No. 08-205 

IN THE 

Supreme Court of the United States 

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

SUPPLEMENTAL BRIEF OF AMICI CURIAE 

SENATOR JOHN MCCAIN, SENATOR RUSSELL 

FEINGOLD, FORMER REPRESENTATIVE 

CHRISTOPHER SHAYS, AND FORMER 

REPRESENTATIVE MARTIN MEEHAN 

IN SUPPORT OF APPELLEE 

SCOTT L. NELSON

PUBLIC CITIZEN

 LITIGATION GROUP

1600 20th Street, N.W. 

Washington, D.C. 20009

(202) 588-1000 

ALAN B. MORRISON

GEORGE WASHINGTON

 LAW SCHOOL

800 H Street, N.W. 

Washington, D.C. 20052

(202) 994-7120 

SETH P. WAXMAN

 Counsel of Record

RANDOLPH D. MOSS

WILMER CUTLER PICKERING

 HALE AND DORR LLP

1875 Pennsylvania Ave., N.W. 

Washington, D.C. 20006 

(202) 663-6000 

ROGER M. WITTEN

WILMER CUTLER PICKERING

 HALE AND DORR LLP

399 Park Ave. 

New York, N.Y. 10022 

(212) 230-8800 
(i) 

TABLE OF CONTENTS 

Page 

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

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

INTRODUCTION AND SUMMARY OF 

ARGUMENT................................................................1 

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

I. OVERRULING AUSTIN OR MCCONNELL

WOULD DISREGARD PRINCIPLES OF STARE 

DECISIS AND PROCEDURAL REGULARITY ...............3 

A. There Is No Special Justification For 

Overruling Austin Or McConnell......................3 

B. Overruling Austin Or McConnell

Would Be Procedurally Inappropriate ..............7 

II. MCCONNELL AND AUSTIN WERE CORRECTLY DECIDED .......................................................12 

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

APPENDIX 
ii 

TABLE OF AUTHORITIES 

CASES 

Page(s) 

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

209 (1977) .....................................................................16 

Ashwander v. Tennessee Valley Authority, 297 

U.S. 288 (1936) ..............................................................9 

Austin v. Michigan Chamber of Commerce, 

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

Buckley v. Valeo, 424 U.S. 1 (1976) ..................................6 

Caperton v. A.T. Massey Coal Co., 129 S. Ct. 

2252 (2009) .........................................................2, 12, 13 

City of Boerne v. Flores, 521 U.S. 507 (1997)..................1 

Dickerson v. United States, 530 U.S. 428 (2000).....3, 5, 6 

FEC v. Beaumont, 539 U.S. 146 (2003)............................6 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) ...........................................6, 14, 15 

FEC v. National Conservative Political Action 

Committee, 470 U.S. 480 (1985)................................14 

FEC v. National Rifle Ass’n of America, 254 

F.3d 173 (D.C. Cir. 2001) .............................................8 

FEC v. National Right to Work Committee, 

459 U.S. 197 (1982) .................................................6, 14 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 

449 (2007) .......................................................5, 9, 10, 15 

First National Bank of Boston v. Bellotti, 435 

U.S. 765 (1978) ............................................................15 

Hubbard v. United States, 514 U.S. 695 (1995)...............4 
iii 

TABLE OF AUTHORITIES—Continued 

Page(s) 

McConnell v. FEC, 251 F. Supp. 2d 176 

(D.D.C.), aff’d in part and rev’d in part, 540 

U.S. 93 (2003) ........................................................13, 14 

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

Miranda v. Arizona, 384 U.S. 436 (1966).........................6 

Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974) ...........12 

Pipefitters Local Union No. 562 v. United 

States, 407 U.S. 385 (1972) ..........................................8 

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)...............3, 4, 5, 6 

Quill Corp. v. North Dakota ex rel. Heitkamp, 

504 U.S. 298 (1992) .......................................................5 

Randall v. Sorrell, 548 U.S. 230 (2006)........................4, 7 

Republican Party of Minnesota v. White, 536 

U.S. 765 (2002) ............................................................13 

Vasquez v. Hillery, 474 U.S. 254 (1986) ...........................7 

Virginia v. Hicks, 539 U.S. 113 (2003)............................18 

Webster v. Reproductive Health Services, 492 

U.S. 490 (1989) ..............................................................8 

Welch v. Texas Department of Highways & 

Public Transportation, 483 U.S. 468 (1987).............3 

Ysursa v. Pocatello Educational Ass’n, 129 S. 

Ct. 1093 (2009).............................................................16 
iv 

TABLE OF AUTHORITIES—Continued 

Page(s) 

STATUTES 

2 U.S.C. § 441b ...................................................4, 11, 17, 18 

OTHER AUTHORITIES 

Investment Company Institute, U.S. Household Ownership of Mutual Funds in 2005

(2005), http://www.ici.org/pdf/fm-v14n5.pdf...........16 

U.S. Congress Joint Economic Committee, The 

Roots of Broadened Stock Ownership (2000), 

www.house.gov/jec/tax/stock/stock.pdf................... 16 
INTEREST OF AMICI CURIAE1

 

The interest of the amici curiae, BCRA’s principal 

sponsors, is stated in their previous brief. 

