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 __________ 

BRIEF OF THE AMERICAN FEDERATION OF LABOR 

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS 

AS AMICUS CURIAE IN SUPPORT OF APPELLANT 

__________ 

JONATHAN P. HIATT 

LAURENCE E. GOLD 

 Counsel of Record 

AFL-CIO 

815 Sixteenth Street, NW 

Washington, DC 20006 

(202) 637-5130 
TABLE OF CONTENTS 

 Page 

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

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

SUMMARY OF ARGUMENT .................................... 3 

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

I. THE COURT SHOULD OVERRULE 

McCONNELL AND HOLD THAT § 

203 IS FACIALLY UNCONSTITUTIONAL ........................................................... 4 

II. THE ANTI-CORRUPTION INTEREST THAT SUPPORTS RESTRICTIONS ON CONTRIBUTIONS DOES 

NOT JUSTIFY RESTRICTIONS ON 

INDEPENDENT SPEECH ............................. 9 

III. NO OTHER COMPELLING GOVERNMENTAL INTEREST WARRANTS PROHIBITION OF UNION 

INDEPENDENT EXPENDITURES ............ 13 

CONCLUSION.......................................................... 18 

(i)
ii 

TABLE OF AUTHORITIES 

CASES Page 

Abood v. Detroit Board of Education, 431 U.S. 209 

(1977) .............................................................13, 16 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) ...................................2, 15, 16 

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

Communications Workers of America v. Beck, 

487 U.S. 735 (1988) .......................................16, 17 

Eastex, Inc. v. NLRB, 437 U.S. 556 (1978) ............. 13 

Ellis v. Bhd. of Railway and Airline Clerks, 

466 U.S. 435 (1984) ............................................ 13

Federal Election Commission v. Colorado 

Republican Federal Campaign Committee, 533 U.S. 431 (2001) ...................................... 10 

Federal Election Commission v. Massachusetts Citizens for Life, Inc., 479 U.S. 238 

(1986) ...........................................................8, 9, 15 

Federal Election Commission v. National

Conservative Political Action Committee, 

470 U.S. 480 (1985) .................................10, 11, 15 

Federal Election Commission v. National 

Right to Work Committee, 459 U.S. 197 

(1982) .............................................................13, 18 

Federal Election Commission v. Wisconsin 

Right to Life, Inc., 127 S. Ct. 2652 (2007) ...passim

First National Bank of Boston v. Bellotti, 435 

U.S. 765 (1978) ................................................... 12 
iii 

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 

(1991) .................................................................. 12 

Machinists v. Street, 367 U.S. 740 

(1961) .................................................12, 13, 16, 17 

McConnell v. Federal Election Commission, 

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

McConnell v. Federal Election Commission, 

251 F.Supp. 2d 176 (D.D.C. 2003) .................... 6, 7 

Pattern Makers League v. NLRB, 473 U.S. 95 

(1985) .................................................................. 17 

Pipefitters v. United States, 407 U.S. 385 

(1972) .................................................................. 13 

Steele v. Louisville & N.R. Co., 323 U.S. 192 

(1944) .................................................................. 16 

Thomas v. Collins, 323 U.S. 516 (1945) .................... 9 

United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948) ....................... 14 

United States v. United Auto Workers, 352 

U.S. 567 (1957) ..............................................14, 15 

Wisconsin Right to Life, Inc. v. Federal Election Commission, 546 U.S. 410 (2006) ................. 2

STATUTES AND REGULATION 

2 U.S.C. § 431 et seq. .................................................. 1 

2 U.S.C. § 434(f)(3)(A)(i)(I) ........................................ 5 

2 U.S.C. § 437g(a)(4) .................................................. 8 

2 U.S.C. § 437g(a)(5) .................................................. 8 

2 U.S.C. § 437g(a)(5)(C) ............................................. 8 
iv 

2 U.S.C. § 437g(a)(5)(D) ............................................. 8 

2 U.S.C. § 437g(a)(6) .................................................. 8 

2 U.S.C. § 441b(b)(2) .................................................. 1 

2 U.S.C. § 441b(c) ....................................................... 1 

29 U.S.C. § 159(a) .................................................... 17 

29 U.S.C. § 411 ......................................................... 17 

29 U.S.C. § 411(a)(3) ................................................ 17 

29 U.S.C. § 481.......................................................... 17 

29 U.S.C. § 481(e) ..................................................... 17 

29 U.S.C. § 482 ......................................................... 17 

29 U.S.C. § 483 ......................................................... 17 

11 C.F.R. § 114.15 ...................................................... 8 

MISCELLANEOUS 

Annenberg Public Policy Center, “Issue Advertising in the 1999-2000 Election Cycle” ............... 5, 6 

Brief of AFL-CIO as Amicus Curiae, Grutter v. 

