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 


CENTER FOR COMPETITIVE POLITICS 


IN SUPPORT OF APPELLANT
 

———— 

STEPHEN M. HOERSTING 

Counsel of Record 

BRADLEY A. SMITH 

REID ALAN COX 

CENTER FOR COMPETITIVE POLITICS 

124 S. West Street 

Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

Counsel for Amicus Curiae 

January 15, 2009 

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 
 

TABLE OF CONTENTS 

Page 

TABLE OF AUTHORITIES................................ iii 

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

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

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

I. INTRODUCTION ..................................... 4 

II. LIKE DISCLOSURE IN CANDIDATE 

ELECTIONS, ANONYMITY BEYOND 

ELECTIONS PROTECTS CITIZENS 

FROM CORRUPT AND ABUSIVE 

OFFICEHOLDERS................................... 6 

III. THE DANGER OF RETRIBUTION IS 

REAL ......................................................... 9 

IV. CONGRESS HAS NO AUTHORITY TO 

REGULATE POLITICAL SPEECH 

BEYOND ELECTIONS, AND FURTHERS NO IMPORTANT OR COMPELLING GOVERNMENT INTEREST 

BY DOING SO .......................................... 20 

A. Congress Has No Authority to 

Regulate Political Speech Beyond 

Elections............................................... 20 

B. The Interests Recognized In Buckley, 

and by Extension McConnell, Are 

Inapplicable To The Disclosure Of 

Issue Advocacy..................................... 22 

C. This Case is Not About Electoral 

Speech, and, Therefore, Not About 

The Right to Engage in Anonymous 

Electioneering...................................... 24 

(i) 
 

 

 

ii 

TABLE OF CONTENTS—Continued 

Page 

V. THIS COURT HAS ALREADY INVALIDATED CONGRESSIONAL ATTEMPTS 

TO COMPEL THE DISCLOSURE 

OF ISSUE ADVOCACY ON CONSTITUTIONAL GROUNDS .................... 28 

VI. CITIZENS UNITED NEED NOT DEMONSTRATE THAT IT WILL BE 

SUBJECT TO THREATS, HARASSMENT, OR REPRISALS BECAUSE 

THE DISCLOSURE PROVISIONS ARE 

UNCONSTITUTIONAL AS-APPLIED 

TO ANY ORGANIZATION ENGAGED 

IN ISSUE ADVOCACY ........................... 30 

VII. THE ENFORCEMENT OF OTHER 

PROVISIONS CAN BE ADDRESSED 

BY EXISTING MEANS MORE 

NARROWLY TAILORED THAN 

MANDATORY PUBLIC DISCLOSURE.. 32 

CONCLUSION ................................................... 36 
iii 

TABLE OF AUTHORITIES 

CASES Page 

Austin v. Mich. State Chamber of 

Commerce, 494 U.S. 652 (1990)................ 

Brown v. Socialist Workers ’74 Campaign 

20 

Comm., 459 U.S. 87 (1982) .......... 2-3, 30, 31, 32 

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

Citizens Against Rent Control v. City of 

Berkeley, 454 U.S. 290 (1981)................... 25 

Federal Election Comm’n v. Christian 

Action Network, Inc., 110 F.3d 1049 (4th 

Cir. 1997)................................................... 11 

Federal Election Comm’n v. Wisconsin Right 

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

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

U.S. 765 (1978).......................................... 24 

McConnell v. Fed. Election Comm’n, 540 

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

McConnell v. Fed. Election Comm’n, 251 F. 

Supp. 2d 176 (D.D.C. 2003) ...................... 22, 34 

McIntyre v. Ohio Elections Comm’n, 514 

U.S. 334 (1995).........................................passim 

McIntyre v. Ohio Elections Comm’n, 618 

N.E.2d 152 (Ohio 1993) ............................ 17 

NAACP v. Alabama, 357 U.S. 449 (1958).... 10, 28 

Roth v. United States, 354 U.S. 476 (1957) . 9, 20 

Talley v. California, 362 U.S. 60 (1960) ...8, 10, 28 

Thomas v. Collins, 323 U.S. 516 (1945)....... 10 

United States v. Harriss, 347 U.S. 612 

(1954)......................................................... 21 

United States v. Morrison, 529 U.S. 598 

(2000)......................................................... 22 

United States v. Rumely, 345 U.S. 41 

(1953)......................................................... 21 
iv 


TABLE OF AUTHORITIES—Continued


 Page 

Watchtower Bible & Tract Soc’y of N.Y., 


Inc. v. Village of Stratton, 536 U.S. 150 


(2002)......................................................... 8, 10 


Wisconsin Right to Life, Inc. v. Fed.
 

Election Comm’n, 546 U.S. 410 (2006)..... 4 


CONSTITUTIONAL PROVISIONS 

U.S. CONST., art. I, § 8.................................. 22 


U.S. CONST., amend. I .................................. 20 


STATUTES 

Bipartisan Campaign Reform Act of 2002, 


§ 201 .........................................................passim
 

Bipartisan Campaign Reform Act of 2002, 


§ 203 .......................................................4, 27, 29 


Bipartisan Campaign Reform Act of 2002, 


§ 311 .........................................................passim
 

2 U.S.C. § 431(8)........................................... 23 


2 U.S.C. § 431(9)........................................... 23 


2 U.S.C. § 434(c) ........................................... 10, 23 


2 U.S.C. § 434(e) ........................................... 28, 29 


2 U.S.C. § 434(f)(3) ....................................... 31, 34 


Lobbying Disclosure Act of 1995, 2 U.S.C. 


§ 1601 et seq. ............................................. 9, 21 


26 U.S.C. § 527(j).......................................... 11 


47 U.S.C. § 315(e)(1)(B)(i)-(iii) ..................... 34 


47 U.S.C. § 315(e)(2)(C)................................ 34-35 


47 U.S.C. § 315(e)(2)(E)................................ 35 


47 U.S.C. § 315(e)(2)(G)................................ 35 


REGULATIONS 

11 C.F.R. § 100.22(b) .................................... 11 

v 

TABLE OF AUTHORITIES—Continued 

Page 

11 C.F.R. § 114.15(b) .................................... 6 

OTHER 

Richard Abowitz, Where’s the Outrage? 

Online., LAS VEGAS WEEKLY, Jan. 8, 

2009 (available at <http://www.lasvegas 

weekly.com/news/2009/jan/08/wheres-out 

rage-online/>) ............................................ 14-15 


Rachel Abramowitz, Film fest director 

resigns; Richard Raddon steps down 

over reaction to his support of Prop. 8., 

L.A. TIMES, Nov. 26, 2008, at E1.............. 14 


Accountable America, $100,000 Reward 

(available at <http://www.accountable 

america.com/reward>) .............................. 19 

John Adams, A Dissertation on the Canon 

and Feudal Law, BOSTON GAZETTE 

(1765) (available in Thomas Paine, 

Common Sense, 99, 108-09 (Edward 

Larkin ed., Broadview Press 2004))......... 7 

Mary Ann Akers, Kerry Puts GOP Donor 

on Defensive, WASH. POST, Feb. 28, 2007, 

at A17 ........................................................ 11, 12 

Gigi Brienza, I Got Inspired. I Gave. Then 

I Got Scared., WASH. POST, July 1, 2007, 

at B3 .......................................................... 12 

Jim Carlton, Gay Activists Boycott Backers 

of Proposition 8, WALL ST. J., Dec. 27, 

2008, at A3 ................................................ 14 

Nicolas 	Confessore, Welcome to the 

Machine, WASH. MONTHLY, July 1, 2003, 

at 30........................................................... 10-11 
vi 


TABLE OF AUTHORITIES—Continued


 Page 

Editorial, Nobles and Knaves, WASH.
 

TIMES, Nov. 11, 2006, at A12.................... 15, 16 


Editorial, Political Science, INVESTORS 


BUS. DAILY, Nov. 14, 2006, at A12 ........... 15-16 


Niesha Lofing, CMT artistic director quits 


in fallout from Prop. 8 support, 


SACRAMENTO BEE, Nov. 12, 2008,
 

(available at <http://www.sacbee.com/
 

1089/story/1391705.html>)....................... 13-14 


Michael Luo, Group Plans Campaign 


Against G.O.P. Donors, N.Y. TIMES, Aug. 


