_______________________________ 

 

 

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 AMICUS CURIAE CHAMBER OF
 

COMMERCE OF THE UNITED STATES OF
 

AMERICA IN SUPPORT OF APPELLANT
 

ROBIN S. CONRAD 

AMAR D. SARWAL 

NATIONAL CHAMBER 

LITIGATION CENTER, INC. 

1615 H Street, N.W. 

Washington, D.C. 20062 

(202) 463-5337 

Of Counsel 

JAN WITOLD BARAN 

Counsel of Record 

THOMAS W. KIRBY 

CALEB P. BURNS 

WILEY REIN LLP 

1776 K Street, N.W. 

Washington, D.C. 20006 

(202) 719-7000 

Counsel for Amicus Curiae 

(Additional Counsel Listed on Signature Page) 

220449 

(800) 274-3321 • (800) 359-6859 

A
i 

QUESTION PRESENTED1 

Whether applying the reporting and disclosure 

requirements of § 201 of the Bipartisan Campaign 

Reform Act of 2002 (“BCRA”) to speech that was not 

functionally equivalent to express advocacy violated the 

First Amendment. 

1 All parties have consented to the filing of this brief 

amicus curiae as indicated by letters of consent filed with the 

Court. 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. 
Cited Authorities

ii 

TABLE OF CONTENTS 

Page 

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

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

TABLE OF CITED AUTHORITIES . . . . . . . . . iv
 

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

STATEMENT OF THE CASE . . . . . . . . . . . . . . . 3
 

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . 7
 

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
 

I.	 APPLYING THE DISCLOSURE
 

REQUIRE-MENTS OF BCRA § 201
 

TO EXEMPT SPEECH SERIOUSLY
 

IMPAIRS CORE FIRST AMENDMENT RIGHTS. . . . . . . . . . . . . . . . . . . . . . 11
 

A.	 Forced Reporting and Disclosure Of
 

Donors Seriously Burdens And
 

Suppresses Corporate Speech. . . . . . 11
 

B.	 Such Disclosure Requirements Also
 

Threaten Complete Destruction Of
 

The First Amendment Rights Of
 

Willing Listeners. . . . . . . . . . . . . . . . . . 15
 
Cited Authorities

iii 

Contents 

Page 

II.	 THE GOVERNMENT HAS FAILED
 

TO JUSTIFY THESE SERIOUS
 

INFRINGEMENTS OF CORE FIRST
 

AMENDMENT RIGHTS. . . . . . . . . . . . . . 19
 

A.	 The Applicable Standard Is Strict
 

Scrutiny. . . . . . . . . . . . . . . . . . . . . . . . . . 19
 

B.	 The Government Has Failed To
 

Justify Application Of BCRA § 201 To
 

Exempt Speech. . . . . . . . . . . . . . . . . . . 20
 

1.	 McConnell’s Record And Facial
 

Holding Do Not Apply. . . . . . . . . . 22
 

2.	 No Enforcement Or AntiCircumvention Interest Exists.

 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
 

3.	 No Anti-Corruption Justification
 

Applies. . . . . . . . . . . . . . . . . . . . . . . 23
 

4.	 Austin Does Not Apply And, In
 

Any Event, Should Be
 

Overruled. . . . . . . . . . . . . . . . . . . . . 24
 

5.	 No Compelling Information Need
 

Has Been Shown. . . . . . . . . . . . . . 25
 

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
 
Cited Authorities

iv 

TABLE OF CITED AUTHORITIES

Page 

FEDERAL CASES 

Austin v. Michigan Chamber of Commerce, 

494 U.S. 652 (1990) . . . . . . . . . . . . . . . . . . . . 9, 24, 25 

Buckley v. Valeo, 

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

Buckley v. Valeo, 

519 F.2d 821 (D.C. Cir. 1975), 

aff’d in part, rev’d in part, 424 U.S. 1 (1976) . . 20-21 

California Motor Transport Co. 

v. Trucking Unlimited,
 

404 U.S. 508 (1972) . . . . . . . . . . . . . . . . . . . . . . . 17
 

Chamber of Commerce of the United States 

v. FEC, 69 F.3d 600 (D.C. Cir. 1995) . . . . . . . . . 2 

Chamber of Commerce of the United States 

v. Moore, 288 F.3d 187 (5th Cir. 2002) . . . . . . . 2 

Davis v. FEC, 

128 S. Ct. 2759 (2008) . . . . . . . . . . . . . . . . . . . . 11, 19 

Eastern Railroad Presidents Conference 

v. Noerr Motor Freight, Inc.,
 

365 U.S. 127 (1961) . . . . . . . . . . . . . . . . . . . . . . . 17
 

Eu v. San Francisco County Democratic 

Central Committee, 489 U.S. 214 (1989) . . . . . 18 
v 

Cited Authorities 

Page 

FEC v. Larouche Campaign,
 

817 F.2d 233 (2d Cir. 1987) . . . . . . . . . . . . . . . . . 15
 

FCC v. League of Women Voters,
 

468 U.S. 364 (1984) . . . . . . . . . . . . . . . . . . . . . . . 25
 

FEC v. Machinists Non-Partisan
 

Political League,
 

655 F.2d 380 (D.C. Cir. 1981) . . . . . . . . . . . . . . . 15
 

FEC v. Massachusetts Citizens for Life, Inc.,
 

479 U.S. 238 (1986) . . . . . . . . . . . . . . . . . . . . . . . 2, 12
 

FEC v. Wisconsin Right to Life, Inc., 

127 S. Ct. 2652 (2007) . . . . . . . . . . . . . . . . . . . passim 

First National Bank of Boston v. Bellotti,
 

435 U.S. 765 (1978) . . . . . . . . . . . . . . . . 15, 17, 18, 20
 

Horn v. Thoratec Corp.,
 

376 F.3d 163 (3d Cir. 2004) . . . . . . . . . . . . . . . . . 6
 

Kleindienst v. Mandel,
 

408 U.S. 753 (1972) . . . . . . . . . . . . . . . . . . . . . . . 18
 

Marks v. United States,
 

430 U.S. 188 (1977) . . . . . . . . . . . . . . . . . . . . . . . 6
 

McConnell v. FEC,
 

251 F. Supp. 2d 176 (D.D.C. 2003) . . . . . . . . . . 20
 
 

