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IN THE SUPREME COURT OF THE UNITED STATES 

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CITIZENS UNITED, 

Appellant 

v. 

:

:

: No. 08-205 

FEDERAL ELECTION : 

COMMISSION. : 

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 Washington, D.C.

 Wednesday, September 9, 2009

 The above-entitled matter came on for oral 

argument before the Supreme Court of the United States 

at 10:05 a.m. 

APPEARANCES: 

THEODORE B. OLSON, ESQ., Washington, D.C.; on behalf of

 the Appellant. 

FLOYD ABRAMS, ESQ., New York, N.Y.; on behalf of Senator

 Mitch McConnell, as amicus curiae, in support of the

 Appellant. 

GEN. ELENA KAGAN, ESQ., Solicitor General, Department of

 Justice, Washington, D.C.; on behalf of the Appellee. 

SETH P. WAXMAN, ESQ., Washington, D.C.; on behalf

 Senators John McCain, et al., as amici curiae, in

 support of Appellee. 

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C O N T E N T S 

ORAL ARGUMENT OF PAGE 

THEODORE B. OLSON, ESQ.

 On behalf of the Appellant 3

FLOYD ABRAMS, ESQ.

 On behalf of Senator Mitch McConnell, as

 amicus curiae, in support of the Appellant 27

GEN. ELENA KAGAN, ESQ.

 On behalf of the Appellee 35

SETH P. WAXMAN, ESQ.

 On behalf of Senators John McCain, et al.,

 as amici curiae, in support of the Appellee 68

REBUTTAL ARGUMENT OF

THEODORE B. OLSON, ESQ.

 On behalf of the Appellant 77

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P R O C E E D I N G S

 (10:01 a.m.)

 CHIEF JUSTICE ROBERTS: We'll hear 

reargument this morning in Case 08-205, Citizens United 

v. The Federal Election Commission.

 Mr. Olson.

 ORAL ARGUMENT OF THEODORE B. OLSON

 ON BEHALF OF THE APPELLANT

 MR. OLSON: Mr. Chief Justice and may it 

please the Court:

 Robust debate about candidates for elective 

office is the most fundamental value protected by the 

First Amendment's guarantee of free speech. Yet that is 

precisely the dialogue that the government has 

prohibited if practiced by unions or corporations, any 

union or any corporation.

 The government claims it may do so based 

upon the Austin decision that corporate speech is by its 

nature corrosive and distorting because it might not 

reflected actual public support for the views expressed 

by the corporation. The government admits that that 

radical concept of requiring public support for the 

speech before you can speak would even authorize it to 

criminalize books and signs.

 This Court needs no reminding that the 

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government when it is acting to prohibit, particularly 

when it is acting to criminalize, speech that is at the 

very core of the First Amendment has a heavy burden to 

prove that there is a compelling governmental interest 

that -- that justifies that prohibition and that the 

regulation adopted, in this case a criminal statute, is 

the most narrowly tailored necessary to accomplish that 

compelling governmental interest.

 JUSTICE GINSBURG: Mr. Olson, are you taking 

the position that there is no difference in the First 

Amendment rights of an individual? A corporation, after 

all, is not endowed by its creator with inalienable 

rights. So is there any distinction that Congress could 

draw between corporations and natural human beings for 

purposes of campaign finance?

 MR. OLSON: What the Court has said in the 

First Amendment context, New York Times v. Sullivan, 

Rose Jean v. Associated Press, and over and over again, 

is that corporations are persons entitled to protection 

under the First Amendment.

 JUSTICE GINSBURG: Would that include --

MR. OLSON: Now, Justice --

JUSTICE GINSBURG: Would that include 

today's mega-corporations, where many of the investors 

may be foreign individuals or entities? 

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MR. OLSON: The Court in the past has made 

no distinction based upon the nature of the entity that 

might own a share of a corporation.

 JUSTICE GINSBURG: Own many shares?

 MR. OLSON: Pardon?

 JUSTICE GINSBURG: Nowadays there are 

foreign interests, even foreign governments, that own 

not one share but a goodly number of shares.

 MR. OLSON: I submit that the Court's 

decisions in connection with the First Amendment and 

corporations have in the past made no such distinction. 

However --

JUSTICE GINSBURG: Could they in your view, 

in the view that you are putting forth, that there is no 

distinction between an individual and a corporation for 

First Amendment purposes, then any mega-corporation, 

even -- even if most of the investors are from abroad, 

Congress could not limit their spending?

 MR. OLSON: I'm not -- I'm not saying that, 

Justice Ginsburg. I'm saying that the First Amendment 

applies. Then the next step is to determine whether 

Congress and the government has established a compelling 

governmental interest and a narrowly tailored remedy to 

that interest. If the Congress -- and there is no 

record of that in this case of which I am aware. 

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Certainly the government has not advanced it in its 

briefs: That there is some compelling governmental 

interest because of foreign investment in corporations.

 If there was, then the Court would look at, 

determine how serious is that interest, how destructive 

has it been to the process and whether the -- maybe the 

limitation would have something to do with the ownership 

of shares of a corporation or some --

JUSTICE SCALIA: Do you think Congress could 

prevent foreign individuals from funding speech in 

United States elections?

 MR. OLSON: The -- the --

JUSTICE SCALIA: Private individuals, 

foreigners who -- who want to --

MR. OLSON: That's, of course, a different 

question. I haven't studied it, Justice Scalia.

 JUSTICE SCALIA: Well, it's not different. 

I asked it because I thought it was related to the 

question you were answering.

 MR. OLSON: The fundamental point here is --

and let me start with this, and I think we should -- we 

should start with this, and the government hardly 

mentions this.

 JUSTICE STEVENS: Before you do, Mr. Olson 

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MR. OLSON: The language of the First 

Amendment, "Congress shall make" --

JUSTICE STEVENS: Mr. Olson -- Mr. Olson, 

would you answer Justice Ginsburg's question yes or no? 

Can the -- leaving aside foreign investors, can the --

can -- does the First Amendment permit any distinction 

between corporate speakers and individual speakers?

 MR. OLSON: I am not -- I'm not aware of a 

case that just --

JUSTICE STEVENS: I am not asking you that. 

I meant in your view does it permit that distinction?

 MR. OLSON: My view is based upon the 

decisions of this Court and my view would be that unless 

there is a compelling governmental interest and a 

narrowly --

JUSTICE STEVENS: But if there is a 

compelling government -- can there be any case in which 

there is a different treatment of corporations and 

individuals in your judgment?

 MR. OLSON: I would not rule that out, 

Justice Stevens. I mean, there may be. I can't imagine 

all of the infinite varieties of potential problems that 

might exist, but -- but we would eventually come back to 

the narrow tailoring problem anyway.

 What the government has done here is 

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prohibit speech. I don't know how many unions there are 

in this country, but there are something like 6 million 

corporations that filed tax returns in 2006.

 JUSTICE ALITO: Well, Mr. Olson, do you 

think that media corporations that are owned or 

principally owned by foreign shareholders have less 

First Amendment rights than other media corporations in 

the United States?

 MR. OLSON: I don't think so, Justice Alito, 

and certainly there is no record to suggest that there 

is any kind of problem based upon that. And I come back 

to the language of the First Amendment: "Congress shall 

make no law." Now, what this Court has repeatedly said 

is that there may be laws inhibiting speech if there is 

a compelling governmental interest and a narrowly 

tailored remedy. But there is no justification for 

this.

 I was going to say that 97 percent of the 6 

million corporations that filed tax returns in 2006 had 

assets less than $5 million -- assets, not net worth. 

So we are talking about a prohibition that covers every 

corporation in the United States, including nonprofit 

corporations, limited liability corporations, Subchapter 

S corporations and every union in the United States.

 JUSTICE GINSBURG: But what are the -- you 

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have used the word "prohibition," Mr. Olson. One answer 

to that is that no entity is being prohibited, that it 

is a question of not whether corporations can contribute 

but how. They can use PACs and that way we assure that 

the people who contribute are really supportive of the 

issue, of the candidate.

 But so the -- the corporation can give, but 

it has to use a PAC.

 MR. OLSON: I respectfully disagree. The 

corporation may not expend money. It might find people, 

stockholders or officers, who wanted to contribute to a 

separate fund, who could then speak. That in one -- to 

use the words of one Justice, that is 

ventriloquist-speak. I would say that it is more like 

surrogate speech. If you can find some other people 

that will say what you want to say and get them to 

contribute money through a process that this just --

JUSTICE GINSBURG: Who is the "you"? I mean 

do you -- you -- those are the directors, the CEO, not 

the shareholders? We don't know what they think.

 MR. OLSON: Well, this statute is not 

limited to cases where the shareholders agree or don't 

agree with what the corporation says. As the Court said 

in the Bellotti case, the prohibition would exist 

whether or not the shareholders agree. But let me go 

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back to your question.

 JUSTICE SCALIA: It -- it covers totally --

totally owned corporations, too, doesn't it?

 MR. OLSON: Yes.

 JUSTICE SCALIA: I mean, if I owned all the 

stock in a corporation, the corporation still can't --

MR. OLSON: Yes. And it includes membership 

corporations such as Citizens United that --

JUSTICE BREYER: And the individual 

contribution also covers people who would like to give 

$2500 instead of $2400, which is the limit. And maybe 

there are 100 million or 200 million people in the 

United States who, if they gave 2500 rather than 2400, 

nobody could say that that was really an effort to buy 

the Senator or the Congressman. So is that 

unconstitutional, too?

 MR. OLSON: No -- well, what this Court has 

said is that in connection with contribution limitations 

there is a potential compelling governmental interest.

 JUSTICE BREYER: Yes.

 MR. OLSON: This is what Buckley says.

 JUSTICE BREYER: Yes.

 MR. OLSON: Then that -- in that -- but 

expenditures, which is what we are talking about today, 

do not concern the -- the question, the actual threat of 

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quid pro quo corruption or the appearance of quid pro 

quo corruption. And you know, Justice Breyer, what the 

Court said in that case is because it's not inhibiting 

someone from actually speaking, it's -- it's giving 

money to someone --

JUSTICE BREYER: So here the obvious 

argument is: Look, they said the compelling interest is 

that people think that representatives are being bought, 

okay? That's to put it in a caricature, but you 

understand what I'm driving at, okay? That's what they 

said in Buckley v. Valeo. So Congress now says 

precisely that interest leads us to want to limit the 

expenditures that corporations can make on 

electioneering communication in the last 30 days of a 

primary, over-the-air television, but not on radio, not 

on books, not on pamphlets, not on anything else. All 

right?

 So in what respect is there not conceptually 

at least a compelling interest and narrow tailoring?

 MR. OLSON: Well, in the first place, I 

accept what the Court said in Buckley, that expenditures 

do not raise that concern at all. Congress has not made 

that finding. You are talking -- and you mentioned just 

-- just a matter of radio and television, but in Buckley 

v. Valeo the Court specifically said that that is the 

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most important means of communicating concerning 

elections --

JUSTICE BREYER: It's important --

MR. OLSON: And the Court used the word 

"indispensable." So what -- and -- and what the Court 

said in Buckley v. Valeo is it compared a limitation on 

expenditures, independent uncoordinated expenditures, 

with the prohibition that the Court addressed when it 

had a statute before it that said newspapers couldn't 

endorse candidates on the day of election, and the 

Torneo case, where it required a right of reply to be 

given. And the Court said those restrictions, which 

were unconstitutional, were considerably less, and that 

the restriction in Buckley v. Valeo on expenditures --

JUSTICE KENNEDY: I -- I agree -- I agree 

that Buckley made the distinction between contributions 

and expenditures, and it seems to me that the 

government's argument necessarily wants to water down 

that distinction. But in response or just in 

furtherance of Justice Breyer's point, you have two 

cases, one in which an officeholder goes to a 

corporation and says: Will you please give me money? 

They say: We can't do that.

 The other is in which a corporation takes 

out an ad for the -- for the candidate, which relieves 

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that candidate of the responsibility of -- of 

substantial television coverage. Isn't that about the 

same?

 MR. OLSON: Well, in the first place, if 

there is any coordination --

JUSTICE KENNEDY: And I -- and I think 

Buckley says no.

 MR. OLSON: Buckley says --

JUSTICE KENNEDY: But, as a practical 

matter, is that always true?

 MR. OLSON: Well, it may not always be true. 

In the infinite potential applications of something like 

that, Justice Kennedy, anything might possibly be true. 

