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 FOR AMICUS 

CURIAE CATO INSTITUTE IN SUPPORT OF 

APPELLANT 

ILYA SHAPIRO

CATO INSTITUTE

1000 Massachusetts Avenue, 

N.W. 

Washington, DC 20001 

(202) 218-4600 

BENJAMIN D. WOOD

 Counsel of Record

 GLENN M. WILLARD 

 WILLIAM J. MCGINLEY

 KATHRYN E. BIBER

JOHN C. HILTON

JARED M. FLEISHER

PATTON BOGGS LLP 

2550 M Street, N.W. 

Washington, DC 20037 

(202) 457-6000 

Counsel for Amicus Curiae 
i 

TABLE OF CONTENTS 

Page

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

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

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

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

I. Stare decisis means following the law, not 

mechanically preserving every precedent or 

perpetuating erroneous decisions................... 3 

A. Stare decisis under the common law......... 4 

B. The policy of stare decisis is at its nadir 

in this case.................................................. 6 

II. Overturning Austin and McConnell is 

consistent with stare decisis. .......................... 8 

A. Austin and McConnell were wrongly 

decided and unfaithful to the First 

Amendment principles correctly stated 

in Buckley. .................................................. 8 

B. All other stare decisis factors—reliance, 

antiquity, and workability—support 

overruling Austin and McConnell. ........... 16 

CONCLUSION.......................................................... 21
ii 

TABLE OF AUTHORITIES 

Page(s)

CASES

Agostini v. Felton, 

521 U.S. 203 (1997)............................................ 6, 7 

Austin v. Mich. Chamber of Comm.,

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

Buckley v. Valeo,

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

Cohen v. California, 

403 U.S. 15 (1971).................................................. 9 

Davis v. FEC, 

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

FEC v. Nat’l Conservative PAC, 

470 U.S. 480 (1985).............................................. 10 

FEC v. Wisc. Right to Life, Inc., 

127 S. Ct. 2652 (2007).................................. 6, 7, 17 

First Nat’l Bank v. Bellotti, 

435 U.S. 765 (1978)................................................ 9 

Harper v. Va. Dep’t of Taxation, 

509 U.S. 86........................................................... 17 

James B. Beam Distilling Co. v. Georgia, 

501 U.S. 529 (1991)................................................ 3 

Lawrence v. Texas, 

539 U.S. 558 (2003).............................................. 17 

Marbury v. Madison, 

5 U.S. 137 (1803).................................................... 3 
iii 

McConnell v. FEC,

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

Michigan v. Jackson, 

475 U.S. 625 (1986)................................................ 7 

Montejo v. Louisiana, 

129 S. Ct. 2079 (2009)...................................... 7, 17 

Patterson v. McClean Credit Union, 

491 U.S. 164 (1989)............................................ 3, 6 

Payne v. Tennessee, 

501 U.S. 808 (1991)...................................... 3, 6, 16 

Planned Parenthood of Se. Pa. v. Casey, 

505 U.S. 833 (1992).........................................16-17 

W. Va. Bd. of Educ. v. Barnette, 

319 U.S. 624 (1943)................................................ 8 

STATUTES, REGULATIONS AND ADMINISTRATIVE 

MATERIALS

5 Cong. Ch. 74, 1 Stat. 596 (1798)............................ 11 

11 C.F.R. § 100.73 ..................................................... 20 

11 C.F.R. § 100.132 ................................................... 20 

11 C.F.R. § 100.155 ................................................... 18 

11 C.F.R. § 110.1(g)................................................... 19 

Internet Communications, 71 Fed. Reg. 

18589 (Apr. 12, 2006)........................................... 20 

VoterVoter.com, Op. FEC 2008-10 (Oct. 24, 

2008)..................................................................... 18 

The True Patriot Network, LLC, Op. FEC 

2009-02 (Apr. 17, 2009) ....................................... 19 
iv 

BOOKS AND ARTICLES

1 WILLIAM BLACKSTONE, COMMENTARIES

(Univ. of Chicago Press 1979) (1765) .......... 4, 5, 16 

1 EDWARD COKE, THE SECOND PART OF THE 

INSTITUTES OF THE LAWS OF ENGLAND

(London, E. & R. Brooke 1797) (1642) .................. 3 

Charles Cooper & Derek L. Shaffer, What 

Congress ‘Shall Make’ The Court Will 

Take: How McConnell v. FEC Betrays the 

First Amendment in Upholding 

Incumbency Protection Under the Banner 

of ‘Campaign Finance Reform’, 3 

ELECTION L. J. 223 (2004).............................. 14, 15 

THE FEDERALIST (Clinton Rossiter ed., 2003)............. 4 

MATTHEW HALE, THE HISTORY OF THE 

COMMON LAW OF ENGLAND (Charles M. 