vi 

Cited Authorities 

Page 

McConnell v. FEC, 

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

McIntyre v. Ohio Elections Commission,
 

514 U.S. 334 (1995) . . . . . . . . . . . . . . . . . . . 18, 20, 26
 

National Association of Manufacturers 

v. Taylor, 549 F. Supp. 2d 33 (D.D.C. 2008) . . 20
 

North Carolina Right to Life, Inc. v. Leake,
 

525 F.3d 274 (2008) . . . . . . . . . . . . . . . . . . . . . . . . 21
 

Red Lion Broadcasting Co. v. FCC,
 

395 U.S. 367 (1969) . . . . . . . . . . . . . . . . . . . . . . . 16
 

Republican Party v. White,
 

536 U.S. 765 (2002) . . . . . . . . . . . . . . . . . . . . . . . 2
 

Roberts v. United States Jaycees,
 

468 U.S. 609 (1984) . . . . . . . . . . . . . . . . . . . . . . . 15
 

Thomas v. Collins,
 

323 U.S. 516 (1945) . . . . . . . . . . . . . . . . . . . . . . 16, 17
 

Virginia State Board of Pharmacy v.
 

Virginia Citizens Consumer Council, Inc.,
 

425 U.S. 748 (1976) . . . . . . . . . . . . . . . . . . . . . . . 16
 

Wisconsin Right to Life, Inc. v. FEC,
 

546 U.S. 410 (2006) . . . . . . . . . . . . . . . . . . . . . . . 2
 
 

vii 

Cited Authorities 

Page 

STATE CASES 

Elections Board v. Wis. Manufacturers
 

& Commerce, 597 N.W.2d 721 (Wis. 1999) . . . 2
 

STATUTES AND REGULATIONS 

2 U.S.C. § 437a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
 

11 C.F.R. § 104.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
 

11 C.F.R. § 104.20(a) . . . . . . . . . . . . . . . . . . . . . . . . . 3
 

Pub. L. No. 107-155, 116 Stat. 81 (2002) . . . . . . . 3
 

72 Fed. Reg. 72899 (Dec. 26, 2007) . . . . . . . . . . . . 4
 

MISCELLANEOUS 

24-Hour Notice of Disbursements/Obligations for
 

Electioneering Communications, available at
 

http://www.fec.gov/info/forms.shtml . . . . . . . . . 3
 

Federal Communications Commission,
 

Electioneering Communications Database,
 

available at http://gullfoss2.fcc.gov/ecd/refine.
 

cfm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
 
 

viii 

Cited Authorities 

Page 

Federal Election Commission, Electioneering 

Communications Periods (2008), available at 

http://www.fec.gov/info/charts_ec_dates_prez. 

shtml#Presidential . . . . . . . . . . . . . . . . . . . . . . . 5 

Jim Lobe, ExxonMobil Takes Heat on Global 

Warming, Inter Press Service News Agency, 

July 12, 2005, available at http://www.ipsnews. 

net/print.asp?idnews=29469 (last visited Jan. 

15, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 

John Lott and Brad Smith, Donor Disclosure 

Has Its Downsides, Wall Street Journal, Dec. 

26, 2008, available at http://online.wsj.com/ 

article/SB123025779370234773.html . . . . . . . . 13 

Merriam-Webster’s Collegiate Dictionary 

(10th ed. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 

Mark Pitsch, EPIC Won’t Deal with WMC 

Backers, Wis. State Journal, June 27, 2008 . . . 13-14 

Random House, Roget’s College Thesaurus 

(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 
_______________________________ 

 

 

1
 

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 AMICUS CURIAE CHAMBER OF
 

COMMERCE OF THE UNITED STATES OF
 

AMERICA IN SUPPORT OF APPELLANT
 

INTEREST OF AMICUS CURIAE 

The Chamber of Commerce of the United States of 

America (“Chamber”), founded in 1912, is the world’s 

largest not-for-profit business federation representing 

an underlying membership of over 3,000,000 businesses 

and business associations. The Chamber’s members 

include businesses of all sizes and sectors—from large 

Fortune 500 companies to home-based, one-person 

operations. Ninety-six percent of the Chamber’s 
2 

underlying membership are businesses with fewer than 

one hundred employees. Collectively, the Chamber’s 

members are central to our nation’s economy and wellbeing. The Chamber is incorporated. For purposes of 

federal campaign finance regulation, the Chamber and 

most of its members are classified as corporations. 

The Chamber plays a key role in advocating for the 

interests of its members, including their First 

Amendment rights. In that role, the Chamber was a 

party to the McConnell v. FEC, 540 U.S. 93 (2003), 

litigation challenging the facial constitutionality of the 

electioneering communication ban on corporate political 

speech that is the subject of the instant as-applied 

challenge. The Chamber regularly files briefs amicus 

curiae where the business community’s right to political 

speech is at stake. See, e.g., Wisconsin Right to Life, 

Inc. v. FEC, 546 U.S. 410 (2006); Republican Party of 

Minn. v. White, 536 U.S. 765 (2002); Elections Bd. v. 

Wis. Mfrs. & Commerce, 597 N.W.2d 721 (Wis. 1999); 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238 (1986) 

(“MCFL”). And the Chamber also has litigated to 

preserve its own First Amendment rights of speech and 

association. See, e.g., Chamber of Commerce of the 

United States v. Moore, 288 F.3d 187 (5th Cir. 2002); 

Chamber of Commerce of the United States v. FEC, 69 

F.3d 600 (D.C. Cir. 1995). 

This appeal asks whether donor disclosure 

requirements may constitutionally be imposed on speech 

received by television or radio that refers to candidates 

during pre-election periods but does not advocate the 

election or defeat of any candidate. On behalf of 

America’s business community, the Chamber actively 
3 

engages in such speech. During 2008, the Chamber filed 

reports with the Federal Election Commission (“FEC”) 

disclosing more spending on such speech than any other 

entity.2

 The Chamber thus is intimately aware of the 

burdens such filings impose and is all too familiar with 

the suppressive effect they have on core First 

Amendment speech and expressive association. 

