to 

public outrage, President Theodore Roosevelt 

repeatedly urged Congress to forbid all corporate 

campaign contributions. In his 1905 State of the 

Union address, he stated, 

The fortunes amassed through 

corporate organization are now so 

large, and vest such power in those 

that wield them, as to make it a 

matter of necessity to give to the 

sovereign—that is, to the Government, 

which represents the people as a 
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whole—some effective power of 

supervision over their corporate use. 

Theodore Roosevelt, State of the Union Message, 

December 5, 1905, available at

http://www.theodore-roosevelt.com/sotu5.html. 

Two years later, Congress passed the first statute 

of the type at issue here. 

These issues are just as salient, under 

changed conditions, in this era. Huge aggregations 

of wealth, facilitated by state-created mechanisms 

and other forms of public support, are front and 

center in the national policy dialogue of the day. 

The notion of “firms too big to fail” figures 

prominently in this debate. So, too, does a range of 

other statutory enactments, regulatory initiatives 

and new proposals that underscore the complex, 

politically sensitive relationship of the private and 

public sectors, of public interest and private profit. 

See Richard A. Posner, A Failure of Capitalism: The 

Crisis of ’08 and the Descent into Depression 208-

09, 242-43 (2009).2

 

2 In his analysis of contemporary policy challenges, 

Judge Posner urges close attention to corporate interaction 

with the political process. Judge Posner considers how “a 

profound failure of the market was abetted by government 

inaction. That inaction was the result in part of political 

pressures (to keep interest rates down . . . and to conciliate 

powerful political interests that are—not incidentally—large 

contributors to political campaigns).” Posner, supra, at 242-

43; see also Simon Johnson, The Quiet Coup, The Atlantic, 

May 2009 (alleging the connection of campaign finance, 
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24216-0004/LEGAL16585657.1 

These circumstances, echoing as they do the 

nation’s experience at the outset of the last century, 

do not favor a sudden and major shift in political 

spending power to the benefit of the for-profit 

corporate sector. A public already troubled by the 

great pending questions of corporate influence and 

responsibility would be still more troubled. The 

balance holding under the current regulatory 

scheme would, if so violently disturbed, give way to 

deep anxieties about potential, perceived, and 

actual corruption. 

B. The Moment Is Wrong for the Court to 

Upset a Regulatory and Constitutional 

Balance Now Featuring Unprecedented 

Participation by Small Donors 

Also at risk in any radical revision of the 

campaign finance laws is the nascent—and so, still 

tenuous—power of small individual donors. 

Parties, political committees, and candidates, 

working within the structure of the campaign 

finance laws and with the aid of new technologies, 

 

among other factors, to failed government policy and 

oversight). The feared or actual deployment in the political 

process of massive corporate resources, calculated to induce 

government inaction or thwart regulatory controls, is what 

defines the corruption addressed by long-standing campaign 

finance limits. Reconsideration of these limits, in this case 

and its non-record, would be—to understate the point—poorly 

timed.
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24216-0004/LEGAL16585657.1 

have mobilized small individual donors in 

unprecedented numbers. 3 

Those same donors are now enlisting to 

volunteer in their political causes, forming a new 

online corps of freshly empowered average citizens 

of varying party affiliations and political 

commitments. This is a new development, the 

further maturation of which is being awaited with 

keen anticipation. Quite apart from this new 

development’s established success in bolstering 

public participation, it promises to increase long 

lagging public confidence in the political process. 

The 2008 election in particular proved that 

the small donor increase was not an anomaly but 

rather was indicative of an emerging trend. 

Senator John McCain raised $35 million from 

about 827,000 small donors, while Senator Barack 

 

3 The convergence of BCRA and the Internet in 2004 

was a watershed moment for small donors. See Institute for 

Politics Democracy & the Internet & Campaign Finance 

Institute, Small Donors and Online Giving: A Study of Donors

to the 2004 Campaigns (Mar. 2006), available at

http://www.ipdi.org/UploadedFiles/Small%20Donors%20Report.pdf. 

Senator John Kerry raised 37 percent of his contributions 

from small donors—those contributing $200 or less—while 

President George W. Bush raised 31 percent from small 

donors. For perspective, during the 2000 election, Vice 

President Al Gore’s small donor base was 20 percent of his 

total fundraising efforts, while then-Governor Bush’s was 16 

percent. Id. at 3-4. Overall, the total number of small donors 

tripled or quadrupled, from close to 625,000 in 2000 to 

perhaps 2.8 million in 2004. Id. at 5. 
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Obama raised $178 million from 3.7 million small 

donors. See generally Ctr. for the Study of 

Elections & Democracy, The Change Election: 

Money, Mobilization, and Persuasion in the 2008 

Federal Elections 1-56 (David B. Magleby ed., 

2009). The Presidential elections are leading 

indicators: the political parties and their 

candidates are building on this “small donor” 

participatory model throughout the country. 

A sudden change in the law, to the 

advantage of corporate wealth amassed in 

commercial transactions, would cause a violent 

disruption in this process. An emerging balance, 

years in the making, would be undone. In the place 

of a sense of empowerment could be expected 

another spell of disillusionment. What will 

predictably follow is a widespread sense that the 

rules were changed, and corporate political power 

restored to commanding levels, just as the era of 

the small individual donor had begun. 