And Justice Breyer said, well, what if Congress thought 

or what if Congress thought the people might think that 

that was kind of somehow suspect? That is not a basis 

for prohibiting speech by a whole class of individual --

JUSTICE BREYER: Well, of course, it did --

was a basis for prohibiting speech by, in the sense of 

giving contributions above $2,400, by 300 million people 

in the United States. But the point, which I think is 

the one that Justice Kennedy was picking up, is are we 

arguing here between you and my questions, is the 

argument in this case about the existence of a 

compelling interest? Because Congress seemed to think 

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that there was certainly that; it's this concern about 

the perception that people are, say, buying candidates.

 Are we arguing about narrow tailoring? 

Congress thought it was narrow tailoring. Or are we 

arguing about whether we should second-guess Congress on 

whether there is enough of a compelling interest and the 

tailoring is narrow enough?

 MR. OLSON: You must always second-guess 

Congress when the First Amendment is in play. And that 

we are arguing -- we are not -- we are discussing --

JUSTICE BREYER: Yes.

 MR. OLSON: -- both the compelling --

(Laughter.)

 MR. OLSON: -- both the compelling 

governmental interest and the narrow tailoring, and 

what -- what -- there is not a sufficient record. The 

reason --the government has shifted position here. They 

were, first of all, talking about the so-called 

distortion rationale in Austin, the distortion rationale 

which they seem to have abandoned in the -- in the 

supplemental briefs filed in connection with this 

argument, and they resorted to the corruption, 

appearance of corruption. There isn't a sufficient 

record of this. There isn't --

JUSTICE GINSBURG: But what about the 

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district court's finding? Wasn't there a finding before 

the three-judge court that Federal officials know of and 

feel indebted to corporations or unions who finance ads 

urging their election or the defeat of their opponent? 

There was a finding of fact to that effect, was there 

not?

 MR. OLSON: The find -- yes. I -- there is 

something to that effect in the district court opinion, 

but it doesn't cover all corporations. It didn't focus 

in specifically on expenditures.

 JUSTICE GINSBURG: So if -- so if they just 

covered large corporations, so you take out the mom and 

pop single shareholder --

MR. OLSON: Well, that is 97 percent of the 

corporation.

 JUSTICE GINSBURG: Not 97 percent of the 

contributions. I mean, the contributions that count are 

the ones from the corporations that can amass these huge 

sums in their treasuries.

 MR. OLSON: I think that goes back to 

Justice Kennedy's question, and my response, which 

distinguishes between contributions and expenditures. 

The point that Justice Kennedy was making in his 

question is that under -- under some circumstances an 

expenditure might coincide or resonate with what the 

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candidate wishes to do, but the Court looked at that 

very carefully in Buckley v. Valeo and said that might 

not be the case. It might, in fact, be these 

expenditures might be counterproductive when they are 

independent, they are not coordinated with the 

candidate, they are more directly expression by the 

party spending the money, they are not like a 

contribution, so they are more of an infringement on the 

right to speak.

 CHIEF JUSTICE ROBERTS: Counsel --

MR. OLSON: And they are less of a threat of 

corruption because there is less -- there is no quid pro 

quo there, and if there is it would be punishable as a 

crime.

 CHIEF JUSTICE ROBERTS: Counsel, in your 

discussion of Austin, you rely on its inconsistency with 

Bellotti. Bellotti, of course, involved a referendum 

and Austin expenditures in an individual election. Why 

isn't that a significant distinction?

 MR. OLSON: Well, it is -- it is -- what the 

Bellotti Court said is that we are not deciding that 

question.

 And -- and Austin did address, you are 

correct, expenditures, but it based it on a rationale --

JUSTICE STEVENS: It more than said we are 

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not deciding. It said they are entirely different 

situations. You read that long footnote which has been 

cited six or eight times by our later cases.

 MR. OLSON: Yes. And I also read the 

footnote 14 in the Bellotti case that cited case after 

case after case that said corporations had rights, 

protected rights under the First Amendment. I am not 

disagreeing with what you just said, Justice Stevens. 

The Court said it was -- it was dicta, because the Court 

did not deal with --

JUSTICE STEVENS: But it has been 

repeated -- that footnote has been repeatedly cited in 

subsequent cases, most of which were unanimous.

 MR. OLSON: Well, because it was -- and I 

agree the Bellotti Court was not discussing that. But 

The Bellotti Court --

JUSTICE STEVENS: It did discuss it 

precisely in that footnote and it said it's a different 

case.

 MR. OLSON: I understand and I don't 

disagree with what you have just said, Justice Stevens.

 JUSTICE SCALIA: It didn't say it would come 

out differently. It just said, we're not deciding that 

case, right?

 MR. OLSON: That -- that is -- that's the 

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point I'm trying to make.

 JUSTICE SCALIA: I don't mind citing that. 

Bellotti didn't decide that.

 MR. OLSON: What Bellotti also said is --

and I think this is also in many decisions of this Court 

-- the inherent worth of speech in terms of its capacity 

for informing the public does not depend upon the 

identity of the source, whether corporation, 

association, union, or individual.

 CHIEF JUSTICE ROBERTS: Now that we've 

cleared up that Bellotti didn't decide the question, 

what is the distinction that -- why don't you think that 

distinction makes sense? In other words, a corporate --

you don't have a potential for corruption if a 

corporation is simply speaking on a referendum that may 

directly affect its interest. If you are dealing with a 

candidate, what the Court has said in the past is that 

you do have that problem of corruption.

 MR. OLSON: Well --

CHIEF JUSTICE ROBERTS: In other words, why 

isn't that distinction a way to reconcile Bellotti and 

Austin?

 MR. OLSON: There is a distinction, but I 

think the distinction goes back to, A, expenditures 

versus contributions, number one; and then secondly, it 

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goes back to what this Court said in conjunction with 

the impossibility of finding a distinction between issue 

ads and candidate ads. The line dissolves on practical 

application. The interest --

CHIEF JUSTICE ROBERTS: Where did we say 

that?

 MR. OLSON: You said that repeatedly, 

including most recently in the Wisconsin Right to Life 

case. And it first appeared in Buckley itself. The 

distinction is very hard to draw between the interest 

that the speaker is addressing and whether it's a 

candidate or an issue, because issues are wrapped up in 

candidates. The corporation interest and the interests 

that its fiduciary officers are representing when it 

speaks on behalf of the corporation --

JUSTICE STEVENS: I don't think you are 

correct to say the Court said there was no distinction. 

It said the distinction requires the use of magic words. 

And that's what they said in Wisconsin Right to Life, 

too. Both of them said there is a distinction.

 MR. OLSON: Well, but the words --

JUSTICE STEVENS: It's difficult to draw in 

some cases, but nobody said there is no distinction that 

I am aware of.

 MR. OLSON: Well, what the Court -- to 

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use -- to use the words of the Court, which occurred 

repeatedly, is that the distinction dissolves 

impractical application. That, Justice Stevens, I think 

addresses the very commonsense point that when you are 

addressing an issue, whether you are addressing a 

referendum matter, whether it is a proposed legislation 

or a candidate that is going to raise taxes on the 

corporation, those distinctions dissolve. It's all 

First Amendment freedom.

 JUSTICE SCALIA: I -- I -- I thought that 

Buckley had narrowed the statute precisely to magic 

words and still found it unconstitutional as applied to 

corporations that made independent expenditures.

 MR. OLSON: Yes.

 JUSTICE SCALIA: Isn't that what happened in 

Buckley?

 MR. OLSON: The $1,000 limit in Buckley was, 

first of all, limited to the magic words "candidacy 

expression"; then secondly, the Court -- and the -- and 

the words of the statute were "any person," which 

included corporations found, the statute as narrowed 

unconstitutional and said --

JUSTICE SCALIA: And some of the plaintiffs 

were corporations.

 MR. OLSON: Some of the plaintiffs were 

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corporations.

 JUSTICE STEVENS: Yes, but that point wasn't 

even discussed in the opinion, was it?

 MR. OLSON: It was not discussed in the 

opinion.

 JUSTICE STEVENS: No.

 MR. OLSON: But what was discussed in the 

opinion was the breadth of the definition of "person," 

which did include corporation. Corporations were 

parties in the case. And in that part of the Buckley 

case, the Court repeatedly cites cases involving 

corporations, including NAACP v. Alabama and New York 

Times v. Sullivan, all cases involving corporations.

 So while it wasn't specifically discussed, 

it was a part of the decision of the Court that a $1,000 

limitation was worse, more restrictive than the -- than 

the restriction of editorials appearing on election day 

or requiring a newspaper to give a right of reply.

 The Court in Buckley in fact says, this 

is -- with respect to that expenditure limitation, the 

words of the Court were this is the most drastic of the 

limitations imposed by the Federal Election Campaign 

Act. It goes to the core of First Amendment freedom.

 JUSTICE BREYER: If that is so -- this is a 

point that is concerning me. I don't know the answer 

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precisely. But suppose you are right. Suppose we 

overrule these two cases. Would that leave the country 

in a situation where corporations and trade unions can 

spend as much as they want in the last 30 days on 

television ads, et cetera, of this kind, but political 

parties couldn't, because political parties can only 

spend hard money on this kind of expenditure? And 

therefore, the group that is charged with the 

responsibility of building a platform that will appeal 

to a majority of Americans is limited, but the groups 

that have particular interests, like corporations or 

trade unions, can spend as much as they want?

 Am I right about the consequence? If I am 

right, what do we do about it?

 MR. OLSON: I think you are wrong about the 

consequence. There are 27 States that have no 

limitations on either contributions or expenditures and 

that -- the Earth is not --

JUSTICE BREYER: No, I'm not -- I'm not -- I 

am saying am I right in thinking that if you win, the 

political party can't spend this money, it's limited to 

hard money contributions, but corporations and trade 

unions can spend unlimited funds?

 MR. OLSON: Well, if -- if the Court decides 

in favor of the arguments that we are making here, I 

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think what you are suggesting is that because there are 

other limitations that someone has not challenged in 

this case, that that would be somehow unfair and 

unbalanced.

 JUSTICE BREYER: No, I'm not suggesting 

that. I am suggesting we will make a hash of this 

statute, and if we are going to make a hash of this 

statute, what do we do about it? And that's why I want 

you to take a position on another important part of that 

statute, and that is the part that says political 

parties themselves cannot make these expenditures that 

we are talking about except out of hard money.

 MR. OLSON: What -- I want to address that 

in this way, and I said when we were here before the 

most fundamental right that we can exercise in a 

democracy under the First Amendment is dialogue and 

communication about political candidates. We have 

wrapped up that freedom, smothered that freedom, with 

the most complicated set of regulations and bureaucratic 

controls. Last year the Federal Election Commission 

that was supposed to be able to give advisory opinions 

didn't even have a quorum for 6 months of the year 2008 

when people would have needed some help from the Federal 

Election Commission.

 What I am saying, in answer to your 

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question, Justice Breyer, there are, I suspect, all 

kinds of problems with Federal election laws where they 

apply to parties and where they apply to what candidates 

might do and so forth; but that has never been a 

justification. We will uphold a prohibition on all 

kinds of people speaking because if we allowed them to 

speak someone else might complain that they don't get to 

speak as much as they would like.

 JUSTICE KENNEDY: Well, with reference to 

any incongruities that might flow from our adopting your 

position, are you aware of any case in this Court which 

says that we must refrain from addressing an 

unconstitutional aspect of the statute because the 

statute is flawed in some other respects as well?

 MR. OLSON: No, I'm not, and that's -- I 

think that was what I was attempting to say in response 

to what Justice Breyer was asking me.

 JUSTICE SOTOMAYOR: Mr. Olson, are you 

giving up on your earlier arguments that there are ways 

to avoid the constitutional question to resolve this 

case? I know that we asked for further briefing on this 

particular issue of overturning two of our Court's 

precedents. But are you giving up on your earlier 

arguments that there are statutory interpretations that 

would avoid the constitutional question? 

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MR. OLSON: No, Justice Sotomayor. What --

what -- there are all kinds of lines that the Court 

could draw which would provide a victory to my client. 

There are so many reasons why the Federal Government did 

not have the right to criminalize this 90-minute 

documentary that had to do with elections, but what the 

Court addressed specifically in the Washington Right to 

Life case is that the lines if they are to be drawn must 

not be lines that are ambiguous, that invite litigation, 

that hold the threat of prosecution over an individual; 

and in practical application that is what the --

JUSTICE SOTOMAYOR: Mr. Olson, my difficulty 

is that you make very impassioned arguments about why 

this is a bad system that the courts have developed in 

its jurisprudence, but we don't have any record 

developed below. You make a lot of arguments about how 

far and the nature of corporations, single corporations, 

single stockholder corporations, et cetera. But there 

is no record that I am reviewing that actually goes into 

the very question that you're arguing exists, which is a 

patchwork of regulatory and jurisprudential guidelines 

that are so unclear.