INTRODUCTION AND SUMMARY OF ARGUMENT 

If judicial modesty is a virtue, then “[w]hen the political branches of the Government act against the 

background of a judicial interpretation of the Constitution already issued, it must be understood that in later 

cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis.” City of Boerne v. Flores, 

521 U.S. 507, 536 (1997). By that standard, this Court’s 

order that the parties brief and argue whether Austin

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

and McConnell v. FEC, 540 U.S. 93 (2003), should be 

overruled is a modest proposal only in the Swiftian 

sense. 

The Court’s directive dramatically changes the issue in this case. No longer is it only whether BCRA 

and its implementing regulations can apply to ondemand satellite transmission of a movie by a nonprofit 

corporation that accepts some funding from business 

corporations, and whether that movie is the functional 

equivalent of express advocacy. The Court now asks 

whether all restrictions on use of treasury funds of forprofit corporations (and unions) for express advocacy 

should be held facially unconstitutional. 

 1

 Letters consenting to the filing of this brief have been filed 

with the Clerk. This brief was not authored in whole or in part by 

counsel for a party. No person or entity other than amici or their 

counsel made a monetary contribution to its preparation or submission. 
2 

Overruling Austin or McConnell in this case would 

be unwarranted and unseemly. Stare decisis requires 

respect for precedents absent a special justification for 

overruling them. No such justification exists. Austin

and McConnell (and their antecedents) are vital cornerstones of modern campaign finance regulation and 

have engendered much reliance. Overruling them 

would severely jolt our political system by suddenly 

overturning not only federal statutes that have stood 

for decades, but also laws of many States. The foundations of Austin and McConnell have not been undermined by precedential development, and their holdings 

have not proved unworkable. Nor does the Court have 

new information that undermines their factual basis; 

there is no factual record in this case that even bears 

on, let alone undermines, the justifications for the longstanding restrictions on the use of corporate treasury 

funds for express candidate advocacy. 

More fundamentally, Austin and McConnell were 

correctly decided. Unlimited expenditures supporting 

or opposing candidates may create at least the appearance of corruption, as Caperton v. A.T. Massey Coal 

Co., 129 S. Ct. 2252 (2009), illustrates. The tremendous 

resources business corporations and unions can bring to 

bear on elections, and the greater magnitude of the resulting apparent corruption, amply justify treating corporate and union expenditures differently from those 

by individuals and ideological nonprofit groups. So, too, 

does the countervailing free-speech interest of the 

many shareholders who may not wish to support corporate electioneering but have no effective means of controlling what corporations do with what is ultimately 

the shareholders’ money. Austin was rightly concerned with the corruption of the system that will result if campaign discourse becomes dominated not by 
3 

individual citizens—whose right it is to select their political representatives—but by corporate and union 

war-chests amassed as a result of the special benefits 

the government confers on these artificial “persons.” 

That concern remains a compelling justification for restrictions on using corporate treasury funds for electoral advocacy—constraints that ban no speech but 

only require that it be funded by individuals who have 

chosen to do so. 

ARGUMENT 

I. OVERRULING AUSTIN OR MCCONNELL WOULD DISREGARD PRINCIPLES OF STARE DECISIS AND PROCEDURAL REGULARITY 

A. There Is No Special Justification For Overruling Austin Or McConnell 

Stare decisis is “of fundamental importance to the 

rule of law.” Welch v. Texas Dep’t of Highways & Pub. 

Transp., 483 U.S. 468, 494 (1987). This Court has often 

emphasized that overruling one of its precedents is an 

extraordinary action requiring “special justification.” 

See Dickerson v. United States, 530 U.S. 428, 443 

(2000). 

The controlling opinion in Planned Parenthood of 

Southeastern Pennsylvania v. Casey identified several 

“prudential and pragmatic considerations designed to 

test the consistency of overruling a prior decision with 

the ideal of the rule of law.” 505 U.S. 833, 854 (1992). 

These include whether the decision has engendered 

“reliance that would lend a special hardship to the consequences of overruling,” whether the rule established 

by a decision “def[ies] practical workability,” whether 

recent decisions have “left the old rule no more than a 

remnant of abandoned doctrine,” and whether “facts 
4 

have so changed, or come to be seen so differently, as to 

have robbed the old rule of significant application or 

justification.” Id. at 854-855. None of these considerations supports overruling precedent here. 

1. Overruling Austin and McConnell would 

deeply disturb settled expectations regarding the role 

of corporations in the electoral process. It would overturn not only BCRA’s restriction on use of corporate 

and union treasury funds for electioneering communications, but also the provision originating in the TaftHartley Act of 1947 that requires corporations and unions to use segregated funds (PACs) for expenditures 

in connection with federal elections. 2 U.S.C. § 441b. It 

would also—at a stroke—invalidate laws of twenty-two 

States that prohibit corporations from using treasury 

funds for campaign advocacy and jeopardize statutes in 

two others that strictly limit corporate expenditures.2

That alone is a powerful reason for adhering to 

precedent. “Stare decisis has special force when legislators or citizens ‘have acted in reliance on a previous 

decision, for in this instance overruling the decision 

would dislodge settled rights and expectations or require an extensive legislative response.’” Hubbard v. 