Bollinger, 539 U.S. 306 (2003) ........................... 13 

Federal Election Commission Advisory Opinion 

2008-15 (2009) ...................................................... 8 

J. Krasno and F. Sorauf, “Evaluating the Bipartisan Campaign Reform Act (BCRA)” .................... 6 

Joint Appendix, Vol. III, McConnell v. Federal 

Election Commission ............................................ 6 

W. Osborne, ed., Labor Union Law and Regulation (2003) ......................................................16, 17
The American Federation of Labor and Congress of 

Industrial Organizations (“AFL-CIO”), a federation of 

56 national and international labor organizations 

with a total membership of 11 million working men 

and women, files this brief amicus curiae in support 

of Appellant with the consent of the parties as provided for in the Rules of this Court.1

INTEREST OF AMICUS 

As plaintiffs in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the AFL-CIO and its federal political committee (“the AFL-CIO Plaintiffs”) 

brought a facial First Amendment challenge to § 203 

of the Bipartisan Campaign Reform Act (“BCRA”) of 

2002, 2 U.S.C. § 441b(b)(2) and (c) (amending the 

Federal Election Campaign Act (“FECA”), 2 U.S.C. § 

431 et seq.), which proscribes union and corporate 

funding of “electioneering communications.” The 

AFL-CIO Plaintiffs did so because this provision 

criminalized the AFL-CIO’s use of the broadcast medium as a legislative and policy advocacy tool, falsely 

characterized substantial labor organization speech 

on matters of public concern as wholly or substantially electoral, and impaired union political participation as a matter of law. 

The AFL-CIO Plaintiffs placed in the McConnell

record approximately 85 different television and radio advertisements that the AFL-CIO had sponsored 

throughout every year from 1995 through 2001, 

many of which would have been prohibited by § 203 

 

1 No counsel for a party authored this brief amicus curiae in 

whole or in part, and no person or entity, other than the amicus, 

made a monetary contribution to the preparation or submission 

of this brief.
2 

because they referred to incumbent Members of Congress. See Joint Appendix (“J.A.”), Vol. I, pp. 440-62 

(Declaration of Denise Mitchell); J.A. Vol. II, pgs. 

464-587 (Index of AFL-CIO Issue Advertising, 1995-

2001); Brief of AFL-CIO Appellants/Cross-Appellees 

at 1-7, McConnell v. Federal Election Commission, 

No. 02-1775. Without specifically addressing that 

evidence or the other plaintiffs’ evidence of overbreadth, however, this Court held that the various 

McConnell plaintiffs had not “carried their heavy 

burden of proving that [§ 203] is overbroad” and that 

§ 203 constitutionally proscribed advertising “to the 

extent that [it was] the functional equivalent of express advocacy.” See 540 U.S. at 203-11. 

The AFL-CIO subsequently filed briefs amicus curiae in support of a tax-exempt, non-profit corporation in Wisconsin Right to Life, Inc. v. Federal Election Commission, 546 U.S. 410 (2006), and Federal

Election Commission v. Wisconsin Right to Life, Inc., 

127 S. Ct. 2652 (2007) (“WRTL II”), in order to preserve its own right to make as-applied challenges to § 

203 and to undertake advertising that was structurally similar to that which the Government sought to 

ban in those cases. 