Gray ed., Univ. of Chicago Press 1971) 

(1820)...................................................................... 4 

Nicholas G. Karembelas, The Revised 

Uniform Limited Liability Act, WASH.

LAWYER, Feb. 2008............................................... 19 

1 JAMES KENT, COMMENTARIES ON AMERICAN 

LAW (O.W. Holmes, Jr. ed., Fred B. 

Rothman & Co. 1989) (12th ed. 1873)......... 5, 6, 16 

Pew Internet & American Life Project, The 

Internet’s Role in Campaign 2008 (Apr. 

2009)..................................................................... 18 
v 

David M. Primo & Jeffrey Milyo, Campaign 

Finance Laws and Political Efficacy: 

Evidence from the States, 5 ELECTION L. J. 

23 (2006)......................................................... 12, 13 

David M. Primo, Public Opinion and 

Campaign Finance: Reformers vs. Reality, 

7 INDEP. REV. 207 (2002) ..................................... 12 

OTHER AUTHORITIES

Oral Argument Transcript from Austin, 1989 

U.S. Trans. LEXIS 109 (Oct. 31, 1989)............... 12 

Intervenor-Defendants’ Brief from 

McConnell, 2003 WL 21999280 (Aug. 5, 

2003)..................................................................... 14
1 

INTEREST OF THE AMICUS CURIAE1

The Cato Institute was established in 1977 as a 

nonpartisan public policy research foundation 

dedicated to advancing principles of individual liberty, 

free markets, and limited government. Cato’s Center 

for Constitutional Studies was established in 1989 to 

help restore principles of limited constitutional 

government that are the foundation of liberty. Toward 

those ends, the Cato Institute publishes books and 

studies, conducts conferences and forums, publishes 

the annual Cato Supreme Court Review, and files 

amicus briefs. This case is of central concern to Cato 

because it addresses the further collapse of 

constitutional protections for political speech and 

activity, which lies at the very heart of the First 

Amendment. 

 

1

 Pursuant to this Court’s Rule 37.3(a), letters of consent from all 

parties to the filing of this brief have been submitted to the Clerk. 

 Pursuant to this Court’s Rule 37.6, amicus states that this brief 

was not authored in whole or in part by counsel for any party, and 

that no person or entity other than amicus or its counsel made a 

monetary contribution intended to fund its preparation or 

submission. 
2 

SUMMARY OF THE ARGUMENT 

Under the common law and this Court’s 

jurisprudence, stare decisis does not require preserving 

either Austin v. Michigan Chamber of Commerce, 494 

U.S. 652 (1990), or the part of McConnell upholding 

the facial validity of Section 203 of the Bipartisan 

Campaign Finance Reform Act of 2002 (“BCRA”). Both 

are incorrect statements of the law as expounded in 

Buckley v. Valeo, 424 U.S. 1 (1976), are of relatively 

recent constitutional vintage, and have produced an 

arbitrary, irrational, and increasingly unworkable 

campaign finance system; no reliance interests weigh 

against overruling either decision. 
3 

ARGUMENT 

I. STARE DECISIS MEANS FOLLOWING THE LAW, NOT 

MECHANICALLY PRESERVING EVERY PRECEDENT 

OR PERPETUATING ERRONEOUS DECISIONS. 

 Stare decisis, an important policy in this Court’s 

jurisprudence with deep roots in the common law, 

“promotes the evenhanded, predictable, and consistent 

development of legal principles, fosters reliance on 

judicial decisions, and contributes to the actual and 

perceived integrity of the judicial process.” Payne v. 