STATEMENT OF THE CASE 

The First Amendment forbids applying the 

“electioneering communications” provisions of the 

Bipartisan Campaign Reform Act of 2002, Pub. L. No. 

107-155, 116 Stat. 81 (2002), to prohibit corporate speech 

that refers to candidates prior to elections but is not 

the functional equivalent of “express advocacy.” FEC v. 

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

(“WRTL II”). Construing WRTL II very narrowly, the 

FEC applies BCRA § 201 to such “exempt speech,” 

deeming it unlawful unless the speaker makes various 

public reports and disclosures. 

Section 201 and the accompanying FEC regulations 

require persons who spend more than $10,000 in the 

aggregate on electioneering communications in a 

calendar year to file disclosure reports with the FEC. 

See 11 C.F.R. § 104.20(a). In particular, the reports must 

2 The disclosures are made using FEC Form 9, 

entitled 24-Hour Notice of Disbursements/Obligations for 

Electioneering Communications, which is available on the 

FEC’s website at http://www.fec.gov/info/forms.shtml. In 

addition to disclosing the largest amount of spending on 

electioneering communications in 2008, the Chamber also made 

more Form 9 filings than almost any other entity. 
4 

disclose each donor of $1,000 or more (aggregated 

yearly) that either gave in response to a solicitation for 

the specific purpose of engaging in electioneering 

communications or earmarked the donation for such a 

purpose, in whole or in part. See Electioneering 

Communications, 72 Fed. Reg. 72899, 72911 (Dec. 26, 

2007). 

Appellant Citizens United produced a documentary 

concerning U.S. Senator and presidential candidate 

Hillary Clinton. During the summer and fall of 2008, 

Citizens United sought to distribute its documentary 

and to broadcast ten and thirty second advertisements 

concerning the film. Br. of Appellant at 8. Whatever the 

status of the documentary itself – the parties are briefing 

that point – the ads clearly were “exempt speech” under 

WRTL II. Nevertheless, because Citizens United was 

not willing to disclose project donors, it did not broadcast 

those ads, see id. at 10, and persons interested in 

receiving them were entirely deprived of any 

opportunity to do so. 

The FEC’s application of BCRA § 201 to such exempt 

speech caused injury far beyond Citizens United, 

including to the Chamber. Business entities are 

profoundly affected by federal legislation, policy, and 

executive action on a wide range of issues, from tort 

reform to taxes, intellectual property to import controls, 

and employment standards to environmental protection. 

As a result, businesses are critically interested in the 

formulation and implementation of federal legislation 

and policy and in assuring that their knowledge and 

concerns are fully and effectively communicated to the 

public, federal legislators, and other government 
5 

officials. Because elected public officials are central to 

the formulation and implementation of public policy, that 

interest often requires incumbent officeholders and 

candidates to be identified and discussed in public 

communications. 

These interests do not mysteriously evaporate 

during the lengthy periods during which BCRA restricts 

electioneering communications.3 To the contrary, 

Members of this Court have recognized the importance 

of issue ads and similar speech during pre-election 

3 The period in which BCRA forbids or restrains 

electioneering communications includes 30 days before each 

state’s relevant presidential nominating primary, convention, 

or caucus, 30 days before the relevant national party convention, 

and 60 days before the relevant national presidential election. 

See BCRA § 201(a). The regulation applies to television and 

radio broadcasts (including cable and satellite transmissions) 

that can be received by at least 50,000 persons in a relevant 

jurisdiction. Id. Since broadcasts often reach multiple states 

that conduct nominating events on differing dates, the 

regulation effectively applies for much of the year prior to a 

presidential election. For example, many broadcasts in stations 

serving Boston, Massachusetts, also can be received in Rhode 

Island, Connecticut, Vermont, New Hampshire, and Maine. See 

Fed. Comm. Comm’n, Electioneering Communications 

Database (ECD), available at http://gullfoss2.fcc.gov/ecd/ 

(results obtained using Boston-area stations WCBV, WHDH, 

and WBZ). During the 2008 election cycle, the combined 

presidential blackout period for those states – and hence for 

Boston broadcasts – encompassed six months. See FEC, 

Electioneering Communications Periods (2008), available at 

http://www.fec.gov/info/charts_ec_dates_prez.shtml# 

Presidential. As recent economic developments demonstrate, 

a great deal can happen during four to six months. 
6 

periods. WRTL II, 127 S. Ct. at 2667-68.4

 The Chamber 

likewise believes that both candidates and the American 

public are most receptive and attuned to such 

communications during pre-election periods. Thus, since 

December 26, 2007,5

 the Chamber spent and reported 

to the FEC, as required by BCRA § 201, over $15 million 

on its own exempt electioneering communications. 

The Chamber’s own general resources are quite 

limited. The Chamber wanted to seek and accept 

additional funds for the stated purpose of engaging in 

exempt speech on specific issues of direct concern to its 

members. However, many corporations, including many 

members of the Chamber, were not and are not willing 

to be publicly disclosed as supporting such speech. 

To avoid putting its member interests at risk, the 

Chamber decided as a matter of policy to limit itself to 

funds that were not solicited or designated for the 

specific purpose of financing electioneering 

communications. Thus, it was required to forego 

substantial exempt speech that could have been funded 

by specific solicitations that would have required 

disclosure. Moreover, the Chamber was forced to refrain 

from communicating with its members about specific 

plans for core speech since such speech might be 

deemed a solicitation that would trigger disclosures. 

4 Unless otherwise noted, all citations herein are to the 

opinion of Chief Justice Roberts, which is controlling. See Marks 

v. United States, 430 U.S. 188, 192-93 (1977); Horn v. Thoratec 

Corp., 376 F.3d 163, 175 (3d Cir. 2004). 