Because the controlling opinion in WRTL II still 

leaves the AFL-CIO uncertain as to which of its public speech is potentially criminal, it has a direct interest in whether McConnell’s facial upholding of § 

203 stands. And, because the AFL-CIO and other 

labor organizations have fundamental interests in 

communicating with the general public about candidates and elections, it has a commensurate interest 

in the fate and interpretation of Austin v. Michigan 

Chamber of Commerce, 494 U.S. 652 (1990). 
3 

SUMMARY OF ARGUMENT 

McConnell should be overruled as to §203’s facial 

constitutionality. McConnell endorsed record evidence and theories that treated virtually all advertising literally described by §203 as bearing an “electioneering purpose” or a likely electoral “effect” that 

justifies its prohibition as the “functional equivalent” 

of express advocacy. But WRTL II rightly rejects 

these as permissible bases for censorship, eliminating the analytical underpinning of McConnell’s overbreadth holding. And, as construed in WRTL II, 

§203 covers an insufficiently defined realm of speech 

that the FEC’s regulatory implementation cannot 

satisfactorily define. Only express advocacy itself 

avoids undue vagueness. 

The Court need not reconsider Austin to decide this 

case. The Government does not even defend Austin’s 

anti-corruption rationale, instead contending that 

union and corporate independent speech may be prohibited if candidates and officeholders react favorably to it. But that proposition threatens the established constitutional line between contributions and 

independent expenditures, and its reliance on the 

McConnell record would justify censorship of speech 

well beyond even that captured by §203 as written. 

The Government cannot demonstrate any other 

compelling governmental interest in prohibiting union independent expenditures. Austin aptly distinguished unions from corporations, and the Government’s suggestion that such a prohibition is warranted to protect dissident employees is incorrect because federal constitutional and statutory law fully 

enable non-members to avoid paying for union political activities they oppose and empower union mem-
4 

bers to form and operate unions democratically with 

full voting and other participatory rights. 

ARGUMENT 

I. THE COURT SHOULD OVERRULE 

McCONNELL AND HOLD THAT § 203 IS 

FACIALLY UNCONSTITUTIONAL 

A. McConnell upheld §203 on the ground that it 

was not overbroad, and WRTL II declined to revisit 

that holding in deciding an as-applied challenge. See 

127 S. Ct. at 2670 n. 8. But the two decisions coexist 

in hopeless tension, as WRTL II’s diligent effort to

make constitutional sense of § 203 rebuts McConnell’s ill-founded departures from sound and established First Amendment principles. The result is 

that labor organizations, including the AFL-CIO, and 

corporations, including Citizens United, remain subject to an unworkable censorship regime that can be 

redressed only by overruling McConnell’s facial upholding of § 203. 

McConnell concluded that “the vast majority of 

ads” that “clearly identified a [federal] candidate” 

and aired during the 30- and 60- day periods preceding recent general elections had “an electioneering 

purpose,” 540 U.S. at 206, and “BCRA’s application 

to pure issue ads is [in]substantial.” Id. at 207. 

WRTL II states that McConnell’s “vast majority” 

statement was “beside the point” because the Court 

“did not find that a ‘vast majority’ of the issue ads 

considered were the functional equivalent of express 

advocacy.” 127 S. Ct. at 2670 n.8. But WRTL II rejects the analytical linchpins of McConnell’s cursory 

overbreadth analysis, stating both that “electioneer-
5 

ing purpose” was not “the appropriate test for distinguishing between genuine issue ads and the functional equivalent of express campaign advocacy,” id. 

(emphasis added), and that “this Court in Buckley [v. 

Valeo, 424 U.S. 1, 43-44 (1976),] had already rejected 

an intent-and-effect test for distinguishing between 

discussions of issues and candidates,” a holding that 

McConnell “did not...address.” 127 S. Ct. at 2665. 

If “electioneering purpose” and “intent-and-effect” 

are not proxies for “functional equivalen[ce],” then no 

empirical underpinning remains for McConnell’s 

overbreadth holding, which relied on “studies [that] 

classified the ads in terms of intent and effect.” 127 

S. Ct. at 2665. McConnell plainly endorsed the explicit position of the Government and the BCRA 

sponsor-intervenors that, with rare exception, § 203’s 

primary definition of “electioneering communication” 

– a mere “refer[ence] to a clearly identified candidate 

for federal office” broadcast during the pre-election 

period and receivable by the requisite electorate, see 

2 U.S.C. § 434(f)(3)(A)(i)(I) – literally identified “the 

functional equivalent of express advocacy,” with 

“[in]substantial” exceptions. The McConnell majority 

pointed to four specific portions of the record to support its holding, see 540 U.S. at 206, and all treated § 