Tennessee, 501 U.S. 808, 827 (1991). A core principle 

underlying stare decisis is that courts do not make the 

law, but rather declare what the law is. See, e.g., 

James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 

549 (1991) (although “judges in a real sense ‘make’ law 

. . . they make it as judges make it, which is to say as 

though they were ‘finding’ it – discerning what the law 

is, rather than decreeing what it is today changed to, 

or what it will tomorrow be.”) (Scalia, J., concurring in 

the judgment); 1 EDWARD COKE, THE SECOND PART OF 

THE INSTITUTES OF THE LAWS OF ENGLAND 51 (London, 

E. & R. Brooke 1797) (1642) (“it is the function of a 

judge not to make, but to declare the law, according to 

the golden mete-wand of the law and not by the 

crooked cord of discretion.”); cf. Marbury v. Madison, 5 

U.S. 137, 177 (1803) (“It is emphatically the province 

and duty of the judicial department to say what the 

law is.”). 

Consequently, “precedents are not sacrosanct.” 

Patterson v. McClean Credit Union, 491 U.S. 164, 172 

(1989). See also Payne, 501 U.S. at 828 (“Stare decisis

is not an inexorable command; rather, it is a principle 
4 

of policy and not a mechanical formula of adherence to 

the latest decision.”) (citation and quotation marks 

omitted). This case, and the particular issues on 

which the Court ordered reargument, implicate the 

proper application of stare decisis when confronting 

fundamentally erroneous precedents that, in making 

new law, departed from the immutable core of the 

First Amendment. 

A. Stare decisis under the common law. 

Stare decisis reflects the common law’s declaratory 

view of precedents, which are not law themselves, but 

rather evidence of the law. See, e.g., MATTHEW HALE, 

THE HISTORY OF THE COMMON LAW OF ENGLAND 45

(Charles M. Gray ed., Univ. of Chicago Press 1971) 

(1820) (“the Decisions of Courts of Justice . . . do not 

make a Law . . . yet they have a great Weight and 

Authority in Expounding, Publishing, and Declaring 

what the Law of this Kingdom is.”). Indeed, the word 

“jurisdiction” itself “is composed of JUS and DICTIO, 

juris dictio or a speaking and pronouncing of the law.” 

 THE FEDERALIST NO. 81, at 488 (Alexander Hamilton) 

(Clinton Rossiter ed., 2003). 

As William Blackstone explained, stare decisis

does not require courts to extend or preserve a prior 

decision that misstated or misapplied the law: 

[A judge is] not delegated to pronounce a 

new law, but to maintain and expound 

the old one. Yet this rule admits of 

exception, where the former 

determination is most evidently contrary 

to reason; much more if it be contrary to 
5 

the divine law. But even in such cases 

the subsequent judges do not pretend to 

make a new law, but to vindicate the old 

one from misrepresentation. For if it be 

found that the former decision is 

manifestly absurd or unjust, it is 

declared, not that such a sentence was 

bad law, but that it was not law; that is, 

that it is not the established custom of 

the realm as has been erroneously 

determined. 

1 COMMENTARIES 69-70 (Univ. of Chicago Press 1979) 

(1765). Blackstone concluded “that the law, and the 

opinion of the judge are not always convertible terms, 

or one and the same thing; since it sometimes may 

happen that the judge may mistake the law.” Id. at 71. 

In the same vein: 

I wish not to be understood to press too 

strongly the doctrine of stare decisis . . . . 

It is probable that the records of many of 

the courts in this country are replete 

with hasty and crude decisions; and such 

cases ought to be examined without fear, 

and revised without reluctance, rather 

than to have the character of our law 

impaired, and the beauty and harmony of 

the system destroyed by the perpetuity of 

error. Even a series of decisions are not 

always conclusive evidence of what is law 

. . . . 

1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 477 

(O.W. Holmes, Jr. ed., Fred B. Rothman & Co. 1989) 
6 

(12th ed. 1873). Kent continued that precedent is 

worthy of adherence “unless it can be shown that the 

law was misunderstood or misapplied in that 

particular case.” Id. at 475. 

Stare decisis also derives from practical 

considerations of doctrinal stability; in Blackstone’s 

words, “to keep the scale of justice even and steady.” 1 

COMMENTARIES 69. Stare decisis deference is 

appropriate in many cases because “[i]t is by the 

notoriety and stability of such rules that professional 

men can give safe advice . . . and people in general can 

venture with confidence to buy and trust, and to deal 

with one another.” 1 KENT, COMMENTARIES 476. From 

its origins, therefore, stare decisis sought to balance 

reliance interests in doctrinal stability with the 

countervailing interest in clarification when in an 

earlier case “the judge may mistake the law.” 1 

BLACKSTONE, COMMENTARIES 71. 