III. The Court Lacks Any Record to Support 

the Sudden Review of Core Precedent 

on Corporate Spending, Nor Does It 

Have the Time on This Schedule to 

Address Complex Doctrinal Issues 

If “[t]he quantum of empirical evidence 

needed . . . will vary up or down with the novelty 

and plausibility of the justification raised,” Nixon v. 

Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000), 

then a very complete record should be demanded of 

any party asking to overturn established law built 
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24216-0004/LEGAL16585657.1 

on accepted public law facts. It is novel indeed for 

the Court to consider revisiting those factual 

understandings in a case in which there is no 

relevant record whatsoever. And the record 

suitable for a case involving nonprofit ideological 

corporations does not suffice to support the review 

of spending restrictions on for-profit corporations. 

Throughout the Court’s jurisprudence, from 

National Right to Work, 459 U.S. 197, through 

Massachusetts Citizens for Life, 479 U.S. 238, and 

Federal Election Commission v. Beaumont, 539 

U.S. 146 (2003), to Federal Election Commission v. 

Wisconsin Right to Life, Inc., 127 S. Ct. 2652 

(2007), the Court has expressly recognized the 

significance of the difference in type of corporation. 

Compounding the problem of a missing 

record is the doctrinal challenge of adapting the 

contribution/expenditure distinction to the field of 

corporate political spending. Buckley laid down 

this distinction in cases where the spender was 

authorized to contribute directly, but was subject to 

contribution limits. This same corruption rationale 

was inadequate to sustain the same limits when 

the spending was truly “independent” of the 

candidate. In the case of corporations, barred from 

contributing directly, the question never before 

addressed is whether an entity prohibited from 

giving at all may claim the same right to escape all 

limits on a claim of “independence.” 

Is the right the same where the concern at 

the heart of the regulatory scheme is the source of 
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24216-0004/LEGAL16585657.1 

funds, not the amount that an otherwise lawful 

source may donate? The Court has never spoken to 

this issue;4 it was not presented and briefed in this 

case to date; and reargument on this schedule 

affords minimal opportunity, without a record, to 

achieve the “comprehensive examination” that such 

an issue calls for. Beaumont, 539 U.S. at 164 (Kennedy, 

J., concurring).5 

 

4 The Court has sanctioned express electoral advocacy 

by a special class of nonprofit corporations, Mass. Citizens for 

Life, 479 U.S. at 263-64, but only on the condition that these 

entities are not funded by prohibited sources, including 

business corporations. This unusual case does address the 

larger question of whether prohibited sources themselves, 

barred from direct giving, free themselves of all limits by 

asserting independence under the Buckley rationale. The 

significance of this question extends beyond this case. See, 

e.g., 2 U.S.C. § 4411e(a)(1)(A), (C) (statutory ban on foreign 

national contributions and independent expenditures). 

5 The issue of bona fide independence is not a simple 

one, as the history of regulation on this point amply 

demonstrates. In 2002, Congress enacted a revision of the 

“coordination rules” designed to more clearly distinguish truly 

independent from coordinated spending. BCRA, 2 U.S.C. 

§ 441a. Litigation ensued and has yet to conclude. Shays v. 

FEC, 528 F.3d 914 (D.C. Cir. 2008). Corporate “independent 

spending,” if sanctioned by a reversal of Austin, raises a host 

of other questions unique to the corporate sector. For 

example, may a corporation running a full lobbying operation 

in regular contact with Members successfully establish 

independence from those same Members when proposing to 

spend without limit on their campaigns? How the 

contribution/expenditure distinction is maintained for forprofit corporations within the framework of congressional 
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24216-0004/LEGAL16585657.1 

A nation’s political integrity is “a value 

second to none in a free society.” Wis. Right to Life, 

127 S. Ct. at 2689 (Souter, J., dissenting). The 

Court should not consider a radical reversal of its 

precedents without a high level of confidence that 

such action would not damage the nation’s political 

integrity, real and perceived. Such a risk should 

certainly not be courted without the support of a 

full record and the opportunity for a complete 

engagement with the difficult constitutional 

questions presented. 

CONCLUSION 

What the Court does on the merits of this or 

any case is not going to be affected by public 

opinion. But it is surely appropriate for the Court, 

in applying the jurisprudential principles behind 

constitutional avoidance and stare decisis, to 

consider whether the time, case, and process are 

right. 

The DNC fears that few things could be 

worse, for the country and for the Court, than to 

make a hurried decision on the merits of an issue 

that the Court need not decide, using an expedited 

reargument process unfamiliar to the public. The 

Court should take all action to avoid the impression 

or conclusion that it is in an unusual rush to 

reconsider, abruptly, principles that were 

 

authority to guard against corruption or its appearance 

presents a novel question, and a complex one. 
 -20- 

24216-0004/LEGAL16585657.1 

developed during a long and careful process and 

were reaffirmed just years ago. 

A hasty rush to decide these particular 

questions would represent a sharp break from the 

constitutional decision-making discipline that the 

Court has avowed. Moreover, for the reasons 

stated, the time and case chosen for abandoning 

that discipline would be deeply inopportune. 

RESPECTFULLY SUBMITTED, 

Robert F. Bauer 

Counsel of Record 

David J. Burman 

PERKINS COIE LLP

607 14th Street N.W. 

Washington, D.C. 20005 

202.628.6600 

Attorneys for Amicus 

Curiae

July 31, 2009