8, 2008, at A15 .......................................... 18 


Stephen Moore, editorial, Comfy with K 


Street, WALL ST. J., Oct. 20, 2007, at A18.. 17-18 


Peter Perl, Absolute Truth, WASH. POST 


MAGAZINE, May 13, 2001, at W12 ............ 11 

 

IN THE 

Supreme Court of the United States 

———— 


No. 08-205 


———— 


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 


CENTER FOR COMPETITIVE POLITICS 


IN SUPPORT OF APPELLANT
 

———— 

INTEREST OF AMICUS CURIAE 1 

The Center for Competitive Politics (“CCP”) is a 

non-profit 501(c)(3) organization founded in August 

2005, by Bradley A. Smith, professor of law at Capital University Law School and a former chairman of 

the Federal Election Commission, and Stephen M. 

1

 This brief is filed with the written consent of all parties. 

Appellant filed a letter of consent with this Court, and Appellee 

consented in writing to the filing of this amicus brief. No 

counsel for a party authored this brief in whole or in part, and 

no counsel or party made a monetary contribution intended to 

fund the preparation or submission of this brief. 
2 

Hoersting, a campaign finance attorney and former 

general counsel to the National Republican Senatorial Committee. CCP’s mission, through legal briefs, 

academically rigorous studies, historical and constitutional analysis, and media communication, is to 

educate the public on the actual effects of money 

in politics, and the results of a more free and 

competitive electoral process. CCP is interested in 

this case because it involves a restriction on political 

communication that will hinder political competition 

and information flow. 

SUMMARY OF THE ARGUMENT 

Like mandatory disclosure in candidate elections, 

anonymity in issue advocacy protects citizens from 

corrupt and abusive officeholders, who would punish 

citizens for opposing their policy preferences. Citizens learn something of the relative merits of a 

candidate by knowing who supports him; candidates 

may change positions to reward suppliants once 

elected. But citizens learn little about the relative 

merits of a policy issue by knowing which of their 

fellow citizens supports it—and abusive officeholders 

learn too much. 

Mandatory disclosure always carries costs. Recent 

history demonstrates that donors for issue advocacy, 

donors to ballot initiative campaigns, and even contributors to candidate campaigns are subjected 

to retribution by officials and others that make 

use, either directly or derivatively, of governmentcompelled disclosure data. 

Where disclosure of political speech furthers 

compelling interests, as in candidate elections, the 

burdens disclosure places on political speech may be 

justified, with limited exception. See generally Brown 
3 

v. Socialist Workers ’74 Campaign Comm., 459 U.S. 

87 (1982). Where mandatory disclosure does not 

further compelling interests, as in the case of issue 

advocacy, the impositions on First Amendment rights 

are not justifiable. Congress has constitutional authority to regulate elections, not issue advocacy, and 

mandatory disclosure of issue advocacy would further 

none of the informational, anti-corruptive, or compliance interests enunciated in Buckley and McConnell. 

In Buckley, this Court permitted mandatory disclosure of independent express advocacy of candidates 

in order to further “informational” (but not anticorruptive interests). The Court conditioned this 

disclosure on its being constitutionally narrowed to 

avoid issue advocacy. Buckley v. Valeo, 424 U.S. 1, 

79-80 (1976). The Government’s claim that issue 

advocacy can now be subject to compelled disclosure 

to further the same informational interest constitutes 

a “constitutional ‘bait and switch.’” Federal Election 

Comm’n v. Wisconsin Right to Life, Inc. (“WRTL II”), 

127 S. Ct. 2652, 2673 (2007). 

Because the disclosure provisions are unconstitutional as-applied to any speaker engaging in issue 

advocacy, Citizens United need not demonstrate a 

“reasonable probability” that its donors will suffer 

“threats, harassment, and reprisals” under Brown. 

The political-file requirements of federal communications law require stations to keep detailed and 

publicly available information on requesters of ad 

time, including a list of the organization’s executive 

committee. This allows the press to write about who 

is running the ads, citizens to complain or sue, and 

the FEC to issue subpoenas. 
4 

Because the “Wait,” “Pants,” and “Questions” ads 

are not substantially related to elections, the disclaimer requirements in § 311 are unconstitutional 

as-applied. Doing otherwise would signal, improperly, that the ads are related to elections, which could 

have implications for other provisions of federal 

election law, while furthering no interest not easily 

met by more narrowly tailored means, such as 

minimal disclaimers under federal communications 

law. 

ARGUMENT 

I. INTRODUCTION 

In 2006, this Court rejected the assertion that 

BCRA § 203’s funding source restrictions for “electioneering communications” are not susceptible to asapplied challenge. See generally Wisconsin Right to 

Life, Inc. v. Fed. Election Comm’n (“WRTL I”), 546 

U.S. 410 (2006). In 2007, this Court reviewed an asapplied challenge to § 203, crafted its appeal-to-vote 

test, and permitted the regulation only of speech that 

is unambiguously related to a candidate campaign. 

All other political advertising remained exempt from 

§ 203. See generally Federal Election Comm’n v. 

Wisconsin Right to Life, Inc. (“WRTL II”), 127 S. Ct. 

2652 (2007). Amicus will refer to this exempt speech 

as “issue advocacy.” It must be stressed that the 

appeal-to-vote test crafted in WRTL II does not hinge 

on an inquiry into either the motives of the speaker 

or the effect the speech may have on listeners. Id. at 

2665-66. Thus, WRTL II effectively did away with 

the pernicious concept that some issue-oriented 

political speech could be labeled “sham” speech by 

outside observers, and regulated on that basis, while 

others, whose motives or words were deemed pure by 

authorities, could speak at will. This Court had no 
5 

opportunity in WRTL II to review BCRA § 201, 116 

Stat. 88, which requires organizations making electioneering communications to report their donations 

and the names of donors above certain monetary 

thresholds, or BCRA § 311, 116 Stat. 105, which 

requires electioneering communications to carry 

disclaimers. See generally WRTL II, 127 S. Ct. 2652. 

This Court has already “assumed” that “the interests that justify the regulation of campaign speech 

might not apply to the regulation of genuine issue 

ads,” McConnell v. Fed. Election Comm’n, 540 U.S. 

93, 206 n.88 (2003), and has “reject[ed] the contention 

that issue advocacy may be regulated because 

express election advocacy may be,” WRTL II, 127 S. 

Ct. at 2672. Nonetheless, Citizens United’s challenge 

to BCRA §§ 201 and 311 as-applied to advertising the 

government concedes is beyond the appeal-to-vote 

test of WRTL II is being met by allegations that asapplied challenges are not available. Mot. to Dismiss 

or Affirm, at 12-14. And, even if as-applied challenges are available, the government seeks to compel 

the disclosure of issue advocacy, asserting that 

“its interest in providing information to the public 

extends beyond speech about candidate elections and 

encompasses activity that attempts to sway public 

opinion on issues.” Opp’n. to Mot. For Prelim. Inj. 

(Doc. 18), at 19; see also Fed. Election Comm’n’s 

Summ. J. Mem. (Doc. 55), at 22. 

Amicus will confine its brief to the mandatory disclosure provisions as-applied to ads that are beyond 

the appeal-to-vote test of WRTL II, will refer generally to §§ 201 and 311 as the “disclosure provisions,” 
 

6 

and will refer to speech beyond the appeal-to-vote 

test as “issue advocacy.”2 

Amicus will note that the danger in disclosure is in 

exposing donors and the internal workings of 

advocacy organizations and is rarely in the public 

knowing the name of the organization. Organizations and their positions on issues are usually known. 

The government may have added reasons to wish 

to know the identity of the organization that is 

speaking, including the need to establish jurisdiction 

and serve process in the event of a libel or other 

claim. But these are matters for federal communications law, not election law. Because the “Wait,” 

“Pants,” and “Questions” ads are not substantially 

related to elections, the disclaimer requirements in 

§ 311 should be invalidated as-applied. Doing 

otherwise would signal, improperly, that the ads are 

related to elections without furthering an interest not 

easily met by more narrowly tailored means. 

