No. 08-205 

================================================================ 

In The 

Supreme Court of the United States 

--------------------------------- ♦ --------------------------------- 

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

--------------------------------- ♦ --------------------------------- 

On Appeal From The United States 

District Court For The District Of Columbia 

--------------------------------- ♦ --------------------------------- 

BRIEF AMICI CURIAE OF CAMPAIGN LEGAL 

CENTER, DEMOCRACY 21, COMMON CAUSE, U.S. 

PIRG, AMERICANS FOR CAMPAIGN REFORM, 

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 

AND ASIAN AMERICAN LEGAL DEFENSE AND 

EDUCATION FUND IN SUPPORT OF APPELLEE 

ON SUPPLEMENTAL QUESTION 

--------------------------------- ♦ --------------------------------- 

DONALD J. SIMON

SONOSKY, CHAMBERS, SACHSE, 

 ENDRESON & PERRY, LLP 

1425 K Street, NW, Suite 600 

Washington, DC 20005 

(202) 682-0240 

FRED WERTHEIMER

DEMOCRACY 21 

1875 I Street, NW, Suite 500 

Washington, DC 20005 

(202) 429-2008 

TREVOR POTTER*

J. GERALD HEBERT

TARA MALLOY

PAUL S. RYAN

THE CAMPAIGN LEGAL

CENTER

215 E Street, NE 

Washington, DC 20002

(202) 736-2200 

Counsel for Amici Curiae

*Counsel of Record

================================================================ COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 

OR CALL COLLECT (402) 342-2831 
i 

TABLE OF CONTENTS 

Page 

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

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

SUMMARY OF ARGUMENT .............................. 1 

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

 I. Overturning Austin Would Invalidate 

Decades-Old Restrictions on Corporate 

Expenditures and Unleash a Flood of 

Corporate Money into Candidate Elections ........................................................... 3 

A. For Over a Century, Restrictions on 

Corporate Campaign Activities Have 

Been a Cornerstone of American Election Law ............................................... 3 

B. Overturning Austin Would Radically 

Alter How Elections Are Conducted 

and Financed ....................................... 6 

 II. A Decision to Overturn Austin Would Be 

Contrary to Decades of Supreme Court 

Precedent and Would Contravene Principles of Stare Decisis ................................... 8 

A. This Court’s Precedent Confirms that 

Far From Being an Anomaly, Austin

Is Deeply Embedded in this Court’s 

Campaign Finance Jurisprudence ...... 9 

1. Supreme Court Precedent Prior to 

Austin ............................................. 9 

2. The Austin Decision and Beyond ... 14 
ii 

TABLE OF CONTENTS – Continued 

Page 

B. Principles of Stare Decisis Weigh 

Strongly Against Overruling Austin

and McConnell ..................................... 18 

CONCLUSION ..................................................... 22 

APPENDIX A ....................................................... App. 1 

APPENDIX B ....................................................... App. 4 
iii 

TABLE OF AUTHORITIES 

Page 

CASES: 

Arizona v. Rumsey, 467 U.S. 203 (1984) .................... 18 

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

Davis v. FEC, 128 S. Ct. 2759 (2008) ......................... 19 

FEC v. Beaumont, 539 U.S. 146 

(2003) ............................................... 15, 16, 17, 19, 20 

FEC v. Masachusetts Citizens for Life, Inc., 479 

U.S. 238 (1986) ................................ 12, 13, 14, 15, 20 

FEC v. National Right to Work Committee, 459 

U.S. 197 (1982) ................................................ passim

FEC v. Wisconsin Right to Life, Inc., 127 S. Ct. 

2652 (2007) .............................................. 1, 17, 18, 20 

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

765 (1978) .......................................................... 11, 20 

Harris v. U.S., 536 U.S. 545 (2002) ........................... 18 

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

Planned Parenthood of Southeastern Pa. v. 

Casey, 505 U.S. 833 (1992) ........................... 8, 19, 20 

Randall v. Sorrell, 548 U.S. 230 (2006) ............... 18, 20 

U.S. v. Congress of Industrial Organizations, 

335 U.S. 106 (1948) ..................................... 4, 5, 9, 10 

U.S. v. United Automobile Workers, 352 U.S. 

567 (1957) ............................................ 4, 5, 10, 11, 20 
iv 

TABLE OF AUTHORITIES – Continued 

Page 

STATUTES: 

Bipartisan Campaign Reform Act of 2002, Pub. 

L. No. 107-155, 116 Stat. 81 (2002) .................... 6, 16 

Federal Corrupt Practices Act of 1925, 43 Stat. 

1070 (1925) ........................................................ 4, 5, 9 

Federal Election Campaign Act, 2 U.S.C. 

§§ 431, et seq. ............................................................. 6 

Taft-Hartley Act, § 304, 61 Stat. 159 (1947) ...... 5, 6, 10 

Tillman Act, ch. 420, 34 Stat. 864 (1907) ....... 4, 6, 9, 10 

War Labor Disputes Act, ch. 144, § 9, 57 Stat. 