United States, 514 U.S. 695, 714 (1995). Just as “Buckley has promoted considerable reliance” because “Congress and state legislatures have used Buckley when 

drafting campaign finance laws,” Randall v. Sorrell, 

548 U.S. 230, 244 (2006) (opinion of Breyer, J.), so, too, 

have legislatures relied extensively on the longstanding 

principle that use of corporate treasury funds for express advocacy may be limited. The requirement that 

 2

 These laws are compiled in the Appendix to this brief. 
5 

business corporations and unions use segregated funds 

for candidate advocacy has become “embedded,” 

Dickerson, 530 U.S. at 443, in our national political culture in the generations since the Taft-Hartley Act and 

is “part of the basic framework,” Quill Corp. v. North 

Dakota ex rel. Heitkamp, 504 U.S. 298, 317 (1992), of 

how corporations and unions conduct their political activities. 

2. The constitutional principle that a corporation 

can be restricted from using treasury funds for express 

advocacy has not proved unworkable. Although regulating only express advocacy proved insufficient to 

prevent potentially corrupting corporate expenditures, 

see McConnell, 540 U.S. at 126-127, identifying express 

advocacy was not itself unworkable. Nor did McConnell’s application of the principle to the “functional 

equivalent of express advocacy,” id. at 206, as refined in 

FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 

(2007) (WRTL), render the rule unworkable. Indeed, 

the controlling opinion in WRTL devised its test principally for “clarity,” id. at 474 n.7, and there is no reason 

to think it is less clear today than two years ago. That 

Citizens United contests application of the WRTL

standard hardly demonstrates that it is “unworkable.” 

3. Nor has “evolution of legal principle ... implicitly or explicitly left [Austin or McConnell] behind as a 

mere survivor of obsolete constitutional thinking.” 

Casey, 505 U.S. at 857. The federal prohibition on use 

of corporate and union treasury funds for express advocacy has existed since 1947, and this Court’s decisions have not indicated any infirmity in it. As 

McConnell pointed out in upholding the constitutionality of regulating the functional equivalent of express 

advocacy, that result rested not only on Austin, but on 

the Court’s campaign finance jurisprudence from 
6 

Buckley v. Valeo, 424 U.S. 1 (1976), onward, with special emphasis on FEC v. National Right to Work 

Comm., 459 U.S. 197 (1982) (NRWC), and FEC v. 

Beaumont, 539 U.S. 146 (2003). See McConnell, 540 

U.S. at 203-206. The constitutionality of regulating express advocacy by business corporations also provided 

the analytical starting point for FEC v. Massachusetts 

Citizens for Life, Inc., 479 U.S. 238 (1986) (MCFL), 

which recognized a special exception for ideological 

nonprofit organizations that accept no funding from forprofit corporations. 

That some Justices have vehemently disagreed 

with Austin and McConnell does not make them doctrinal relics. Cf. Casey, 505 U.S. at 860 (noting that Roe

v. Wade “engendered disapproval” from the outset). If 

anything, it demonstrates that the arguments advanced 

against Austin do not rest on new doctrinal developments, but are the same ones already twice deemed unpersuasive by the Court. 

WRTL further demonstrates that Austin and 

McConnell have not been left behind by doctrinal development. WRTL’s controlling opinion disclaimed 

overruling McConnell and drew a constitutional line 

that was based on McConnell’s principles but designed 

to avoid overbreadth. By “reduc[ing] the impact” of 

McConnell “while reaffirming the decision’s core ruling,” Dickerson, 530 U.S. at 443-444, WRTL strengthened McConnell’s stare decisis effect, just as subsequent decisions limiting but reaffirming Miranda v. 

Arizona, 384 U.S. 436 (1966), were held in Dickerson to 

enhance Miranda’s precedential stature. 

4. There is no basis for concluding that the factual 

premises of Austin and McConnell have changed or 

proven unfounded. In contrast to Austin (where there 
7 

was an evidentiary record on corporate and PAC campaign spending in Michigan and the adequacy of PACs 

as mechanisms for channeling corporate speech) and 

McConnell (which involved a massive evidentiary record detailing the impact of large-scale corporate and 

union expenditures that were the functional equivalent 

of express advocacy), in this case there is no factual record that has any bearing on the justifications for restricting the use of corporate treasury funds for candidate advocacy. There is, therefore, no possible basis for 

concluding that “‘facts newly ascertained,’” Vasquez v. 

Hillery, 474 U.S. 254, 266 (1986), necessitate overruling 

Austin or McConnell. 