 MR. OLSON: I would like to answer that. 

There are several answers to it and I would like to 

reserve the balance of my time for rebuttal. It is the 

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government has the burden to prove the record that 

justifies telling someone that wants to make a 90-minute 

documentary about a candidate for president that they 

will go to jail if they broadcast it. The government 

has the obligation and the government had a long 

legislative record and plenty of opportunity to produce 

that record and it's their obligation to do so.

 JUSTICE STEVENS: Mr. Olson --

JUSTICE SOTOMAYOR: But the facial 

challenge --

JUSTICE STEVENS: -- may I ask one question 

you can answer on rebuttal? No one has commented on the 

National Rifle Association's amicus brief. None of the 

-- none of the litigants have. That's in response to 

Justice Sotomayor's thought that there are narrow ways 

of resolving the problem before us. On rebuttal, will 

you tell us what your view on their solution to this 

problem is?

 MR. OLSON: I will, Justice Stevens.

 CHIEF JUSTICE ROBERTS: Why don't you tell 

us now. We will give you time for rebuttal.

 (Laughter.)

 JUSTICE SCALIA: Don't keep us in suspense.

 (Laughter.)

 MR. OLSON: Every line, including the lines 

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that would be drawn in several of the amicus briefs, and 

they are not the same, could put the entity who wishes 

to speak before you again a year from now. Because the 

movie might be shorter, it might be video on demand, it 

might be a broadcast, it might have a different tone 

with respect to a candidate. Every one of those lines 

puts the speaker at peril that he will go to jail or be 

prosecuted or there will be litigation, all of which 

chills speech and inhibits individual --

JUSTICE STEVENS: No, but to answer my 

question, the line suggested by the NRA is the line 

identified by Congress in the Snowe-Jeffords amendment 

dealing with individual financing of speech which would 

separate all of these problems. What is your comment on 

that possible solution to the problem?

 MR. OLSON: I would like to take advantage 

of Justice Stevens' offer and respond to that during the 

rebuttal, Mr. Chief Justice.

 (Laughter.)

 CHIEF JUSTICE ROBERTS: Thank you, Mr. 

Olson.

 Mr. Abrams.

 ORAL ARGUMENT OF FLOYD ABRAMS

 ON BEHALF OF SENATOR MITCH McCONNELL,

 AS AMICUS CURIAE, 

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IN SUPPORT OF THE APPELLANT

 MR. ABRAMS: Mr. Chief Justice, and may it 

please the Court:

 The first case cited to you by Mr. Olson 

happened to be New York Times v. Sullivan, and I would 

like to begin by urging two propositions on you from 

that case.

 In that case the Court was confronted with a 

situation where the Times made three arguments to the 

Court. They said -- for us to win, they said, you 

either have to revise, basically federalize, libel law 

to a considerable degree, which they did; or, they said, 

we only sold 390 copies in Alabama, so you could rule in 

our favor by saying there was no jurisdiction; or, they 

said, we didn't even mention Sheriff Sullivan's name, so 

you could rule in our favor on the ground that they 

haven't proved a libel case.

 The Court did the first. It did the first, 

which is the broader rather than the narrowest way to 

address the question, and I suspect they did it -- don't 

know, but I suspect they did it -- because they had come 

to the conclusion that the degree of First Amendment 

danger by the sort of lawsuits which were occurring in 

Alabama and elsewhere was something that had to be faced 

up to by the Court now, or --

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JUSTICE GINSBURG: Mr. Abrams, Times v. 

Sullivan was not -- did not involve overruling 

precedents of this Court that had been followed by this 

Court and others. So, I think the situation is quite 

different.

 MR. ABRAMS: That's true, Your Honor. It 

did involve overruling 150 years of American 

jurisprudence. I mean, there was no law at that point 

that said that actual malice --

JUSTICE GINSBURG: There was no -- there was 

no decision of this Court, I mean --

MR. ABRAMS: That's true, Your Honor.

 JUSTICE GINSBURG: We do tend to adhere to 

our precedents --

MR. ABRAMS: Yes.

 JUSTICE GINSBURG: -- especially a case like 

Austin which was repeating the business about amassing 

large funds in corporate treasuries. It was not a new 

idea in Austin, and it was repeated after -- after 

Austin. But there was -- so Times v. Sullivan I think 

is quite distinct.

 The question that was posed here is, is it a 

proper way to resolve this case, to overrule one 

precedent in full and another in part?

 MR. ABRAMS: And what I'm urging on you, 

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Your Honor, is that by a parity of reasoning, although 

not precisely the same situation, that there are cases 

in which there is a -- an ongoing threat to freedom of 

expression which may lead -- if you were to agree to 

that, which may lead the Court to say, rather than 

taking a narrower route to the same result, that it is 

worth our moving away in this case from looking for the 

narrowest way out, and determining it now, rather than 

the next as-applied challenge.

 JUSTICE SCALIA: There are -- there are two 

separate questions that -- that have been raised in 

opposition to your position. One is -- one is that we 

should not resolve a broad constitutional issue where 

there are narrower grounds, and that's the question you 

are responding to.

 An entirely separate question is the issue 

of stare decisis, and you acknowledge that stare decisis 

was not involved in New York Times v. Sullivan, but the 

first question obviously was.

 MR. ABRAMS: And stare decisis of course is 

a question much -- much briefed by the parties, and it 

is one which involves of course a consideration not only 

of the merits of the decision, but certain other 

factors, the length of time the decision has been in 

effect and the like. The time in this case for the 

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McConnell case, of course, is only 6 years. The time 

for the Austin case is 19 years, which is less than one 

ruling of this Court's just last term.

 JUSTICE GINSBURG: But what the Court said 

in Austin it also said in the NRWC case, which was I 

think 8 years before Austin. So Austin was not a new 

invention.

 MR. ABRAMS: Well, Austin was the first time 

that corporate speech was barred -- corporate 

independent expenditures were barred by a ruling of this 

Court. That had not happened prior to Austin, and the 

Solicitor General's brief acknowledges that. Now --

JUSTICE GINSBURG: But there have been 

limits on corporate spending in aid of a political 

campaign since the turn of the 20th century.

 MR. ABRAMS: There had been limits on 

corporate contributions since the turn of the century. 

Corporate independent expenditures came much later and I 

think that is something that I think is worth --

JUSTICE STEVENS: Much later than 1947.

 MR. ABRAMS: Yes, Your Honor. In 1947, 

President Truman vetoed that bill, saying that it was a 

dangerous intrusion into free speech. That has always 

been an area of enormous controversy, not just in the 

public sphere but in the judicial sphere. The early 

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cases about Taft-Hartley were ones in which what the 

Court did was to basically say in one case after another 

that the statute did not govern the particular facts of 

the case so as to avoid --

JUSTICE STEVENS: But those were union 

cases, weren't they, rather than corporate cases?

 MR. ABRAMS: Yes, they were three union 

cases. And the case after that essentially was Buckley. 

And Buckley held unconstitutional the limits posed there 

to independent expenditures. All I'm saying is that 

this is not a situation as if we have an unbroken amount 

of years throughout American history in which it has 

been accepted that independent expenditures could be 

barred. It has always been a matter of high level of 

controversy, with courts at first and understandably 

shying away from facing up to the issue directly and 

then the first ruling on point.

 JUSTICE STEVENS: But have you read Justice 

Rehnquist's dissent in the Bellotti case?

 MR. ABRAMS: I'm sorry, Your Honor.

 JUSTICE STEVENS: Have you read Justice 

Rehnquist's dissent in the Bellotti case?

 MR. ABRAMS: Yes, I have.

 JUSTICE STEVENS: Which is somewhat 

inconsistent with what you said. 

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MR. ABRAMS: Yes, it is.

 CHIEF JUSTICE ROBERTS: And also 

inconsistent with his later view, correct?

 MR. ABRAMS: Yes.

 Yes, Justice?

 JUSTICE SOTOMAYOR: Going back to the 

question of stare decisis, the one thing that is very 

interesting about this area of law for the last 

100 years is the active involvement of both State and 

Federal legislatures in trying to find that balance 

between the interest of protecting in their views how 

the electoral process should proceed and the interests 

of the First Amendment.

 And so my question to you is, once we say 

they can't, except on the basis of a compelling 

government interest narrowly tailored, are we cutting 

off or would we be cutting off that future democratic 

process? Because what you are suggesting is that the 

courts who created corporations as persons, gave birth 

to corporations as persons, and there could be an 

argument made that that was the Court's error to start 

with, not Austin or McConnell, but the fact that the 

Court imbued a creature of State law with human 

characteristics.

 But we can go back to the very basics that 

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way, but wouldn't we be doing some more harm than good 

by a broad ruling in a case that doesn't involve more 

business corporations and actually doesn't even involve 

the traditional nonprofit organization? It involves an 

advocacy corporation that has a very particular 

interest.

 MR. ABRAMS: Your Honor, I don't think you'd 

be doing more harm than good in vindicating the First 

Amendment rights here, which transcend that of Citizens 

United.

 I think that, reading my friend's brief here 

on the right, they come -- some of them at least come 

pretty close to saying that there must be a way for 

Citizens United to win this case other than a broad way. 

In my view the principles at stake here are the same. 

Citizens United happens to be sort of the paradigmatic 

example of the sort of group speaking no less about who 

to vote for or not who to vote for or what to think 

about a potential ongoing candidate for President of the 

United States. But in lots of other situations day by 

day there is a blotch to public discourse caused as a 

result of this Congressional legislation.

 And so we think it is not a matter of 

cutting off what legislatures can do. They can still 

pass legislation doing all sorts of things. They can do 

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public funding. They can do many other things that 

don't violate the First Amendment. If we are right in 

saying that independent expenditures, that category of 

money leading to speech that we are talking about today, 

if we are right that that is the sort of speech which is 

at the core of the First Amendment, then you would be 

doing only good, only good, by ruling that way today 

across the board.

 Thank you, Your Honor.

 CHIEF JUSTICE ROBERTS: Thank you, Mr. 

Abrams.

 General Kagan.

 ORAL ARGUMENT OF ELENA KAGAN

 ON BEHALF OF THE APPELLEE

 GENERAL KAGAN: Mr. Chief Justice and may it 

please the Court:

 I have three very quick points to make about the 

government position. The first is that this issue has a 

long history. For over 100 years Congress has made a 

judgment that corporations must be subject to special 

rules when they participate in elections and this Court 

has never questioned that judgment.

 Number two --

JUSTICE SCALIA: Wait, wait, wait, wait. We 

never questioned it, but we never approved it, either. 

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And we gave some really weird interpretations to the 

Taft-Hartley Act in order to avoid confronting the 

question.

 GENERAL KAGAN: I will repeat what I said, 

Justice Scalia: For 100 years this Court, faced with 

many opportunities to do so, left standing the 

legislation that is at issue in this case -- first the 

contribution limits, then the expenditure limits that 

came in by way of Taft-Hartley -- and then of course in 

Austin specifically approved those limits.

 JUSTICE SCALIA: I don't understand what you 

are saying. I mean, we are not a self -- self-starting 

institution here. We only disapprove of something when 

somebody asks us to. And if there was no occasion for 

us to approve or disapprove, it proves nothing whatever 

that we didn't disapprove it.

 GENERAL KAGAN: Well, you are not a 

self-starting institution. But many litigants brought 

many cases to you in 1907 and onwards and in each case 

this Court turns down, declined the opportunity, to 

invalidate or otherwise interfere with this legislation.

 JUSTICE KENNEDY: But that judgment was 

validated by Buckley's contribution-expenditure line. 

And you're correct if you look at contributions, but 

this is an expenditure case. And I think that it 

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doesn't clarify the situation to say that for

100 years -- to suggest that for 100 years we would have

allowed expenditure limitations, which in order to work

at all have to have a speaker-based distinction,

exemption from media, content-based distinction,

time-based distinction. We've never allowed that.

 GENERAL KAGAN: Well, I think 

Justice Stevens was right in saying that the expenditure 

limits that are in play in this case came into effect in 

1947, so it has been 60 years rather than 100 years. 