203’s “bright line” capaciously: 

• The referenced pages of Annenberg Public Policy Center, “Issue Advertising in the 1999-

2000 Election Cycle,” termed all ads that referred to a candidate as “candidate-centered,” 

and stated that they “usually present a candidate in a favorable or unfavorable light and 

then urge the audience to contact the candidate and tell him or her to support the sponsoring organization’s policy position. Though
6 

the intent of these ads is to encourage voters to 

favor or oppose a candidate, because they do so 

implicitly instead of explicitly these ads fall 

outside the current regulatory jurisdiction of 

federal election law.” Id. at 13 (emphasis 

added). 

• The referenced pages of J. Krasno and F. 

Sorauf, “Evaluating the Bipartisan Campaign 

Reform Act (BCRA),” endorsed the work of 

student coders who reviewed ads and then answered this question: “In your opinion, is the

purpose of the ad to provide information about 

or urge action on a bill or issue, or is it to generate support or opposition for a particular 

candidate?” J.A., Vol. III, p. 1336, McConnell 

v. Federal Election Commission (emphasis 

added). The few ads that these coders decided 

were “pure issue ads” “rarely mention[ed] federal candidates.” Id. at 1339. 

• The referenced pages of Judge Kollar-Kotelly’s 

opinion rejected the plaintiffs’ overbreadth 

claim by reasoning that it was “very likely that 

these eight advertisements did influence federal elections because they refer to a federal 

candidate in a broadcast advertisement aired 

in close proximity to a federal election, and 

targeted to the candidate’s electorate“ -- 

enough, she concluded, to warrant prohibition. 

See 251 F. Supp. 2d 176, 575 (D.D.C. 2003). 

For example, an ad that “[c]riticized a candidate on past votes in the period immediately 

before a federal election with no indication of 

future legislation on the issue likely serves no 

purpose other than to affect the outcome of the 

election” and so constitutes prohibitable “electioneering.” Id. 
7 

• The referenced portion of Judge Leon’s opinion, which discussed only political party advertisements, deemed as “electioneering” those 

that either “focused on the positions, past actions, or general character traits of federal 

candidates” or “compared the positions or past 

actions, of two competing federal candidates,” 

rather than “focusing” on pending legislation 

or executive action. Id. at 826-87. 

During the McConnell litigation, neither the Government, the BCRA sponsor-intervenors nor their 

amici subjected the advertisements in the record to 

anything resembling the WRTL II test, namely, that 

irrespective of an ad’s actual or likely intent or effect, 

and irrespective of its context (other than timing and 

audience), whether the message was “susceptible of 

no reasonable interpretation other than as an appeal 

to vote for or against a specific candidate.” 127 S. Ct. 

at 2666 (emphasis added). To the contrary, they emphasized § 203’s “bright line” and explicitly urged the 

Court to embrace the view that all candidatereferencing ads broadcast to the electorate close to 

elections were “functional[ly] equivalent to express 

advocacy” and so could be prohibited, subject only to 

rare as-applied challenges regarding ads that, in an 

inversion of WRTL II’s holding, were susceptible of 

no reasonable interpretation other than as an entirely non-electoral legislative or other issue appeal – 

a so-called “pure” issue ad. Like the student coders’ 

question, they and McConnell presumed away the 

constitutionally critical fact that “’the distinction between discussion of issues and candidates and advocacy of election or defeat may often dissolve in practical application.’” WRTL II, 127 S. Ct. at 2669, quoting Buckley, 424 U.S. at 42. The Government relies 

upon the McConnell record, see Gov. Br. at 21, but, 
8 

as we and other McConnell plaintiffs demonstrated 

through our submissions of actual advertisements in 

that case, McConnell erred in concluding that § 203 

was not unconstitutionally overbroad, and the Court 

should overrule that determination. 

