No. 08-205 

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

In The 

Supreme Court of the United States 

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

CITIZENS UNITED, 

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

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

On Appeal From 


The United States District Court 


For The District Of Columbia
 

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

BRIEF OF THE INSTITUTE FOR JUSTICE 


AS AMICUS CURIAE IN SUPPORT OF 


APPELLANT, CITIZENS UNITED 


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

INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE 

WILLIAM R. M AURER * WILLIAM H. MELLOR 

101 Yesler Way STEVEN M. S IMPSON 

Suite 603 PAUL SHERMAN 

Seattle, WA 98104 901 North Glebe Road 

(206) 341-9300 Suite 900 

* Counsel of Record Arlington, VA 22203 

(703) 682-9320 INSTITUTE FOR JUSTICE 

JENNIFER M. PERKINS 

398 South Mill Avenue 

Suite 301 

Tempe, AZ 85281 

(480) 577-6877 

Counsel for Amicus Curiae 

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


OR CALL COLLECT (402) 342-2831 

 

 

 

 

 

 

i 

TABLE OF CONTENTS 


Page 

TABLE OF CONTENTS ...................................... i 


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


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


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


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


I.	 DISCLOSURE REGULATIONS CHILL
 

SPEECH BY BURDENING CITIZENS’
 

RIGHT TO ENGAGE IN ANONYMOUS 


SPEECH AND BY ENABLING PERSONAL AND ECONOMIC REPRISALS..... 6 


A. 	Disclosure Creates A Disincentive To
 

Engage in Political Activity................. 8 


B.	 Fear Of Political Reprisal Is Both
 

Real and Reasonable ........................... 13 


C.	 The FEC’s Regulations Violate the 


First Amendment ................................ 16 


II.	 BURDENSOME REPORTING REQUIREMENTS CHILL SPEECH .......................... 18 


III.	 THE GOVERNMENT SHOULD CARRY
 

THE BURDEN TO DEMONSTRATE
 

THE NEED FOR DISCLOSURE INSTEAD OF SPEAKERS BEARING THE 


BURDEN TO PROVE THE NEED TO 


REMAIN ANONYMOUS ........................... 26 


CONCLUSION..................................................... 30 

ii 

TABLE OF AUTHORITIES 


Page 

CASES
 

Battaglieri v. Mackinac Ctr. for Pub. Policy, 680 


N.W.2d 915 (Mich. Ct. App. 2004) ............................2 


Broward Coal. of Condo. v. Browning, ___ 


F. Supp. 2d ___, 21 Fla. L. Weekly 420 (N.D. 


Fla. 2008)...................................................................1 


Brown v. Socialist Workers’ ’74 Campaign 

Comm., 459 U.S. 87 (1982) ...............................26, 28 


Buckley v. Am. Constitutional Law Found., 


Inc., 525 U.S. 182 (1999)...........................................4 


Buckley v. Valeo, 424 U.S. 1 (1976) ..................4, 26, 27 


Cal. Pro-Life Council, Inc. v. Getman, 328 F.3d 


1088 (9th Cir. 2003) ..................................................4 


Davenport v. Wash. Educ. Ass’n, ___ U.S. ___, 


127 S.Ct. 2372 (2007)................................................1 


FEC v. Mass. Citizens for Life, Inc., 479 U.S. 


238 (1986)......................................................5, 17, 18 


FEC v. Wisc. Right to Life, ___ U.S. ___, 127 


S.Ct. 2652, 168 L. Ed. 2d 329 (2007)..................5, 17 


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


765 (1978)..................................................................4 


Independence Inst. v. Coffman, ___ P.3d ___, 


2008 WL 5006531 (Colo. App. 2008).........................1 


McComish v. Brewer, No. cv-08-1550-PHX-ROS 


(D. Ariz. Oct. 17, 2008)..............................................2 


McConnell v. FEC, 540 U.S. 93 (2003).........1, 3, 26, 28 

iii 

TABLE OF AUTHORITIES – Continued 

Page 

McIntyre v. Ohio Elections Comm’n, 514 U.S. 