5 This is the date on which the FEC’s regulations 

implementing this Court’s decision in WRTL II went into effect. 
7 

Citizens United and the Chamber were not the only 

speakers whose speech was suppressed in this fashion. 

The Chamber has reviewed the FEC Form 9 reports of 

the 30 entities that spent the largest sums on exempt 

speech during 2008. Virtually no corporate donors were 

disclosed. Thus, BCRA § 201 suppressed nearly all 

corporate exempt speech except to the extent 

organizations like the Chamber could rely on funds 

raised without informing donors of their intended use.6 

Indeed, at least with respect to exempt speech funded 

by corporations, BCRA § 201 achieved almost no 

disclosure of donors, but instead functioned primarily 

to curtail corporate speech. 

SUMMARY OF ARGUMENT 

This Court long has recognized that compelled 

disclosures may substantially suppress speech. It also 

has made clear that the government bears the heavy 

burden of justifying each application of a statute that 

restricts First Amendment rights. Where, as here, a 

restriction impairs speech relating to core concerns of 

the First Amendment (i.e., how we are governed and 

who governs us), and particularly where it does so 

precisely because of the core content of the speech, this 

Court traditionally has required the government to meet 

the stringent demands of strict judicial scrutiny. 

In several cases involving disclosure requirements, 

this Court has used the term “exacting” scrutiny. 

Particularly where disclosures have been a condition of 

6 Of course, some reporting groups did not accept corporate 

contributions at all, although others did. 
8 

the right to engage freely in core speech, however, 

“exacting” scrutiny is indistinguishable from “strict” 

scrutiny. For example, the government still must prove 

narrow tailoring and demonstrate a compelling interest. 

No matter whether the Court applies “strict 

scrutiny” or the “strict test” that is exacting scrutiny, 

Buckley v. Valeo, 424 U.S. 1, 64-66 (1976), the First 

Amendment injury inflicted by applying BCRA 

§ 201 to exempt speech certainly requires extremely 

stringent review. Experience has shown that many 

corporations will refrain from core speech if it comes at 

the price of public disclosure. That has been the 

experience of the Chamber and other groups, whose core 

First Amendment speech has been and is substantially 

curtailed by BCRA’s disclosure obligations. In short, 

BCRA’s disclosure requirements suppress substantial 

exempt speech, just as occurred with respect to Citizens 

United. And those disclosure requirements threaten an 

even more Draconian impact on the First Amendment 

rights of willing listeners. Listeners have no ability to 

make disclosures such as those demanded of speakers 

by BCRA. If unacceptable disclosure demands force a 

speaker into silence, the right of willing listeners to hear 

is entirely destroyed. Thus, the government must satisfy 

stringent review in justifying the application of BCRA 

§ 201’s disclosure requirements to exempt speech. The 

government has not and cannot meet its stringent 

burden here. 

•	 Because exempt speech is not the 

functional equivalent of express advocacy, 

McConnell’s record and facial ruling do 

not apply. 
9 

•	 Because exempt speech cannot be 

banned, there is no enforcement or “anticircumvention” rationale for requiring 

disclosure of donors for such speech. 

•	 Because exempt speech is independent 

of any candidate or campaign, there can 

be no actual or apparent quid pro quo 

corruption from funding such speech. 

•	 Because exempt speech is not express 

advocacy or its functional equivalent, the 

aberrant theory of corporate wealth 

corruption in Austin v. Michigan 

Chamber of Commerce, 494 US. 652 

(1990), does not apply, and Austin should 

be overruled rather than extended. 

•	 Because voters can appropriately 

discount speech if those supporting it are 

not disclosed, there is no important need 

to compel such disclosures. 

Indeed, the primary motivation for BCRA § 201’s 

disclosure requirements seems to have been 

congressional hostility to independent speech, leading 

to a desire to burden and encumber whatever speech 

could not be banned outright. See McConnell, 540 U.S. 

at 245-50 (Scalia, J., concurring and dissenting in part). 

Such an anti-speech governmental purpose is not even 

constitutionally legitimate, much less a compelling reason 

to subordinate First Amendment guarantees. 

Therefore, § 201 violates the First Amendment as 

applied to exempt electioneering communications. 
10 

ARGUMENT 

This brief focuses on the application of the disclosure 

requirements of BCRA § 201 to advertisements that 

refer to candidates but are not functionally equivalent 

to express advocacy. Appellant Citizens United 

specializes in making full length feature films and its 

brief understandably emphasizes its right to freely 

broadcast those films. But the issue in this case with 

the broadest significance is the constitutionality of 

applying BCRA § 201’s disclosure requirements to 

advertisements that mention candidates. The Chamber 

and many similar groups rely on such ads, and they are 

central to efforts to communicate its policy speech to 

members of the public. At the same time, the 

constitutionality of demanding donor disclosure from 

sponsors of such ads is the vital question left open by 

WRTL II. 

Citizens United suppressed several such ads. Even 

though WRTL II exempted those ads from the corporate 

ban, the FEC would have applied BCRA § 201’s 

disclosure requirements, making the ads unlawful unless 

Citizens United disclosed its donors, which it would not 

do. In this amicus brief, the Chamber focuses on the 

status of such exempt ads, showing that application of 

BCRA § 201 to them violates the First Amendment 

rights of both speakers and listeners. 
11 

I.	 APPLYING THE DISCLOSURE REQUIREMENTS OF BCRA § 201 TO EXEMPT SPEECH 

SERIOUSLY IMPAIRS CORE FIRST 

AMENDMENT RIGHTS. 

A.	 Forced Reporting and Disclosure Of Donors 

Seriously Burdens And Suppresses Corporate 

Speech. 

This case confirms this Court’s long-standing 

recognition that compelled disclosures may substantially 

suppress speech. Buckley, 424 U.S. at 64 (citing 

authority); Davis v. FEC, 128 S. Ct. 2759, 2774-75 (2008). 

Nor should that be surprising. At the time Congress 

adopted § 201’s disclosure requirements, it also 

increased the penalties for failing to comply. See BCRA 

§ 312 (increasing penalties for criminal violations). It 

also made filing false reports punishable as perjury. 