B. As a category of speech whose utterance may be 

either prosecuted as “a federal crime,” WRTL II, 127 

S. Ct. at 2658; see 2 U.S.C. § 437g(a)(5)(C) and (D), or 

subjected to a wide-ranging FEC investigation and 

then to “burdensome [civil] litigation,” WRTL II, 127 

S. Ct. at 2666; see 2 U.S.C. § 437g(a)(4)-(6), WRTL 

II’s “appeal to vote” standard is unduly vague and 

therefore unworkable. Relying as it does upon illustrative features that are, respectively, “consistent 

with that of a genuine issue ad” and “indicia of express advocacy,” 127 S. Ct. at 2667, the standard introduces the kind of subjective analysis that the 

Court eschewed in Buckley and Federal Election 

Commission v. Massachusetts Citizens for Life, Inc. 

(“MCFL”), 479 U.S. 238, 248-49 (1986). The resulting uncertainty is well captured by the FEC’s ensuing regulation, which offers a grudgingly narrow 

“safe harbor” and then “rules of interpretation” to determine whether, “on balance,” the “appeal to vote” 

standard is satisfied. See 11 C.F.R. § 114.15. The 

agency has already failed to achieve a majority when 

it sought to apply this regulation during the very advisory opinion process that McConnell confidently 

predicted would suffice to “clarif[y]” other BCRA language “and thereby remove any doubt there may be 

as to the meaning of the law.” 540 U.S. at 170 n.64 

(citation and interior quotation marks omitted). See 

FEC Advisory Opinion 2008-15 (2009). Although this 

Court does not now sit in judgment of the FEC’s 

regulatory implementation of WRTL II, it is an inevi-
9 

table administrative consequence of an inherently 

uncertain standard for permissible speech. 

Only express advocacy itself marks an electoral

speech category that is precise enough to avoid “[t]he 

constitutional deficiencies” of vagueness: it unacceptably “’puts the speaker wholly at the mercy of 

the varied understanding of his hearers,’” “’blankets 

with uncertainly whatever may be said,’” and “’compels the speaker to hedge and trim.’” Buckley v. 

Valeo, 424 U.S. at 43, quoting Thomas v. Collins, 323 

U.S. 516, 535 (1945). See also Buckley, 424 U.S. at 

79-80; MCFL, 479 U.S. at 249; WRTL II, 127 S. Ct. at 

2682 (Scalia, J. concurring) (“If a permissible test 

short of the magic-words test existed, Buckley would 

surely have adopted it.”). If salvaging § 203 requires 

the delineation of a category of speech that defies 

comparably clear application, the Court should invalidate the restriction outright. 

II. THE ANTI-CORRUPTION INTEREST 

THAT SUPPORTS RESTRICTIONS ON 

CONTRIBUTIONS DOES NOT JUSTIFY 

RESTRICTIONS ON INDEPENDENT 

SPEECH 

Because the Government does not contend that 

Hillary: The Movie contains express advocacy, and 

because the Court can and should overrule McConnell irrespective of McConnell’s reliance on Austin, it 

is unnecessary in this case for the Court to reconsider Austin. Moreover, the Government neither directly acknowledges nor defends Austin’s holding 

concerning Michigan’s prohibition of corporate independent expenditures, and instead contends that a 

prohibition of both corporate and union expenditures 
10 

is warranted by concerns about quid-pro-quo corruption that, since Buckley, the Court has consistently 

held warrant restrictions only on contributions. See 

generally Federal Election Commission v. Colorado 

Republican Federal Campaign Committee, 533 U.S. 

431, 441-42 (2001). 

The Government supports that proposition with a 

fraction of the McConnell record and asserts that it 

“indicated that... federal office-holders and candidates were aware of and felt indebted to corporations 

and unions that financed electioneering advertisements on their behalf or against their opponents.” 

Gov. Br. at 8; see also id. at 11 (independent speech 

“has come to be used as a means of currying favor 

with and attempting to influence federal officeholders”). The Court should reject this invitation. 

First, the Government fails to explain why that anecdotal record suffices to eliminate “the fundamental 

constitutional difference between money spent to advertise one’s views independently of the candidate’s 

campaign and money contributed to a candidate to be 

spent on his campaign.” Federal Election Commission v. National Conservative Political Action Committee (“NCPAC”), 470 U.S. 480, 497 (1985). Buckley 

so distinguished expenditures from contributions in 

invalidating FECA § 608(e)(l), which limited to 

$1,000/yr. “any expenditure... advocating the election 

or defeat of [a] candidate” by any “person,” including 

unions and corporations. 424 U.S. at 44-45 and n.45. 