334 (1995)................................................................16 


Randall v. Sorrell, 548 U.S. 230 (2006).......................1 


Sampson v. Coffman, ___ F. Supp. 2d ___, 2008 


WL 4305921 (D. Colo. Sept. 18, 2008)......................2 


San Juan County v. NoNewGasTax.com, 157 


P.3d 831 (Wash. 2007)...............................................2 


SpeechNow.org v. FEC, 567 F. Supp. 2d 70 


(D.D.C. 2008).............................................................2 


Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994).........5 


United States v. Harriss, 347 U.S. 612 (1954).........4, 5 


Wisc. Right to Life, Inc. v. FEC, 546 U.S. 410 


(2006).........................................................................1 


STATUTES
 

2 U.S.C. § 434(f)........................................................6, 7 


2 U.S.C. § 434(i)............................................................8 


11 C.F.R. § 104.20 .....................................................6, 7 


OTHER AUTHORITIES
 

Supreme Court Rule 37.3.............................................1 


Supreme Court Rule 37.6.............................................1 

iv 


TABLE OF AUTHORITIES – Continued
 

Page 

PUBLICATIONS 

Amy Bounds, Gay rights advocates picket 

Boulder Cineplex, Rocky Mountain News, 

November 30, 2008 .................................................13 

Associated Press, John Kerry Grills Belgium 

Ambassador Nominee Over Swift Boat Donation, FoxNews.com, February 28, 2007..................14 

Bipartisan Comm’n on the Political Reform Act 

of 1974, Overly Complex and Unduly Burdensome: The Critical Need to Simplify the 

Political Reform Act, http://www.fppc.ca.gov/ 

McPherson.pdf (last visited January 12, 

2009) ........................................................................19 

Dick Carpenter, Ph.D., Disclosure Costs: Unintended Consequences of Campaign Finance 

Reform, Institute for Justice, March 2007, http:// 

www.ij.org/publications/other/disclosurecosts. 

html (last visited January 12, 2009) ..............passim 

Elizabeth Garrett, Commentaries on Bruce 

Ackerman and Ian Ayres’s Voting with Dollars: A New Paradigm for Campaign Finance 

Reform: Voting with Cues, 37 U. Rich. L. Rev. 

1011 (May 2003)......................................................24 

Jeffrey Milyo, Ph.D., Campaign Finance Red 

Tape: Strangling Free Speech & Political Debate at 27, Institute for Justice, October 2007 

http://www.ij.org/publications/other/campaignfinance-red-tape.html (last visited January 

12, 2009) ..........................................................passim 
v 


TABLE OF AUTHORITIES – Continued
 

Page 

Jeffrey Milyo, Ph.D., The Political Economics of 

Campaign Finance, The Independent Review, Vol. 3, Issue 4, 537 (Spring 1999) available at http://web.missouri.edu/~milyoj/files/ 

polecon%20article.pdf ...............................................7 

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

Scared., Wash. Post, July 1, 2007...........................15 

John R. Lott, Jr. and Bradley Smith, Donor 

Disclosure Has Its Downsides: Supporters of 

California’s Prop. 8 Have Faced a Backlash, 

Wall St. J., Dec. 26, 2008 ........................................13 

Kimberley A Strassel, Challenging Spitzerism 

at the Polls, Wall St. J., August 1, 2008 ...........14, 15 

Michael Luo, Group Plans Campaign Against 

G.O.P. Donors, N.Y. Times, August 8, 2008 ...........14 


Raymond LaRaja, Sunshine Laws and the 

Press: The Effect of Campaign Disclosure on 

News Reporting in the American States, 6 

Election L. J. 236 (2007) .........................................25 

Stephen M. Hoersting and Bradley A. Smith, 

Policy Primer: Grassroots Lobbying Proposals Seem Not to Further Congress’ Interest in 

Correcting Lobbying Abuses at 1, available at 

http://www.campaignfreedom.org/docLib/2006 

0607_PolicyPrimer.pdf............................................29 

Steve Lopez, A Life Thrown in Turmoil by $100 

Donation for Prop. 8, Los Angeles Times, 

December 14, 2008..................................................13 
 

 

 

1 


INTEREST OF THE AMICUS 


Pursuant to Rule 37.3 of this Court, the Institute 

for Justice (the “Institute”) respectfully submits this 

amicus curiae brief in support of Appellant Citizens 

United.1 

The Institute is a nonprofit public interest legal 

center dedicated to defending the essential foundations of a free society: private property rights, economic and educational liberty, and the free exchange 

of ideas. The Institute litigates First Amendment 

cases throughout the country and files amicus curiae 

briefs in important cases nationwide, including this 

Court’s decisions in Davenport v. Washington Education Association, ___ U.S. ___, 127 S.Ct. 2372 (2007); 