163 (1943) .............................................................. 4, 5 

2 U.S.C. § 441b ................................................... passim

LEGISLATIVE MATERIALS: 

H.R. REP. NO. 79-2739 (1946) ....................................... 5 

93 CONG. REC. 6594 (1947) (statement of Sen. 

Taft) ........................................................................... 5 

OTHER AUTHORITIES: 

CENTER FOR RESPONSIVE POLITICS, Banking on 

Becoming President, at http://www.open 

secrets.org/pres08/index.php?cycle=2008 ................ 7 

CENTER FOR RESPONSIVE POLITICS, 2008 

Overview: Stats at a Glance, at http://www. 

opensecrets.org/overview/index.php?cycle=20

08&Type=A&Display=A ........................................... 8 
v 

TABLE OF AUTHORITIES – Continued 

Page 

FEC, Number of Federal PACs Increases

(March 9, 2009), available at http://www.fec. 

gov/press/press2009/20090309PACcount.shtml ....... 21 

Robert E. Mutch, Before and After Bellotti: The 

Corporate Political Contributions Cases, 5 

ELECTION L.J. 293 (2006) .......................................... 9 

ROBERT E. MUTCH, CAMPAIGNS, CONGRESS AND

COURTS: THE MAKING OF FEDERAL CAMPAIGN

FINANCE LAW (1988) ................................................... 3 

EARL R. SIKES, STATE AND FEDERAL CORRUPTPRACTICES LEGISLATION (1928) .................................. 7 

U.S. CENSUS, STATISTICAL ABSTRACT OF THE

UNITED STATES 2009: 

 Table 731, available at http://www.census. 

gov/compendia/statab/tables/09s0731.pdf ................ 7 

 Table 761, available at http://www.census. 

gov/compendia/statab/tables/09s0761.pdf ................ 7 

Adam Winkler, “Other People’s Money”: 

Corporations, Agency Costs and Campaign 

Finance Law, 92 GEO. L. J. 871 (2004) ................. 3, 4 
1 

INTEREST OF AMICI CURIAE1

 This amici curiae brief is filed on behalf of seven 

non-profit, non-partisan organizations that support 

effective campaign finance laws to ensure political 

participation and protect the integrity of government.2

SUMMARY OF ARGUMENT 

For more than a half-century, American elections 

have been conducted without resort to the immense 

aggregated wealth in corporate treasuries. The laws 

effecting this restriction were upheld by this Court in 

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

Michigan State Chamber of Commerce, 494 U.S. 652 

(1990), and approved as recently as the 2007 decision 

in FEC v. Wisconsin Right to Life, Inc. (WRTL), 127 

S. Ct. 2652 (2007). 

 Appellant Citizens United requests that this 

Court now overturn Austin and part of McConnell. 

Amici respectfully submit that this Court should not 

take this radical step. 

1

 Letters consenting to the filing of this brief have been filed 

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

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

their counsel made a monetary contribution to the brief ’s preparation or submission. 

2

 A description of the amici curiae is attached as Appendix A 

hereto. 
2 

 First, overturning these decisions would effectively render unconstitutional the 60-year-old federal 

restriction on corporate and union expenditures in 

federal elections, see 2 U.S.C. § 441b, as well as the 

statutes in 24 states that prohibit or limit corporate 

spending in state elections. 

 Such action would also controvert the long line of 

Supreme Court decisions approving restrictions on 

corporate and union spending in candidate elections. 

Appellant’s entire argument rests on its assertion 

that Austin was a “jurisprudential outlier,” Supplemental Brief for Appellant (“Br.”) at 10, but this claim 

is simply unsustainable. Austin explicitly based its 

holding on past Supreme Court decisions, and 

moreover, has been cited approvingly in all subsequent Supreme Court cases addressing restrictions on 

corporate campaign activities. 

 In sum, overturning Austin and McConnell would 

require a dramatic break from this Court’s precedent, 

a dismissal of six decades of election law and a blunt 

rejection of principles of stare decisis. Appellant has 

presented no constitutional justification for such 

action. 
3 

ARGUMENT 

I. Overturning Austin Would Invalidate 

Decades-Old Restrictions on Corporate 

Expenditures and Unleash a Flood of 

Corporate Money into Candidate Elections. 

A. For Over a Century, Restrictions on 

Corporate Campaign Activities Have 

Been a Cornerstone of American Election Law. 

 The federal effort to prevent corporations from 

intervening in candidate elections dates back to the 

turn of the last century. At that time, the patronage 

system for financing political campaigns through 

“assessments” upon the salaries of officeholders was 

breaking down and corporate contributions were 

rapidly filling the vacuum. The possibility that corporations were purchasing influence over candidates 

and political parties alarmed citizens and public 

officials alike. ROBERT E. MUTCH, CAMPAIGNS, CONGRESS AND COURTS: THE MAKING OF FEDERAL CAMPAIGN

FINANCE LAW 1-3, 176-77 (1988). 