B. Overruling Austin Or McConnell Would Be 

Procedurally Inappropriate 

1. Sound judicial process counsels against reaching out to decide this case on the broadest possible basis. Until now, Citizens United itself never asked this 

Court to overrule McConnell and made only a perfunctory argument for overruling Austin. That argument 

was not raised in the district court or the jurisdictional 

statement, and even when Citizens United did raise it 

in two paragraphs of its merits brief, it addressed none 

of the criteria this Court has used to identify a special 

justification for overruling a decision. See Appellant 

Br. 30-31. Ordinarily, this Court would not consider an 

argument that it should overrule a precedent that was 

raised “[o]nly as a backup argument, an afterthought 

almost,” and was marked by a complete “fail[ure] to 

discuss the doctrine of stare decisis or the Court’s cases 

elaborating on the circumstances in which it is appropriate to reconsider a prior constitutional decision.” 

Randall, 548 U.S. at 263 (Alito, J., concurring). 
8 

Citizens United has advocated a number of much 

narrower grounds for deciding the case in its favor, 

some of which do not require constitutional adjudication at all. See Pipefitters Local Union No. 562 v. 

United States, 407 U.S. 385, 400-401 (1972). Its arguments question whether its film contains the functional 

equivalent of express advocacy under the WRTL standard, whether that standard can constitutionally be applied to “on-demand” television programming, and 

whether the FEC’s regulations even reach on-demand 

programming. 

Citizens United has also argued that the criteria 

set forth in MCFL should be expanded to cover nonprofit corporations that have received some contributions from business corporations. Under such an approach, nonprofit corporations whose receipts from 

business corporations are so modest that they plainly 

are not being used as conduits would not need to establish and maintain a PAC to fund express advocacy or its 

functional equivalent. 3

We continue to believe that the judgment below 

should be affirmed; but if this Court concludes otherwise, a decision on any one of those narrower bases, as 

opposed to a wholesale overruling of Austin and 

McConnell, would be more consistent with the “venerable principle,” Webster v. Reproductive Health Servs., 

492 U.S. 490, 525 (1989) (O’Connor, J., concurring), that 

the Court will not “‘formulate a rule of constitutional 

law broader than is required by the precise facts to 

 3

 Cf. FEC v. NRA, 254 F.3d 173 (D.C. Cir. 2001) (MCFL applies to organizations accepting de minimis contributions from 

business corporations). 
9 

which it is to be applied.’” Ashwander v. TVA, 297 U.S. 

288, 347 (1936) (Brandeis, J., concurring). 

2. Moreover, because Citizens United framed this 

case below as a narrow, as-applied challenge involving 

application of the WRTL test to Citizens United’s 

movie, there is no evidentiary record bearing on 

whether requiring business corporations to use segregated funds for candidate advocacy is facially constitutional. Because of the way Citizens United structured 

its case, the FEC had no occasion to develop a record 

with respect to the broader issue, and it appropriately 

carried its burden just by showing that the film satisfied the WRTL standard. As the controlling opinion in 

WRTL explained (551 U.S. at 465): 

This Court has already ruled that BCRA survives strict scrutiny to the extent it regulates 

express advocacy or its functional equivalent. 

McConnell, [540 U.S.] at 206. So to the extent 

the ads in these cases fit this description, the 

FEC’s burden is not onerous; all it need do is 

point to McConnell and explain why it applies 

here. 

As a result, there is no record evidence that sheds 

any light on many factual questions that might bear on 

the broad issues of whether restrictions on the way 

business corporations fund express advocacy serve a 

compelling interest and whether requiring them to use 

segregated funds unacceptably burdens their speech. 

Such questions might include: 

• The magnitude of candidate advocacy that 

would result if business corporations and unions were 

free to use treasury funds; 
10 

• The effect of such expenditures on political 

campaigns, candidates, and officeholders, and on public 

perceptions of corruption; 

• Whether corporate shareholders are able to 

monitor and control corporate political spending or alter investments based on their views regarding such 

spending; 

• Whether legislation comporting with Austin, 

McConnell, and WRTL has had a chilling effect on 

speech other than traditional campaign advertising; 

• Whether segregated-fund requirements significantly burden for-profit corporations and unions; 

• Whether, as Citizens United contends, wealthy 

individuals have as much ability to engage in massive 

election spending as business corporations and unions; 

• Whether corporate political expenditures discourage citizen participation in the process of selecting 

representatives for public office. 

As the Court recognized in WRTL, “McConnell’s 

analysis was grounded in the evidentiary record before 

the Court.” 551 U.S. at 466. And even the McConnell

record reflected the fact that BCRA’s challengers in 

that case did “not contest that the Government has a 

compelling interest in regulating advertisements that 

expressly advocate the election or defeat of a candidate 

for federal office.” 540 U.S. at 205. Thus, although the 

record in McConnell contained considerable evidence 

bearing on the corrupting effect of such corporate ex-
11 

press advocacy, it did not have reason to address the 

justifications for Austin.

4

Here, by contrast, there is no record at all against 

which to assess the justifications for Austin and 

McConnell. For the Court to overrule either decision 

in the absence of a record—or a fair opportunity to develop one—would be manifestly improper. And because the absence of a record is attributable to the way 

Citizens United framed its challenge, the Court should 

rule on that as-applied challenge and leave the development of the necessary record for a case in which the 

broader issue truly requires decision. 