Randall v. Sorrell, 548 U.S. 230 (2006); Wisconsin 

Right to Life, Inc. v. FEC, 546 U.S. 410 (2006); and 

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

regularly brings cases on behalf of individuals whose 

right to speak and associate has been infringed by the 

actions of the government. In particular, the Institute 

has represented parties in a number of actions 

challenging campaign finance regulations. See Independence Inst. v. Coffman, ___ P.3d ___, 2008 WL 

5006531 (Colo. App. 2008); Broward Coal. of Condo. v. 

1 The Institute has received consent from counsel of record 

pursuant to Sup. Ct. R. 37.3, as submitted with this brief. The 

Institute affirms, pursuant to Sup. Ct. R. 37.6, that no counsel 

for any party authored this brief in whole or in part and that no 

person or entity made a monetary contribution specifically for 

the preparation or submission of this brief. 
 

 

2 


Browning, __ F. Supp. 2d ___, 21 Fla. L. Weekly 420 

(N.D. Fla. 2008); Sampson v. Coffman, ___ 

F. Supp. 2d ___, 2008 WL 4305921 (D. Colo. Sept. 18, 

2008); SpeechNow.org v. FEC, 567 F. Supp. 2d 70 

(D.D.C. 2008); McComish v. Brewer, No. cv-08-1550­

PHX-ROS (D. Ariz. Oct. 17, 2008); San Juan County 

v. NoNewGasTax.com, 157 P.3d 831 (Wash. 2007); and 

Battaglieri v. Mackinac Ctr. for Pub. Policy, 680 

N.W.2d 915 (Mich. Ct. App. 2004). Further, the Institute has published two recent empirical research 

studies identifying the burdens and costs of campaign 

finance disclosure requirements. 

The Institute believes that its legal perspective, 

experience, and empirical research will provide this 

Court with valuable insights regarding the impact of 

mandatory disclosure on political activity. 

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

SUMMARY OF ARGUMENT 

Mandatory reporting and disclosure requirements are common features of campaign finance 

regulations, largely because they are generally accepted as a relatively cost-free means of regulation. 

Until the Institute researched the issue, however, no 

one previously attempted to systematically measure 

the extent to which mandatory disclosure of information about a citizen’s political activities (including the 

widespread dissemination of such information) creates disincentives for the rigorous exercise of First 
 

 

3 


Amendment rights. The Institute’s empirical research 

demonstrates that mandatory disclosure of the kind 

sought by the Appellees in this case chill the exercise 

of First Amendment free speech and association 

rights because of (i) a reasonable fear of reprisals, 

and (ii) the burdens of compliance wedded to severe 

penalties for failing to accurately comply with disclosure rules. 

Under strict scrutiny, it is the government’s 

burden to demonstrate – through facts and not mere 

conjecture – that any harms that disclosure aims to 

prevent are real and that mandating disclosure 

actually alleviates those harms. The Institute’s 

empirical evidence shows that the government cannot 

meet this burden in this case. For this reason, this 

Court should reject the arguments of the Appellee 

regarding the constitutional legitimacy of mandatory 

disclosure of political activity. At the very least, this 

Court should hold that the government must demonstrate that mandatory disclosure of political activity 

will not result in threats, harassment, or reprisals 

from either the government or private parties, instead of placing the burden on the speaker to demonstrate such consequences if anonymity is lifted. 

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

ARGUMENT 

This Court has previously upheld various mandatory disclosure requirements in the campaign 

finance context. See, e.g., McConnell v. FEC, 540 U.S. 
 

4 


93, 196-99, 231, 321 (2003); Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 202 (1999); and 

Buckley v. Valeo, 424 U.S. 1, 81 (1976). This line of 

reasoning has prevailed in the lower courts as well. 