But in fact, even before that the contribution limits 

were thought to include independent expenditures, and as 

soon as Congress saw independent expenditures going on 

Congress closed what it perceived to be illegal. So in 

fact for 100 years corporations have made neither 

contributions nor expenditures, save for a brief period 

of time in the middle 1940's, which Congress very 

swiftly reacted to by passing the Taft-Hartley Act.

 Now, the reason that Congress has enacted 

these special rules -- and this is the second point that 

I wanted to make --

JUSTICE STEVENS: Before you go to your 

second point, may I ask you to clarify one part of the 

first, namely, your answer to the question I proposed to 

Mr. Olson, namely, why isn't the Snowe-Jeffords 

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Amendment, which was picked on by Congress itself, an --

and which is argued by the NRA, an appropriate answer to 

this case?

 GENERAL KAGAN: That was my third point, 

Justice Stevens.

 JUSTICE STEVENS: Oh, I'm sorry.

 (Laughter.)

 GENERAL KAGAN: So we will just skip over 

the second.

 My third point is that this is an anomalous 

case in part because this is an atypical plaintiff. And 

the reason this is an atypical plaintiff is because this 

plaintiff is an ideological nonprofit and --

CHIEF JUSTICE ROBERTS: So you are giving up 

-- you are giving up the distinction from MCFL that you 

defended in your opening brief? There you said this 

doesn't qualify as a different kind of corporation 

because it takes corporate funds, and now you are 

changing that position?

 GENERAL KAGAN: No, I --I don't think we are 

changing it. MCFL is the law, and the FEA -- FEC has 

always tried to implement MCFL faithfully. And that's 

what the FEC has tried to do. But if you --

CHIEF JUSTICE ROBERTS: So I guess -- do you 

think MCFL applies in this case even though the 

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corporation takes corporate funds from for-profit 

corporations?

 GENERAL KAGAN: I don't think MCFL as 

written applies in this case, but I think that the Court 

could, as lower courts have done, adjust MCFL 

potentially to make it apply in this case, although I 

think that would require a remand. What lower courts 

have done -- MCFL was set up, it was written in a very 

strict kind of way so that the organization had to have 

a policy of accepting no corporate funds whatsoever.

 Some of the lower courts, including the D.C. 

Circuit, which, of course, sees a lot of these cases, 

have suggested that MCFL is too strict, that it doesn't 

CHIEF JUSTICE ROBERTS: Do you -- do you 

think it's too strict?

 GENERAL KAGAN: I -- I -- the FEC has no 

objection to MCFL being adjusted in order to -- to give 

it some flexibility. What the --

CHIEF JUSTICE ROBERTS: So you want to give 

up this case, change your position, and basically say 

you lose solely because of the questioning that we have 

directed on reargument?

 GENERAL KAGAN: Solely because? I am sorry?

 CHIEF JUSTICE ROBERTS: Because of the 

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question we have posed on reargument.

 GENERAL KAGAN: No, I don't think that that 

is fair. We think -- we continue to think that the --

the judgment below should be affirmed. If you are 

asking me, Mr. Chief Justice, as to whether the 

government has a preference as to the way in which it 

loses, if it has to lose, the answer is yes.

 CHIEF JUSTICE ROBERTS: What case of ours --

what case of ours suggests that there is a hierarchy of 

bases on which we should rule against a party when both 

of them involve constitutional questions? Extending --

modifying MCFL would be, I assume, by virtue of the 

First Amendment. Overruling Austin would be by virtue 

of the First Amendment. So what case says we should 

prefer one as opposed to the other?

 GENERAL KAGAN: I think the question really 

is the Court's standard practice of deciding as-applied 

challenges before facial challenges. And this case 

certainly raises a number of tricky as-applied 

questions. One is the question of how the -- the 

statute applies to nonprofit organizations such as this 

one. Another is a question of how it applies to VOD 

transmissions. Yet another is the question of how it 

applies to a 90-minute infomercial as opposed to smaller 

advertisements. 

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JUSTICE KENNEDY: But if you -- if you 

insist on the as-applied challenge, isn't that 

inconsistent with the whole line of cases that began in 

Thornhill v. Alabama and Coates v. Cincinnati? What 

about the Thornhill doctrine? It is not cited in the 

briefs, but that doctrine is that even a litigant 

without standing to object to a particular form of 

conduct can raise that if the statute covers it in order 

that the statute does not have an ongoing chill against 

speech. And there is no place where an ongoing chill is 

more dangerous than in the elections context.

 GENERAL KAGAN: Well, I think even --

JUSTICE KENNEDY: So you are asking us to 

have an ongoing chill where we have as-applied 

challenges which are based on, as I indicated before, 

speaker, content, time, and this is the kind of chilling 

effect that the Thornhill doctrine stands directly 

against.

 GENERAL KAGAN: You know, I think even in 

the First Amendment context, Justice Kennedy, the Court 

will not strike down a statute on its face unless it 

finds very substantial overbreadth, many applications of 

the statute that are unconstitutional, as opposed to 

just a few or just some. What I am suggesting here is 

that the Court was right in McConnell and then confirmed 

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in WRTL to find that BCRA, which is of course the only 

statute directly involved in this case, did not have 

that substantial overdraft.

 JUSTICE KENNEDY: Let me ask you this. 

Suppose that we were to rule that nonprofit corporations 

could not be covered by the statute. Would that --

would the statute then have substantial overbreadth?

 GENERAL KAGAN: Well, I would urge you not 

to do that in that kind of sweeping way, because the 

reason for the nonprofit corporations being covered is 

to make sure that the nonprofit corporations don't 

function as conduits for the for-profit corporations.

 JUSTICE KENNEDY: But suppose we were to say 

that. Would the statute then not be substantially 

overbroad?

 GENERAL KAGAN: Well, I don't think that the 

statute is substantially overbroad right now. So if you 

took out certain applications, I can't think --

JUSTICE KENNEDY: But I am asking you to 

assume that we draw the nonprofit/profit distinction. 

Then the statute, it seems to me, clearly has to fall 

because, number one, we couldn't sever it based on the 

language.

 GENERAL KAGAN: I see what you are saying. 

Well, you could do a couple of things. You could do 

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what Justice Stevens suggested. Justice Stevens 

suggested -- I suggested to Chief Justice Roberts --

JUSTICE STEVENS: I don't think you -- I 

don't think you really caught what I suggested because 

you treated it as an enlargement of the MCFL example.

 GENERAL KAGAN: I was going to go back.

 JUSTICE STEVENS: But that is not what the 

National Rifle Association argues or what Snowe-Jeffords 

covers. It covers ads that are financed exclusively by 

individuals even though they are sponsored by a 

corporation.

 GENERAL KAGAN: Yes, that's exactly right. 

What you are suggesting, Justice Stevens, is essentially 

stripping the Wellstone amendment from the --

JUSTICE STEVENS: Correct and treating the 

Snowe-Jeffords amendment as being the correct test. And 

nobody has explained why that wouldn't be a proper 

solution, not nearly as drastic as -- as being argued 

here.

 GENERAL KAGAN: Yes, and there are some, you 

know -- there are -- there are some reasons that that 

might -- that might be appropriate. The Wellstone 

amendment was a funny kind of thing. It was passed very 

narrowly, but beyond that it was passed with a -- a 

really substantial support of many people who voted 

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against the legislation in the end, presumably as a 

poison pill.

 JUSTICE BREYER: Well, if we -- if we go --

if we go that route, what we are doing is creating an 

accounting industry, aren't we? Corporations give huge 

amounts of money to the C-4 organization, and then 

somebody, perhaps the FEC, has to decide whether in fact 

that is a way of subverting the prohibition against the 

direct payment for the communication, right? Okay, so 

Congress said, we don't want that. Congress said, 

that's going to be a nightmare, and we decide Wellstone, 

for whatever reasons.

 Now don't we have to focus on whether 

Congress can say that or whether it can't?

 JUSTICE STEVENS: But --

JUSTICE BREYER: And I don't know why it 

cannot say it.

 JUSTICE STEVENS: Congress also said if you 

strike down the Wellstone amendment, we want the SnoweJeffords amendment.

 JUSTICE BREYER: That's true.

 JUSTICE STEVENS: And why shouldn't we 

follow that direction?

 GENERAL KAGAN: If you strike down the 

Wellstone amendment, what is left is the Snowe-Jeffords 

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amendment --

JUSTICE STEVENS: Right.

 GENERAL KAGAN: -- which allows nonprofit 

organizations of the kind here to fund these ads out of 

separate bank accounts, not PACs just separate bank 

accounts --

JUSTICE STEVENS: Correct.

 GENERAL KAGAN: -- which include only 

individual expenditures.

 JUSTICE STEVENS: Then why is that not the 

-- the wisest narrow solution of the problem before us?

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certainly a narrower and I think better solution than a 

facial invalidation of the whole statute.

 CHIEF JUSTICE ROBERTS: Counsel, what do you 

-- what do you understand to be the compelling interest 

that the Court articulated in Austin?

 GENERAL KAGAN: I think that what the Court 

articulated in Austin -- and, of course, in the 

government briefs we have suggested that Austin did not 

articulate what we believe to be the strongest 

compelling interest, which is the anticorruption 

interest. But what the Court articulated in Austin was 

essentially a concern about corporations using the 

corporate form to appropriate other people's money for 

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expressive purposes.

 CHIEF JUSTICE ROBERTS: Right. So but you 

-- you have more or less -- "abandoned" is too strong a 

word, but as you say you have relied on a different 

interest, the quid pro quo corruption. And you -- you 

articulate on page 11 of your brief -- you recognize 

that this Court has not accepted that interest as a 

compelling interest.

 So isn't it the case that as you view Austin 

it is kind of up for play in the sense that you would 

ground it on an interest that the Court has never 

recognized?

 GENERAL KAGAN: Well, a couple of points. 

The first thing is, as you say, we have not abandoned 

Austin. We have simply said that in addition --

CHIEF JUSTICE ROBERTS: Where --

GENERAL KAGAN: -- to other people's money 

interest that --

CHIEF JUSTICE ROBERTS: Where in your --

where in your supplemental briefing do you say that this 

aggregation of wealth interest supports Austin?

 GENERAL KAGAN: I would not really call it 

an aggregation of wealth interest. I would say that 

it's -- it's a concern about corporate use of other 

people's money to --

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CHIEF JUSTICE ROBERTS: Putting it outside, 

putting the quid pro quo interest aside, where in your 

supplemental briefing do you support the interest that 

was articulated by the Court in Austin?

 GENERAL KAGAN: Where we talk about 

shareholder protection and where we talk about the 

distortion of the electoral process that occurs when 

corporations use their shareholders' money who may or 

may not agree --

CHIEF JUSTICE ROBERTS: I understand that to 

be a different interest. That is the shareholder 

protection interest as opposed to the fact that 

corporations have such wealth and they -- they distort 

the marketplace.

 GENERAL KAGAN: Well, I -- I think that they 

are connected because both come --

CHIEF JUSTICE ROBERTS: So -- so am I right 

then in saying that in the supplemental briefing you do 

not rely at all on the market distortion rationale on 

which Austin relied; not the shareholder rationale, not 

the quid pro quo rationale, the market distortion issue. 

These corporations have a lot of money.

 GENERAL KAGAN: We do not rely at all on 

Austin to the extent that anybody takes Austin to be 

suggesting anything about the equalization of a speech 

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market. So I know that that's the way that many people 

understand the distortion rationale of Austin, and if 

that's the way the Court understands i, we do not rely 

at all on that.

 JUSTICE GINSBURG: So --

CHIEF JUSTICE ROBERTS: So if we have to 

preserve -- if we are going to preserve Austin we have 

to accept your invitation that the quid pro quo interest 

supports the holding there or the shareholder protection 

interest.

 GENERAL KAGAN: I would say either the quid 

pro quo interest, the corruption interest or the 

shareholder interest, or what I would say is a -- is 

something related to the shareholder interest that is in 

truth my view of Austin, which is a view that when 

corporations use other people's money to electioneer, 

that is a harm not just to the shareholders themselves 

but a sort of a broader harm to the public that comes 

from distortion of the electioneering that is done by 

corporations.

 JUSTICE SCALIA: Let's -- let's talk about 

overbreadth. You've -- let's assume that that is a 

valid interest. What percentage of the total number of 

corporations in the country are not single shareholder 

corporations? The local hairdresser, the local auto 

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repair shop, the local new car dealer -- I don't know 

any small business in this country that isn't 

incorporated, and the vast majority of them are 

sole-shareholder-owned.