3. These procedural concerns are heightened because the significant expansion of the potential impact 

of this Court’s ruling—to encompass not only BCRA, 

but also the expenditure provision of 2 U.S.C. § 441b, 

and the laws of many States—greatly increases the 

number of affected parties who had no reason to participate earlier. In particular, the States have not heretofore been heard in this case—because the narrow arguments Citizens United raised did not significantly 

affect their interests—and now have only a limited opportunity to defend their laws. 

Given the unusual circumstances here, overruling 

precedents may well suggest that the outcome rested 

on “a ground no firmer than a change in [the Court’s] 

membership,” which would “invite[] the popular misconception that this institution is little different from 

the two political branches of the Government. No misconception could do more lasting injury to this Court 

 4

 And because Congress relied on Austin in enacting BCRA, 

it had no need to create a full legislative record justifying Austin. 
12 

and to the system of law which it is our abiding mission 

to serve.” Mitchell v. W.T. Grant Co., 416 U.S. 600, 636 

(1974) (Stewart, J., dissenting). Such a decision could 

threaten the Court’s legitimacy in the eyes of the Nation and undermine the respect this Court’s precedents 

should command. 

II. MCCONNELL AND AUSTIN WERE CORRECTLY DECIDED 

The holdings of Austin and McConnell—that it is 

constitutional to require business corporations to use 

segregated funds contributed by shareholders, officers 

and employees for express candidate advocacy or its 

functional equivalent—remain sound today. The interests in preventing actual or apparent corruption of the 

electoral process and protecting shareholders provide 

compelling justification for such requirements, which 

neither unduly burden nor overbroadly inhibit protected speech. 

1. This Court’s decision in Caperton dramatically 

illustrates the appearance of corruption that can result 

from unrestrained independent electoral expenditures 

on behalf of corporate interests. In Caperton, the 

Court concluded that substantial independent expenditures advocating the election of a judicial candidate and 

the defeat of his opponent “had a significant and disproportionate influence on the electoral outcome” and 

created a “risk of actual bias” so “substantial” that due 

process required the successful candidate to recuse 

himself from a case involving the corporation whose 

executive engineered the expenditures. 129 S. Ct. at 

2264-2265. 

Surely, preventing such apparent bias is a compelling interest, but if Austin and McConnell were over-
13 

ruled, state laws aimed at preventing corporate expenditures in connection with judicial elections would fall 

with them. Cf. Republican Party of Minn. v. White, 

536 U.S. 765 (2002) (First Amendment applies fully to 

judicial elections). Moreover, there is no reason to believe that the types of expenditures that create an appearance of bias in a judge are less likely to create such 

an appearance with respect to legislative or executive 

officials. Indeed, if anything, the public would be less 

inclined to attribute corruption to judges than to other 

elected officials. See id. at 796 (Kennedy, J., concurring). And the due-process recusal remedy, though itself problematic in some respects, see Caperton, 129 S. 

Ct. at 2269-2272 (Roberts, C.J., dissenting), is not even 

available for legislators, who, by stepping aside, would 

leave constituents unrepresented. Therefore, preventing the appearance of corruption by forestalling potentially corrupting expenditures is the only practical 

remedy for such officials (and is also the simplest solution for judicial elections). 

Not surprisingly, the McConnell record provided 

strong corroboration that corporate and union expenditures on ads that were the functional equivalent of express advocacy created the appearance of corruption. 

Based on that record, Judge Kollar-Kotelly found that 

such expenditures “permit corporations and labor unions to inject immense aggregations of wealth into the 

process” and “radically distort[] the electoral landscape.” 251 F. Supp. 2d 176, 555 (D.D.C. 2003). She 

further found that candidates are “acutely aware of” 

and “appreciate” such expenditures, id., and “feel indebted to those who spend money to help get them 

elected,” id. at 556 (citing declaration of former Sen. 

Bumpers). She concluded that “the record demonstrates that candidates and parties appreciate and en-
14 

courage corporations and labor unions to deploy their 

large aggregations of wealth into the political process,” 

and that “the record presents an appearance of corruption stemming from the dependence of officeholders 

and parties on advertisements run by these outside 

groups.” Id. at 560. 

2. It remains true, as it was when Austin was decided, that distinguishing corporate and union expenditures from those of individuals is justified by the much 

greater magnitude of the resources that business corporations and unions can bring to bear on elections: 

Using state-conferred legal advantages and privileges, 

these entities can accumulate “political ‘war chests,’” 

NRWC, 459 U.S. at 207, so that “resources amassed in 

the economic marketplace may be used to provide an 

unfair advantage in the political marketplace.” MCFL, 

479 U.S. at 257; see also FEC v. National Conservative 

Political Action Comm., 470 U.S. 480, 500-501 (1985). 

The vast sums at corporations’ disposal create a much 

more formidable risk of corruption than those generally 

available to individuals. 

Business corporations, moreover, necessarily deploy wealth in the electoral process to serve relatively 

narrow economic interests. To be sure, individuals’ 

participation in electoral politics may also be driven by 

particular interests. But a citizen’s involvement in our 

system of representative democracy also reflects a 

broad range of considerations reflecting each citizen’s 

status as a sovereign member of a republic, engaged in 

a process of selecting representatives entrusted to act 

on her behalf across the full range of public issues—a 

process in which artificial persons, unlike individuals, 

have no direct role. This important distinction is surely 

an appropriate consideration for a democratic society 

arranging its electoral politics. 
15 

First National Bank of Boston v. Bellotti, 435 U.S. 