B. The policy of stare decisis is at its nadir 

in this case. 

This Court recognizes the importance of having 

settled rules of law. See Agostini v. Felton, 521 U.S. 

203, 235 (1997). But following the common law 

approach to stare decisis as a prudential policy rooted 

in the declaratory view of precedent, its underlying 

interests are not equally compelling for all areas of 

law. See Payne, 501 U.S. at 828 (“Considerations in 

favor of stare decisis are at their acme in cases 

involving property and contract rights, where reliance 

interests are involved”); Patterson, 491 U.S. at 172-73 

(“Considerations of stare decisis have special force in 

the area of statutory interpretation, for here, unlike in 
7 

the context of constitutional interpretation, the 

legislative power is implicated, and Congress remains 

free to alter what we have done.”). 

Indeed, this “policy is at its weakest when we 

interpret the Constitution because our interpretation 

can be altered only by constitutional amendment or by 

overruling our prior decisions.” Agostini, 521 U.S. at 

235. “Overruling a constitutional case decided just a 

few years earlier is far from unprecedented.” WRTL 

II, 127 S. Ct. at 2685 (Scalia, J., concurring in part and 

concurring in the judgment) (citing cases). 

For example, earlier this Term the Court 

overturned Michigan v. Jackson, 475 U.S. 625 (1986), 

rather than adopt “an unworkable standard” or force 

lower courts to make “arbitrary and anomalous 

distinctions.” Montejo v. Louisiana, 129 S. Ct. 2079, 

2083 (2009). The Court explained, “the fact that a 

decision has proved ‘unworkable’ is a traditional 

ground for overruling it.” Id. at 2088 (quoting Payne, 

501 U.S. at 827). “Beyond workability, the relevant 

factors in deciding whether to adhere to the principle 

of stare decisis include the antiquity of the precedent, 

the reliance interests at stake, and of course whether 

the decision was well reasoned.” Id. at 2088-89. 

This case—like Buckley, Austin and McConnell—

turns on issues of constitutional interpretation under 

the Free Speech Clause of the First Amendment, not 

on statutory construction or on property or contract 

rights. “This Court has not hesitated to overrule 

decisions offensive to the First Amendment (a ‘fixed 

star in our constitutional constellation,’ if there is one) 

– and to do so promptly where fundamental error was 
8 

apparent.” WRTL II, 127 S. Ct. at 2685 (Scalia, J., 

concurring in part and concurring in the judgment) 

(quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 

642 (1943)). Thus, the policy of stare decisis is at its 

nadir here. 

II. OVERTURNING AUSTIN AND MCCONNELL IS 

CONSISTENT WITH STARE DECISIS. 

A. Austin and McConnell were wrongly 

decided and unfaithful to the First 

Amendment principles correctly stated 

in Buckley. 

Because stare decisis does not require preserving 

or extending precedents that misstate the law, it does 

not shield either Austin or McConnell from being 

reexamined and overturned. Those decisions were 

fundamentally erroneous and untrue to the core 

principles of the First Amendment. 

 1. Austin wrongly deviated from Buckley by 

embracing the goal of equalizing the relative volume of 

political speakers and by permitting censorship of an 

entity or individual’s speech based on the 

government’s perception of public support for the ideas 

expressed. Buckley held government may not decide 

political speakers’ relative worth or proper position in 

the marketplace of ideas. “[E]qualizing the relative 

ability of individuals and groups to influence the 

outcome of elections” is not a cognizable governmental 

interest justifying restriction of independent political 

speech because 
9 

the concept that government may restrict 

the speech of some elements of our 

society in order to enhance the relative 

voice of others is wholly foreign to the 

First Amendment . . . The First 

Amendment’s protection against 

governmental abridgment of free 

expression cannot properly be made to 

depend on a person’s financial ability to 

engage in public discussion. 

Buckley, 424 U.S. at 48-49 (internal quotation 

omitted). Thus Congress may not “prescribe how 

much political speech is too much,” using means-based 

censorship in a misguided effort to ensure “the 

‘fairness’ of political debate.” Austin, 494 U.S. at 680, 

695 (Scalia, J., dissenting). In Bellotti, the Court reemphasized the importance of this principle, 

cautioning that “the people in our democracy” are 

entrusted with the responsibility of judging and 

evaluating “the relative merits of conflicting 

arguments”—the obvious corollary being that the 

government must not usurp the people’s prerogative. 