II. LIKE 	DISCLOSURE IN CANDIDATE 

ELECTIONS, ANONYMITY BEYOND 

ELECTIONS PROTECTS CITIZENS FROM 

CORRUPT AND ABUSIVE OFFICEHOLDERS 

In proposals to disclose issue advocacy, we witness 

two canons of political law on an apparent collision 

course: that government corruption is cured by disclosure, and that the right of individuals to speak and 

associate freely depends upon their ability to do so 

anonymously. But the conflict is a false one because 

2 Amicus believes that the ads in question would qualify for 

the Federal Election Commission’s regulatory exception for commercial speech at 11 C.F.R. § 114.15(b), but for ease of discussion will refer to the ads as “issue advocacy.” 
7 

these canons, applied in context, each work toward 

the same purpose: to protect citizens from corrupt 

and abusive officeholders. Anonymity in issue speech, 

like disclosure of candidate speech, advances the 

overriding government interest at the root of all 

campaign finance regulation: preventing corruption 

or its appearance. Buckley, 424 U.S. at 25. 

Many believe that “[l]iberty cannot be preserved 

without a general knowledge among the people,” just 

as many believe the disclosure of political speech is 

beneficial. John Adams, A Dissertation on the Canon 

and Feudal Law, BOSTON GAZETTE (1765) (available 

in Thomas Paine, Common Sense, 99, 108-09 

(Edward Larkin ed., Broadview Press 2004)); Buckley 

v. Valeo, 424 U.S. 1, 60 (1976) (“appellants argue that 

‘narrowly drawn disclosure requirements are the 

proper solution to ... evils Congress sought to remedy’”). But many miss the import in Adams’s full 

quote: “Liberty cannot be preserved without a general 

knowledge among the people, who have a right, an 

indisputable, unalienable, indefeasible, divine right 

to that most dreaded and envied kind of knowledge, I 

mean the characters and conduct of their rulers.” 

Adams, supra (emphasis added). Mandatory disclosure is harmful, not beneficial, when used to 

illuminate the inner workings of non-governmental 

organizations, or communication by and between 

citizens about political issues, potentially subjecting 

those organizations and citizens to both official and 

unofficial harassment or intimidation. Because mandatory disclosure for issue advocates does not illuminate the characters or conduct of public officials, any 

public interest in such disclosure is substantially 

diminished. Mandatory disclosure improperly applied 

in this way becomes a tool of abuse by government, 

rather than a tool to prevent abuse of government. 
 

8 

Disclosure regimes for candidate campaign contributions protect citizens from abuse of office by 

officials who have freewill and can confer benefits on 

large contributors (and pain on opponents) by passing 

future legislation. Disclosure regimes for direct 

lobbying activities, in which paid consultants engage 

in face-to-face meetings with officeholders, protect 

citizens in a similar manner. Disclosure of issues 

speech, however, does not further these goals. 

Rather, protecting the right to speak and associate 

anonymously with fellow citizens about issues (not 

candidate elections), even issues of official action or 

pending legislation, also protects citizens from 

abusive officeholders by reducing the officeholder’s 

ability to retaliate against those who would oppose 

his policy preferences. See Watchtower Bible & Tract 

Soc’y of N.Y. v. Village of Stratton, 536 U.S. 150, 166, 

168 (2002) (quoting McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334, 341-42 (1995) (“‘[d]ecision to 

favor anonymity may be motivated by fear of economic or official retaliation’”); Talley v. California, 

362 U.S. 60, 64-65 (1960) (“[g]roups and sects ... 

throughout history have been able to criticize oppressive practices and laws either anonymously or not 

at all,” and “identification and fear of reprisal 

might deter ... discussions of public matters of 

importance”). 

Further, citizens learn something of the relative 

merits of a candidate by knowing who supports his 

election. See Buckley, 424 U.S. at 66-68 (“[s]ources of 

a candidate’s financial support ... alert the voter to 

the interests to which a candidate is most likely to be 

responsive[,] facilitate predictions of future performance in office[,]” and “may discourage those who 

would use money for improper purposes ... before or 

after the election”). Citizens learn much about the 
9 

legislative process by knowing who is paying consultants to meet with officeholders directly. See 

Lobbying Disclosure Act of 1995, 109 Stat. 691 

(codified at 2 U.S.C. § 1601 et seq.). Citizens, 

however, learn little about the relative merits of a 

policy issue by knowing which of their fellow citizens 

supports it. Policy issues do not change once enacted; 

little “informational interest” is furthered, and asserting otherwise is an argument from ad hominem 

that does little to advance debate or knowledge. 

Abusive officeholders, however, are provided with too 

much information—the information needed to abuse 

their official position to retaliate against political 

opposition. Disclosure regimes for issue advocacy 

provide abusive officeholders with knowledge of 

which groups and individuals support which issues, 

including the monetary intensity of that support. 

The possibilities for retaliation and intimidation 

impose too high a cost for too little benefit in our 

constitutional republic, which depends for its survival 

upon a vibrant and “unfettered interchange of ideas.” 

Roth v. United States, 354 U.S. 476, 484 (1957). 

III. THE 	DANGER OF RETRIBUTION IS 

REAL 

Mandatory disclosure essentially amounts to the 

government making a list of citizens’ political preferences, then making that list publicly available 

to everyone—your family, your employer, your 

neighbors, your government, the media, even 

extremists with a penchant for violence. “[P]ublic 

disclosure of contributions ... will deter some 

individuals who otherwise might contribute,” and 

“[d]isclosure may ... expose contributors to harassment or retaliation,” requiring that these “burdens ... 

be weighed carefully against the interests which 
 

 

 

10 

Congress has sought to promote.” Buckley, 424 U.S. 

at 68. Exacting scrutiny3 is “necessary even if any 

deterrent effect on the exercise of First Amendment 

rights arises, not [only] through direct government 

action, but indirectly as an unintended ... result of 

the government’s ... requiring disclosure.” Id. at 65. 

The costs of disclosure and its infringements on 

free speech are often underestimated. Even where 

disclosure may be justified, as in the case of direct 

contributions to candidates, there is a real danger of 

governmental retaliation and citizen intimidation. 

For example, the now infamous “K Street Project” 

used data provided by mandatory campaign-contribution disclosures to “compile a list of the 400 largest 

3

 Since the time of NAACP v. Alabama, 357 U.S. 449 (1958), 

this Court has held that disclosure statutes must be subjected to 

“exacting scrutiny,” see, e.g., Buckley, 424 U.S. at 64, which this 

Court has held is strict scrutiny, see, e.g., McIntyre, 514 U.S. at 

346, n.10. The Buckley Court narrowed the disclosure requirements for independent campaign activity, 2 U.S.C. § 434(c), and 

in doing so, indicated that the Court “must apply the ... strict 

standard of scrutiny” it used in NAACP v. Alabama, “for the 

right of associational privacy developed in NAACP v. Alabama 

derives from the rights of the organization’s members to advocate their personal points of view in the most effective way.” 

Buckley, 424 U.S. at 75 (citing NAACP, 357 U.S. at 458, 460) 

(emphasis added). Amicus notes that the Court’s treatment of 

political disclosure in Buckley is a departure from, or at the 

outer limit of, its treatment of political disclosure in most of its 

speech cases, which note that rights of speech and association 

are furthered in an environment of anonymous speech. See 

generally, Watchtower Bible & Tract Soc’y of N.Y. v. Village of 

Stratton, 536 U.S. 150 (2002); McIntyre v. Ohio Elections 

Comm’n, 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 

(1960); NAACP v. Alabama, 357 U.S. 449 (1958); Thomas v. 

Collins, 323 U.S. 516 (1945). This indicates that the Court 

should be careful not to unduly expand the government’s ability 

to require disclosure in the political realm. 
 

 

11 

PACs, along with the amounts and percentages given 

to each party. Lobbyists were invited into [thenMajority Whip Tom] DeLay’s office and shown their 

place in ‘friendly’ or ‘unfriendly’ columns.” Nicolas 

Confessore, Welcome to the Machine, WASH. 