See BCRA § 201(a). Such severe penalties would not 

have been necessary if these disclosures were thought 

to be a minimal burden that Congress expected few 

speakers to resist. Moreover, it is common experience 

that, where the supporters of exempt speech are not 

disclosed, opponents can and do exploit the silence as a 

reason for discounting the speech. The fact that many 

speakers decline to identify their donors, even though 

doing so weakens the credibility of their speech, again 

confirms that required donor disclosure is burdensome 

and likely to suppress speech. 

The Chamber’s own experience has made it acutely 

aware of the reluctance of business corporations to be 

identified as supporters of issue speech near elections. 

During 2008, the Chamber was one of the most frequent 
12 

filers of FEC Form 9s, and it reported more spending on 

electioneering communications than any other group.7 

Yet the Chamber’s reports did not disclose donors. 

The reason no Chamber donors are disclosed is simple. 

Many of its members have made clear that they are not 

willing to be identified and will terminate or withhold 

support if disclosure becomes a risk. If the Chamber had 

solicited funds for the specific purpose of electioneering 

communications, or if donors had specified such a use, the 

FEC would have applied BCRA to require the Chamber 

to report the donation and the donor. See 11 C.F.R. 

§ 104.20. Thus, the Chamber adopted a policy against 

soliciting or accepting donations for the specific purpose 

of exempt speech, and it repeatedly declined contributions 

offered to support specific speech. 

The policy forced on the Chamber by BCRA § 201 

carried a substantial First Amendment cost, for the 

American public as well as for the Chamber and its 

members. The Chamber’s general resources are limited. 

If the Chamber had been able to solicit support for 

particular exempt speech and to accept donations 

earmarked for such speech, it could have done considerably 

more than it did to convey the views of the business 

community. This is understandable. After all, the 

7 As Citizens United explains in its brief at 54, citing FEC v. 

Mass. Citizens for Life, Inc., 479 U.S. 238, 254 (1986), the 

administrative costs incurred when filing these reports is a burden 

of constitutional significance. The Chamber had to dedicate staff 

to draft the Form 9s, subject them to both internal and external 

legal review, and sign them under penalty of perjury, all within the 

required 24-hour reporting period. This was a major undertaking 

for engaging in otherwise exempt speech. 
13 

Chamber’s members are businesses that are 

accustomed to knowing how their money is spent and 

ensuring that it is spent to further their respective 

enterprises. 

The reluctance of corporations to be publicly 

identified with controversial speech or positions is not 

an idiosyncrasy of Chamber members. The Chamber 

examined Form 9 disclosures of the 30 groups reporting 

the highest levels of spending on electioneering 

communications during 2008. Those reports are 

available at http://www.fec.gov/finance/disclosure/ 

ec_table.shtml. In some cases, individual donors were 

disclosed. But none of these reports disclosed any 

significant number of corporate contributors. In short, 

as applied to corporate exempt speech, the donor 

disclosure requirements of BCRA § 201 operate only to 

suppress the speech, not to obtain disclosures. And no 

one pretends that the disclosure of individual donors 

serves a vital role.8 

8 The use of donor information for retaliation purposes is 

part of the daily news. For example, at http://www.eightmaps.com, 

the specific names and addresses of donors to the successful 

referendum to ban gay marriage in California are superimposed 

on local maps. A former member of the FEC, writing with a 

University of Maryland professor, discusses resulting retaliation 

in John Lott and Brad Smith, Donor Disclosure Has Its Downsides, 

Wall Street Journal, Dec. 26, 2008, at A13, available at http:// 

online.wsj.com/article/SB123025779370234773.html. Recent news 

reports confirm that business corporations identified as 

supporting a group taking controversial positions may be 

penalized. See, e.g., Mark Pitsch, EPIC Won’t Deal with WMC 

(Cont’d) 
14 

The disclosure requirements also burdened and 

suppressed the Chamber’s internal communications and 

interfered with the effective exercise of its right of 

expressive association. In practice, the Chamber would 

inform its members that it was raising money for public 

educational or grassroots lobbying programs, but when 

asked what those would be or how they would be carried 

out, the Chamber had to remain silent, at least as to 

any exempt speech. The Chamber’s members were 

forced to guess and, based on that guess, decide whether 

to support the programs. Similarly, if a member 

interested in a campaigning incumbent officeholder’s 

position on a particular policy issue wanted the Chamber 

to use the member’s donation – combined with those of 

others – to run advertising about the issue, the member 

was precluded from communicating that to the Chamber. 

Ironically, even though the speech the Chamber 

ultimately funded with its members’ donations was 

exempt from BCRA’s prohibition pursuant to WRTL II, 

the Chamber and its members were prevented from 

(Cont’d) 

Backers, Wis. State Journal, June 27, 2008; Jim Lobe, ExxonMobil 

Takes Heat on Global Warming, Inter Press Service News 

Agency, July 12, 2005, available at http://www.ipsnews.net/ 

print.asp?idnews=29469 (last visited Jan. 15, 2009) (describing 

boycott of corporation’s products for, among other things, ”lobbying 

Congress to open the Artic National Wildlife Refuge (ANWR) to 

drilling”). Because a cautious corporate executive, of course, has 

no way of being sure in advance which contribution will produce 

negative consequences for his company, the safe course is to 

withhold financial support for expressive activities. 
15 

speaking about it to potential supporters. This directly 

impaired internal speech necessary to the effective 

exercise of the right to expressive association.9 

In short, it is clear that the application of BCRA 

§ 201 to require donor disclosure for exempt speech 

substantially suppresses such speech, causing direct 

First Amendment injury to would-be speakers and 

expressive associations. 

B.	 Such Disclosure Requirements Also Threaten 

Complete Destruction Of The First 

Amendment Rights Of Willing Listeners. 