See, e.g., Cal. Pro-Life Council, Inc. v. Getman, 328 

F.3d 1088, 1104 (9th Cir. 2003). Significantly, however, none of these cases actually engaged in an 

analysis of the factual evidence regarding the effects 

and impacts of disclosure requirements on the exercise of First Amendment rights. Instead, the cases 

assume that disclosure had some negative impact on 

the vigorous expression of First Amendment rights, 

but that this burden was not significant enough to 

overcome the government’s interest in combating 

corruption or the appearance of corruption. See 

Buckley, 424 U.S. at 81 (1976) (assumes that “disclosure requirements certainly in most applications 

appear to be the least restrictive means of curbing the 

evils of campaign ignorance and corruption Congress 

found to exist”).2 In that regard, neither this Court, 

2 Many courts find support for mandatory disclosure in 

United States v. Harriss, 347 U.S. 612 (1954). See, e.g., Buckley, 

424 U.S. at 67 n. 79; First Nat’l Bank of Boston v. Bellotti, 435 

U.S. 765, 792 n. 32 (1978); Getman, 328 F.3d at 1106. The 

application of this case beyond its facts is questionable, however. 

First, Harriss concerned a statute narrowly targeting professionals who lobbied members of Congress, in contrast to Citizens 

United’s role in speaking to the public at large. See Harriss, 347 

U.S. at 620-21 n. 10. Moreover, Harriss was issued years before 

the Internet made campaign-finance data easily available to 

anyone with access to a computer. In 1954, the cost of accessing 

information on political activity was relatively high. Now, as 

discussed below, the Internet has allowed states to create 

(Continued on following page) 
 

 

5 


nor any other court, has analyzed whether mandatory 

disclosures are, as widely assumed, in reality “the 

least restrictive means” in comparison to the purported benefits of such regulation. 

For the Federal Election Commission (“FEC”) to 

impose the mandatory disclosure regulations at issue 

before this Court in a manner consistent with the 

dictates of the First Amendment, it must demonstrate 

a compelling state interest which the reporting requirements are narrowly tailored to meet. FEC v. 

Wisc. Right to Life, ___ U.S. ___, 127 S.Ct. 2652, 2664, 

168 L. Ed. 2d 329 (2007) (“WRTL”). To demonstrate 

such an interest, the FEC must offer actual evidence 

of a real problem that the law is designed to remedy. 

See Turner Broad. Sys. v. FCC, 512 U.S. 622, 664 

(1994). This Court has further noted, “[w]here at all 

possible, government must curtail speech only to the 

degree necessary to meet the particular problem at 

hand, and must avoid infringing on speech that does 

not pose the danger that has prompted regulation.” 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 265 

(1986) (“MCFL”). 

This case presents the Court with the opportunity to consider, for the first time, the tangible burdens and costs of disclosure requirements using 

government-run databases of political activity that can be 

accessed with just a few keystrokes. Twenty-first century 

technology has simply made Harriss a vestigial organ of a time 

when accessing information was difficult and expensive. 
 

 

 

6 


empirical information, not mere assumptions or 

conjecture. While evidence as to the burdens and 

benefits of mandatory disclosure laws was not previously available, it now exists. Rather than justifying 

mandatory disclosure laws, this evidence undermines 

their constitutionality. The FEC may not merely rest 

on conjecture, it must demonstrate, using actual 

evidence, that mandatory disclosure of Appellants’ 

donors is narrowly tailored to deter corruption or the 

appearance of corruption. Now that empirical evidence exists regarding the benefits and burdens of 

disclosure and reporting requirements, however, the 

FEC simply cannot meet its burden to justify the 

reporting requirements at issue. See 2 U.S.C. 

§ 434(f)(2); 11 C.F.R. § 104.20.3 

I.	 DISCLOSURE REGULATIONS CHILL SPEECH 

BY BURDENING CITIZENS’ RIGHT TO ENGAGE IN ANONYMOUS SPEECH AND BY 

ENABLING PERSONAL AND ECONOMIC 

REPRISALS 

 Despite the widespread use of mandatory disclosure laws by governments regulating political activity, before the Institute’s recent studies, “no one [had] 

analyzed systemically the effects of campaign-finance 

3 The Institute agrees with Citizens United’s arguments 

regarding the constitutionality of all aspects of the FEC’s 

regulations at issue and in particular with its argument at 

pages 53-57 of the Appellant’s Opening Brief, addressing the 

disclosure requirements in the FEC’s regulations. 
 