765 (1978), is not at all to the contrary. McConnell and 

Austin extensively discussed and rejected Bellotti’s 

application outside of ballot measures, and MCFL also 

recognized that requiring corporations to use PACs for 

candidate advocacy was “of course distinguishable” 

from the law in Bellotti. 479 U.S. at 259 n.12. WRTL

also emphasized the distinction between candidate advocacy and the issue advocacy in Bellotti. 551 U.S. at 

480. Bellotti itself said it “implie[d] no comparable 

right” to make expenditures in “the quite different context of participation in a political campaign for election 

to public office.” 435 U.S. at 788 n.26. It is one thing 

for a corporation to spend treasury funds on a measure 

that will have the same effect as a law passed by a legislature that it may freely lobby, and quite another for 

it to unleash its wealth on elections in which sovereign 

citizens determine who will exercise their proxies on 

the full breadth of public issues. Moreover, there is no 

“risk of corruption ... in a popular vote on a public issue.” Id. at 790. In contrast, as Bellotti recognized, 

§ 441b was enacted to combat “the problem of corruption of elected representatives through the creation of 

political debts.” Id. at 788 n.26. 

3. In addition, Austin’s point that distinguishing 

corporate and individual spending vindicates an important interest in protecting shareholders not only remains valid today, but is, if anything, even more compelling. Since Austin, the trend toward wider stock 

ownership has accelerated, fueled by explosive growth 

in mutual funds and changes in the funding of retirement plans that require most workers to rely on their 

own investments to provide for their old age. Thus, 

whereas less than twenty-five years ago only about one 
16 

in five American households held stocks, today about 

half do.5

Owners of corporate stocks thus reflect the diverse 

political views of the American public at large. And because of the dispersion of ownership through mutual 

funds, individual investors have little or no ability even 

to monitor political spending by the corporations they 

own, let alone control or influence it. Neither, however, 

do they have the realistic option of not investing their 

retirement funds, or of ensuring that they invest only 

in companies whose political activities they endorse. 

Allowing unrestrained political spending by corporations would empower corporate managers, authorized by state laws to control assets whose ownership 

resides elsewhere, to use other people’s money to advance their own political agendas. Just as union members have a strong First Amendment interest in not 

being legally compelled to support political activities, 

see Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977), 

so corporate shareholders have a free-speech interest 

in not having what is ultimately their money spent to 

elect candidates they do not support. And just as there 

is no right to receive government assistance to collect 

funds for political purposes, see Ysursa v. Pocatello 

Educ. Ass’n, 129 S. Ct. 1093 (2009), so, too, corporate 

managers have no First Amendment right to use government-endowed authority over property ultimately 

belonging to others to divert money to electoral politics. 

 5

 See U.S. Congress Joint Economic Committee, The Roots of 

Broadened Stock Ownership 1 (2000), www.house.gov/jec/tax/ 

stock/stock.pdf; Investment Company Institute, U.S. Household 

Ownership of Mutual Funds in 2005, at 2 (2005), http://www. 

ici.org/pdf/fm-v14n5.pdf. 
17 

The corporate PAC option, moreover, is ideally 

suited to balancing the First Amendment interests of 

corporate entities and their shareholders. It allows the 

corporation to direct political spending only to the extent shareholders have personally decided to contribute 

for that specific purpose. It thus ensures that the corporation may have a voice, but one that is not subsidized unwillingly by those who may disagree with its 

electoral message. And there is no basis in the record 

for concluding that PACs are inadequate or unduly 

burdensome for business corporations, whatever may 

be true of certain ideological nonprofit corporations. 

Indeed, PAC requirements pale in comparison with the 

detailed recordkeeping and accounting otherwise required of corporations and unions. 

4. Finally, there is no reason to conclude that restrictions on corporate political expenditures chill legitimate, non-electoral corporate expression. At oral 

argument, members of the Court expressed concern 

over the possibility that limits on corporate express 

advocacy might lead to banning of books that incidentally express views on electoral outcomes. Such concerns cannot justify the drastic step of overruling Austin or McConnell. 

The statute at issue—BCRA § 203—does not apply 

to books or to any mode of expression other than television and radio broadcasts. It would be unprecedented 

to strike down a law on its face because of concerns that 

some other statute, such as 2 U.S.C. § 441b, might be 

applied overbroadly.6

 6

 Neither party has argued that § 441b barred Citizens 

United from producing its film or showing it in non-broadcast settings, which Citizens United did without any enforcement threat. 
18 

Even were § 441b at issue, there would be no basis 

for overruling Austin’s holding that restrictions on corporate expenditures are facially constitutional. As far 

as we are aware, § 441b has never been applied to a 

book. The bare possibility that the statute might be 

applied to expression that was incidentally campaignrelated or that, taken as a whole, was not reasonably 

understood as being “in connection with” an election (as 

§ 441b requires) does not establish that the statute is 

overbroad, because such isolated, hypothetical impermissible applications are not “substantial ... ‘relative to 

the scope of the law’s plainly legitimate applications.’” 