The First Amendment’s protections are not limited 

to speakers. Meaningful speech involves a process of 

communication, not just utterance. First Nat’l Bank of 

Boston v. Bellotti, 435 U.S. 765, 776-77 (1978). Thus, the 

First Amendment “equally” protects the right of willing 

9 Buckley held that compelled disclosure of associational 

acts was a sufficient burden to trigger exacting scrutiny. 424 

U.S. at 64. Roberts v. United States Jaycees said that requiring 

“disclosure of the fact of membership in a group seeking 

anonymity” or “interfere[nce] with the internal organization 

or affairs” of an expressive association were examples of 

burdens that triggered strict scrutiny. 468 U.S. 609, 623 (1984) 

(collecting authority). Moreover, where litigation discovery is 

sought concerning such internal associational matters, courts 

regularly recognize a presumptive First Amendment shield 

that can be overcome only by a tailored showing of necessity. 

See, e.g., FEC v. Machinists Non-Partisan Political League, 655 

F.2d 380, 389-90 (D.C. Cir. 1981); FEC v. Larouche Campaign, 

817 F.2d 233, 234-35 (2d Cir. 1987). 
16 

listeners to hear what a speaker has to say. Virginia 

State Bd. of Pharmacy v. Virginia Citizens Consumer 

Council, Inc., 425 U.S. 748, 756-57 (1976) (collecting 

authority); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 

390 (1969) (although limited frequency spectrum justifies 

regulation of broadcast speakers, the constitution 

requires protection of “the right of the public to receive” 

speech). 

In many circumstances there is no need to analyze 

listener rights separately, but disclosure requirements 

affect listeners differently than speakers. A potential 

speaker can choose between making the required 

disclosure and standing silent. A listener, by contrast, 

has no such choice. If the speaker is unwilling to disclose, 

and so stands silent, the listener’s right to hear is 

entirely defeated. Thus, the First Amendment burden 

on the listener’s First Amendment rights is measured, 

not by the required disclosure, but by a complete loss 

of the desired speech. To justify inflicting such a 

substantial First Amendment injury, the government 

must prove that it has a sufficiently compelling need for 

speakers’ disclosures to justify destroying listeners’ 

rights to receive desired speech. 

This Court long has recognized that disclosure 

requirements may be unconstitutional because of injury 

to listeners, even where the speaker’s practical burden 

may be deemed minor. Thomas v. Collins, 323 U.S. 516 

(1945), involved a Texas statute requiring labor 

organizers to identify themselves, their position, and 

their union to the Texas Secretary of State before 

soliciting workers to join a union. Id. at 524. Texas argued 

that the required disclosures were minimal and did not 
17 

significantly burden the speakers. However, the Court’s 

opinion repeatedly mentioned the rights of listeners – 

e.g., “the rights of the workers to hear,” id. at 534, and 

“the right of workmen,” id. at 539 – in holding that the 

First Amendment had been violated even if Texas was 

correct that the speaker’s burden was minor. Id. at 541-

43. Focusing on the silence that would result if a speaker 

would not disclose, the Court said the “restraint is not 

small when it is considered what [is] restrained [i.e., 

speech and association]. . . . Seedlings planted in that 

soil [of “the most basic rights of all”] grow great and, 

growing, break down the foundations of liberty.” Id. at 

543. Thus, application of the disclosure requirement to 

the labor organizers violated the First Amendment. Id. 

Bellotti confirmed that injury to the right to receive 

“political” speech violates the First Amendment. There, 

parties seeking to suppress corporate speech 

concerning a ballot issue argued that corporations had 

no protected First Amendment right to speak. 435 U.S. 

at 775-76. Of course they were mistaken.10 But the Court 

ruled that it made no difference whether corporate 

10 See WRTL II, 127 S. Ct. at 2677-78 (Justice Scalia’s 

concurrence collecting authority that corporations have “full 

First Amendment protection”); California Motor Transp. Co. 

v. Trucking Unlimited, 404 U.S. 508, 510-11 (1972) (the First 

Amendment “rights of association and of petition” allow 

“groups with common interests” – a group of trucking 

companies – “to advocate their causes and points of view 

respecting resolution of their business and economic interests”); 

Eastern R.R. Presidents Conference v. Noerr Motor Freight, 

Inc., 365 U.S. 127, 137-38 (1961) (construing antitrust laws 

narrowly to preserve the right of a group of railroads to petition 

the government). 
18 

speakers were protected, since the First Amendment 

centrally protected the “capacity for informing the 

public” of the speech. Id. at 777. See also Eu v. S.F. 

County Democratic Cent. Comm., 489 U.S. 214, 223 

(1989) (protecting the ability of “voters seeking to inform 

themselves about the candidates and campaign issues”); 

Kleindienst v. Mandel, 408 U.S. 753, 762-63 (1972) (a 

listener’s right to receive speech does not depend on 

speaker’s right to speak).11 

Thus, the First Amendment injury inflicted by 

application of BCRA § 201 reaches far beyond the 

interests of Citizens United. The core First Amendment 

right of persons interested in receiving speech about a 

nationally-prominent Senator and candidate was 

entirely destroyed.12 

11 These are not cases in which listeners were merely 

granted standing to assert the rights of speakers. In addition, 

Bellotti suggested in footnote dicta that a disclosure 

requirement might be more acceptable than the ban at issue 

there. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 791 

n.32. That comment was dismissed as “dicta” in McIntyre v. 

Ohio Elections Commission, 514 U.S. 334, 353-54 (1995). 

Moreover, that footnote dicta did not evaluate the effect on 

listener rights, where a disclosure requirement often operates 

as a ban. 

12 To be clear, the Chamber must not be understood to 

endorse the contents of the Citizens United materials. A 

listener may wish to receive speech with which the listener 

expects to disagree. 
19 

II.	 THE GOVERNMENT HAS FAILED TO JUSTIFY 

THESE SERIOUS INFRINGEMENTS OF CORE 

FIRST AMENDMENT RIGHTS. 

A.	 The Applicable Standard Is Strict Scrutiny. 

This Court long has recognized that compelled 

disclosures may substantially suppress speech. Buckley, 

424 U.S. at 64 (collecting authority); Davis, 128 S. Ct. 

at 2774-75. It also has made clear that the government 

bears the heavy burden of justifying “each application” 

of a statute that restricts First Amendment rights. 