 Now this statute makes it unlawful for all 

of them to do the things that you are worried about, you 

know, distorting other -- the interests of other 

shareholders. That is vast overbreadth.

 GENERAL KAGAN: You know, I think that the 

single shareholders can present these corruption 

problems. Many, many closed corporations, single 

shareholder corporations --

JUSTICE SCALIA: I'm not talking about the 

corruption interest. You -- you have your quid pro quo 

argument, that's another one. We get to that when we 

get there. But as far as the interest you are now 

addressing, which is those shareholders who don't agree 

with this political position are being somehow cheated, 

that doesn't apply probably to the vast majority of 

corporations in this country.

 GENERAL KAGAN: You are quite right, 

Justice Scalia, when -- we say when it comes to single 

shareholders, the kind of "other people's money" 

interests, the shareholder protection interests do not 

apply. There --

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JUSTICE SCALIA: So that can't be the 

justification --

GENERAL KAGAN: There --

JUSTICE SCALIA: -- because if it were, the 

statute would be vastly overbroad.

 GENERAL KAGAN: There the strongest 

justification is the anticorruption interest.

 JUSTICE ALITO: Well, with respect to that 

what is your answer to the argument that more than half 

the States, including California and Oregon, Virginia, 

Washington State, Delaware, Maryland, a great many 

others, permit independent corporate expenditures for 

just these purposes? Now have they all been overwhelmed 

by corruption? A lot of money is spent on elections in 

California; has -- is there a record that the 

corporations have corrupted the political process there?

 GENERAL KAGAN: I think the experience of 

some half the States cannot be more important than the 

100-year old judgment of Congress that these 

expenditures would corrupt the Federal system, and I 

think that --

JUSTICE SCALIA: Congress has a 

self-interest. I mean, we -- we are suspicious of 

congressional action in the First Amendment area 

precisely because we -- at least I am -- I doubt that 

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one can expect a body of incumbents to draw election 

restrictions that do not favor incumbents. Now is that 

excessively cynical of me? I don't think so.

 GENERAL KAGAN: I think, Justice Scalia, 

it's wrong. In fact, corporate and union money go 

overwhelmingly to incumbents. This may be the single 

most self-denying thing that Congress has ever done. If 

you look -- if you look at the last election cycle and 

look at corporate PAC money and ask where it goes, it 

goes ten times more to incumbents than to challengers, 

and in the prior election cycle even more than that.

 And for an obvious reason, because when 

corporations play in the political process, they want 

winners, they want people who will produce outcomes for 

them, and they know that the way to get those outcomes, 

the way to get those winners is to invest in incumbents, 

and so that's what they do. As I said, in double digits 

times more than they invest in challengers. So I think 

that that -- that that rationale, which is undoubtedly 

true in many contexts, simply is not the case with 

respect to this case.

 JUSTICE KENNEDY: But under your position, 

if corporations A, B, and C, are called to Washington 

every Monday morning by a high-ranking administrative 

official or a high-ranking member of the Congress with a 

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committee chairmanship and told to tow the line and to 

tell their directors and shareholders what the policy 

ought to be, some other corporation can't object to that 

during the election cycle. The government silences a 

corporate objector, and those corporations may have the 

most knowledge of this on the subject.

 Corporations have lots of knowledge about 

environment, transportation issues, and you are 

silencing them during the election.

 GENERAL KAGAN: Well --

JUSTICE KENNEDY: When other corporations, 

via -- because of the very fact you just point out, have 

already been used and are being used by the government 

to express its views; and you say another corporation 

can't object to that.

 GENERAL KAGAN: Well, to the extent, 

Justice Kennedy, that you are talking about what goes on 

in the halls of Congress, of course corporations can 

lobby members of Congress in the same way that they 

could before this legislation. What this legislation is 

designed to do, because of its anticorruption interest, 

is to make sure that that lobbying is just persuasion 

and it's not coercion. But in addition to that, of 

course corporations have many opportunities to speak 

outside the halls of Congress. 

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JUSTICE STEVENS: One of the amicus briefs 

objects to -- responds to Justice Kennedy's problem by 

saying that the problem is we have got to contribute to 

both parties, and a lot of them do, don't they?

 GENERAL KAGAN: A lot of them do, which is a 

suggestion about how corporations engage the political 

process and how corporations are different from 

individuals in this respect. You know, an individual 

can be the wealthiest person in the world but few of 

us -- maybe some -- but few of us are only our economic 

interests. We have beliefs, we have convictions; we 

have likes and dislikes. Corporations engage the 

political process in an entirely different way and this 

is what makes them so much more damaging.

 CHIEF JUSTICE ROBERTS: Well, that's not --

I'm sorry, but that seems rather odd. A large 

corporation just like an individual has many diverse 

interests. A corporation may want to support a 

particular candidate, but they may be concerned just as 

you say about what their shareholders are going to think 

about that. They may be concerned that the shareholders 

would rather they spend their money doing something 

else. The idea that corporations are different than 

individuals in that respect, I just don't think holds 

up. 

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GENERAL KAGAN: Well, all I was suggesting, 

Mr. Chief Justice, is that corporations have actually a 

fiduciary obligation to their shareholders to increase 

value. That's their single purpose, their goal.

 CHIEF JUSTICE ROBERTS: So if a candidate --

take a tobacco company, and a candidate is running on 

the platform that they ought to make tobacco illegal, 

presumably that company would maximize its shareholders' 

interests by opposing the election of that individual.

 GENERAL KAGAN: But everything is geared 

through the corporation's self-interest in order to 

maximize profits, in order to maximize revenue, in order 

to maximize value. Individuals are more complicated 

than that. So that when corporations engage the 

political process, they do it with that set of you know, 

blinders -- I don't mean it to be pejorative, because 

that's what we want corporations to do, is to --

CHIEF JUSTICE ROBERTS: Well, I suppose some 

do, but let's say if you have ten individuals and they 

each contribute $1,000 to a corporation, and they say, 

"we want this corporation to convey a particular 

message," why can't they do that, when if they did that 

as partnership, it would be all right?

 GENERAL KAGAN: Well, it sounds to me as 

though the corporation that you were describing is a 

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corporation of the kind we have in this case, where one 

can assume that the members all sign on to the 

corporation's ideological mission, where the corporation 

in fact has an ideological mission.

 JUSTICE SCALIA: General Kagan, most -- most 

corporations are indistinguishable from the individual 

who owns them, the local hairdresser, the new auto 

dealer -- dealer who has just lost his dealership and --

and who wants to oppose whatever Congressman he thinks 

was responsible for this happening or whatever 

Congressman won't try to patch it up by -- by getting 

the auto company to undo it. There is no distinction 

between the individual interest and the corporate 

interest. And that is true for the vast majority of 

corporations.

 GENERAL KAGAN: Well --

JUSTICE SCALIA: Yet this law freezes all of 

them out.

 GENERAL KAGAN: To the extent that we are 

only talking about single shareholder corporations, I 

guess I would ask why it's any burden on that single 

shareholder to make the expenditures to participate in 

the political person in the way that person wants to 

outside the corporate forum? So single shareholders 

aren't suffering any burden here; they can do everything 

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that they could within the corporate form, outside the 

corporate form. They probably don't get the tax breaks 

that they would get inside the corporate form, but I'm 

not sure anything else is very different.

 JUSTICE SCALIA: Oh, he wants to put up a 

sign --

JUSTICE STEVENS: Ultra Vires would take 

care of about 90 percent of the small corporations that 

Justice Scalia is talking about. They can't just --

they can't even give money to charities sometimes 

because of Ultra Vires. Giving political contributions 

is not typical for corporate activity.

 JUSTICE BREYER: Is -- I -- I remember 

spending quite a few days one summer reading through 

1,000 pages of opinion in the D.C. Circuit. And I came 

away with the distinct impression that Congress has 

built an enormous record of support for this bill in the 

evidence.

 And my recollection is, but it is now a 

couple of years old, that there was a lot of information 

in that which suggested that many millions of voters 

think, at the least, that large corporate and union 

expenditures or contributions in favor of a candidate 

lead the benefited political figure to decide quite 

specifically in favor of the -- of the contributing or 

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expending organization, the corporation or the union.

 GENERAL KAGAN: Yes, that's --

JUSTICE BREYER: Now, it was on the basis of 

that, I think, that this Court upheld the law in BCRA. 

But we have heard from the other side there isn't much 

of a record on this.

 So, if you could save me some time here, 

perhaps you could point me, if I am right, to those 

thousand pages of opinion and tens of thousands of 

underlying bits of evidence where there might be support 

for that proposition?

 GENERAL KAGAN: Yes, that's exactly right, 

Justice Breyer, that in addition to the 100-year old 

judgment that Congress believes this is necessary, that 

very recently members of Congress and others created a 

gigantic record showing that there was corruption and 

that there was the appearance of corruption.

 And in that record, many times senators, 

former senators talk about the way in which fundraising 

is at the front of their mind in everything that they do 

the way in which they grant access, the way in which 

they grant influence, and the way in which outcomes 

likely change as a result of that fundraising.

 JUSTICE BREYER: BCRA has changed all that.

 CHIEF JUSTICE ROBERTS: Counsel, could I 

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ask, it seems -- to your shareholder protection 

rationale, isn't it extraordinarily paternalistic for 

the government to take the position that shareholders 

are too stupid to keep track of what their corporations 

are doing and can't sell their shares or object in the 

corporate context if they don't like it?

 GENERAL KAGAN: I don't think so, Mr. Chief 

Justice. I mean, I, for one, can't keep stack of what 

my -- where I hold --

CHIEF JUSTICE ROBERTS: You have a busy job. 

You can't expect everybody to do that.

 (Laughter.)

 GENERAL KAGAN: It's not that -- it's not 

that I have a busy job.

 CHIEF JUSTICE ROBERTS: But it is 

extraordinary -- I mean, the -- the idea and as I 

understand the rationale, we -- we the government, big 

brother, has to protect shareholders from themselves. 

They might give money, they might buy shares in a 

corporation and they don't know that the corporation is 

taking out radio ads. The government has to keep an eye 

on their interests.

 GENERAL KAGAN: I appreciate that. It's not 

that I have a busy job, it's that I, like most 

Americans, own shares through mutual funds. If you 

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don't know where your mutual funds are investing, so you 

don't know where you are --

CHIEF JUSTICE ROBERTS: So it is -- I mean, 

I understand. So it is a paternalistic interest, we the 

government have to protect you naive shareholders.

 GENERAL KAGAN: In a world in which most 

people own stock through mutual funds, in a world where 

people own stock through retirement plans in which they 

have to invest, they have no choice, I think it's very 

difficult for individual shareholders to be able to 

monitor what each company they own assets in is doing or 

even to know the extent of the --

JUSTICE GINSBURG: In that respect, it's 

unlike the union, because the -- the worker who does not 

want to affiliate with a union cannot have funds from 

his own pocket devoted to political causes. But there 

is no comparable check for corporations.

 GENERAL KAGAN: That's exactly right, 

Justice Ginsburg. In the union context, of course, it's 

a constitutional right that the unions give back 

essentially the funds that any union member or employee 

in the workplace does not want used for electoral 

purposes.

 JUSTICE GINSBURG: Does that mean that 

unions should be taken out, because there isn't the 

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same -- the shareholder protection interest doesn't --

there is no parallel for the union?

 GENERAL KAGAN: You are right about that. 

But I -- the government believes that with respect to 

unions, the anticorruption interest is as strong, and 

that unions should be kept in.

 I think what your point suggests, that 

the -- that the union member point suggests why Congress 

might have thought that there was a compelling interest 

to protect corporate shareholders in the same way that, 

let's say, dissenting union members are protected by the 

Constitution. There is no State action, of course, so 

there is no constitutional right in the corporate 

context.

 But Congress made a judgment that it was an 

important value that shareholders have this choice, have 

the ability both to invest in our country's assets and 

also to be able to choose our country's leaders.

 CHIEF JUSTICE ROBERTS: It's not investing 

in our country's --

JUSTICE KENNEDY: In the course of this 

argument, have you covered point two?

 (Laughter.)

 GENERAL KAGAN: I very much appreciate --

JUSTICE KENNEDY: And I would like to know 

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what it is, so that I -- my notes are complete.

 GENERAL KAGAN: I very appreciate that, 

Justice Kennedy. I think I did cover point two, which 

was an explanation of some of the questions that the 

Chief Justice asked me about what interests the 

government was suggesting motivated these laws and are 

compelling enough such that this Court certainly should 

not invalidate these laws.