McConnell, 540 U.S. at 207 (quoting Virginia v. Hicks, 

539 U.S. 113, 120 (2003)). Should § 441b or a similar 

state statute be applied outside the realm of true electioneering activity, an as-applied challenge would remain available, as WRTL demonstrates. 

CONCLUSION 

The Court should not overrule Austin or McConnell. 
Respectfully submitted. 

SCOTT L. NELSON

PUBLIC CITIZEN

 LITIGATION GROUP

1600 20th Street, N.W. 

Washington, D.C. 20009

(202) 588-1000 

ALAN B. MORRISON

GEORGE WASHINGTON

 LAW SCHOOL

800 H Street, N.W. 

Washington, D.C. 20052

(202) 994-7120 

SETH P. WAXMAN

 Counsel of Record

RANDOLPH D. MOSS

WILMER CUTLER PICKERING

 HALE AND DORR LLP

1875 Pennsylvania Ave., N.W. 

Washington, D.C. 20006 

(202) 663-6000 

ROGER M. WITTEN

WILMER CUTLER PICKERING

 HALE AND DORR LLP

399 Park Ave. 

New York, N.Y. 10022 

(212) 230-8800 

JULY 2009
APPENDIX
STATE STATUTES PROHIBITING INDEPENDENT 

EXPENDITURES FROM GENERAL TREASURY 

Alaska Alaska Stat. § 15.13.400(8), (13) (“group” 

excludes corporations unless their 

“principal purpose” is to influence 

elections; “nongroup entity” excludes 

entities that “participate in business 

activities”) 

Alaska Stat. § 15.13.065(a) (permitting 

contributions to groups only by other 

groups, nongroup entities, and individuals) 

Alaska Stat. § 15.13.067 (permitting expenditures only by groups, nongroup 

entities, individuals, and candidates) 

Arizona Ariz. Const. art. 14, § 18 (“It shall be 

unlawful for any corporation, organized or doing business in this State, to 

make any contribution of money or 

anything of value for the purpose of 

influencing any election or official action.”) 

Ariz. Rev. Stat. Ann. § 16-919(A) (prohibiting corporations from making 

“any contribution of money or anything of value for the purpose of influencing an election”) 

Ariz. Rev. Stat. Ann. § 16-920(A)(4) 

(permitting corporations to make expenditures only to establish, administer, and solicit voluntary contributions for a separate segregated fund) 
2a 

Colorado Colo. Const. art. 28, § 3, cl. 4 (prohibiting 

corporations from making expenditures “expressly advocating the election or defeat of a candidate”; permitting corporations to establish committees to accept contributions from employees, officeholders, shareholders, 

or members; corporations that are 

“formed for the purpose of promoting 

political ideas and cannot engage in 

business activities” are excepted from 

these restrictions) 

Connecticut Conn. Gen. Stat. § 9-613(a), (b) (prohibiting corporate expenditures “for the 

benefit of” any candidate or “to promote the success or defeat of any political party” except to administer and 

solicit contributions for a political 

committee established by the corporation) 

Iowa Iowa Code § 68A.503(1) (prohibiting 

corporations from making contributions to a committee or candidate or 

to expressly advocate for the election 

or defeat of a candidate) 

Iowa Code § 68A.503(3) (permitting corporations to establish political committees, but permitting use of corporate funds only for the administration 

of the committee) 

Kentucky Ky. Rev. Stat. Ann. § 121.035(2) (“No 

officer, agent, attorney, or employee 

of any corporation ... shall disburse, 

distribute, pay out, or in any way 
3a 

handle any money, funds, or other 

thing of value that belongs to or has 

been or is being furnished by any such 

corporation ... to be used or employed 

in any way for the purpose of aiding, 

assisting, or advancing any candidate 

for public office in this state in any 

way whatever.”) 

Massachusetts Mass. Gen. Laws ch. 55, § 8 (prohibiting 

corporations from making contributions or expenditures “for the purpose 

of aiding, promoting or preventing 

the nomination or election of any person to public office” and prohibiting 

any political committee from accepting contributions or donations from 

any corporation) 

Michigan Mich. Comp. Laws § 169.254 (prohibiting 

corporations and labor organizations 

from making contributions or expenditures) 

Minnesota Minn. Stat. § 211B.15, subdiv. 2 (prohibiting corporations from making contributions or expenditures “to promote or defeat the candidacy of an individual”) 
4a 

Montana Mont. Code Ann. § 13-35-227(1), (3) 

(prohibiting corporations from making contributions or expenditures “in 

connection with a candidate or political committee that supports or opposes a candidate or a political party”; 

corporations may establish a segregated fund consisting of contributions 

from affiliated individuals) 

North 

Carolina 

N.C. Gen. Stat. § 163-278.19(a)(1), (f)(1) 

(prohibiting corporations and labor 

unions from making “any contribution” to candidate or political committee or from making “any expenditure 

to support or oppose the nomination 

or election of a clearly identified candidate”; non-business entities with 

the “express purpose” of “promoting 

social, educational, or political ideas” 

are excepted) 