 The issue came to a head in the 1904 presidential 

election, where the losing candidate, Alton Parker, 

publicly accused his opponent, Theodore Roosevelt, of 

secretly funding his campaign with contributions 

from life insurance companies. See Adam Winkler, 

“Other People’s Money”: Corporations, Agency Costs 

and Campaign Finance Law, 92 GEO. L. J. 871, 886 

(2004). These accusations gained further force in 
4 

1905 when an investigation by the state of New York 

revealed that the three largest insurance companies 

had indeed made large contributions to Roosevelt’s 

campaign and the Republican Party. Id. at 892. The 

public was outraged that the companies would divert 

policyholders’ funds into candidate elections, particularly as the companies had sought legislation that 

would limit the ability of policyholders to sue managers for breach of fiduciary duty. Id. at 894-95. 

Congress responded by enacting the Tillman Act, ch. 

420, 34 Stat. 864 (1907), which prohibited corporations and national banks from making “money 

contribution[s] in connection with any election to any 

political office.” The Act was subsequently consolidated with other federal campaign finance 

regulations in the Federal Corrupt Practices Act of 

1925, 43 Stat. 1070 (1925). 

 In 1943, Congress extended the corporate restriction to labor unions on a temporary basis. The impetus for the extension was the wealth and power that 

unions had accrued in the New Deal era, and their 

increasingly high profile in federal elections. U.S. v. 

Congress of Industrial Organizations (CIO), 335 U.S. 

106, 115 (1948). Fearing that this new source of 

aggregated wealth would also have “untoward 

consequences for the democratic process,” U.S. v. 

United Automobile Workers (UAW), 352 U.S. 567, 578 

(1957), Congress required unions to comply with the 

campaign finance laws applicable to corporations for 

the duration of World War II. War Labor Disputes 

Act, ch. 144, § 9, 57 Stat. 163 (1943). 
5 

 The War Labor Disputes Act was quickly deemed 

ineffectual. Following the 1944 election, reports 

surfaced that unions had circumvented the contribution restrictions by making independent expenditures 

to support their favored candidates. In order to plug 

this loophole, Congress enacted the Taft-Hartley Act, 

§ 304, 61 Stat. 159 (1947), which amended the 

Federal Corrupt Practices Act to clarify that both 

contributions and expenditures by corporations and 

unions were prohibited by the law. This was the 

origin of the federal statutory language restricting 

corporate expenditures challenged in this case. See 2 

U.S.C. § 441b. 

 Importantly, however, the intent of the TaftHartley Act was not to “extend greatly the coverage” 

of existing law, but rather to restore the law to its 

original intent. CIO, 335 U.S. at 122. The legislative 

history indicates that Congress believed that the 

Federal Corrupt Practices Act already prohibited both 

contributions and expenditures by corporations and 

unions. As Senator Taft explained, “the previous law 

prohibited any contribution, direct or indirect, in 

connection with any election,” and his legislation 

“only make[s] it clear that an expenditure . . . is the 

same as an indirect contribution, which, in [his] 

opinion, has always been unlawful.” 93 CONG. REC. 

6594 (1947) (statement of Sen. Taft); see also UAW, 

352 U.S. at 582, citing H.R. REP. NO. 79-2739, at 40 

(1946) (stating that House Special Committee was 

“firmly convinced” that the “act prohibiting any 

corporation or labor organization from making any 
6 

contribution” “was intended to prohibit such expenditures”). 

 Thus, federal law has sought to regulate corporate expenditures since the 1907 Tillman Act, and has 

explicitly done so since the enactment of the TaftHartley Act in 1947. 

B. Overturning Austin Would Radically 

Alter How Elections Are Conducted 

and Financed. 

 Overturning Austin would in effect invalidate the 

federal restriction on corporate expenditures, upon 

which both the legislative and executive branches 

have relied for decades. Congress has enacted successive federal campaign finance laws to further regulate corporate and union expenditures, including both 

the Federal Election Campaign Act (FECA), 2 U.S.C. 

§§ 431, et seq., and the Bipartisan Campaign Reform 

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

The invalidation of Austin would cause a sea-change 

in election law, requiring major amendment of FECA 

and its implementing regulations, and the revision of 

decades of regulatory practice. 

 Overturning Austin would also throw into constitutional jeopardy the campaign finance statutes of 

the 22 states that prohibit the expenditure of 

corporate treasury funds and the two states that limit 
7 

such expenditures in state candidate elections.3 Many 

of these state laws are longstanding. EARL R. SIKES, 

STATE AND FEDERAL CORRUPT-PRACTICES LEGISLATION

279-82 (1928). 

 Further, the invalidation of these statutory 

checks on corporate expenditures would, in turn, expose federal elections to the corrosive and distorting 

effects of corporate money for the first time in 60 

years. 

 The enormous wealth that corporations have 

amassed in the economic marketplace has the potential to flood the political marketplace. In 2005, the 

Internal Revenue Service estimated that the total net 

worth of U.S. corporations was $23.53 trillion. U.S. 

CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES

2009, at Table 731, available at http://www.census. 

gov/compendia/statab/tables/09s0731.pdf. Post-tax corporate profits in 2005 were similarly staggering, 

totaling almost $1 trillion. Id. at Table 761, available at

http://www.census.gov/compendia/statab/tables/09s0761. 

pdf. 

 For the purposes of comparison, Democratic 

presidential nominee Barack Obama shattered all 

historic fundraising records and raised $745 million 

in the 2008 election cycle. CENTER FOR RESPONSIVE

POLITICS (CRP), Banking on Becoming President, at 

3

 A chart of all state statutes regulating corporate expenditures is attached as Appendix B hereto. 
8 

http://www.opensecrets.org/pres08/index.php?cycle=2 

008. And the average House candidate and Senate 

candidate in the 2008 election cycle raised $711,000 

and $2.44 million, respectively. CRP, 2008 Overview: 

Stats at a Glance, at http://www.opensecrets.org/ 

overview/index.php?cycle=2008&Type=A&Display=A. 

Given the disparity between corporate wealth and 

typical political fundraising, it is clear that corporations have the capacity to overwhelm all other 

political actors in elections, including the candidates 

and political parties who actually campaign in such 

elections. 

II. A Decision to Overturn Austin Would Be 

Contrary to Decades of Supreme Court 

Precedent and Would Contravene Principles of Stare Decisis. 

 Appellant argues Austin should be overruled 

because it is “hopelessly at odds with well-settled 

tenets of this Court’s First Amendment jurisprudence.” Br. at 9. But just the opposite is true. Austin

is not a constitutional outlier. Rather, it is the logical 

conclusion of a line of cases dating back a halfcentury that address the restrictions on corporate and 

union activity in candidate elections. Moreover, 

Austin has been cited approvingly in all recent 

Supreme Court decisions addressing corporate campaign finance restrictions, and therefore by no means 

can be considered a “mere survivor of obsolete 

constitutional thinking.” Planned Parenthood of 

Southeastern Pa. v. Casey, 505 U.S. 833, 857 (1992). 
9 

Overruling Austin would mark a radical departure 

from both the Court’s own precedent and from 

principles of stare decisis. 

A. This Court’s Precedent Confirms that 

Far From Being an Anomaly, Austin Is 

Deeply Embedded in this Court’s Campaign Finance Jurisprudence. 

For over a half-century, the Supreme Court has 

approved statutory restrictions on corporate and 

union contributions and expenditures in candidate 

elections. To now overrule Austin would not be a neat 

excision of a single case; rather it would plow up long 

settled, and well settled, ground.

1. Supreme Court Precedent Prior to 

Austin

 The Tillman Act and Federal Corrupt Practices 

Act elicited few major legal challenges until they 

were extended to restrict union contributions and 

expenditures. Robert E. Mutch, Before and After 

Bellotti: The Corporate Political Contributions Cases, 

5 ELECTION L.J. 293, 293-94 (2006). The Supreme 

Court thus first considered the law in a challenge to 

the union expenditure restriction brought in the CIO

case. 

 The CIO Court ultimately disposed of the case on 

statutory grounds. Importantly, however, the Court 

noted that the Tillman Act was the “antecedent” to 

the union restriction, 335 U.S. at 113, and provided 
10 

the first judicial articulation of the motivation behind 

the Act, namely: (1) “the necessity for destroying the 

influence over elections which corporations exercised 

through financial contribution,” and (2) “the feeling 

that corporate officials had no moral right to use 

corporate funds for contributions to political parties 

without the consent of the stockholders.” Id. 

 The Court expanded upon this analysis in UAW, 

where it held that a union’s use of union dues for a 

television broadcast to influence congressional 

elections was covered by the federal union expenditure restriction. In considering the restriction, the 

Court recounted approvingly the history of “the 

circumstances that begot this statute.” 352 U.S. at 

570. It noted that the initial impetus for regulation 

was the “popular feeling” in the post-Civil War era 

“that aggregated capital unduly influenced politics, 

an influence not stopping short of corruption.” Id. 

This sentiment, the Court said, drove the passage of 

the Tillman Act which aimed “not merely to prevent 

the subversion of the integrity of the electoral 

process,” but also “to sustain the active, alert responsibility of the individual citizen in a democracy for the 

wise conduct of government.” Id. at 575. Because 

Congress subsequently found that the restrictions on 

corporate and union contributions were being 

circumvented by expenditures made by these entities, 

it enacted the Taft-Hartley Act to “plug the existing 

loophole” and thereby “protect the political process 

from . . . the corroding effect of money employed in 
11 

elections by aggregated power.” Id. at 582 (citation 

omitted). 