 CHIEF JUSTICE ROBERTS: I take it we have 

never accepted your shareholder protection interest. 

This is a new argument.

 GENERAL KAGAN: I think that that's fair. 

Certainly Bellotti does not accept it. I would think --

you know, National Right to Work is an interesting 

opinion, because National Right to Work accepts for a 

unanimous court both the shareholder protection argument 

and the anticorruption argument with respect to the 

section 441b in particular.

 Now, in later cases the Court has suggested 

that National Right to Work was only focused on 

contributions. If you read National Right to Work, that 

distinction really does not -- it's not evident on the 

face of the opinion, and I think Chief Justice Rehnquist 

at later -- in a later dissent suggested that he had 

never understood it that way. 

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But -- so National Right to Work is a 

confusion on this point. It --

CHIEF JUSTICE ROBERTS: Well, I guess other 

than that, and I think there may be some ambiguity 

there, but I wouldn't say NRWC is a holding on 

shareholder protection. So to the extent that you 

abandoned the original rationale in Austin, and 

articulated different rationales, you have two, the quid 

pro quo corruption interest and the shareholder 

protection interest --

GENERAL KAGAN: Which we think is not in 

Austin.

 CHIEF JUSTICE ROBERTS: Austin, I thought, 

was based on the aggregation of immense wealth by 

corporations.

 GENERAL KAGAN: Again, Austin is not the 

most lucid opinion. But the way we understand Austin, 

what Austin was suggesting was that the corporate form 

gave corporations significant assets, other people's 

money that when the corporations spent those assets --

CHIEF JUSTICE ROBERTS: Can you -- can you 

give me the citation to the page in Austin where we 

accepted the shareholder protection rationale?

 GENERAL KAGAN: I think it comes when the --

when the Court is distinguishing MCFL. And the message 

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of that distinction of MCFL is the shareholder 

protection interest? But --

CHIEF JUSTICE ROBERTS: Do the words 

"shareholder" -- I don't know, do the words "shareholder 

protection" appear in the Austin opinion?

 GENERAL KAGAN: I honestly don't know, 

Mr. Chief Justice. And -- and I don't want to --

CHIEF JUSTICE ROBERTS: If they don't --

let's assume they don't, then I get back to my question, 

which is, you are asking us to defend the Austin or 

support or continue the Austin opinion on the basis of 

two rationales that we have never accepted, shareholder 

protection and quid pro quo corruption?

 GENERAL KAGAN: I would say on the quid pro 

quo corruption, of course you have accepted that 

rationale --

CHIEF JUSTICE ROBERTS: In the context of 

contributions, not expenditures.

 GENERAL KAGAN: That's correct. And I think 

what has changed since -- since that time is the BCRA 

record that Justice Breyer suggested, which was very 

strong on the notion that there was no difference when 

it came to corporate contributions and expenditures, 

that there actually was no difference between the two. 

That they --

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CHIEF JUSTICE ROBERTS: Is that a yes? Is 

that a yes? In other words, you are asking us to uphold 

Austin on the basis of two arguments, two principles, 

two compelling interests we have never accepted, in 

expenditure context.

 GENERAL KAGAN: In this -- in this 

particular context, fair enough. But, you know, I 

think --

JUSTICE KENNEDY: And to undercut Buckley in 

so doing?

 GENERAL KAGAN: Well, I don't think so, 

because I do think Buckley was about individuals rather 

than corporations, and Buckley was in 1976, not in 2009, 

after the very extensive record that was created in 

BCRA.

 I see my time is up. I don't --

JUSTICE GINSBURG: May I ask you one 

question that was highlighted in the prior argument, and 

that was if Congress could say no TV and radio ads, 

could it also say no newspaper ads, no campaign 

biographies? Last time the answer was, yes, Congress 

could, but it didn't. Is that -- is that still the 

government's answer?

 GENERAL KAGAN: The government's answer has 

changed, Justice Ginsburg. 

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(Laughter.)

 GENERAL KAGAN: It is still true that BCRA 

203, which is the only statute involved in this case, 

does not apply to books or anything other than 

broadcast; 441b does, on its face, apply to other media. 

And we took what the Court -- what the Court's -- the 

Court's own reaction to some of those other 

hypotheticals very seriously. We went back, we 

considered the matter carefully, and the government's 

view is that although 441b does cover full-length books, 

that there would be quite good as-applied challenge to 

any attempt to apply 441b in that context.

 And I should say that the FEC has never 

applied 441b in that context. So for 60 years a book 

has never been at issue.

 JUSTICE SCALIA: What happened to the 

overbreadth doctrine? I mean, I thought our doctrine in 

the Fourth Amendment is if you write it too broadly, we 

are not going to pare it back to the point where it's 

constitutional. If it's overbroad, it's invalid. What 

has happened to that.

 GENERAL KAGAN: I don't think that it would 

be substantially overbroad, Justice Scalia, if I tell 

you that the FEC has never applied this statute to a 

book. To say that it doesn't apply to books is to take 

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off, you know, essentially nothing.

 CHIEF JUSTICE ROBERTS: But we don't put our 

-- we don't put our First Amendment rights in the hands 

of FEC bureaucrats; and if you say that you are not 

going to apply it to a book, what about a pamphlet?

 GENERAL KAGAN: I think a -- a pamphlet 

would be different. A pamphlet is pretty classic 

electioneering, so there is no attempt to say that 441 b 

only applies to video and not to print. It does --

JUSTICE ALITO: Well, what if the 

particular -- what if the particular movie involved here 

had not been distributed by Video on Demand? Suppose 

that people could view it for free on Netflix over the 

internet? Suppose that free DVDs were passed out. 

Suppose people could attend the movie for free in a 

movie theater; suppose the exact text of this was 

distributed in a printed form. In light of your 

retraction, I have no idea where the government would 

draw the line with respect to the medium that could be 

prohibited.

 GENERAL KAGAN: Well, none of those things, 

again, are covered.

 JUSTICE ALITO: No, but could they? Which 

of them could and which could not? I understand you to 

say books could not. 

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GENERAL KAGAN: Yes, I think what you --

what we're saying is that there has never been an 

enforcement action for books. Nobody has ever 

suggested -- nobody in Congress, nobody in the 

administrative apparatus has ever suggested that books 

pose any kind of corruption problem, so I think that 

there would be a good as-applied challenge with respect 

to that.

 JUSTICE SCALIA: So you're -- you are a 

lawyer advising somebody who is about to come out with a 

book and you say don't worry, the FEC has never tried to 

send somebody to prison for this. This statute covers 

it, but don't worry, the FEC has never done it. Is that 

going to comfort your client? I don't think so.

 JUSTICE GINSBURG: But this -- this statute 

doesn't cover. It doesn't cover books.

 GENERAL KAGAN: No, no, that's exactly 

right. The only statute that is involved in this case 

does not cover books. So 441b which --

CHIEF JUSTICE ROBERTS: Does cover books.

 GENERAL KAGAN: -- which does cover books, 

except that I have just said that there would be a good 

as-applied challenge and that there has been no 

administrative practice of ever applying it to the 

books. And also only applies to express advocacy, 

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right? 203 has -- is -- is -- has a broader category of 

the functional equivalent of express advocacy, but 441b 

is only express advocacy, which is a part of the reason 

why it has never applied to a book. One cannot imagine 

very many books that would meet the definition of 

express advocacy as this Court has expressed that.

 CHIEF JUSTICE ROBERTS: Oh, I'm sorry, we 

suggested some in the last argument. You have a history 

of union organizing and union involvement in politics, 

and the last sentence says in light of all this, vote 

for Jones.

 GENERAL KAGAN: I think that that wouldn't 

be covered, Mr. Chief Justice. The FEC is very careful 

and says this in all its regulations to view matters as 

a whole. And as a whole that book would not count as 

express advocacy.

 CHIEF JUSTICE ROBERTS: Thank you, General.

 Mr. Waxman.

 ORAL ARGUMENT OF SETH WAXMAN

 ON BEHALF OF SENATORS JOHN McCAIN, ET AL.,

 AS AMICI CURIAE,

 IN SUPPORT OF THE APPELLEE

 MR. WAXMAN: Mr. Chief Justice, and may it 

please the Court:

 The requirement that corporations fund 

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electoral advocacy the same way individuals do, that is 

with money voluntarily committed by people associated 

with the corporation, is grounded in interests that are 

so compelling that 52 years ago, before Buckley was 

decided, before FECA was enacted, before Buckley-style 

quid pro quo corruption was ever addressed, this Court 

explained that, quote: "What is involved here is the 

integrity of our electoral process and not less the 

responsibility of the individual citizen for the 

successful functioning of that process."

 If the Court now wishes to reconsider the 

existence and extent of the interests that underlie that 

sentiment expressed for the Court by Justice Frankfurter 

in the context of a prosecution of union officials for 

running television ads supporting political candidates, 

it should do so in a case in which those interests are 

forthrightly challenged with a proper and full record 

below.

 CHIEF JUSTICE ROBERTS: One of the amicus 

briefs, I'm not -- maybe it's professor Hayward, if I am 

getting that right -- suggested the history of this 1947 

provision was such that it really wasn't enforced 

because people were concerned about the First Amendment 

interests and that the courts to the extent cases were 

brought did everything they could to avoid enforcing the 

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limitations.

 MR. WAXMAN: Well, I don't recall who the 

professor was either, Mr. Chief Justice, but I do recall 

pretty well the history that was recounted -- I would 

say the history that was recounted by this Court in the 

Auto Workers case, in CIO, in the Pipefitters case, 

which is quite inconsistent with that. We've never had 

this case -- until this Court's supplemental order, we 

never had a case that challenged directly, quote, 

"Austin" and Austin-style corruption, which is a term I 

think that is quite misleading.

 When the sober-minded Elihu Root was moved 

to stand up in 1894 and urged the people of the United 

States, and urged the Congress of the United States, to 

enact legislation that would address, quote, "a 

constantly growing evil which has done more to shake the 

confidence of plain people of small means of this 

country in our political institutions than any practice 

which has ever obtained since the founding of our 

government," he was not engaging in a high level 

discussion about political philosophy.

 JUSTICE KENNEDY: But he was talking about 

contributions in that context. That's quite clear.

 MR. WAXMAN: He -- with all due respect, 

Justice Kennedy, I don't think that there was any 

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distinction whatsoever in that time between the 

distinction that this Court came to understand as a 

result of FECA, and its adjudication of FECA and that --

really the prehistory of Taft-Hartley, between 

contributions expenditures.

 For this reason, Justice Kennedy, was that 

what Root said was the idea -- and I am quoting now from 

his speech which is also partly reprinted in this 

Court's opinion in McConnell -- the idea is to prevent 

the great companies, the great aggregations of wealth 

from using corporate funds directly or indirectly to 

send members of the legislature to these halls in order 

to vote for their protection and the advancement of 

their interests as against those of the public.

 JUSTICE SCALIA: Great aggregations of 

wealth. The brief by the Chamber of Commerce, the 

amicus brief by the Chamber of Commerce points out that 

96 percent of its members employ less than 100 people. 

These are not aggregations of great wealth. You are not 

talking about the railroad barons and the rapacious 

trusts of the Elihu Root era; you are talking mainly 

about small business corporations.

 MR. WAXMAN: Justice Scalia, I take your 

point and I think you have made this point forceful lily 

many times before. A unanimous court in National Right 

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to Work Committee concluded that Congress was entitled 

to make the judgment that it would treat in order to 

address this root evil, a problem of such concern that 

it goes to the very foundation of the democratic 

republican exercise, that is, the notion of integrity in 

representative government.

 Now this -- this case, of course, is not a 

case --

JUSTICE SCALIA: I don't understand that 

answer. I mean, if that's what you were concerned 

about, what Elihu Root was concerned about, you could 

have said all corporations that have a net worth of more 

than, you know, so much or whatever. That is not what 

Congress did. It said all corporations.