North Dakota N.D. Cent. Code § 16.1-08.1-03.3(1)(d), 

(e) (prohibiting corporations from 

making contributions to any candidate, political party or committee, or 

for any “political purpose,” or “[f]or 

the influencing of any measure before 

the legislative assembly”) 

Ohio Ohio Rev. Code Ann. § 3599.03(A)(1) 

(prohibiting corporations from making contributions or expenditures to 

aid the election of any candidate or to 

contribute to any political action committee) 
5a 

Ohio Rev. Code Ann. § 3517.082(A) (authorizing corporations to use corporate funds only to create and administer political action committees or segregated funds) 

Oklahoma Okla. Const. art. 9, § 40 (prohibiting corporations from “influenc[ing] elections 

or official duty by contributions of 

money or anything of value”) 

Okla. Stat. Ann. tit. 74, ch. 62, App. 

§ 257:10-1-2(d) (prohibiting corporate 

contributions or expenditures for 

benefit of candidate or committee in 

connection with election; allows solicitation of funds to separate committee 

for political purposes) 

Pennsylvania 25 Pa. Stat. Ann. § 3253 (prohibiting 

corporations from making any “contribution or expenditure in connection 

with the election of any candidate or 

for any political purpose whatever,” 

unless corporation is formed primarily for political purpose or as political 

committee) 

Rhode Island R.I. Gen. Laws § 17-25-10.1(h)(1) (prohibiting “any corporation, whether 

profit or non-profit, domestic corporation or foreign corporation ... or other 

business entity” from making “any 

campaign contribution or expenditure 

... to or for any candidate, political action committee, or political party committee”) 
6a 

South Dakota S.D. Codified Laws § 12-27-18 (prohibiting “organization[s]” from making “a 

contribution to a candidate committee, political action committee, or political party or mak[ing] an independent expenditure expressly advocating 

the election or defeat of a candidate”; 

excepting “independent expenditures 

expressly advocating the election or 

defeat of a candidate by a qualified 

nonprofit corporation from its treasury funds”; providing that “[a]n organization may create a political action committee”) 

S.D. Codified Laws § 12-27-1(16) (defining “[o]rganization” to include “any 

business corporation,” “nonprofit corporation,” or “labor union”) 

Tennessee Tenn. Code Ann. § 2-19-132(a) (making it 

unlawful for executive or representative of corporation to use corporate 

money “for the purpose of aiding” a 

candidate for office or for “in any way 

contributing to the campaign fund of 

any political party, for any purpose 

whatever”) 

Texas Tex. Elec. Code Ann. § 253.094(a) (generally prohibiting a corporation or labor organization from making “political contribution[s]” and “political expenditure[s]”) 

Tex. Elec. Code Ann. § 251.001(7), (10) 

(defining “[p]olitical expenditure[s]” 

to include “campaign expenditure[s]”, 
7a 

i.e., “expenditure[s] made by any person in connection with a campaign for 

an elective office or on a measure”) 

Tex. Elec. Code Ann. § 253.100(a) (excepting from general prohibition corporate political expenditures made for 

“the establishment or administration 

of a general-purpose committee” or 

the “maintenance and operation” of 

such a committee) 

Tex. Elec. Code Ann. § 253.098(a) (excepting from general prohibition 

“campaign expenditures” made by 

corporations “from [their] own property for the purpose of communicating directly with [their] stockholders 

... or with the families of [their] stockholders”) 

West Virginia W. Va. Code § 3-8-8(a), (b)(1)(C) (forbidding corporate contributions “for the 

purpose of expressly advocating the 

election or defeat of a clearly identified 

candidate”; a corporation may solicit 

contributions to a separate segregated 

fund to be used for political purposes) 

Wisconsin Wis. Stat. Ann. § 11.38(1)(a) (forbidding 

corporate contributions and expenditures; allowing a corporation to solicit 

contributions to a “separate segregated fund”; corporation may not 

spend more than $500 annually for 

purpose of soliciting contributions to 

such a fund) 
8a 

Wyoming Wyo. Stat. Ann. § 22-25-102(a) (prohibiting corporations from contributing 

funds “or election assistance to aid, 

promote or prevent the nomination or 

election of any candidate or group of 

candidates or to aid or promote the 

interests, success or defeat of any political party”) 

STATE STATUTES LIMITING INDEPENDENT 

EXPENDITURES FROM GENERAL TREASURY

Alabama Ala. Code § 10-2A-70 (generally prohibiting corporations from making expenditures “for the purpose of aiding any political party or any candidate for any public office”) 

Ala. Code § 10-2A-70.1(a) (permitting 

corporate expenditures not exceeding $500 in “any one election in order to aid, promote or prevent the 

nomination or election of any person”) 

Ala. Code § 10-2A-70.2 (permitting a 

corporation to contribute no more 

than $500 to a committee) 

New York N.Y. Elec. Law § 14-116 (prohibiting 

contributions or expenditures by 

corporations in excess of $5,000; 

corporations organized “for political 

purposes only” are excepted) 

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