First Nat’l Bank v. Bellotti, 435 U.S. 765, 791 (1978). 

See also Cohen v. California, 403 U.S. 15, 24-25 (1971) 

(“The constitutional right of free expression is powerful 

medicine in a society as diverse and populous as ours. 

It is designed and intended to remove governmental 

restraints from the arena of public discussion, putting 

the decision as to what views shall be voiced largely 

into the hands of each of us . . . . That the air may at 

times seem filled with verbal cacophony is, in this 

sense not a sign of weakness but of strength.”). 
10 

But in Austin the Court deviated from Buckley by 

upholding Michigan’s ban on corporate independent 

expenditures to “ensure[] that expenditures reflect 

actual public support for the political ideas espoused 

by corporations.” 494 U.S. at 660. To reach this 

paternalistic result, the Court manufactured a new 

form of “corruption” to which the Michigan statute 

purportedly was tailored: “the corrosive and distorting 

effects of immense aggregations of wealth that are 

accumulated with the help of the corporate form and 

that have little or no correlation to the public’s support 

for the corporation’s political ideas.” Id. Though the 

concern plainly was one of perceived unfairness, 

Austin creatively deemed it a form of “corruption” 

because the Court already had held “that preventing 

corruption or the appearance of corruption are the only 

legitimate and compelling government interests thus 

far identified for restricting campaign finances.” FEC 

v. Nat’l Conservative PAC, 470 U.S. 480, 496-97 (1985). 

 But the corruption interest previously recognized was 

limited to “financial quid pro quo: dollars for political 

favors” whereby “[e]lected officials are influenced to 

act contrary to their obligations of office by the 

prospect of financial gain to themselves or infusions of 

money into their campaigns.” Id. at 497. 

While claiming it was “a different type of 

corruption,” the Austin Court more accurately 

described its newly minted compelling governmental 

interest as “eliminat[ing] the distortion caused by 

corporate spending.” 494 U.S. at 660 (emphasis 

added). “Distortion,” however, is not equivalent to 

corruption or even to its appearance, and is simply 

another way of saying corporations were speaking too 
11 

much relative to others. In fact, the Court exposed its 

true “equalizing” rationale when it conceded “[t]he 

desire to counterbalance those advantages unique to 

the corporate form is the State’s compelling interest in 

this case.” Id. at 665 (emphasis added). In 

sanctioning rationing of political speech as a 

compelling governmental interest, the Court permitted 

Michigan to suppress corporate speech in order to 

enhance other voices the Court viewed as more 

worthwhile. This was a fundamental error, perhaps 

chiefly because governmental actors are notoriously 

untrustworthy judges of the merit, or desired quantity, 

of potential critics, a fact amply demonstrated by the 

infamous Sedition Act of 1798, 5 Cong. Ch. 74, 1 Stat. 

596 (expired 1801). See also Austin, 494 U.S. at 680 

(Scalia, J., dissenting) (stating that the majority 

opinion is “incompatible with the absolutely central 

truth of the First Amendment: that government cannot 

be trusted to assure, through censorship, the ‘fairness’ 

of political debate”). 

Demonstrating that Austin misinterpreted the law, 

the Court reinforced Buckley last Term in Davis v. 

FEC, holding that “[l]eveling electoral opportunities 

means making and implementing judgments about 

which strengths should be permitted to contribute to 

the outcome of an election, [but] [t]he Constitution . . . 

confers upon voters, not Congress, the power to choose 

[its] Members[.]” 128 S. Ct. at 2774. The Court 

rejected the notion that the government has a 

legitimate interest in organizing the marketplace of 

ideas—not to ensure each speaker is heard, and 

certainly not (as Michigan’s attorney proposed during 

the Austin oral argument) to prevent “the people . . . 
12 

[from getting] talked at too much.” 1989 U.S. Trans. 

LEXIS 109, *13 (Oct. 31, 1989). Davis’s holding 

implicitly confirmed that Austin is inconsistent with 

the First Amendment and with Buckley. 