 MR. WAXMAN: Right. And Justice Scalia, if 

a small corporation or even any corporation of any sort 

wants to bring an as-applied challenge to 441b or a 

State law analogue and say, you know, I am not the 

problem that Theodore Roosevelt and Elihu Root was 

addressed at; there isn't a compelling interest because 

I only have three employees and $8,000 in my bank 

account, that's fine. But what is extraordinary, truly 

extraordinary, given the sentiments that underlay the 

Tillman Act and the Taft-Hartley Act is that we would be 

having a discussion today about the constitutionality of 

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a law that has been on the books forever when no party, 

no corporation, has ever raised the challenge. I well 

recall --

JUSTICE KENNEDY: You say it's been on --

it's been on the books forever. But, No. 1, the 

phenomenon of -- of television ads where we get 

information about scientific discovery and -- and 

environment and transportation issues from corporations 

who after all have patents because they know something, 

that -- that is different. And the -- the history you 

applied apply to contributions, not to those kinds of 

expenditures.

 MR. WAXMAN: Justice Kennedy, first of all, 

I -- I think it is actually true that patents are owned 

by individuals and not corporations. But be that as it 

may, there is no doubt -- I am not here saying that this 

Court should reconsider Bellotti on first principles any 

more than I am saying that it shouldn't consider Austin 

on first principles. Corporations can and do speak 

about a wide range of public policy issues, and since 

the controlling opinion was issued in Wisconsin Right to 

Life, the -- the kind of campaign-related speech that 

corporations can't engage in, in the pre-election period 

is limited to the functional equivalent of expressed 

advocacy and nothing else. 

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JUSTICE ALITO: Mr. Waxman, all of this talk 

about 100 years and 50 years is perplexing. It sounds 

like the sort of sound bites that you hear on TV. The 

-- the fact of the matter is that the only cases that 

are being -- that may possibly be reconsidered are 

McConnell and Austin. And they don't go back 50 years, 

and they don't go back 100 years.

 MR. WAXMAN: My point here is, Justice Alito 

-- and I don't mean to be -- to be demeaning this Court 

with sound bites. The point is that what -- Austin was, 

to be sure, the very first case in which this Court had 

to decide -- actually had to decide whether or not the 

prohibition on corporate treasury funded campaign speech 

could properly be limited and was supporting by a 

compelling interest. All I am suggesting -- and I hope 

that if you take nothing else from my advocacy today it 

will be this -- is that we have here a case in which the 

Court has asked a question that essentially goes to the 

bona fides, that is, the factual predicates of the 

interests that have been viewed as compelling in Austin, 

in MCFL, in McConnell itself, whether you call it the 

corrosive effect of corporate wealth, whether you call 

it, quote, "shareholder protection" --

JUSTICE ALITO: And my point is that there 

is nothing unusual whatsoever about a case in which a 

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party before the Court says, my constitutional rights 

were violated, and there is no prior decision of this 

Court holding that what was done is constitutional. And 

in that situation is it an answer to that argument that 

this has never been challenged before? The Court has 

never held that it was unconstitutional? It has been 

accepted up until this point by the general public that 

this is -- that this is constitutional? No, that is not 

regarded as an answer to that question.

 MR. WAXMAN: Mr. Olson is -- was quite 

right -- either Mr. Olson or Mr. Abrams, I find it so 

difficult to tell the two apart. One of them was 

saying, well, it's, you know -- yes, I think in response 

to Justice Sotomayor's question, you know, about there 

is no factual record here. There is absolutely nothing 

in this case.

 And the response was, well, it's the 

government's burden. The government has to prove that 

any restriction that it imposes passes strict scrutiny.

 Fair enough, but the question has to be 

raised. The issue has to be raised. If the -- if 

Austin, Justice Alito, or the compelling interests that 

Austin and McConnell relied on were forthrightly 

challenged in a case, the government would have the 

option --

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CHIEF JUSTICE ROBERTS: Well, Mr. Waxman, 

the government did have that opportunity, and the 

government compiled a record. And when the Citizens 

United abandoned that position -- you are quite right, 

they changed their course -- the government and the 

district court complained that it had to go to all this 

work to develop this record, and yet we hear nothing 

about what the record showed.

 MR. WAXMAN: Well, that's because the 

ultimate -- I assume I have your permission to answer.

 CHIEF JUSTICE ROBERTS: Go ahead.

 MR. WAXMAN: The -- the only challenges that 

were litigated in the district court -- and they largely 

were related to disclosure -- were very direct 

as-applied challenges that had -- that did nothing 

whatsoever to implicate the foundation of McConnell or 

Austin. And all I'm saying is, if you want to reexamine the predicates, the existence and magnitude of 

interests that Congress has, going back a -- whether 

it's 60 years or 100 years, and courts, whether it has 

been the actual rationale of the decision or a predicate 

of the rationale of the decision, you ought to do it in 

a case where the -- where the issue is squarely 

presented so that the government can do what it did in 

McConnell and in another context in Michigan v. Grutter 

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when it suggested that Aderand had undermined this 

Court's controlling opinion in Bakke. Thank you.

 CHIEF JUSTICE ROBERTS: Thank you, Mr. 

Waxman. Mr. Olson five minutes.

 REBUTTAL ARGUMENT OF THEODORE B. OLSON

 ON BEHALF OF THE APPELLANT

 MR. OLSON: Thank you, Mr. Chief Justice. 

The words that I would leave with this Court are the 

Solicitor General's. The government's position has 

changed. The government's position has changed as to 

what media might be covered by congressional power to 

censor and -- and ban speech by corporations. Now we 

learn, contrary to what we heard in March, that books 

couldn't be prohibited but pamphlets could be 

prohibited. We also learn --

JUSTICE GINSBURG: But that's not -- the --

the statute that we are involved in, in this case does 

not cover those.

 MR. OLSON: Unless they are engaged in, 

quote, "expressed advocacy." And the other way in which 

the government has changed its position, if I listened 

carefully, is what type of corporation might be covered. 

The government now says that it wouldn't -- the -- the 

FEC is now willing to recede from its regulations which 

explicitly covered this corporation, and I don't know as 

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I stand here today what kind of corporations the 

government would choose to prosecute.

 Remember, the Federal Election Commission, 

which didn't even have a quorum and couldn't function at 

all for six months during the important election year of 

2008 --

JUSTICE STEVENS: If the FEC chooses to 

prosecute only those who do not -- who do not rely 

exclusively on individual contributions.

 MR. OLSON: Well, that's your question from 

before.

 JUSTICE STEVENS: Yes. I want to see he 

gets it.

 MR. OLSON: And that -- (a), it wouldn't --

this corporation accepted a small amount, $2,000 out of 

-- out of the funding of this, so that wouldn't solve 

the problem for my corporation, my client's corporation.

 JUSTICE STEVENS: But it would solve it for 

the advertising, and there are two things. There is the 

long Hillary document and the advertisements. It would 

cover those.

 MR. OLSON: If -- but the --

JUSTICE STEVENS: And they are the only --

only ones that clearly violate the statute.

 MR. OLSON: My point is that the overbreadth 

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in this statute -- that solves the problem by saying 

that corporations still can't speak, and if you don't 

have anything to do with them, you -- you -- they wear a 

scarlet letter that says "C." If you accept one dollar 

of funding, then you had better make darn sure that when 

a check comes in for $100 from the XYZ hardware store in 

the neighborhood, that it wasn't a corporation that you 

used to -- to make a documentary about a candidate.

 The other way in which the government's 

position has changed is we do not know --

JUSTICE STEVENS: Does that mean you 

disagree with the NRA's submission?

 MR. OLSON: I -- I submit that it does not 

solve the problem. It would lead exactly --

JUSTICE STEVENS: If it solved the problem 

as it would for the advertising, would it be an 

appropriate solution?

 MR. OLSON: It -- I can't say that it -- if 

it solved the problem, because it doesn't solve the 

problem of prohibiting all corporate speech. And I 

think -- and I am submitting, Justice Stevens, that that 

is unconstitutional. I think what you are suggesting is 

that some limitation that -- what -- what you were 

suggesting is not a whole lot different than PAC. It 

would lead, I think Justice Breyer was saying, to an 

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accounting nightmare. It would be --

JUSTICE STEVENS: But it is a nightmare that 

Congress endorsed in the Snowe-Jeffords Amendment.

 MR. OLSON: Well, but the -- but the 

Wellstone Amendment sort of in a sense repealed it.

 JUSTICE STEVENS: We have held the Wellstone 

Amendment literally cannot be applied.

 MR. OLSON: Well --

JUSTICE STEVENS: We unanimously held that.

 MR. OLSON: I think what -- what the -- my 

response is that that does not solve the problem of 

inhibiting --

JUSTICE STEVENS: You do not endorse the 

NRA's position?

 MR. OLSON: No, we don't Justice Stevens, 

and -- and, as I said, it would not exempt my clients. 

The other -- the third way in which the government has 

changed its position is its rationale for this 

prohibition in the first place. Is it corruption? Is 

it shareholder protection? Is it equalization?

 There was some dispute. I heard the 

Solicitor General say that the equalization rationale 

was something the government disavowed. It wasn't what 

Austin said, the government -- the government said. And 

I --

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JUSTICE GINSBURG: Justice Marshall said 

that he was not trying to equalize all voices in the 

political process. He has a sentence that says, well, 

that's not what the rationale of this case is.

 MR. OLSON: I don't -- I don't -- with all 

due respect Justice Ginsburg, the words that jump out at 

me are the words from page 665 that say the desire to 

counterbalance those advantages unique to the corporate 

forum is the state's compelling interest in this case. 

That sounds to me like -- like equalization.

 I don't know. I am -- I am representing an 

individual who wants to speak about something that's the 

most important thing that goes on in our democracy. I'm 

told it's a felony. I am not -- and I -- I don't know 

what the rational basis is. It's overbroad. Now I hear 

about this shareholder -- protecting shareholders. 

There is not a word in the congressional record with 

respect to the -- which was before the Court in the 

McConnell case about protecting shareholders. As the 

Bellotti case pointed out, that would be overbroad 

anyway because this statute applies to every --

JUSTICE BREYER: Actually I read that 

sentence that you just read as meaning the corporation 

is an artificial person in respect to which the State 

creates many abilities and capacities, and the State is 

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free also to create some disabilities and capacities. 

Not a statement about balancing rich and poor.

 MR. OLSON: Well, it -- it -- it strikes me 

that it is, because it follows the words that say 

corporations are given unique advantages to aggregate 

wealth and that we must take away that advantage by 

equalizing the process. I think that's the plain 

meaning but my point I guess is -- if I may finish this 

sentence.

 CHIEF JUSTICE ROBERTS: Briefly.

 MR. OLSON: My point is that the government 

here has an overbroad statute that covers every 

corporation irrespective of what its stockholders think, 

irrespective of whether it's big, and whether it's 

general -- a big railroad baron or anything like that, 

and it doesn't know, as it stands here today two years 

after this movie was offered for -- to the public for 

its view, what media might be covered, what type of 

corporation might be covered and what compelling 

justification or narrow standard would be applied to 

this form of speech.

 CHIEF JUSTICE ROBERTS: Thank you, counsel. 

The case is submitted.

 (Whereupon, at 11:34 a.m., the case in the 

above-entitled matter was submitted.) 