MONTHLY, July 1, 2003, at 30. DeLay explained to 

The Washington Post: “If you want to play in our 

revolution, you have to live by our rules.” Peter Perl, 

Absolute Truth, WASH. POST MAGAZINE, May 13, 

2001, at W12. 

Just under two years ago, Senator John Kerry used 

527-disclosure4 to lean on Swift Boat donor Sam Fox 

“during [a] Senate Foreign Relations Committee 

hearing to consider Fox’s nomination to be ambassador to Belgium.” Mary Ann Akers, Kerry Puts GOP 

Donor on Defensive, WASH. POST, Feb. 28, 2007, at 

A17. Kerry asked Fox how “the nominee feel[s] about 

the level of ‘personal destruction’ in politics these 

days,” and “[w]hy did [Fox] give such a large chunk of 

money to help Swift Boat?” Id. Mr. Fox didn’t speak 

4

 Disclosure for Internal Revenue § 527 organizations, see 26 

U.S.C. § 527(j), is arguably justified because 527 organizations, 

such as the famed Swift Boat Veterans for Truth, are deemed 

“political organizations” by the IRS, even though their communications fell well short of the express advocacy defined by this 

Court in Buckley—a necessary predicate to making an “expenditure” under FECA. The Commission used a discredited and 

unconstitutional definition of express advocacy at 11 CFR 

§ 100.22(b), see generally Federal Election Comm’n v. Christian 

Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997), to later 

convince Swift Boat Veterans to accept civil penalties for failing 

to register as a “political committee.” The FEC believed it could 

resuscitate the failed definition of express advocacy and redraw 

the line for “expenditures” because the McConnell Court called 

the express advocacy test “functionally meaningless,” even 

though that Court did not have before it the FECA terms 

“expenditure” or “political committee” narrowed by Buckley. 
 

 

 

5

12 

much about his First Amendment rights of association during the hearing. Rather, he backed down; 

called Kerry a “hero,” and called the political speech 

of all 527s “disgraceful.” Id. 

Gigi Brienza wrote Presidential primary candidate 

John Edwards a $500 check after listening to “a 

moving speech about poverty in America.” Gigi 

Brienza, I Got Inspired. I Gave. Then I Got Scared., 

WASH. POST, July 1, 2007, at B3. Her modest 

contribution, she wrote, “didn’t propel Edwards ... 

atop the Democratic ticket. It did, however, make me 

the target of an extremist animal rights organization, 

a consequence of transparency ... that still makes me 

wary when I open my mail.” Id. The security 

department of her employer, Bristol-Myers Squibb, 

alerted Brienza (and 100 of her colleagues) that her 

name, “appeared on a list of ‘targets’ issued by the 

radical group Stop Huntingdon Animal Cruelty” 

(“SHAC”) an organization the FBI named a “serious 

domestic terrorism threat[]” in 2005. Id. Brienza’s 

“address was printed [on the target list] under the 

message: ‘Now you know where to find them.’” Id. 

According to Brienza, the FBI confirmed that the 

information came from mandatory campaign finance 

lists. Id. “If I am moved to write a check” in future 

elections, Brienza said, “I will limit my contribution 

to $199.99: the price of privacy in an age of voyeurism 

and the cost of security in an age of domestic 

terrorism.” Id.5 

 Some websites, such as the popular Huffington Post, 

helpfully supply would be harassers with maps to donors’ 

homes. See <http://fundrace.huffingtonpost.com/neighbors.php? 

type=name&lname=smith&fname=bradley&search=Search>. 

A site called www.EightMaps.com also exists. Its tag line? 

“Proposition 8 changed the California state constitution to 
 

 

13 

Mandatory disclosure in ballot-initiative and referenda campaigns also carries heavy burdens for 

citizens that would participate, but unlike candidate 

races, doesn’t even further the ability of citizens to 

monitor the performance of their elected officials. 

“[T]he invasion of privacy of belief may be as great 

when the information sought concerns the giving and 

spending of money as when it concerns the joining of 

organizations, for ‘[f]inancial transactions can reveal 

much about a person’s activities, associations, and 

beliefs.’” Buckley, 424 U.S. at 66 (internal citations 

omitted). 

For example, in the wake of voting on California’s 

controversial Proposition 8 to prohibit same sex 

marriage, Scott Eckern, formerly the artistic director 

of the California Musical Theatre was forced to resign 

“amid controversy over a donation he made to 

the Proposition 8 campaign.” Niesha Lofing, CMT 

artistic director quits in fallout from Prop. 8 support, 

SACRAMENTO BEE, Nov. 12, 2008 (available at 

<http://www.sacbee.com/1089/story/1391705.html>). 

The theatre board “thanked Eckern for ‘25 years of 

invaluable service to the organization and the 

advancement of musical theatre as an art form.’” Id. 

Eckern gave $1,000 to support Proposition 8, “a 

donation that sparked criticism from theater workers 

and the gay, lesbian, bisexual and transgender 

community.” Id. Eckern ‘“honestly had no idea’ that 

the contribution would spark such outrage and made 

the donation ... on his belief [that] the traditional 

definition of marriage be preserved.” Id. Eckern said 

he is “disappointed that my personal convictions have 

cost me the opportunity to do what I love most ... to 

prohibit same-sex marriage. These are the people who donated 

in order to pass it.” 
 

 

 

14 

continue enriching the Sacramento arts and theatre 

community.” Id. 

In another example, after Proposition 8 passed, 

dozens of “activists descended on the El Coyote 

restaurant with signs and placards. They chanted 

‘Shame on you,’ cussed at patrons and began a 

boycott of the cafe.” Jim Carlton, Gay Activists 

Boycott Backers of Proposition 8, WALL ST. J., Dec. 

27, 2008, at A3. “The restaurant’s crime: A daughter 

of the owner donated $100 to support Prop 8.” Id. 

Richard Raddon, former director of the Los Angeles 

Film Festival, resigned after “being at the center of 

controversy” for giving “$1500 to Proposition 8.” 

Rachel Abramowitz, Film fest director resigns; 

Richard Raddon steps down over reaction to his 

support of Prop. 8., L.A. TIMES, Nov. 26, 2008, at E1. 

Raddon, a Mormon, gave for religious reasons. Id. 

After Raddon’s contribution was “made public online,” 

Film Independent was “swamped with criticism from 

No on 8 supporters,” and “in the blogosphere.” Id. 

One fellow board member noted, “Someone has lost 

his job and possibly his livelihood because of privately held religious beliefs.” Id. Since Proposition 8 

has passed, “Hollywood has been debating whether 

and how to publicly punish those who supported the 

... amendment,” including boycotts of the “Cinemark 

theater chain, whose chief executive, Alan Stock, 

donated $9,999 to ‘Yes on 8.’” Id. 

These are not isolated examples. In the aftermath 

of Proposition 8, numerous blacklists are now being 

established, and those establishing them note that 

the existence of reliable data over the internet makes 

such lists easier to compile. “Years ago we would 

never have been able to get a blacklist that fast and 

quickly,” said one opponent of Proposition 8. Richard 
 

15 

Abowitz, Where’s the Outrage? Online., LAS VEGAS 

WEEKLY, Jan. 8, 2009 (available at <http://www.las 

vegasweekly.com/news/2009/jan/08/wheres-outrage-on 

line/>). While citizens have a right to organize 

boycotts that do not violate anti-trust or nondiscrimination laws, the government does not have a 

compelling interest in making political preferences 

public so that citizens who support the “wrong” side 

can be subjected to harassment and blacklisting. 

This harassment emphasizes Amicus’ point, see 

Section II, supra, that, unlike information on donations to candidates, once a ballot initiative has been 

enacted, mandatory public disclosure of financial 

donors serves no anti-corruption purpose because it 

does not allow citizens to evaluate the performance 

and character of their elected officials. But it does 

allow for efforts to chill and intimidate speakers in 

the future. 

Even worse, mandatory disclosure for issue advocacy has the danger of intimidating funding and 

supporters away from issues, not just candidates and 

campaigns. 