 

7 


regulations on freedom of speech or association.” Jeffrey 

Milyo, Ph.D., The Political Economics of Campaign 

Finance, The Independent Review, Vol. 3, Issue 4, 537 

(Spring 1999) available at http://web.missouri.edu/ 

~milyoj/files/polecon%20article.pdf. Given the push in 

recent years for increased campaign finance regulations, this lack of analysis is significant because “[i]t 

is difficult to evaluate the desirability of either current laws or proposed reforms when the potential 

costs of various policies have been completely ignored 

by scholars and policy makers alike.” Id. We now 

have empirical research into the costs of mandatory 

reporting and disclosure laws demonstrating the full 

extent of their chilling effect on First Amendment 

freedoms.4 

Under the FEC’s rules, Appellant Citizens 

United, if subject to the reporting requirements at 

issue in this case, would have to disclose the name 

and address of each person who contributed $1,000 or 

more since the beginning of the prior calendar year 

for the purpose of funding “electioneering communications.” 2 U.S.C. § 434(f); 11 C.F.R. § 104.20. Crucially, this data is then made publicly and broadly 

available by the FEC on public internet websites and 

4 While the particular research studies discussed below 

were conducted within the context of ballot issue elections, the 

primary empirical findings are applicable to candidate elections 

as well and are therefore relevant to this Court’s analysis of 

claims arising in the context of a candidate election. 
 

 

8 


is easily accessible and searchable. 2 U.S.C. § 434(i)(4). 

This kind of reporting or disclosure requirement is 

not unusual in campaign finance regulatory schemes. 

A.	 Disclosure Creates A Disincentive To 

Engage in Political Activity 

In 2007, Dr. Dick Carpenter conducted research 

to determine whether mandatory disclosure requirements impose burdens that chill political participation. See Dick Carpenter, Ph.D., Disclosure Costs: 

Unintended Consequences of Campaign Finance 

Reform at 5-6, Institute for Justice, March 2007, http:// 

www.ij.org/publications/other/disclosurecosts.html (last 

visited January 12, 2009). Dr. Carpenter is an Associate Professor at the University of Colorado, Colorado 

Springs, where he teaches graduate courses in research methods and statistics, and he is the Director 

of Strategic Research at the Institute for Justice. Id. 

at 22. 

Dr. Carpenter’s research is the first of its kind to 

address substantively issues that have long been 

raised by scholars: 

[M]ore than 30 years ago political scientist 

Herbert Alexander warned against a “chilling effect” of [campaign finance] laws on free 

speech and citizen participation. Alexander 

described a situation in which citizens might 

be reluctant to participate or speak for fear 
 

9 

of unintentionally violating laws they knew 

little about or did not understand. 

Brad Smith, former chair of the Federal 

Election Commission and current chair of 

the Center for Competitive Politics, also 

points to the not unheard of possibility of retaliation against citizens whose political activities are disclosed to the public by the 

state. Smith asks, “What is forced disclosure 

but a state-maintained database on citizen 

political activity?” 

Id. at 5. 

Specifically, Dr. Carpenter’s study examined 

respondents’ general opinions about mandatory 

disclosure requirements in the abstract, as well as 

when the respondents themselves might be affected 

personally. Dr. Carpenter found that people generally 

favor mandatory disclosure – or, at least they favor it 

until they may be personally affected by these requirements: 

More than 82 percent of respondents agreed 

or strongly agreed with the idea [of mandatory contribution disclosure requirements]. . . . 

Yet, support for disclosure wanes considerably when the issue is personalized. . . . 

[M]ore than 56 percent disagreed or strongly 

disagreed that their identity should be disclosed, and the number grew to more than 71 

percent when disclosure of their personal information included their employer’s name. 

* * * 
 

10 


Indeed, when we compared respondents’ 

support for disclosure generally to their support for disclosing their own personal information, we found a very weak statistical 

relationship, especially if disclosure of one’s 

employer is required. In other words, enthusiastic support for disclosure laws does not 

translate into a belief that one’s own personal information should be released publicly. 

Id. at 8 (internal citations omitted). The bottom line? 

“[E]ven those who strongly support forced disclosure 

laws will be less likely to contribute to an issue 

campaign if their contribution and personal information will be made public.” Id. 

In that regard, the desire to engage in anonymous political speech and association was the main 

factor underlying respondents’ concerns with disclosure of personal information: 

When asked, through open-ended probes, 

why they would think twice if their personal 

information was disclosed, the reason most 

often given (54 percent) was a desire to keep 

their contribution anonymous. Responses 

such as, “Because I do not think it is anybody’s business what I donate and who I give 

it to,” and “I would not want my name associated with any effort. I would like to remain 

anonymous,” typified this group of responses. 