82 

Alderson Reporting Company 
Official - Subject to Final Review Official - Subject to Final Review 

A actual 3:20 73:25 74:16 3:13 2:15 3:8 28:1

10:25 29:9 77:20 American 29:7 77:6 abandoned

76:21 affect 18:16 32:12 Appellee 1:22 14:20 46:3,14 

ad 12:25 affiliate 59:15 Americans 1:25 2:9,12 62:7 76:4 

addition 46:15 affirmed 40:4 22:10 58:25 35:14 68:22 abilities 81:25 

52:23 57:13 aggregate 82:5 amici 1:24 2:12 application 19:4 ability 60:17 

address 16:23 aggregation 68:21 20:3 25:11 able 23:21 59:10 

23:13 28:20 46:21,23 62:14 amicus 1:19 2:7 applications 60:18 

70:15 72:3 aggregations 26:13 27:1,25 13:12 41:22 above-entitled

addressed 12:8 71:10,15,19 53:1 69:19 42:18 1:12 82:25 

Abrams 25:7 69:6 ago 69:4 71:17 applied 20:12 1:18 

72:20 agree 9:22,23,25 amount 32:11 65:14,24 68:4 2:5 27:22,23 

addresses 20:4 12:15,15 17:15 78:15 73:11 80:7 28:2 29:1,6,12 

addressing 30:4 47:9 amounts 44:6 82:20 29:15,25 30:20 

19:11 20:5,5 49:17 analogue 72:18 applies 5:21 31:8,16,21 

24:12 49:17 ahead 76:11 anomalous 38:25 39:4 32:7,20,23 

Aderand 77:1 aid 31:14 38:10 40:21,22,24 33:1,4 34:7 

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adjudication 68:20 21:25 23:25 81:21 abroad 5:17 

71:3 Alabama 21:12 25:23 26:12 apply 24:3,3 absolutely 75:15 

adjust 39:5 28:13,24 41:4 27:10 37:24 39:6 49:19,25 accept 11:21 

adjusted 39:18 Alito 8:4,9 50:8 38:2 40:7 50:9 65:4,5,12,25 48:8 61:13 

administrative 66:10,23 74:1 64:21,23,24 66:5 73:11 79:4 

51:24 67:5,24 74:8,24 75:22 72:10 75:4,9 applying 67:24 accepted 32:13 

admits 3:21 allowed 24:6 76:10 appreciate 46:7 61:10 

adopted 4:6 37:3,6 answering 6:19 58:23 60:24 62:23 63:12,15 

adopting 24:10 allows 45:3 answers 25:24 61:2 64:4 75:7 

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22:5 43:9 45:4 amassing 29:17 45:22 50:7 38:2 43:22 accepting 39:10 

58:21 64:19,20 ambiguity 62:4 52:21 60:5 45:25 79:17 accepts 61:15 

69:15 73:6 ambiguous 25:9 61:17 approve 36:15 access 57:21 

advanced 6:1 amendment 4:3 anybody 47:24 approved 35:25 accomplish 4:7 

advancement 4:11,17,20 anyway 7:24 36:10 account 72:22 

71:13 5:10,16,20 7:2 81:21 area 31:24 33:8 accounting 44:5 

advantage 27:16 7:6 8:7,12 14:9 apart 75:12 50:24 80:1 

82:6 17:7 20:9 apparatus 67:5 argued 38:2 accounts 45:5,6 

advantages 81:8 21:23 23:16 appeal 22:9 43:18 acknowledge 82:5 27:12 28:22 appear 63:5 argues 43:8 30:17 

advertisements 33:13 34:9 appearance arguing 13:23 acknowledges 40:25 78:20 35:2,6 38:1 11:1 14:23 14:3,5,10 31:12 

Act advertising 40:13,14 41:20 57:17 25:20 21:23 36:2 

78:19 79:16 43:14,16,23 APPEARAN... argument 1:13 37:18 72:24,24 

advising 67:10 44:19,20,25 1:15 2:2,13 3:7 11:7 acting 4:1,2 

advisory 23:21 45:1 50:24 appeared 19:9 12:18 13:24 action 50:24 

advocacy 34:5 65:18 66:3 appearing 21:17 14:22 27:23 60:12 67:3 

67:25 68:2,3,6 69:23 80:3,5,7 Appellant 1:4 33:21 35:13 active 33:9 

68:16 69:1 Amendment's 1:17,20 2:4,7 49:15 50:9 activity 56:12 

84 

Alderson Reporting Company
Official - Subject to Final Review 

60:22 61:11,16 attend 66:15 balance 25:25 big 58:17 82:14 45:20 53:1 

61:17 64:18 atypical 38:11 33:10 82:15 69:20 

68:8,19 75:4 38:12 balancing 82:2 bill 31:22 56:17 bring 72:17 

77:5 Austin 3:18 ban 77:12 biographies broad 30:13 

arguments 14:19 16:16,18 bank 45:5,5 64:21 34:2,14 

22:25 24:19,24 16:23 18:22 72:21 birth 33:19 broadcast 26:4 

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24:17 40:5 75:22,23 76:17 33:15 57:3 67:3,5,16,19 32:8,9 64:9,12 

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63:10 64:2 Austin-style 81:15 68:5 73:1,5 Buckley's 36:23 

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aspect 24:13 authorize 3:23 57:24 63:20 bought 11:8 69:5 

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associated 4:18 32:4 36:2 1:22,23 2:4,6,9 10:22 11:2,6 55:21,25 75:18 

69:2 69:25 2:11,15 3:8 12:3 13:14,18 bureaucratic

association 18:9 aware 5:25 7:8 19:15 27:24 14:11 21:24 23:19 

43:8 19:24 24:11 35:14 68:20 22:19 23:5 bureaucrats

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as-applied 30:9 back 7:23 8:11 16:17,17,21 31:12 34:11 buying 14:2 

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67:7,23 72:17 33:6,25 43:6 32:19,22 61:13 briefed 30:21 C 2:1 3:1 51:23 

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attempt 65:12 65:8,19 74:6,7 benefited 56:24 46:20 47:3,18 California 50:10

66:8 76:19 better 45:13 Briefly 82:10 50:15

attempting bad 25:14 79:5 briefs 6:2 14:21 call 46:22 74:21 

24:16 Bakke 77:2 beyond 43:24 27:1 41:6 74:22

85 

Alderson Reporting Company 
Official - Subject to Final Review 

called 51:23 65:3 67:18 71:17 78:2 Commission 1:7 

campaign 4:15 69:16 70:6,6,8 change 39:21 chooses 78:7 3:5 23:20,24 

21:22 31:15 70:9 72:7,8 57:23 Cincinnati 41:4 78:3 

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candidate 9:6 82:24 80:18 15:24 20:4 

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26:3 27:6 30:2 32:1,6,6,8 33:24 cites 21:11 11:14 23:17 

34:19 53:19 36:19 39:12 charged 22:8 citing 18:2 44:9 

54:5,6 56:23 41:3 61:19 charities 56:10 citizen 69:9 companies

79:8 69:24 74:4 cheated 49:18 Citizens 1:3 3:4 71:10 

candidates 3:11 category 35:3 check 59:17 10:8 34:9,14 company 54:6,8 

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capacities 81:25 causes 59:16 18:20 19:5 class 13:17 compared 12:6 

82:1 censor 77:12 26:20 27:18,20 classic 66:7 compelling 4:4,8 

capacity 18:6 century 31:15 28:2 33:2 clear 70:23 5:22 6:2 7:14 

car 49:1 31:17 35:10,15 38:14 cleared 18:11 7:17 8:15 

care 56:8 CEO 9:19 38:24 39:15,20 clearly 42:21 10:19 11:7,19 

careful 68:13 certain 30:23 39:25 40:5,8 78:24 13:25 14:6,12 

carefully 16:2 42:18 43:2 45:15 client 25:3 67:14 14:14 33:15 

65:9 77:22 certainly 6:1 46:2,16,19 clients 80:16 45:16,22 46:8 

caricature 11:9 8:10 14:1 47:1,10,17 client's 78:17 60:9 61:7 64:4 

case 3:4 4:6 5:25 40:19 45:13 48:6 53:15 close 34:13 69:4 72:20 

7:9,17 9:24 61:7,13 54:2,5,18 closed 37:14 74:15,20 75:22 

11:3 12:11 cetera 22:5 57:25 58:7,10 49:11 81:9 82:19 

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24:11,21 25:8 30:9 41:2 63:17 64:1 17:22 28:21 complete 61:1 

28:4,7,8,17 65:11 67:7,23 66:2 67:20 34:12,12 47:16 complicated

29:16,23 30:7 72:17 73:2 68:7,13,17,23 67:10 23:19 54:13 

30:25 31:1,2,5 challenged 23:2 69:19 70:3 comes 48:18 concept 3:22 

32:2,4,8,19,22 69:17 70:9 76:1,11 77:3,7 49:22 62:24 conceptually

34:2,14 36:7 75:5,24 82:10,22 79:6 11:18 

36:19,25 37:9 challengers chill 41:9,10,14 comfort 67:14 concern 10:25 

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42:2 46:9 76:12,15 60:16 Commerce concerned 53:19 

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86 

Alderson Reporting Company 
Official - Subject to Final Review 

72:10,11 12:13 73:21 77:2 3:15 4:14,19 57:16,17 62:9 

concerning 12:1 consideration controls 23:20 5:11 6:3 7:18 63:13,15 67:6 

21:25 30:22 controversy 8:3,5,7,19,23 69:6 70:10 

concluded 72:1 considered 65:9 31:24 32:15 8:23,24 9:3 80:19 

conclusion constantly 70:16 convey 54:21 10:3,8 11:13 counsel 16:10,15 

28:22 Constitution convictions 15:3,9,12,18 45:15 57:25 

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conduits 42:12 constitutional coordinated 20:24 21:1,9 count 15:17 

confidence 24:20,25 30:13 16:5 21:12,13 22:3 68:15 

70:17 40:11 59:20 coordination 22:11,22 25:17 counterbalance

confirmed 41:25 60:13 65:20 13:5 25:17,18 33:19 81:8 

confronted 28:8 75:1,3,8 copies 28:13 33:20 34:3 counterprodu...

confronting constitutionali... core 4:3 21:23 35:20 37:15 16:4 

36:2 72:25 35:6 39:2 42:5,10 country 8:2 22:2 

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Congressman 36:8 37:11 19:13,15 20:8 correct 16:24 12:12 15:2,8 

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conjunction 12:16 13:20 38:17 39:1 36:24 43:15,16 17:15,16 18:5 

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connected 47:16 18:25 22:17,22 53:17,18 54:20 corrosive 3:19 19:25 20:1,19 

connection 5:10 31:17 36:24 54:21,25 55:1 74:22 21:11,15,19,21 

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consequence 61:21 63:18,23 58:20,20 69:3 corrupted 50:16 25:2,7 28:3,8 

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consider 73:18 73:11 78:9 77:22,25 78:15 11:2 14:22,23 29:3,4,11 30:5 

considerable contribution-e... 78:17,17 79:7 16:12 18:14,18 31:4,11 32:2 

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considerably controlling corporations 49:10,14 50:14 36:5,20 39:4 

87 

Alderson Reporting Company 
Official - Subject to Final Review 

41:20,25 45:17 2:7,12 27:25 68:5 directed 39:23 distinctions 20:8 

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created 33:19 30:23,24 75:2 53:7,13,23 distinction 4:13 driving 11:10 

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curiae 1:19,24 definition 21:8 76:14 71:1,2 early 31:25

88 

Alderson Reporting Company 
Official - Subject to Final Review 

Earth 22:18 enforcement exact 66:16 67:25 68:2,3,6 39:17 44:7 

economic 53:10 67:3 exactly 43:12 68:16 65:13,24 66:4 

editorials 21:17 enforcing 69:25 57:12 59:18 expressed 3:20 67:11,13 68:13 

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employ 71:18 74:18 55:22 56:23 75:15 13:4 14:9,18

employee 59:21 established 5:22 63:18,23 71:5 fair 40:3 61:12 17:7 19:9 20:9 

employees 72:21 et 1:24 2:11 22:5 73:12 64:7 75:20 20:18 21:23 

enact 70:15 25:18 68:20 experience faithfully 38:22 23:16 28:4,18

enacted 37:19 eventually 7:23 50:17 fall 42:21 28:18,22 30:19 

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endorsed 80:3 57:10 61:4 56:23,25 37:24 40:13,14

endowed 4:12 evident 61:22 explicitly 77:25 FEA 38:21 41:20 46:14 

enforced 69:22 evil 70:16 72:3 express 52:14 FEC 38:21,23 50:24 66:3 

89 

Alderson Reporting Company 
Official - Subject to Final Review 

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90 

Alderson Reporting Company 
Official - Subject to Final Review 

high 32:14 70:20 50:18 60:16 27:9,13 45:9 49:14,16 50:7 34:4 

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91 

Alderson Reporting Company 
Official - Subject to Final Review 

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92 

Alderson Reporting Company 
Official - Subject to Final Review 

looking 30:7 39:5,8,13,18 minutes 77:4 narrowest 28:19 nonprofit/profit

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93 

Alderson Reporting Company 
Official - Subject to Final Review 

okay 11:9,10 opponent 15:4 29:23 parties 21:10 permit 7:6,11 

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94 

Alderson Reporting Company 
Official - Subject to Final Review 

pointed 81:20 20:11 22:1 80:11 49:24 58:1 35:22,25 

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95 

Alderson Reporting Company 
Official - Subject to Final Review 

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96 

Alderson Reporting Company 
Official - Subject to Final Review 

40:14 68:10,14 81:3,23 82:9 significant somebody 36:14 31:23 35:4,5 

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97 

Alderson Reporting Company 
Official - Subject to Final Review 

49:5 50:5 65:3 52:6 47:3,18 70:8 takes 12:24 15:20 18:5,12 

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98 

Alderson Reporting Company 
Official - Subject to Final Review 

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99 

Alderson Reporting Company 
Official - Subject to Final Review 

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100 

Alderson Reporting Company