For example, in a letter6

 to ExxonMobil CEO Rex 

Tillerson, Senators Olympia Snowe and Jay 

Rockfeller “urge[d]” the company to end its support of 

what the Senators called “climate change denial front 

groups” like the Competitive Enterprise Institute, 

and said the company “should repudiate its climate 

change denial campaign and make public its funding 

history.” Editorial, Nobles and Knaves, WASH. TIMES, 

Nov. 11, 2006, at A12; Editorial, Political Science, 

 The letter is available at <http://snowe.senate.gov/public/ 

index.cfm?FuseAction=PressRoom.PressReleases&ContentReco 

rd_id=9acba744-802a-23ad-47be-2683985c724e>. 

6
 

 

 

 

16 

INVESTORS BUS. DAILY, Nov. 14, 2006, at A12. They 

also “ask[ed]”, in a way only the federal government 

can, that ExxonMobil “acknowledge the dangers and 

realities of climate change [and] the role of humans 

in causing or exacerbating it,” stating that findings to 

the contrary are “pseudo science.” WASH. TIMES, 

supra. As one editorial page put it, “[i]f [the 

Senators] are so sure of their facts, why are they 

trying to shut off debate?” INVESTORS BUS. DAILY, 

supra. Another called this “bullying at its worst— 

lawmakers don’t like what a private organization 

[like CEI] believes, so they try to ensure that those 

organizations can’t get private funding.” WASH. 

TIMES, supra. Both Senators sit on the Senate 

Commerce Committee, which oversees much business 

regulation. 

Even where this Court has attempted to protect 

issue advocacy in WRTL II, the mandatory disclosure 

provisions of § 201 have made retribution real. In 

the wake of WRTL II, in an FEC rulemaking 

codifying the opinion, two national party committees, 

the Democratic Senatorial Campaign Committee and 

the Democratic Congressional Campaign Committee, 

urged “[t]he Commission [to] take special care not to 

narrow the range of disclosure now required from 

electioneering communications sponsors,” saying 

“[p]arty committees like the DSCC and DCCC have a 

real, direct interest in having access to information 

of this character, which is essential to their 

own strategic decision-making.” DSCC & DCCC 

Comments, at 3 (available at <http://fec.gov/pdf/ 

nprm/electioneering_comm/2007/dscc_dccc_eccomment 

12.pdf>) (emphasis added). 

Had the DCCC and DSCC merely noted that this 

Court did not review § 201 in WRTL II, that would be 
17 

one thing. But their added position, that they have 

an “interest” in the mandatory disclosure of issue 

advocacy, is unfortunate when one considers who the 

DCCC and DSCC really are: they are the campaign 

arms of, respectively, of the majority party in the 

United States House of Representatives and Senate. 

See, e.g., DCCC Website, About the DCCC (available 

at <http://www.dccc.org/pages/about/>); DSCC Website, About the DSCC (available at <http://www. 

dscc.org/about>). Amicus knows of no case that 

shows a legitimate or compelling interest in Congressional leaders obtaining disclosure of political issue 

advocacy to either prevent corruption or its appearance, or to gain the information needed to vote 

intelligently. Nor is Amicus aware of a case that 

shows an interest in political party committees 

obtaining disclosure of issue advocacy. Perhaps the 

DCCC’s and DSCC’s “real, direct interest” is merely 

the same “interest” a school-board official had in 

learning the name of school-levy opponent and grassroots leafletter, Margaret McIntyre, whom one Ohio 

Supreme Court Justice believed “retaliate[ed] against 

McIntyre “for her opposition.” See McIntyre v. Ohio 

Elections Comm’n, 618 N.E. 2d 152, 157 (Ohio 1993) 

(Wright, J., dissenting). Indeed, the “interest” of the 

DSCC and DCCC is not difficult to guess. Consider 

this from a contemporaneous editorial: 

Meanwhile, Democrats under [former-DCCC 

Chairman] Rep. Rahm Emanuel and [then-DSCC 

Chairman] Sen. Schumer have quietly erected 

their own K Street Project, and employ some of 

the same strong-arm tactics they once deplored. 

“I’ve never felt the squeeze that we’re under now 

to give to Democrats and to hire them,” says one 

telecom industry representative. “They’ve put 

out the word that if you have an issue on trade, 
 

 

 

 

18 

taxes, or regulation, you’d better be a donor and 

you’d better not be part of any effort to run ads 

against our freshmen incumbents.” 

Stephen Moore, editorial, Comfy with K Street, WALL 

ST. J., Oct. 20, 2007, at A18 (emphasis added). 

Mandatory disclosure of issue advocacy within the 

electioneering communications windows allows the 

DCCC and DSCC to know who is speaking out 

against their members’ legislative agenda and 

facilitates retaliation. 

Meanwhile, “[n]early 10,000 of the biggest donors 

to Republican candidates and causes across the 

country will probably receive a foreboding ‘warning’ 

letter in the mail next week,” reported the New York 

Times this past summer, just before the 2008 elections. Michael Luo, Group Plans Campaign Against 

G.O.P. Donors, N.Y. TIMES, Aug. 8, 2008, at A15. 

“The letter is an opening shot across the bow from an 

unusual ... group on the left that is poised to engage 

in hardball tactics to prevent similar groups on the 

right from getting off the ground this fall.” Id. The 

group, the self-styled “Accountable America,” is 

“hoping to create a chilling effect that will dry up 

contributions”; describing its effort as ‘“going for the 

jugular.’” Id. What is the warning letter’s purpose? 

“[A]lerting donors who might be considering giving to 

right-wing groups to a variety of potential dangers, 

including legal trouble, public exposure, and 

watchdog groups digging through their lives.” Id. 

(The letter is available at <http://graphics8.nytimes. 

com/packages/pdf/politics/20080808caucus/09caucus.a 

ccountableamericawarningletter.pdf>.) 
19 

Accountable America also encourages harassment 

by offering a bounty for any information leading to 

the successful prosecution of right-leaning donors: 

Accountable America is offering a $100,000 

reward for information that is material to either 

a criminal conviction for committing a felony or a 

misdemeanor, or a final and unappealed judicial 

or administrative determination of civil liability 

that entails the imposition of fines or penalties 

of at least $10,000, for a violation of federal 

campaign finance, tax or other statutes or regulations by an organization that operates or 

purports to operate under Internal Revenue Code 

Sections 501(c)(4), 501(c)(6) or 527 and that 

primarily serves business or ideologically conservative interests. 

See Accountable America, $100,000 Reward (available at <http://www.accountableamerica.com/reward>) 

(emphasis added). 

As this short review shows, the potential for both 

official and unofficial retaliation is growing. The 

chilling effect it has on speech is real. Government 

has no anti-corruption or informational interest in 

disclosure of issue speech. The purpose of disclosure 

laws, as illustrated by mandatory disclosure of contributions to candidates, is to permit citizens to 

monitor their government. It is not to permit the 

government to monitor citizens, or to foster private 

boycotts and harassment of citizens who engage in 

political speech through issue advocacy. 
 

 

20 

IV. CONGRESS HAS NO AUTHORITY TO 

REGULATE POLITICAL SPEECH BEYOND ELECTIONS, AND FURTHERS 

NO IMPORTANT OR COMPELLING 

GOVERNMENT INTEREST BY DOING 

SO 

A. Congress 	Has No Authority to 

Regulate Political Speech Beyond 

Elections 

Article I, Section 4 of the Constitution provides 

Congress the authority to regulate elections to 

federal office. See Buckley, 424 at 14, n.16. Congress 

has no authority to regulate political speech beyond 

elections. U.S. CONST., amend. I; WRTL II, 127 S. Ct. 

at 2672-73 (Court “did not suggest” that the corruption interest identified in Austin v. Mich. Chamber of 

Commerce, 494 U.S. 652 (1990), “extended beyond 

campaign speech”); Buckley, 424 U.S. at 80 (disclosure provision “[a]s narrowed ... does not reach all 

partisan discussion[;] it only requires disclosure of ... 

expenditures that expressly advocate a[n] election 

result”). The First Amendment provides the “broadest protection to ... political expression” to “assure 

[the] unfettered interchange of ideas for the bringing 

about of political and social changes desired by the 

people.” Buckley, 424 U.S. at 14 (quoting Roth, 354 

U.S. at 484). This protection extends to “political 

association,” individuals donating to advocates they 

believe in, “as well as to political expression.” 