 The Court first considered restrictions on 

corporate political activity in First Nat’l Bank of 

Boston v. Bellotti, 435 U.S. 765 (1978). The question 

there, however, was whether the state of Massachusetts could restrict the expenditure of corporate 

treasury funds to influence ballot initiatives. The 

Court carefully distinguished restrictions on corporate spending in candidate elections, which were 

enacted to prevent the “corruption of elected representatives through the creation of political debts,” id. 

at 788, from spending on ballot initiatives, where, 

“the risk of corruption perceived in cases involving 

candidate elections . . . simply is not present.” Id. at 

790. Because the restrictions on corporate ballot 

initiative spending could not be justified by the 

government’s anti-corruption interests, the Court 

struck down Massachusetts’ law. Nothing in Bellotti, 

however, questioned the validity of the restrictions on 

corporate money in candidate campaigns. 

 In FEC v. National Right to Work Committee 

(NRWC), 459 U.S. 197 (1982), the Court first reviewed the federal restrictions on corporate activity 

in candidate elections. The case followed the enactment of FECA, which codified the preexisting federal 

restrictions on corporate and union campaign 

activities at 2 U.S.C. § 441b. NRWC reviewed a 

provision of the new law that required corporations to 

use a separate segregated fund to make political 

contributions and expenditures, and to solicit only 
12 

their “members” for contributions to such fund. See 2 

U.S.C. § 441b(b)(4). 

 The Court emphasized that Congress’ “judgment 

that the special characteristics of the corporate 

structure require particularly careful regulation” was 

entitled to deference. 459 U.S. at 209-10. It described 

the gradual “step by step” evolution of the federal 

regulation of corporate and union political spending, 

and affirmed that the “careful legislative adjustment 

of the federal electoral laws” “reflects a permissible 

assessment of the dangers posed by [corporations and 

unions] to the electoral process.” Id. at 209. 

 The Court ultimately held that the PACrequirement did not violate the First Amendment 

because the “associational rights” asserted by the 

corporation were “overborne by the interests Congress has sought to protect in enacting § 441b.” Id. at 

207. In so holding, it again explained that Congress 

had a compelling interest in (1) “ensur[ing] that 

substantial aggregations of wealth” amassed by 

corporations were not “converted to political ‘war 

chests’ which could be used to incur political debts 

from legislators,” and (2) “protect[ing] the individuals 

who have paid money into a corporation or union for 

purposes other than the support of candidates from 

having that money used to support political candidates to whom they may be opposed.” Id. at 207-08 

(citations omitted). 

 The Court revisited the constitutionality of 

§ 441b in FEC v. Massachusetts Citizens for Life, Inc. 
13 

(MCFL), 479 U.S. 238 (1986). At issue was whether 

the corporate expenditure restriction prohibited the 

non-profit corporation MCFL from distributing a 

newsletter urging readers to vote “pro-life” in the 

upcoming election. The Court held that this expenditure was indeed covered by the restriction, but found 

that MCFL should be exempted because the state 

interests justifying the restriction do not apply to an 

ideological non-profit corporation that has no shareholders, was not established by a corporation or 

union, and did not accept contributions from such 

entities. Id. at 263-64. 

 The Court began its analysis by narrating the 

history of the federal restriction on corporate expenditures, affirming that “Congress has long regarded it 

as insufficient merely to restrict payments made 

directly to candidates or campaign organizations.” Id. 

at 246. Like the NRWC Court, it also acknowledged 

that Congress’ decision to focus on the particular 

dangers posed by business corporations was a 

decision “to which we have said we owe considerable 

deference.” Id. at 259 n.11 (citations omitted). 

 The Court then reviewed the governmental interests supporting the restriction, explaining: “Direct 

corporate spending on political activity raises the 

prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage 

in the political marketplace.” Id. at 257. It noted, 

however, that § 441b was intended to correct this 

distortion in electoral advocacy: “By requiring that 

corporate independent expenditures be financed 
14 

through a political committee expressly established to 

engage in campaign spending, § 441b seeks to 

prevent this threat to the political marketplace. The 

resources available to this fund, as opposed to the 

corporate treasury, in fact reflect popular support for 

the political positions of the committee.” Id. at 258. 

The corporate expenditure restriction is therefore 

justified because it “ensure[s] that competition among 

actors in the political arena is truly competition 

among ideas.” Id. at 259. 

 The Court ultimately concluded that “the concerns underlying the regulation of corporate political 

activity are simply absent with regard to MCFL.” Id. 

at 263. In exempting MCFL from § 441b, however, the 

Court at the same time affirmed “the legitimacy of 

Congress’ concern” about “organizations that amass 

great wealth in the economic marketplace,” thereby 

recognizing the validity of the interests underlying 

the expenditure restriction as applied to business 

corporations or other corporations that do not 

resemble MCFL. Id. 

2. The Austin Decision and Beyond 

 Four years after the MCFL ruling, this Court 

decided Austin. As the foregoing section illustrates, 

the Court at that point had already amassed a 

significant body of case law analyzing the union and 

corporate expenditure restrictions. Far from making 

a “precipitous break with prior precedent,” Br. at 10, 

Austin instead relied heavily upon this case law. 
15 

 The Austin Court leaned particularly on MCFL, 

largely importing its analysis of the federal corporate 

expenditure restriction. It first quoted the decision to 

find that the state had an interest in ensuring that 

corporations did not deploy their “ ‘resources amassed 

in the economic marketplace’ to obtain ‘an unfair 

advantage in the political marketplace.’ ” 494 U.S. at 

659 (quoting MCFL, 479 U.S. at 257). The Court went 

on to conclude that “the compelling governmental 

interest in preventing corruption support[s] the 

restriction of the influence of political war chests 

funneled through the corporate form.” Id. (citing

MCFL, 479 U.S. at 257). The Austin decision thus fits 

squarely into the chain of this Court’s precedents on 

corporate and union spending in elections. 