* * * 
11 


Respondents also most often cited the issue 

of anonymity (32 percent) when asked why 

they would think twice before donating if 

their employer’s name were disclosed. In this 

case, the concern was over revealing where 

they work. For example, “It’s not anybody’s 

business who my employer is and it has 

nothing to do with my vote,” or “My employer’s name is nobody’s business,” most often represented this concern. 

Id. at 8-9 (emphasis in original). Beyond the desire 

for anonymous political participation, respondents 

also had concerns over a variety of potential repercussions, including fears of identity theft, invasion of 

privacy, and loss of employment: 

Respondents also frequently mentioned a 

concern for their personal safety or the potential for identity theft. Comments included, “Because I am a female and [it’s] 

risky having that info out there”; “With identity theft I don’t want my name out there”; 

and “I wouldn’t donate money because with 

all the crazy people out there, I would be 

frightened if my name and address were put 

out there to the public.” 

Other participants saw a relationship between disclosure and a violation of their private vote with responses like, “I don’t want 

other people to know how I’m voting,” or, 

“Because that removes privacy from voting. 

We are insured privacy and the freedom to 

vote.” Still others noted the opportunity for 

repercussions. “I think it’s an opening for 
12 


harassment”; “I don’t think my information 

should be out there for fear of retaliations”; 

or “My privacy would be invaded by the opposition,” illustrate such concerns. 

* * * 

Respondents also often cited concern for the 

longevity of their job should their employer, 

through mandatory disclosure, learn of the 

employee’s beliefs expressed through a contribution. Some simply stated, “I would 

never want my employer to know who I give 

money to,” or, “I wouldn’t want my employer 

to be informed on what I do.” But others explicitly stated their fear: “Because that could 

jeopardize my job”; “I might get fired for that 

kind of stuff ”; and, “If you were a union member and you vote on another side it would come 

back at you and hit you in the face.” 

Still others feared for the negative effect on 

their own business: “I am self-employed, and 

I wouldn’t want that to be released to the 

public,” or, “Because I own a business and 

who I support is part of my own internal 

business practices and should not be public.” 

Id. at 8-9. As discussed below, however, concerns 

about economic or personal repercussions are certainly not hypothetical in an age where campaign 

finance reports are available on the Internet, easily 

accessible, and are used more frequently to retaliate 

against political opponents. 
 

 

13 


B. Fear Of Political Reprisal Is Both Real 

and Reasonable 

In the most recent election cycle, supporters of 

California’s Proposition 8, relating to same-sex marriage, found themselves subject to reprisals in a 

variety of forms following the proposition’s success. 

See Steve Lopez, A Life Thrown in Turmoil by $100 

Donation for Prop. 8, Los Angeles Times, December 

14, 2008 (describing the experience of a restaurant 

manager who made a personal donation in support of 

Proposition 8, ultimately resulting in the boycott of 

her restaurant); John R. Lott, Jr. and Bradley Smith, 

Donor Disclosure Has Its Downsides: Supporters of 

California’s Prop. 8 Have Faced a Backlash, Wall St. 

J., Dec. 26, 2008 (summarizing examples of individuals who faced economic retaliation for donations in 

support of Proposition 8); Amy Bounds, Gay rights 

advocates picket Boulder Cineplex, Rocky Mountain 

News, November 30, 2008 (business picketed and 

boycotted based on CEO’s personal donation). In fact, 

a website recently appeared providing an interactive 

map with pinpoint locations, names, addresses, and 

donation amounts for individuals and entities that 

supported Proposition 8 – in this circumstance, access 

to this personal information regarding political 

activities is even easier. See www.eightmaps.com (last 

visited January 12, 2009). 

The experience of Proposition 8 supporters in 

2008 is by no means unique. Exacting political retribution for individuals’ support or opposition of particular candidates or causes specifically based on data 
 

14 


gleaned from campaign finance reports is becoming a 

new field of battle in politics. See Michael Luo, Group 

Plans Campaign Against G.O.P. Donors, N.Y. Times, 

August 8, 2008 (describing the planned campaign of 

liberal nonprofit group Accountable America, which 

planned “to confront donors to conservative groups, 

hoping to create a chilling effect that will dry up 

contributions”); see also Associated Press, John Kerry 

Grills Belgium Ambassador Nominee Over Swift Boat 

Donation, FoxNews.com, February 28, 2007 (“A 

Senate hearing that began with glowing tributes to a 

St. Louis businessman and his qualifications to 

become ambassador to Belgium turned bitterly divisive Tuesday after he was criticized for supporting a 

controversial conservative group.”). 