2. Austin silently departed from Buckley, not just 

by inventing a form of “corruption” at odds with 

Buckley, but by ignoring the actual holding: Buckley

overturned as unconstitutional a limitation on 

“persons,” defined to include corporations, making 

independent expenditures. 424 U.S. at 23; see also 

Austin, 494 U.S. at 682-83 (Scalia, J., dissenting) 

(“Section 608(e)(1) of [FECA], which we found 

unconstitutional in Buckley . . . limited to $1,000 (a 

lesser restriction than the absolute prohibition at issue 

here) such expenditures not merely by ‘individuals,’ 

but by ‘persons,’ specifically defined to include 

corporations.”) (citations omitted). Consequently, 

Austin does not deserve to be extended or preserved 

because it contradicted the actual holding of Buckley. 

3. Section 203 and Austin rest upon the false 

premise that banning corporate independent 

expenditures can actually counter an appearance of 

corruption. While proponents of campaign finance 

regulation relentlessly cite this rationale, recent 

research proves the link between campaign finance 

regulation and improved governmental reputation is 

tenuous at best. See, e.g., David M. Primo & Jeffrey 

Milyo, Campaign Finance Laws and Political Efficacy: 

Evidence from the States, 5 ELECTION L. J. 23, 24 

(2006); David M. Primo, Public Opinion and Campaign 

Finance: Reformers vs. Reality, 7 INDEP. REV. 207 

(2002). Primo and Milyo, for example, conducted an 
13 

unprecedented study of state-level campaign finance 

laws and searched for a statistically significant 

connection between such laws and voters’ faith in the 

political process. They concluded that judges and 

legislators “have long assumed that campaign finance 

reforms can and do influence public perceptions about 

the workings of democracy. . . . [but] our findings are 

in stark contrast to what has been accepted as the 

common sense and self-evident connection between 

campaign reform and the perceived integrity of the 

American democratic process.” 5 ELECTION L. J. at 24. 

According to their detailed and specific research—

as opposed to McConnell and Austin’s vague 

generalities—the effect of campaign finance laws is 

“sometimes perverse, rarely positive, and never more 

than modest. Given the importance placed on public 

opinion for the development of campaign finance law, 

it is remarkable that we have found so little evidence 

that citizens are influenced by the campaign finance 

laws of their state.” Id. Not only was the Austin

Court’s cited governmental interest a transparent 

rephrasing of the “equalizing” interest rejected in 

Buckley, but these studies suggest that interest is not 

even served by restricting corporations’ independent 

political speech. 

Beyond the lack of a causal relationship between 

campaign finance regulation and improved 

government reputation generally, proponents of 

Section 203 and defenders of Austin have never proven 

that such an “appearance of corruption” even exists. 

The McConnell Intervenor-Defendants argued in their 

brief that “the testimony of the true experts”—i.e., 

themselves—revealed “their constituents had become 
14 

as cynical about government as they have ever been 

because of the corrupting effects of unlimited soft 

money donations.” 2003 WL 21999280, *16 (Aug. 5, 

2003) (internal citations omitted). Not only does this 

fail to address Austin “corruption”—expenditures 

uncorrelated to public support for the ideas 

expressed—but also, as the quotation itself might 

suggest, the McConnell record is devoid of any real 

examples of an “appearance of corruption” problem 

that was not directly traceable to the opinions, op-eds, 

or studies of the law’s proponents themselves. 

Accordingly, the McConnell opinion does not provide 

any concrete examples of apparent corruption. 

In this light, the true aim of “campaign finance 

reform” comes into focus; as Justice Scalia noted 

dissenting in McConnell, it is readily apparent in that 

“the most passionate floor statements during the 

debates on this legislation pertained to so-called attack 

ads, which the Constitution surely protects. . . . There 

is good reason to believe that the ending of negative 

campaign ads was the principal attraction of the 

legislation.” 540 U.S. at 297. Or, as two well-known 

practitioners put it, “[t]he claim that Title II was 

aimed at curbing actual or apparent corruption is 

nothing more than a post hoc justification, mouthed by 

government lawyers seeking to recast the provision 

into a form more pleasing to the Court’s campaign 

finance jurisprudence.” Charles Cooper & Derek L. 