 In all of its subsequent decisions in this area, this 

Court cited Austin in upholding the corporate regulation at issue. 

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

Court relied on Austin to hold that the federal restriction on corporate campaign contributions is constitutional even as applied to a nonprofit corporation. 

 As the Court did in many earlier cases, the 

Beaumont Court prefaced its consideration of the 

restriction by recounting a “century of congressional 

efforts to curb corporations’ potentially deleterious 

influences on federal elections.” Id. at 152 (internal 

quotations omitted). It concluded its review of the 

“continual congressional attention to corporate political activity,” id. at 153, by highlighting again the 
16 

deference owed Congress in this area: “In sum, our 

cases on campaign finance regulation represent 

respect for the ‘legislative judgment that the special 

characteristics of the corporate structure require 

particularly careful regulation.’ ” Id. at 155 (quoting 

NRWC, 459 U.S. at 209-10). 

 The Court then turned to the governmental 

interests supporting the contribution restriction, remarking that the “original rationales for the law” had 

endured. Id. at 154. Quoting Austin, the Court noted 

that corporations’ “state-created advantages not only 

allow corporations to play a dominant role in the 

Nation’s economy, but also permit them to use 

resources amassed in the economic marketplace to 

obtain an unfair advantage in the political marketplace.” Id. at 154 (quoting Austin, 494 U.S. at 658-59) 

(internal quotations omitted). Reiterating past cases, 

it found that the corporate expenditure ban was 

intended to prevent “corruption or the appearance of 

corruption,” and to “protect[ ] ‘the individuals who 

have paid money into a corporation or union for purposes other than the support of candidates from 

having that money used to support political candidates to whom they may be opposed.’ ” Id. at 154 

(quoting NRWC, 459 U.S. at 208). 

 By the time this Court in McConnell considered 

the facial constitutionality of section 203 of BCRA, 2 

U.S.C. § 441b, the law in this area was so settled that 

the Court recognized that “Congress’ power to prohibit corporations and unions from using funds in 

their treasuries to finance advertisements expressly 
17 

advocating the election or defeat of candidates in 

federal elections has been firmly embedded in our 

law.” 540 U.S. at 203. 

 Although the McConnell Court acknowledged 

that the plaintiffs did not contest the state’s compelling interest in regulating corporate expenditures, 

it nevertheless highlighted that Congress’ efforts in 

this sphere should be accorded deference. It noted 

that “our prior decisions regarding campaign finance 

regulation, which ‘represent respect for the legislative 

judgment that the special characteristics of the 

corporate structure require particularly careful 

regulation’ ” “easily answered” the question “whether 

the state interest is compelling.” Id. at 205 (quoting 

Beaumont, 539 U.S. at 155 (quoting NRWC, 459 U.S. 

at 209-10)). Quoting Austin, the Court explained that 

it had “repeatedly sustained legislation aimed at the 

‘corrosive and distorting effects of immense 

aggregations of wealth that are accumulated with the 

help of the corporate form and that have little or no 

correlation to the public’s support for the corporation’s political ideas.’ ” Id. at 660 (quoting Austin, 

494 U.S. at 660). 

 Finally, citing Austin, the Court’s 2007 decision 

in WRTL also reaffirmed the constitutionality of 

BCRA’s restriction on corporate expenditures for 

electioneering communications as applied to spending 

for express advocacy and the “functional equivalent of 

express advocacy.” 127 S. Ct. at 2656. The Chief 

Justice’s controlling opinion noted that the Court “has 

already ruled that BCRA survives strict scrutiny to 
18 

the extent it regulates express advocacy or its 

functional equivalent.” Id. at 2664. 

B. Principles of Stare Decisis Weigh 

Strongly Against Overruling Austin

and McConnell. 

Given that the constitutionality of the corporate 

expenditure restrictions has become “firmly embedded in our law,” McConnell, 540 U.S. at 203,

neither Austin nor McConnell can be overruled without fundamentally undermining this Court’s First 

Amendment precedents and principles of stare 

decisis. 

 This Court has recognized that the doctrine of 

stare decisis is “of fundamental importance to the rule 

of law,” Harris v. U.S., 536 U.S. 545, 556-57 (2002), 

because it “promotes the evenhanded, predictable, 

and consistent development of legal principles, fosters 

reliance on judicial decisions, and contributes to the 

actual and perceived integrity of the judicial process.” 

Randall v. Sorrell, 548 U.S. 230, 243 (2006). Consequently, a departure from precedent is improper 

unless a “special justification” is shown, even where 

the case turns on constitutional questions. Arizona v. 