WRTL II, 127 S. Ct. at 2664. Where, as here, a 

restriction impairs speech relating to core concerns of 

the First Amendment (i.e., how we are governed and 

who governs us), and particularly where it does so 

precisely because of the core content of the speech, this 

Court traditionally has required the government to meet 

the stringent demands of strict judicial scrutiny. See id. 

(collecting authority). 

In several cases involving disclosure requirements, 

this Court has used the words “exacting” scrutiny. 

See Buckley, 474 U.S. at 64; Davis, 128 S. Ct. at 2775. 

However, it has made clear that this is a “strict test.” 

Buckley, 474 U.S. at 66; see also Davis, 128 S. Ct. at 

2775 (noting that the Court has “closely scrutinized 

disclosure requirements”) (emphasis added). 

At least where disclosures have been a condition of 

the right to engage freely in core speech, “exacting” 

scrutiny is indistinguishable from “strict” scrutiny. This 

is not surprising since “exacting” and “strict” have very 
20 

similar meanings.13 Bellotti held that, to satisfy exacting 

scrutiny, the government was required to prove a 

compelling interest. 435 U.S. at 795. And McIntyre v. 

Ohio Elections Commission held that, to satisfy 

exacting scrutiny, the government had to prove narrow 

tailoring. 514 U.S. 334, 347 (1995). 

Thus, lower courts often have held that exacting and 

strict scrutiny mean the same thing. McConnell v. FEC, 

251 F. Supp. 2d 176, 358 n.139 (D.D.C. 2003) (opinion of 

Henderson, J.) (“In no case of which I am aware does 

the [Supreme] Court hold that exacting scrutiny is any 

less rigorous than strict scrutiny”), id. n.140 (noting that 

courts “apply exacting (i.e., strict) scrutiny to disclosure 

and reporting requirements”); Nat’l Ass’n of Mfrs. v. 

Taylor, 549 F. Supp. 2d 33, 51 (D.D.C. 2008) (reviewing 

Supreme Court authority). 

B.	 The Government Has Failed To Justify 

Application Of BCRA § 201 To Exempt Speech. 

The 1974 version of the Federal Election Campaign 

Act (“FECA”) included former 2 U.S.C. § 437a, a 

provision requiring disclosure of the donors to any 

group that spent funds to broadcast to the public any 

material referring to a candidate for the purpose of 

affecting an election. Buckley v. Valeo, 519 F.2d 821, 869-

70 (D.C. Cir. 1975) (en banc), aff ’d in part, rev’d in part, 

13 “Exacting” means “unremittingly severe,” while “strict” 

means “stringent in requirement” and “exact.” MerriamWebster’s Collegiate Dictionary, 402, 1161 (10th ed. 2001). 

Moreover, Random House Roget’s College Thesaurus lists 

“exacting” as a synonym for “strict.” Thesaurus 24 (2000). 
21 

424 U.S. 1 (1976). Reading this provision to reach beyond 

speech directly tied to an election, the en banc court 

ruled the government had no sufficient justification to 

burden such vital speech and held it unconstitutional. 

Id. at 872, 878. The government did not even appeal 

that ruling. 

Similarly here, the FEC has applied BCRA § 201 to 

demand donor disclosures during much of an election 

year for speech that is not express advocacy or its 

functional equivalent, so long as it mentions a candidate. 

It has not and cannot show an adequate justification 

for thus burdening this speech that, on the one hand, is 

central to the First Amendment and, on the other hand, 

has no immediate and unambiguous link to any election. 

See North Carolina Right to Life, Inc. v. Leake, 525 F.3d 

274, 281 (4th Cir. 2008) (the government’s interest in 

regulating elections does not extend beyond speech 

unambiguously associated with an election). 

Indeed, the exercise of looking for such a 

justification in this case is highly artificial. The fact is 

that Congress simply does not like independent speech 

near elections. Such speech raises issues incumbent 

candidates would prefer to ignore and can give a boost 

to challengers contrary to the interests of the 

incumbents who, of course, enact the laws. See 

McConnell, 540 U.S. at 248-50 (Scalia, J., concurring 

and dissenting in part). In BCRA, Congress set out to 

ban as much independent speech as it could, and to 

minimize the rest by making it as burdensome as 

possible. The burdens imposed have no other real 
22 

purpose – except perhaps satisfying curiosity and 

identifying political opponents for retaliation.14 

1.	 McConnell’s Record And Facial Holding 

Do Not Apply. 

The government cannot rely on McConnell to meet 

its burden. The record in McConnell was directed 

toward electioneering communications that were the 

functional equivalent of express advocacy. 540 U.S. at 

206. McConnell’s facial holding was similarly limited. 

Id. at 206 n.88. 

In upholding the § 201 disclosure requirements, 

McConnell did “not foreclose possible future challenges 

to particular applications of that requirement.” 540 U.S. 

at 199. This challenge to the application of BCRA § 201 

to speech exempt by WRTL II is precisely the type 

envisioned by McConnell. And WRTL II squarely holds 

that, if corporate electioneering communications are not 

functionally equivalent to express advocacy, they cannot 

be banned. 127 S. Ct. at 2652. 

2.	 No Enforcement Or Anti-Circumvention 

Interest Exists. 

The government cannot establish any anticircumvention or enforcement justification here. This 

14 As Justice Scalia noted, “[t]here is good reason to believe 

that the ending of negative campaign ads was the principal 

attraction of the legislation. . . . Those in power, even giving 

them the benefit of the greatest good will, are inclined to believe 

that what is good for them is good for the country.” McConnell 

v. FEC, 540 U.S. 93 260 (2003) (Scalia, J., concurring and 

dissenting in part) (internal citations omitted). 
23 

case concerns public speech, so the exempt nature of 

the speech should be easy to confirm. Where, as here, 

the speech is not functionally equivalent to express 

advocacy, it cannot be banned. Id. Thus, funding of such 

speech cannot operate to evade either FECA’s ban on 

corporate express advocacy or BCRA’s ban on corporate 

electioneering communications that are functionally 

equivalent to express advocacy. 