Shaffer, What Congress ‘Shall Make’ The Court Will 

Take: How McConnell v. FEC Betrays the First 

Amendment in Upholding Incumbency Protection 

Under the Banner of ‘Campaign Finance Reform’, 3 

ELECTION L. J. 223, 224 (2004). “The true telos of Title 
15 

II was openly proclaimed from its inception by the 

Members of Congress who sponsored and supported 

it.” Id. To wit: 

Senator Cantwell: “[Section 203] is about 

slowing political advertising and making 

sure the flow of negative ads by outside 

interest groups does not continue to 

permeate the airwaves.” 

Senator McCain: “[Negative attack ads] 

simply drive up an individual candidate’s 

negative polling numbers and increase 

public cynicism for public service in 

general.” 

Senator Wellstone: “I think these issue 

advocacy ads are a nightmare. I think all 

of us should hate them. . . . We could get 

some of this poison politics off television.” 

Senator Jeffords: “[Issue ads] are 

obviously pointed at positions that are 

taken by you saying how horrible they 

are . . . . The opposition comes forth with 

this barrage [of ads] and you are totally 

helpless.” 

Senator Boxer: “We have an opportunity . 

. . to stop [negative ads] and basically 

say, if you want to talk about an issue, 

that is fine, but you can’t mention a 

candidate . . . .” 

Id. (citing additional statements). 
16 

This candid fear of dissent or criticism—an 

“interest” clearly not recognized by this Court at any 

point in its history—is the true animating force behind 

Section 203. And it is indisputable that bald 

incumbent protection is antithetical to the true 

“corruption and appearance of corruption” rationale 

articulated in Buckley, or, for that matter, even to the 

dubious “corruption by amassment of wealth” rationale 

contrived in Austin. 

Because they are unfaithful to the core protections 

of the First Amendment, as correctly articulated in 

Buckley, neither Austin nor McConnell are correct 

statements of law. Following the policy of stare 

decisis, the Court should “declare[], not that [either 

decision] was bad law, but that it was not law.” 1 

BLACKSTONE, COMMENTARIES 70. 

B. Other stare decisis factors—reliance, 

antiquity, and workability—support 

overruling Austin and McConnell. 

1. Austin and McConnell have not engendered the 

kind of reliance interests that stare decisis

contemplates protecting. The reliance interests at 

stake in “cases involving property and contract rights” 

understandably weigh in favor of adhering to 

precedent. Payne, 501 U.S. at 828; see also 1 KENT, 

COMMENTARIES 443 (stare decisis helps ensure “people 

in general can venture with confidence to buy and 

trust, and to deal with one another.”). But such 

concerns are irrelevant here. Certainly no one has 

“ordered their thinking and living” in reliance on the 

continued viability of either Austin or McConnell. 

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 
17 

856 (1992). On the contrary, both decisions have had a 

chilling effect on the exercise of the constitutional right 

to freedom of speech. In other words, no one is relying 

on having less freedom of speech, see Lawrence v. 

Texas, 539 U.S. 558, 577 (2003), so no reliance 

interests weigh in favor of extending or preserving 

either case. 

2. Another “relevant factor” under stare decisis is 

“the antiquity of the precedent.” Montejo, 129 S. Ct. at 

2088-89. See also WRTL II, 127 S. Ct. at 2685 

(“Overruling a constitutional case decided just a few 

years earlier is far from unprecedented.”). But both 

Austin and McConnell are of relatively recent 

constitutional vintage, such that stare decisis does not 

mandate extending either erroneous decision. In fact, 

Austin “is so unancient that [three] of the current 

Members of this Court [were] sitting” when it was 

decided. See Harper v. Va. Dep’t of Taxation, 509 U.S. 

86, 106 (Scalia, J., concurring; joined by Kennedy, J.) 

(one justice sitting for precedent). Six members of this 

Court were sitting for McConnell. Accordingly, stare 

decisis does not counsel that this Court follow either 

decision. 

3. By deviating from the First Amendment 

principles clearly stated in Buckley, Austin and 

McConnell bred an unworkable regulatory regime 

riddled with increasingly arbitrary exemptions, which 

are irreconcilable with the “corruption-as-distortion” 

interest conceived in Austin. The validity of the 

“corrosive and distorting effects of immense 

aggregations of [corporate] wealth” rationale for 

banning corporate speech in Austin and McConnell, 
18 

respectively, was belied ab initio by the media 

exemption. Since then, the media exemption has been 

exposed as fallacious by more recent exemptions for 

incorporated Internet entities and LLCs. These 

exemptions, by which entities enjoying the same stateconferred benefits and wealth aggregation are 

permitted to speak without the restrictions imposed on 

corporations generally, demonstrate the fallacy of that 

purported governmental interest. All American 

corporations should be permitted to engage unfettered 

in constitutionally protected political speech. 