After construing this provision to mean only express 

advocacy in order to “preserve the provision against 

invalidation on vagueness grounds,” id. at 46-47, the 

Court held that the prohibition “inadequate[ly]” 

served “the governmental interest in preventing corruption and [its] appearance” in part because the in-
11 

dependence of the speech did not pose the danger 

that contributions did, namely, the risk of a “quid pro 

quo for improper commitments from the candidate,” 

and, in fact, uncoordinated speech “may well provide 

little assistance to the candidate’s campaign and indeed may prove counterproductive.” Id. at 48. 

Moreover, “[t]he fact that candidates and elected 

officials may alter or reaffirm their own positions on 

issues in response to political messages paid for [independently] by [others] can hardly be called corruption, for one of the essential features of democracy is 

the presentation to the electorate of varying points of 

view.” NCPAC, 470 U.S. at 498. And, independent 

speech is as likely to curry disfavor as any “favor”; § 

203 was fueled by caustic congressional denunciations of advertisements, from “negative” to “nightmare.” McConnell, 540 U.S. at 260 (Scalia, J.) (collecting examples). All speech risks reaction, and the 

decision to undertake that risk is the speaker’s constitutional prerogative. 

Second, the McConnell union and corporate advertising record, including the portions referenced by the 

Government, was comprised entirely of independent 

speech that did not contain express advocacy at all, 

because 2 U.S.C. § 441b then, as now, prohibited it – 

indeed, the point of the Government and the BCRA 

sponsor-intervenors in compiling that record was to 

justify banning vast swaths of speech in addition to

express advocacy, because, it was claimed, they were 

“functionally equivalent” to each other. The Government’s contention now proves far too much and, if 

accepted, would lay the foundation for Congress and 

state legislatures to engulf in prohibition both the 

very independent speech that WRTL II held was immune from § 203 and much more. 
12 

The spillover in the Government’s arguments from 

express advocacy to other speech on matters of public 

concern is also reflected in its dismissive contention 

that advertisements are often “unrelated to the mission of the financing corporation,” or, for example, 

“focus[] on [judicial] candidates’ records on crime 

rather than on issues of special concern to the corporate or union speaker,” so their “electoral advocacy is 

a means to an end rather than an expression of political conviction.” Gov. Br. at 10-11 n. 2. But “[i]n 

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.” First National 

Bank of Boston v. Bellotti, 435 U.S. 765, 784-85 

(1978). The Government does not even acknowledge 

Bellotti, which invalidated a state statute that prohibited corporations from spending on any ballot 

measure “other than one materially affecting any of 

[their] property, business or assets[.]” Id. at 768 n. 2 

(interior quotation marks omitted). See also Buckley, 

424 U.S. at 57. 

The Government’s casual dismissal of union political and social concerns brings to mind Justice Frankfurter’s observation that “[to] write the history of the 

[railroad] Brotherhoods, the United Mine Workers, 

the Steel Workers, the Amalgamated Clothing Workers, the International Ladies Garment Workers, the 

United Auto Workers, and leave out their so-called 

political activities and expenditures for them, would 

be sheer mutilation.” Machinists v. Street, 367 U.S. 

740, 814-15 (1961) (dissenting opinion). “[U]nions 

have traditionally aligned themselves with a wide 

range of social, political and ideological viewpoints,” 

Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 516 

(1991), “expended funds in the support of political 
13 

candidates and issues,” Ellis v. Bhd. of Railway and 

Airline Clerks, 466 U.S. 435, 447 (1984), and played a 

vital role in the public arena as advocates for both 

their members and all workers. See generally Eastex, 

Inc. v. NLRB. 437 U.S. 556, 565-66 (1978); Abood v. 

Detroit Board of Education, 431 U.S. 209, 227-32 

(1977); Pipefitters v. United States, 407 U.S. 385, 

402-32 (1972); Machinists v. Street, 367 U.S. at 767. 

“[T]his Court accepts briefs from the AFL-CIO on issues that cannot be called industrial, in any circumscribed sense,” id. at 814 (Frankfurter, J., dissenting), an observation that still holds true. See, e.g., 

Brief of AFL-CIO as Amicus Curiae, Grutter v.