3. No Anti-Corruption Justification Applies. 

Citizens United’s speech was independent of any 

candidate or campaign. That is true of exempt speech 

generally. Coordinated speech is treated as a 

contribution to a candidate and, as such, is otherwise 

subject to reporting and limits, including a corporate 

ban. See BCRA § 202 (noting that coordinated 

communications are treated as candidate contributions). 

Such independent speech is not a plausible vehicle 

for quid pro quo corruption. To the contrary, this Court 

has recognized that independent speech actually may 

work against candidate interests. See Buckley, 424 U.S. 

at 47 (“independent expenditures may well provide little 

assistance to the candidate’s campaign and indeed may 

prove counterproductive”). In fact, candidates for 

federal office have been denouncing and disavowing 

independent ads for at least the last two decades and 

continue to do so today for these reasons. See, e.g., 

Stephen Engelberg, Bush, His Disavowed Backers and 

a Very Potent Attack Ad, N.Y. Times, Nov. 3, 1988; 

Coleman Suspending Negative Ads, Associated Press, 

October 10, 2008; Pat Minelli, Negative Television 

Advertising: Polls Show It Can Have Reverse Effect, 

Shakopee Valley News, Oct. 16, 2008. 
24 

Nor did Citizen United’s speech give rise to a 

compelling appearance of corruption. Corporations of 

all kinds engage in public speech of all kinds all the time, 

and the basic premise of the First Amendment is that 

such speech is desirable. 

4.	 Austin Does Not Apply And, In Any 

Event, Should Be Overruled. 

In Austin, the Court adopted the strained position 

that corporate spending to expressly advocate the 

election or defeat of a candidate may be deemed 

inherently “corruptive” in the peculiar sense that some 

corporations have great resources.15 One member of the 

Austin majority later changed his view. See McConnell, 

540 U.S. 286, 323-29 (Kennedy, J., concurring and 

dissenting in part) (joined by Chief Justice Rehnquist). 

And Austin is in severe tension with other cases 

protecting corporate speech. See, e.g., WRTL II, 127 S. 

Ct. at 2678-79 (Scalia, J., concurring in part). That 

tension is particularly acute for corporations like the 

Chamber that exist for advocacy purposes. Thus, 

15 Citizens United correctly argues that the aberrant 

ruling in Austin v. Michigan Chamber of Commerce, 494 U.S. 

652 (1990) — that independent corporate speech may be 

“corrupt” — should be overruled. In any event, Austin involved 

express advocacy. Id. at 654; FEC v. Wisconsin Right to Life, Inc 

v. FEC., 127 S. Ct. 2652, 2673 (2007) (“the interest recognized 

in Austin as justifying regulation of corporate campaign speech 

and extended in McConnell to the functional equivalent of such 

speech has no application to issue advocacy”) (emphasis 

added). As noted above, this case concerns speech that is not 

express advocacy or its functional equivalent. 
25 

Citizens United persuasively argues that Austin should 

be overruled. 

In any event, Austin certainly should not be 

extended to reach beyond the express advocacy that 

was at issue there. As already discussed, exempt speech 

is neither express advocacy nor its functional equivalent. 

The First Amendment requires that such independent 

speech be deemed desirable and protected, rather than 

condemned as corruptive. 

This is doubly so since the disclosure requirements 

of BCRA § 201 are not facially targeted to great wealth 

in any way. The reporting obligation extends to 

individual as well as corporate or labor union donors, 

regardless of their assets. And it simply is not plausible 

to maintain that the ability to make a $1,000 donation 

in connection with an exempt electioneering 

communication is a reliable measure of vast and 

corrupting wealth. Stringent scrutiny cannot be 

satisfied on the basis of a rationale that the statute does 

little to serve. See FCC v. League of Women Voters, 468 

U.S. 364, 396 (1984). 

5.	 No Compelling Information Need Has 

Been Shown. 

Finally, there is no showing that the public receives 

a compelling informational benefit from BCRA’s 

disclosure requirements. Although BCRA theoretically 

could provide more information than otherwise would 

be available – assuming the public receives the 

disclosures – it also might provide less information, since 

would-be speakers who will not disclose stand silent. The 
26 

government has made no showing that the net effect of 

the BCRA disclosure requirements on public 

information is positive, much less that any net increase 

is so substantial and important as to justify defeating 

listeners’ core First Amendment rights to receive speech 

that is suppressed or reduced by burdensome 

mandatory reporting. In this case, since Citizens United 

stood silent, the public suffered a loss of communication. 

In this regard, it is offensively paternalistic for the 

government to simply assume that listeners are 

incapable of properly evaluating public speech in the 

absence of full disclosure of the speaker’s funding 

sources. In their daily lives, Americans regularly 

discount speech to adjust for questions about its source. 

See generally McIntyre, 514 U.S. 334. That is doubly so 

in the area of political speech where speakers with 

opposing views are not shy in pointing out the absence 

of donor information. 
27 

CONCLUSION 

For the foregoing reasons, the judgment of the 

lower court should be reversed and the Court should 

hold that applying the disclosure requirements of BCRA 

§ 201 to speech that is not functionally equivalent to 

express advocacy violates the First Amendment. 

Respectfully submitted, 

JAN WITOLD BARAN 

Counsel of Record 

THOMAS W. KIRBY 

CALEB P. BURNS 

WILEY REIN LLP 

1776 K Street, N.W. 

Washington, D.C. 20006 

(202) 719-7000 

Counsel for Amicus Curiae 

STEVEN J. LAW ROBIN S. CONRAD 

Chief Legal Officer AMAR D. SARWAL 

and General Counsel NATIONAL CHAMBER 

JUDITH K. RICHMOND LITIGATION CENTER, INC. 

Vice President and Associate 1615 H Street, N.W. 

General Counsel Washington, D.C. 20062 

U.S. Chamber of Commerce (202) 463-5337 

1615 H Street, N.W. Of Counsel Washington, D.C. 20062 

(202) 463-5576 

Of Counsel