Rumsey, 467 U.S. 203, 212 (1984). 

 In considering whether a break from precedent 

is justified, the Court reviews several considerations, 

including “whether related principles of law have so 

far developed as to have left the old rule no more 

than a remnant of abandoned doctrine,” “whether 
19 

facts have so changed, or come to be seen so 

differently, as to have robbed the old rule of 

significant application or justification,” or “whether 

the rule is subject to a kind of reliance that would 

lend a special hardship to the consequences of 

overruling.” See Casey, 505 U.S. at 854-55. Here, 

these considerations militate against overturning 

Austin and McConnell. 

 First, subsequent case law has in no way 

undercut the validity of Austin or the legal principles 

upon which the decision rests. To the contrary, Austin

is deeply rooted in this Court’s campaign finance 

jurisprudence, and has been relied upon by this Court 

in all of its subsequent decisions addressing restrictions on corporate campaign activities. See, e.g., 

Beaumont, 539 U.S. at 154; McConnell, 540 U.S. at 

166; WRTL, 127 U.S. at 2656. Indeed, the only 

subsequent case which appellant proffers as allegedly 

contrary to Austin is Davis v. FEC, 128 S. Ct. 2759 

(2008). Br. at 3, 9. Davis, however, considered a 

statutory provision that affected a candidate’s expenditure of his personal funds in an election, not a 

corporation’s expenditure of treasury funds, and 

hence has no application here. 

 Appellant also argues that Austin was wrongly 

decided because it “effected a dramatic break” with 

cases that preceded it, specifically Buckley and 
20 

Bellotti.

4

 Br. at 5. Even putting aside the obvious fact 

that this Court carefully considered these cases when 

it ruled in Austin, see 494 U.S. at 657-58, the 

foregoing review makes clear that Austin is entirely 

consistent with the decisions in this area: Austin

relies on the same principles, and cites the same 

governmental interests as UAW, NRWC and MCFL. 

Indeed, the fundamental rationale for the corporate 

expenditure restriction upon which Austin relies – 

namely, that “the special characteristics of the 

corporate structure require particularly careful 

regulation” – has withstood decades of litigation. 

Beaumont, 539 U.S. at 155; MCFL, 479 U.S. at 256; 

NRWC, 459 U.S. at 209-10. And this Court has 

recognized that stare decisis applies with particular 

force where, as here, the precedent at issue “has 

become settled through iteration and reiteration over 

a long period of time.” Randall, 548 U.S. at 234. 

 Nor has there been any showing that factual 

circumstances have changed so radically as to “rob” 

Austin “of significant application or justification.” 

Casey, 505 U.S. at 854. As was true in 1990 when 

Austin was decided, business corporations still 

“accumulate” “immense aggregations of wealth . . . 

with the help of the corporate form . . . that have little 

or no correlation to the public’s support for the 

corporation’s political ideas.” Austin, 494 U.S. at 660. 

4

 As noted above, Austin is not in conflict with Bellotti, as 

the Court there specifically distinguished ballot initiative elections from candidate elections. 435 U.S. at 790. 
21 

The wealth available to business corporations has 

only increased, and corporations have remained active in candidate elections, as demonstrated by the 

1,598 corporate PACs registered with the FEC today. 

FEC, Number of Federal PACs Increases (March 9, 

2009), available at http://www.fec.gov/press/press 

2009/20090309PACcount.shtml. Also still salient is 

the concern that dissenting shareholders cannot 

adequately prevent corporations from using their 

investment dollars for political expenditures that 

they do not support. Indeed, the rise of mutual funds 

and employer-based retirement plans has further 

limited the choices available to the average investor, 

as well as the control exerted by such investors over 

corporate governance. 

 Finally, overruling Austin would disregard the 

considerable reliance that Congress and nearly half 

the states have placed upon it in enacting and 

enforcing campaign finance laws. Congress enacted 

BCRA only seven years ago, secure in the belief that 

Austin was good law and that the then almost 60-

year-old federal corporate expenditure restriction was 

constitutional. Similarly, 24 states have relied upon 

the body of Supreme Court precedent approving 

restrictions on corporate spending. Moreover, candidates and political parties have also relied upon 

Austin and the federal expenditure restriction in 

developing their fundraising practices: their focus on 

raising contributions from individual donors reflects 

that American federal elections have been free of 

 
22 

corporate and union expenditures for well over a halfcentury. This Court should not lightly topple one of 

the fundamental legal pillars of American elections 

that has stood for three generations, and that has 

successfully prevented aggregated wealth from subverting the electoral system. 

CONCLUSION 

 For all these reasons, the judgment of the district 

court should be affirmed. 