Without any attempted distinction from the 

general corrupting influence of corporate spending 

articulated in Austin, certain corporations are 

permitted to make expenditures on the Internet, even 

expenditures coordinated with a candidate or 

committee. See 11 C.F.R. § 100.155; VoterVoter.com, 

Op. FEC 2008-10 (Oct. 24, 2008). Surely the 

“distortion” threat that concerned the Austin Court is 

equally implicated by corporate Internet 

communication, as no forum is more egalitarian, easier 

to access, and inexpensive to use than the Internet. 

Some 74% of Internet users, representing 55% of the 

entire adult population, went online in 2008 to get 

involved in the political process or to get news and 

information about the election.2 Yet, though 

possessing all of the characteristics used to justify 

regulation in Austin, these Internet corporations are 

 

2 See Pew Internet & American Life Project, The Internet’s Role in 

Campaign 2008 (Apr. 2009), available at

http://www.pewinternet.org/~/media//Files/Reports/2009/The_Internets_Rol

e_in_Campaign_2008.pdf (last accessed July 30, 2009). 
19 

permitted to spend corporate dollars freely on 

unrestricted political speech, exposing Austin as based 

on a results-driven fabrication rather than a truly 

compelling governmental interest. 

Similarly, an LLC not treated as a corporation by 

the IRS is permitted to make contributions and 

independent expenditures. See 11 C.F.R. § 110.1(g). 

Although Austin justified restricting corporations’ 

political speech because of “the special benefits 

conferred by the corporate structure,” 494 U.S. at 661, 

the benefits conferred by state law upon those LLCs 

equal and even exceed corporations’ benefits. See

Nicholas G. Karembelas, The Revised Uniform Limited 

Liability Act, WASH. LAWYER, Feb. 2008, at 34. 

Additionally, because single-member LLCs can make 

unlimited independent expenditures, The True Patriot 

Network, LLC, Op. FEC 2009-02 (Apr. 17, 2009), an 

individual (whose wealth undoubtedly originated in a 

corporation) can expend unlimited funds to influence a 

federal election—though he enjoys identical stateconferred benefits and his speech has “little or no 

correlation to the public’s support for [his] political 

ideas.” Austin, 494 U.S. at 660. The increasing 

prevalence of LLCs and single-member LLCs, without 

a concomitant devastating “distortion” of the political 

process, further exposes the fallacy of Austin-style 

“corruption.” 

The media exemption, codified since FECA’s 

inception and specifically approved in Austin and 

McConnell, is the ultimate inconsistency showing the 

Austin corruption interest was arbitrary and 

unworkable from the start. Under this exemption, 
20 

corporations “in the regular business of imparting 

news to the public,” like Fox News or the New York 

Times, may “routinely endorse candidates,” despite 

sharing all of the wealth-amassing characteristics that 

justified banning corporate speech in Austin. Internet 

Communications, 71 Fed. Reg. 18589, 18609-10 (Apr. 

12, 2006) (quoting McConnell, 540 U.S. at 208) 

(codified at 11 C.F.R. §§ 100.73 & .132). Incorporated 

bloggers now fall within the media exemption and may 

even make expenditures coordinated with candidates 

and committees, id., thus the emergence of the new 

media is further eroding any meaningful distinction 

between those corporations the government deems 

worthy of speaking and those it chooses to silence 

under the guise of “distortion.” 
21 

CONCLUSION

For the foregoing reasons, the Court should 

overturn both Austin and the part of McConnell

upholding the facial validity of Section 203. 

 Respectfully submitted,

ILYA SHAPIRO

CATO INSTITUTE

1000 Mass. Ave., N.W. 

Washington, DC 20001 

(202) 218-4600 

BENJAMIN D. WOOD

 Counsel of Record

GLENN M. WILLARD

WILLIAM J. MCGINLEY

KATHRYN E. BIBER

JOHN C. HILTON

JARED M. FLEISHER

PATTON BOGGS LLP 

2550 M Street, N.W. 

Washington, DC 20037 

(202) 457-6000 

Counsel for Amicus Curiae Cato Institute 

July 31, 2009