Buckley, 424 U.S. at 15. 

Accordingly, Congress’s disclosure provisions for 

political speech have always been tied to elections. 

“The first federal disclosure law was enacted in 

1910,” reaching “political committees and ... organizations operating to influence congressional elec­
21 

tions.” Id. at 61 (internal citations omitted). The 

Federal Corrupt Practices Act of 1925 mandated 

disclosure for “political committees, defined as 

organizations that accept contributions or make 

expenditures ‘for the purpose of influencing’” a 

Presidential campaign. Buckley, 424 U.S. at 62. 

Both laws were replaced by provisions in the Federal 

Election Campaign Act of 1971, as amended, id., and 

Congress added to them in BCRA, legislation 

dedicated to the regulation of campaigns for federal 

office. See generally McConnell, 540 U.S. 93. 

Similarly, Congress has mandated disclosure of 

direct, paid lobbying of officials. In United States v. 

Harriss, 347 U.S. 612 (1954), this Court “upheld 

limited disclosure requirements for lobbyists,” because [t]he activities of lobbyists, who have direct 

access to elected representatives, if undisclosed, 

may well present the appearance of corruption.” 

McIntyre, 514 U.S. at 357 n.20 (emphasis added). 

The Lobbying Disclosure Act of 1995, 2 U.S.C. § 1601 

et seq. (requiring lobbyists to make detailed disclosures about their direct lobbying efforts), operates to 

cure the same appearance. The regulated lobbying 

activities do not include attempts to advocate issues 

with fellow citizens. Rather they are ‘“representations made directly to the Congress, its members, or 

its committees’ ... and do[] not reach ... attempts ‘to 

saturate the thinking of the community.’” United 

States v. Rumely, 345 U.S. 41, 47 (1953) (internal 

citations omitted). 

In this case, the parties have agreed that the 

“Wait,” “Pants,” and “Questions” ads are not the 

functional equivalent of express advocacy. Thus the 

ads are insufficiently related to elections to be regulated. In the absence of constitutional authority, 
22 

congressional power is non-existent. See generally 

United States v. Morrison, 529 U.S. 598, 608 (2000) 

(“Congress’ regulatory authority is not without effective bounds”). This is the premise of our Constitution, only the more evident in political speech 

because of the First Amendment’s proscriptions. 

“McConnell’s analysis was grounded in the evidentiary record before the Court,” WRTL II, 127 S. 

Ct. at 2664, which was based largely upon “two key 

studies,” id., flawed as they were, finding that ads 

run near elections are tied to elections. See 

McConnell v. Fed. Election Comm’n, 251 F. Supp. 2d 

176, 307, 308 (D.D.C. 2003) (opinion of Henderson, 

J.). Congress did not attempt to tie the ads to, say, 

interstate commerce and thus its authority to regulate advertising under the interstate commerce 

clause. See U.S. CONST., art. I, § 8, cl. 3. This Court, 

having recently determined that ads beyond the 

appeal-to-vote test of WRTL II are not related to 

elections, see WRTL II, 127 S. Ct. at 2667-69, now 

faces the question of whether Congress has the 

authority to compel the disclosure of political speech 

that is beyond candidate elections, nor even about 

elections at all. Congress does not. 

B. The Interests Recognized In Buckley, 

and by Extension McConnell, Are 

Inapplicable To The Disclosure Of 

Issue Advocacy 

There must be “a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and 

the information to be disclosed.” Buckley, 424 U.S. at 

65. Mandatory disclosure of speech beyond the 

appeal-to-vote test enunciated in WRTL II lacks a 

“relevant correlation” or “substantial relation” to 
 

 

23 

elections and, thus, to government interests recognized by this Court. 

The first interest is the “informational interest.” 

Buckley, 424 U.S. at 81. Disclosure “provides the 

electorate with information ‘as to where political 

campaign money comes from and how it is spent by 

the candidate’ in order to aid the voters in evaluating 

those who seek federal office.” Id. at 66-68. The 

parties to this case have agreed that the three ads in 

question are not campaign speech. Therefore, compelling Citizens United to disclose the funding of 

those ads will not provide the public with information 

as to “where political campaign money comes from,” 

or with information on “how [money] is spent by [a] 

candidate.” Id. 

The second interest is to “deter actual corruption 

and [its] appearance ... by exposing large contributions and expenditures to the light of publicity.” Id. 

But the terms “contribution” and “expenditure” discussed in Buckley derive from FECA. Each subsumes 

the phrase “made ... for the purpose of influencing 

an[ ] election,” see 2 U.S.C. §§ 431(8) & (9), and not 

for some other purpose. That “critical phrase” was 

narrowed in Buckley’s discussion of the disclosure 

requirements at § 434(c) to express advocacy, which 

ensured that its reach was unambiguously campaign 

related. 424 U.S. at 80-81. Candidates and officeholders are not corrupted by issue campaigns. Issue 

advocacy increases the probability of citizen-tolawmaker contact, the very goal of a democratic 

republic. No matter how a citizen first hears about 

an issue—be it in a Citizens United ad, a New York 

Times editorial, or a conversation with a neighbor— 

once the citizen engages he does so for reasons of his 
24 

own and calls his representative directly to express 

his opinion. 

The third interest in disclosure is to “gather[] the 

data necessary to detect violations of the contribution 

limitations.” Buckley, 424 U.S. at 66-68. In upholding the disclosure of electioneering communications 

against facial challenge in McConnell, however, 

Justice Kennedy stated that “BCRA § 201 ... does not 

substantially relate to a valid interest in gathering 

data about compliance with contribution limits 

[Buckley’s third interest] or in deterring corruption 

[Buckley’s second interest].” McConnell, 540 U.S. at 

321 (Kennedy, J. concurring in part and in dissenting 

in part). Justice Kennedy’s holding is all the more 

accurate when the electioneering communications in 

question are issue advocacy protected by WRTL II. 

Thus, requiring the names, addresses and dollar 

commitments of citizens engaged in issue advocacy 

does not substantially relate to any of the informational, anticorruption, or compliance interests upheld 

as compelling in Buckley. There is no government 

interest recognized by this Court that is furthered by 

mandatory disclosure of issue advocacy. 

C. This 	Case is Not About Electoral 

Speech, and, Therefore, Not About 

The Right to Engage in Anonymous 

Electioneering 

It would also seem there is no apparent government interest recognized by this Court that is 

furthered by compelling the disclosure of political 

speech for or against ballot initiatives or referenda. 

This issue was discussed but not decided in First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 792, 

n.32 (1978). McIntyre, 514 U.S. at 353-54 (Bellotti’s 

comments “on the prophylactic effect of requiring the 
 

 

 

25 

identification of the source of corporate advertising 

[for referenda elections]” was “dicta”).7 Because 

candidates—human beings possessing freewill and a 

potential to be corrupted—are not on the ballot, 

compelling the disclosure of information on the 

funding of ballot initiatives or referenda does not “aid 

voters in evaluating those who seek federal office,” 

Buckley, 424 U.S. at 66, and does not deter 

corruption. And, because this Court has invalidated 

limits on contributions to ballot-initiative committees 

as a restraint on the rights of speech and association, 

see Citizens Against Rent Control v. City of Berkeley, 

454 U.S. 290, 299 (1981), disclosure would not aid in 

the enforcement of contribution limits. See Buckley, 

424 U.S. at 66-68. 

As Chief Justice Rehnquist stated, reviewing 

another section of BCRA, “[i]n this noncandidate7

 Some suggest that this Court already determined the constitutionality of disclosure in ballot-initiative campaigns in 

Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 

(1981), where it said “[t]he integrity of the political system will 

be adequately protected if contributors are identified in a public 

filing [and], if it is thought wise, legislation can outlaw anonymous contributions.” Id. at 299-300. The Court, however, did 

not. In Citizens Against Rent Control, the appellants challenged 

contribution limits to ballot initiative committees in Berkeley 

ordinance § 602, and did not challenge the disclosure provisions 

of § 112. Therefore, when the City of Berkeley claimed that the 

contribution limits must be upheld as a “prophylactic measure 

to make known the identity of supporters and opponents of 

ballot measures,” id. at 298, the Court merely answered that the 

identities are made known through the disclosure provisions of 

ordinance § 112, see id. at 298-99. This Court had no opportunity to decide whether Berkeley’s § 112 was constitutional, or to 

decide whether the government may compel the disclosure of 

communications for or against ballot initiatives or referenda. 