Bollinger, 539 U.S. 306 (2003). The Government 

simply lacks constitutional authority to designate 

and enforce its view of what are a union’s “mission” 

or “special concern[s].” 

III. NO OTHER COMPELLING GOVERNMENTAL INTEREST WARRANTS PROHIBITION OF UNION INDEPENDENT 

EXPENDITURES 

Nor can the Government point to any other compelling governmental interest that could justify restricting union-financed express advocacy to the general 

public, and, except inferentially in McConnell, the 

Court has never held that there is one. See, e.g., 

Federal Election Commission v. National Right to 

Work Committee (“NRWC”), 459 U.S. 197, 208 (1982) 

(discussing unions with respect to contributions, not 

expenditures). Indeed, even before Buckley, indictments of labor organizations for allegedly violating 

the 1947 Taft-Hartley Act’s proscription of union and 

corporate “expenditures” led every Justice who ad-
14 

dressed its constitutionality to conclude that it violated the First Amendment. 

In United States v. Congress of Industrial Organizations (“CIO”), 335 U.S. 106 (1948), the Court reviewed an indictment of the CIO and its president for 

making “expenditures” by endorsing a congressional 

candidate in the CIO’s weekly newspaper. Reviewing the 1947 enactment, the Court concluded that the 

term “expenditure” “has no definitely defined meaning,” id. at 112, and the “congressional explanation of 

[its] intended scope...[was] scanty and indecisive.” 

Id. at 116. See also id. at 134 (Rutledge, J., concurring) (describing legislative history as “a veritable fog 

of contradictions relating to specific possible applications”). The majority dismissed the indictment by 

finding that it was not intended to apply to electoral 

publications by unions and corporations to their 

“members, stockholders or customers,” because otherwise “the gravest doubt would arise in our minds 

as to its constitutionality.” Id. at 121. And, four concurring Justices – as urged by the CIO and amici 

AFL and the Machinists Union – concluded that the 

“expenditure” prohibition should be invalidated because it was unduly vague, the justification that it 

was necessary to counter unions’ “undue influence” 

was inadequate, and the asserted “minority protection” interest was trumped by its unwarranted “majority prohibition” since unions operated on “the 

principle of majority rule” in matters of “public advocacy.” See id. at 147-48. 

The Court returned to this prohibition nine years 

later when it considered another indictment of another labor organization for allegedly violating the 

expenditure provision in a television broadcast. 

United States v. United Auto Workers (“UAW”), 352 
15 

U.S. 567 (1957). Uncertain of the facts, the Court allowed the indictment to proceed and declined to address the union’s constitutional claims. Id. at 590-

93. The three dissenters echoed Justice Rutledge’s 

CIO concurrence, id. at 593 (Douglas, J., dissenting), 

and Buckley 424 U.S. at 43, approvingly cited that 

dissent where it rejected the notion that union 

speech could be prohibited because it might “incite to 

action,” including with the “purpose” “to sway voters.” UAW, 352 U.S. at 595-96. 

In upholding § 203, McConnell recited concern 

about “the special characteristics of the corporate

structure [that] require particularly careful regulation” but recited none about unions. See id. at 205 

(emphasis added) (quotation marks and citations 

omitted). Between UAW and McConnell, Austin was 

the Court’s only decision holding any interest sufficient to warrant such a restriction on any group, 

there the non-profit Michigan Chamber of Commerce, which was primarily composed and funded by 

for-profit corporate members. See 494 U.S. at 656.2 

Austin identified “a different form of corruption” than 

had Buckley, namely, “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 the public’s support for the corporation’s political ideas.” Id. at 660. 