July 2009 

 Respectfully submitted, 

DONALD J. SIMON

SONOSKY, CHAMBERS, 

 SACHSE, ENDRESON & 

 PERRY, LLP 

1425 K Street, NW, 

 Suite 600 

Washington, DC 20005 

(202) 682-0240 

FRED WERTHEIMER

DEMOCRACY 21 

1875 I Street, NW, 

 Suite 500 

Washington, DC 20005 

(202) 429-2008 

TREVOR POTTER*

J. GERALD HEBERT

TARA MALLOY

PAUL S. RYAN

THE CAMPAIGN LEGAL

CENTER

215 E Street, NE 

Washington, DC 20002 

(202) 736-2200 

Counsel for Amici Curiae

*Counsel of Record
App. 1 

APPENDIX A 

The following groups constitute the amici curiae who 

submit the foregoing brief: 

• Americans for Campaign Reform is a 

non-partisan, grassroots organization of 

citizens whose purpose is to help enact public 

funding of all federal elections – for the 

House, the Senate and the Presidency. 

Americans for Campaign Reform is about 

getting big money out of our political process 

so that our elected officials can represent the 

only special interest that matters: America. 

• The Asian American Legal Defense and 

Education Fund (AALDEF) is a 35-yearold national civil rights organization that 

promotes and protects the civil rights of 

Asian Americans through litigation, legal 

advocacy and community education. AALDEF 

seeks to ensure that Asian Americans have 

an equal opportunity to participate in the 

political process. 

• The Campaign Legal Center is a nonprofit, non-partisan organization created to 

represent the public perspective in administrative and legal proceedings interpreting 

and enforcing campaign finance and other 

election laws throughout the nation. It 

participates in rulemaking and advisory 

opinion proceedings at the FEC to ensure 

that the agency is properly enforcing federal 

election laws, and files complaints with the 

FEC requesting that enforcement actions be 
App. 2 

taken against individuals or organizations 

that violate the law. 

• Common Cause is a nonprofit, nonpartisan 

citizens’ organization with approximately 

300,000 members and supporters nationwide. Common Cause has been concerned 

with the growing problem of soft money in 

the federal political process, and has publicly 

advocated for appropriate regulation in order 

to restore integrity to the electoral system. 

Common Cause was a strong advocate for 

congressional enactment of the Bipartisan 

Campaign Reform Act of 2002. 

• Democracy 21 is a non-profit, non-partisan 

policy organization that works to ensure the 

integrity of our democracy. It supports campaign finance and other political reforms, 

and conducts public education efforts to 

accomplish these goals, participates in litigation involving the constitutionality and 

interpretation of campaign finance laws and 

works to ensure that campaign finance laws 

are effectively and properly enforced and 

implemented. 

• The League of United Latin American 

Citizens (LULAC) is the largest and oldest 

Hispanic Organization in the United States. 

LULAC advances the economic condition, 

educational attainment, political influence, 

health and civil rights of Hispanic Americans 

through community-based programs operating at more than 700 LULAC councils 
App. 3 

nationwide. The organization involves and 

serves all Hispanic nationality groups. 

• U.S. PIRG represents state Public Interest 

Research Groups (“PIRGs”) at the federal 

level, including in the federal courts. U.S. 

PIRG and many state PIRGs have long been 

interested in campaign finance issues and 

the resolution of this case will assist them in 

their advocacy for effective and comprehensive campaign finance reforms. 

 
App. 4 

APPENDIX B 

CURRENT STATE STATUTES REGULATING CORPORATE

EXPENDITURES IN CONNECTION TO STATE CANDIDATE

ELECTIONS

Alabama ALA. CODE §§ 10-2A-70, 10-2A-70.1

Alaska ALASKA STAT. §§ 15.13.135,

15.13.400 

Arizona ARIZ. REV. STAT. ANN. § 16-920

Colorado COLO. CONST. ART. XXVIII, 

§ 3(4)(a) 

Connecticut CONN. GEN. STAT. § 9-613 

Iowa IOWA CODE § 68A.503 

Kentucky KY. REV. STAT. ANN. § 121.035 

Massachusetts MASS. GEN. LAWS, ch. 55, § 8 

Michigan MICH. COMP. LAWS §§ 169.251, 

169.254 

Minnesota MINN. STAT. § 211B.15 

Montana MONT. CODE ANN. § 13-35-227(1) 

New York N.Y. ELEC. LAW § 14-116 

North Carolina N.C. GEN. STAT. ANN. § 163-278.19 

North Dakota N.D. CENT. CODE §§ 16.1-08.1-

03.3, 16.1-08.1-03.5 

Ohio OHIO REV. CODE ANN. § 3599.03 

Oklahoma OKLA. STAT., TIT. 74, § 257:10-1-2 

Pennsylvania 25 PA. CONS. STAT. ANN. § 3253 
App. 5 

Rhode Island R.I. GEN. LAWS § 17-25-10.1 

South Dakota S.D. CODIFIED LAWS § 12-27-18 

Tennessee TENN. CODE ANN. § 2-19-132 

Texas TEX. ELEC. CODE §§ 253.094, 

253.104 

West Virginia W.VA. CODE § 3-8-8 

Wisconsin WIS. STAT. § 11.38 

Wyoming WYO. STAT. § 22-25-102