Id. at 291-93 (explaining that only the contribution limitations, 

and not the disclosure requirements, had been challenged). 
26 

related context, this goal” of enabling viewers to 

evaluate the message transmitted “is a far cry from 

the government interests endorsed in Buckley, which 

were limited to evaluating and preventing corruption 

of federal candidates.” McConnell, 540 U.S. at 361-62 

(Rehnquist, C.J., dissenting) (reviewing BCRA § 504, 

which amends federal communications law to require 

broadcast stations to keep records of requests to 

purchase airtime for issues of national importance). 

Buckley’s informational interest—reviewed in the 

context of candidate campaigns—is not furthered by 

mandatory disclosure of issue advocacy, even in 

ballot-initiative or referenda campaigns. What did 

California’s voters learn of the relative merits of gay 

versus traditional marriage, or of the wording and 

import of Proposition 8, by knowing that Scott 

Eckern gave $1,000 to Yes on [Proposition] 8, that 

Richard Raddon gave $1,500, or even that Alan 

Stock gave $9,999? Amicus suggests the answer is: 

Nothing. What did those eager to retaliate against 

the supporters of Prop. 8 learn? Everything they 

needed to know. 

But even if there were reasons supporting mandatory disclosure in ballot-initiative and referenda 

campaigns, this Court need not decide the question in 

this case because electoral speech of any kind is not 

at issue here. 

Justice Scalia, dissenting in McIntyre, has written 

that there is no “right” to engage in anonymous 

electioneering. McIntyre, 514 U.S. at 371-385 (Scalia, 

J., dissenting). To reach this result he addressed 

three questions: “[w]hether protection of the election 

process justifies limitations that cannot constitutionally be imposed generally,” id., at 378; “[w]hether a 

‘right to anonymity’ is such a prominent value ... that 
 

27 

even protection of the electoral process cannot be 

purchased at its expense,” id. at 379; and finally 

“[w]hether the prohibition of anonymous campaigning is effective in protecting... democratic elections,” 

id. at 381. But this case is not about the “right” to 

speak anonymously in elections; elections are not at 

issue here.8 

In contrast with McIntyre, this case is about 

Congress’ authority to compel the disclosure of issue 

advocacy: political speech beyond elections. The 

answer to this question is implied in Justice Scalia’s 

first question, where he suggests that a measure 

not substantially related to protecting “the election 

process ... cannot constitutionally be imposed.” 

McIntyre, 514 U.S. at 378 (Scalia, J. dissenting). 

Thus, even if the Court believes that mandatory 

disclosure might be appropriate in the context of 

ballot issues and referenda, it should find in favor of 

Appellant Citizens United in this case. 

Finally, this Court should not hold that advertising 

protected by the appeal-to-vote test of WRTL II is 

“issue advocacy” as to the source prohibition of § 203, 

but somehow “electioneering” as to the disclosure 

provisions of §§ 201 and 311. Such a schizophrenic 

holding would be a disservice to the citizenry, and 

would require mandatory disclosure of speech 

already determined to be unrelated to elections, see 

WRTL II, supra, in contradiction to a long line of 

8 Amicus CCP might relish the opportunity to argue for the 

right in a future case on the question of disclosure in ballotinitiative or referenda campaigns. See McIntyre, 514 U.S. at 

371 (1995) (Thomas, J., concurring) (“[W]eight of the historical 

evidence” indicates that “the Framers understood the First 

Amendment to protect an author’s right to express his thoughts 

on political candidates or issues in anonymous fashion”). 
 

 

28 

cases including Talley v. California, 362 U.S. 60 

(1960), and NAACP v. Alabama, 357 U.S. 449 (1958). 

V. 	THIS COURT HAS ALREADY INVALIDATED CONGRESSIONAL ATTEMPTS 

TO COMPEL THE DISCLOSURE OF 

ISSUE ADVOCACY ON CONSTITUTIONAL GROUNDS 

Furthermore, this Court will not write on a blank 

slate. In Buckley, this Court narrowed the statutory 

definition of “political committee” to avoid vagueness 

and an impermissible intrusion into issue discussion. 

424 U.S. at 79.9

 But the Court also narrowed the 

definition of “expenditure” in the Act’s disclosure 

requirements for independent speakers to cure 

overbreadth and thus to prevent an unconstitutional 

intrusion into issue discussion. 

But when the maker of the expenditure is ... an 

individual other than a candidate or a group 

other than a political committee[] the relation of 

the information sought to the purposes of the Act 

may be too remote. To insure that the reach of § 

434(e) is not impermissibly broad, we construe 

“expenditure” for purposes of that section ... to 

reach only funds used for communications that 

expressly advocate the election or defeat of a 

clearly identified candidate. This reading is 

9

 The Buckley Court in protecting issue advocacy from disclosure was well aware that express advocacy and issue advocacy 

both have an “effect” on elections, and saw this fact as little 

reason to curtail issue advocacy. 424 U.S. at 42 (“the distinction 

between discussion of issues and candidates and advocacy of 

election or defeat ... may often dissolve in practical application. 

Candidates ... are intimately tied to public issues[,] campaign 

on the basis of their positions on ... issues, [and the] campaigns 

themselves generate issues of public interest”). 
 

29 

directed precisely to that spending that is 

unambiguously related to the campaign of a 

particular federal candidate. 

Buckley, 424 U.S. at 79-80 (emphasis added). The 

Court noted that only through narrowing could the 

provision “bear[] a sufficient relationship to a substantial governmental interest,” for § 434(e) would 

“not reach all partisan discussion” and would “only 

require[] disclosure of those expenditures that expressly advocate a particular election result.” Id. at 

80 (emphasis added). 

Indeed, the Buckley Court seemed proud that its 

narrowing would “increase the fund of information” 

by “shed[ding] the light of publicity on spending ... 

that would not otherwise be reported because it takes 

the form of independent expenditures.” 424 U.S. 

at 81 (emphasis added). Chief Justice Roberts, 

however, has warned of the dangers in a “constitutional ‘bait and switch’” when he reviewed the scope 

of § 203’s funding source prohibition. WRTL II, 127 

S. Ct. at 2673. The potential for “bait and switch” 

is no less before this Court in its review of the 

disclosure provisions of § 201. Buckley saved the 

disclosure of independent expenditures from unconstitutionality only by ensuring that disclosure would 

not reach issue advocacy under the government’s 

asserted informational interest. It would be an 

improper “bait and switch” to now hold that issue 

advocacy must be disclosed to further the same 

interest. 
30 

VI. CITIZENS UNITED NEED NOT DEMONSTRATE THAT IT WILL BE SUBJECT TO 

THREATS, HARASSMENT, OR REPRISALS BECAUSE THE DICLOSURE 

PROVISIONS ARE UNCONSTITUTIONAL 

AS-APPLIED TO ANY ORGANIZATION 

ENGAGED IN ISSUE ADVOCACY 

If this Court were to uphold mandatory disclosure 

for issue advocacy, it would require challengers 

seeking exemptions under WRTL II to go forward 

with evidence that their speech is unrelated to 

campaigns, and, if successful, to then demonstrate 

that they would be subject to reprisals for advocating 

their policy position publicly. Such burdens upon 

would-be speakers are unworkable given the short 

time frame issue advocates have to be effective, and 

unjustified in a system of unfettered information 

exchange. 

But the government believes an as-applied challenge to § 201’s disclosure regime can be successful 

“in a single situation: when an organization’s 

disclosure would result in a ‘reasonable probability’ of 

‘threats, harassment, and reprisals’ of its members.” 