Whatever the correctness of this holding as to the 

Chamber, the Court squarely rejected its applicability to unions in denying the Chamber’s equal-

 

2 McConnell erred in saying that, since Buckley, Congress’s 

power to prohibit union and corporate express advocacy “has 

been firmly embedded in our law.” 540 U.S. at 203. See Austin, 

494 U.S. at 682-83 (Scalia, J., dissenting); MCFL, 479 U.S. at 

263; NCPAC, 470 U.S. at 496. 
16 

protection claim that the state law under-inclusively 

failed also to apply to unincorporated labor organizations. The Court reasoned that unions have “crucial 

differences” from corporations: first, although unions 

too “may be able to amass large treasuries, they do so 

without the significant state-conferred advantage of 

the corporate structure”; and, second, “the funds 

available for a union’s political activities more accurately reflect members’ support for the organization’s 

political views than does a corporation’s general 

treasury” because a union may not compel represented non-members to support, with dues or other 

fees, the union’s political, legislative and other ideological spending that is not directly germane to “‘collective bargaining, contract administration and germane adjustment.’” Id. at 665-66, quoting Communications Workers of America v. Beck, 487 U.S. 735, 

746 (1988). 

The legal framework governing unions, members, 

and other workers confirms that conclusion. “[T]he 

union is obliged ‘fairly and equitably to represent all 

employees..., union and nonunion,’ within the relevant unit.” Abood v. Detroit Board of Education, 431 

U.S. at 221, quoting Machinists v. Street, 367 U.S. at 

761. “Wherever necessary to that end, the union is 

required to consider requests of nonunion members 

of the craft and expressions of their views with respect to collective bargaining with the employer and 

to give to them notice of and opportunity for hearing 

upon its proposed action." Steele v. Louisville & N.R. 

Co., 323 U.S. 192, 203 (1944). In 28 states and the 

District of Columbia, private sector unions and employers may lawfully reach “union-security” agreements under which non-members pay “agency fees” 

reflecting their fair share for that representation. 

See W. Osborne, ed., Labor Union Law and Regula-
17 

tion 518 (2003). But these non-members cannot be 

compelled to contribute toward a union’s partisan political activities or its legislative, ideological and 

other activities unrelated to collective bargaining and 

contract administration. Communications Workers of 

America v. Beck. And, their dissent “is not to be presumed – it must affirmatively be made known by the 

dissenting employee.” Machinists v. Street, 367 U.S. 

at 774. Meanwhile, in the other 22 states, so-called 

“right-to-work” laws preclude any requirement in the 

private sector that non-members pay any fees to 

their exclusive union representative for any purpose, 

yet the union’s duty of fair representation nonetheless applies. See Osborne, supra. 

Moreover, from their inception unions are democratic, member-controlled organizations. A union 

forms by its “designat[ion] or select[ion] for the purpose of collective bargaining by the majority of the 

employees in a unit appropriate for such purpose.” 

29 U.S.C. § 159(a). Following this voluntary formation, members elect their officers and national convention delegates by secret ballot, see 29 U.S.C. §§ 

481-483; members determine their dues rates by 

these same methods, see 29 U.S.C. § 411(a)(3); all 

members enjoy equal rights to nominate candidates 

for union office, vote in union elections and otherwise 

participate in union affairs, and they have rights of 

speech and association. See 29 U.S.C. §§ 411, 481(e). 

Membership itself is completely voluntary, and resignation cannot be restricted. Pattern Makers 

League v. NLRB, 473 U.S. 95 (1985). 

These laws and practices, which set unions apart 

from other entities subject to FECA’s speech prohibitions, completely undermine the Government’s only 

other proffered rationale for restricting union inde-
18 

pendent expenditures, namely, to protect individuals 

“’who have paid money into a ...union for purposes 

other than the support of candidates from having 

that money used to support political candidates to 

whom they are opposed.’” See Gov. Br. at 12, quoting 

NRWC, supra. See also Gov. Br. at 13 (“protections 

against the use of compulsory union dues for political 

purposes”). Even so, the Government tepidly terms 

that interest as merely “legitimate,” id. at 12, 13, but 

only a compelling governmental interest can justify 

such a restriction on any speaker, WRTL II, 127 S. 

Ct. at 2671, and the Court has never held this interest to justify prohibiting union-financed speech outright. However the Court addresses Austin, it should 

recognize no compelling governmental interest in 

criminalizing independent union electoral speech. 

CONCLUSION 

The judgment of the district court should be reversed. 

Respectfully submitted, 

JONATHAN P. HIATT 

LAURENCE E. GOLD 

 Counsel of Record 

AFL-CIO 

815 Sixteenth Street, NW

Washington, DC 20006 

(202) 637-5130