Fed. Election Comm’n’s Summ. J. Mem. (Doc. 55), at 

25. But this grudging admission is far too narrow. 

In Brown v. Socialist Workers ’74 Campaign 

Committee, this Court had to determine whether an 

otherwise constitutional disclosure requirement, related to elections, could be applied to a political party 

committee that “historically has been the object 

of harassment by government officials and private 

parties.” 459 U.S. 87, 88 (1982). The Court affirmed 

the finding of the district court, following the 

rationale in Buckley. See generally Brown, 459 U.S. 

at 92-102. But §§ 201 and 311 are not otherwise 
 

 

31 

valid disclosure provisions as-applied to communications beyond the appeal-to-vote test of WRTL II. 

Issue advocacy communications are not related to 

elections. Therefore, Citizens United need not demonstrate a reasonable probability that it will be 

subject to threats, harassment, or reprisals by operation of the disclosure provisions. It is enough for 

Citizens United to demonstrate that the disclosure 

provisions are unconstitutional as-applied to any 

organization running political advertising protected 

by this Court’s opinion in WRTL II.

10 

Furthermore, there are practical problems with 

Brown’s “reasonable probability” inquiry. People 

such as Gigi Brienza, Scott Eckern, or Richard 

Raddon did not know at the time they first decided to 

speak that they would be targeted, nor could they— 

and it is highly unlikely that any court would have 

granted their request (or even the request of organizations they donated to) to remain anonymous on the 

authority of Brown. But with the knowledge they 

could likely be targeted comes questions. Is each 

donor supposed to march into court and say he or she 

is likely to face reprisals, or should he wait for the 

organization to do so on his behalf? If he may 

proceed on his own, would the proceedings be sealed? 

Could Gigi Brienza, victim of animal rights activists, 

10 Some may argue that a “political committee” could be 

required to disclose its issue advocacy communications. But 

political committees do not make or report “disbursements for ... 

electioneering communications” under BCRA. Rather, political 

committees report all disbursements for communications as 

“expenditures.” The terms “electioneering communication” and 

“expenditure” are mutually exclusive in BCRA. See 2 U.S.C. 

§ 434(f)(3)(B)(ii) (electioneering communication does not include 

“a communication which constitutes an expenditure or independent expenditure under this Act”). 
32 

now demonstrate a reasonable probability of threats, 

harassment, or intimidation? See Brown, 459 U.S. 

93-94, 98-102. How about the 100 of her colleagues 

also placed on the “target list”? Can all employees of 

Bristol-Myers Squibb now make the showing? How 

about all employees of the pharmaceutical industry? 

Have the activities of Accountable America now 

made it possible for any right-leaning organization to 

demonstrate a reasonable probability of threats, 

harassment, and intimidation on behalf of its donors? 

Surely such a demonstration, if successful, would 

swallow Buckley’s rule and undercut disclosure even 

in candidate elections for whole categories of contributors and donors. This is why such a broad 

demonstration will never be successful in a district 

court, and why the purported protection of Brown 

would be no comfort to donors to issue campaigns— 

and why the threats, harassment, and intimidation 

from Accountable Americas everywhere would proceed apace, with their targets including donors to 

issue campaigns. 

This Court should resist the temptation to uphold 

mandatory disclosure for issue advocacy on the belief 

that Brown will provide adequate protection to the 

chilled donor. 

VII. THE 	ENFORCEMENT OF OTHER 

PROVISIONS CAN BE ADDRESSED BY 

EXISTING MEANS MORE NARROWLY 

TAILORED THAN MANDATORY PUBLIC 

DISCLOSURE 

The danger in disclosure is rarely in the public 

knowing the name of the organization, and, therefore, 

not in having advocates place a disclaimer on their 

advertising. Organizations and their positions on 
33 

issues are usually known. Anyone can visit the 

website of Citizens United and see that it is a 

conservative organization. Few in the South in the 

1950s did not know of the NAACP and its positions 

on civil rights. It is widely known and readily 

ascertainable that the Mormon Church supports a 

traditional definition of marriage. Thus, mandatory 

disclosure of donors is an intrusion on First 

Amendment rights of far greater magnitude than a 

simple requirement that an organization’s name 

appear on its ads. 

Additionally, the government may have added reasons to wish to know the identity of the organization 

that is speaking, including the need to establish 

jurisdiction and serve process in the event of a libel 

or other claim resulting from the speech. These 

interests, however, do not require the compelled 

disclosure of donors (or details on the inner workings 

and funding of the organizations), potentially subjecting those donors to official and unofficial harassment and abuse. One reason why people join an 

organization, in addition to amplifying their collective voices, is to have the organization serve as a 

mediating shield between them and the public. 

Although it is true that organizations such as the 

NAACP or the Mormon Church might face vandalism 

or retaliation for their political speech, they are 

better equipped to anticipate and deal with it than 

are the individual members who make up those 

organizations. 

This is not to say that § 311 is constitutional asapplied to issue advocacy. The government’s interest 

in knowing the identity of the organization that is 

speaking is a matter of federal communications law, 

not election law. And this Court should in no way 
 

 

 

34 

signal, by upholding § 311 as-applied, that ads 

beyond the appeal-to-vote test remain within the 

jurisdiction of federal election law. The ads captured 

by § 311 would always be conveyed via broadcast, 

cable, or satellite. See 2 U.S.C. § 434(f)(3) (definition 

of electioneering communication). Federal communications law already requires all broadcast “licensees 

to maintain, and make available for public inspection 

... record[s] of ... request[s] to purchase broadcast 

time” for any communication that “communicates a 

message relating to any political matter of national 

importance.” 47 U.S.C. § 315(e)(1)(B)(i)-(iii) (upheld 

against facial challenge in McConnell, 540 U.S. 

at 238). The political-file requirement extends to 

any communication reached by BCRA’s definition of 

“electioneering communication” because it captures 

communications run over cable, satellite, or airwaves 

on any “[c]andidate,” let alone any “issue[s] of public 

importance.” Id. 

The political-file requirements provide plenty of 

information for a press and public looking to write, 

sue, or complain.11 See 47 U.S.C. §§ 315(e)(2)(C) 

11 There was the suggestion by the government and its amici 

in McConnell that the improbable names selected by citizens 

making “electioneering communications” rendered disclaimers 

inadequate and justified a full, public disclosure of donors 

so that the public may know who these groups really are. 540 

U.S. at 128-29. The most famous example was the group 

Republicans for Clean Air, about which the press found in a 

matter of hours or days—and without benefit of today’s politicalfile requirements of communications law—was sponsored by 

Sam and Charles Wyly. Id. at 128, n.23 (citing McConnell, 251 

F. Supp. 2d at 232-33). Amicus notes that “Sam [Wyly] founded 

Green Mountain Energy in 1997,” see <http://www.charlesand 

samwyly.com/business-environment.htm>, “America’s largest retailer of cleaner energy to residential and commercial 
 

35 

(must provide date and time communication airs); 

315(e)(2)(E) (name of candidate or issue to which 

communication refers); 315(e)(2)(G) (name of person 

requesting time, and detailed information on the 

contact person for such organization, as well as a 

listing of its executive officers, executive members, or 

board of directors). The requirements even let the 

FEC know whom to subpoena. 

The ability for any person to file a complaint is 

preserved by the press’s and public’s ability to know 

the makers of electioneering communications, both 

through the political file requirements of communications law and a disclaimer system more limited than 

those applicable to federal candidate elections in 

§ 311. 

Because the “Wait,” “Pants,” and “Questions” ads 

are not substantially related to elections, the disclaimer requirements in § 311 should be invalidated 

as-applied. Doing otherwise would signal, improperly, that those issue ads are related to elections, and 

would further no interest not easily met by more 

narrowly tailored means, such as minimal disclaimers under federal communications law. 

customers,” id., making it fair to call him, then as he is now, a 

Republican for clean air. 
36 

CONCLUSION 

For the foregoing reasons, the decision of the 

United States District Court for the District of 

Columbia should be reversed. 

Respectfully submitted, 

STEPHEN M. HOERSTING 

Counsel of Record 

BRADLEY A. SMITH 

REID ALAN COX 

CENTER FOR COMPETITIVE POLITICS 

124 S. West Street 

Suite 201 

Alexandria, VA 22314 

(703) 894-6800 

Counsel for Amicus Curiae 

January 15, 2009