The rising acceptance of this type of political 

retribution is already generating anecdotal evidence 

of a chilling effect on political speech and association. 

For instance, in West Virginia’s most recent race for 

state attorney general, a newcomer challenged the 

incumbent, a man described by the Wall Street Journal as “a case study of abuse in office.” Kimberley A 

Strassel, Challenging Spitzerism at the Polls, Wall St. 

J., August 1, 2008. Because of the effect of mandatory 

reporting requirements, the challenger alleged he 

faced a significant uphill battle in fundraising: 

[Incumbent Attorney General Darrell 

McGraw’s] other main asset is fear. [Challenger] Mr. Grear admits a big hurdle is fund 
 

 

 

 

15 


raising, even among a business community 

that is desperate to throw out Mr. McGraw. 

“I go to so many people and hear the same 

thing: ‘I sure hope you beat him, but I can’t 

afford to have my name on your records. He 

might come after me next.’ ” This is a frightening example of how the power of an attorney general can corrupt even the electoral 

process. 

Id. 

Reprisals for political contributions can also come 

in forms unrelated to the donation itself. Gigi Brienza 

discovered this when her name and address appeared 

on the website of an animal-rights organization, 

which had culled FEC records for donors whose 

employers perform animal testing. See Gigi Brienza, I 

Got Inspired. I Gave. Then I Got Scared., Wash. Post, 

July 1, 2007 at B03. 

Quite simply, the easy accessibility of information 

about one’s political leanings, address, employer, and 

occupation suggests that it is time for this Court to 

reexamine its conclusions about the cost of mandatory disclosure rules. In 2009, a person wishing to 

harass citizens with a different viewpoint no longer 

needs to visit a government office to sift by hand 

through published data to access political information. Now, data regarding one’s political leanings, 

address, employer, and occupation are searchable 

from any computer, day or night. In such an 

environment, it is perfectly understandable that 
 

 

16 


reasonable individuals fear the implications of 

publicizing their political positions. 

C. 	The FEC’s Regulations Violate the First 

Amendment 

 In McIntyre v. Ohio Elections Commission, this 

Court struck down a law that required the disclosure 

of one’s identity on written election communications. 

514 U.S. 334, 357 (1995). This Court held that individuals have a right to anonymous speech and that a 

law requiring them to disclose their views on controversial issues did so in violation of that right. Id. 

“[A]n author’s decision to remain anonymous, like 

other decisions concerning omissions or additions to 

the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” Id. 

This Court also emphasized the importance of anonymity in protecting rights to speech and association. 

“Anonymity is a shield from the tyranny of the majority” which “exemplifies the purpose behind the Bill of 

Rights, and of the First Amendment in particular: to 

protect unpopular individuals from retaliation – and 

their ideas from suppression – at the hand of an 

intolerant society.” Id. 

Disclosure Costs (supra), the first study to question the general presumption that mandatory disclosures are cost-free, demonstrates that this Court’s 

conclusions in McIntyre were not only correct, they 
 

 

17 


may have understated how mandatory disclosure of 

political activity negatively affects the vibrancy of 

political discourse in this country. The empirical 

findings discussed above, as well as the anecdotal 

evidence from a broad range of sources, demonstrate 

that mandatory reporting and disclosure requirements unquestionably chill the exercise of fundamental First Amendment freedoms. Chilling the exercise 

of free speech and associational rights is a substantial 

burden on the First Amendment. 

As noted above, it is the FEC’s burden in this 

case to provide a compelling interest and demonstrate 

that its mandatory reporting and disclosure regulations are narrowly tailored to meet that interest. 

WRTL, 127 S.Ct. at 2664. This means the FEC must 

demonstrate through evidence, rather than speculation, that there is an actual harm that the reporting 

requirements are designed to address. Turner Broad. 

Sys. 512 U.S. at 664. Further, the FEC must demonstrate that, in burdening free speech and association 

rights, the regulations do not impose more burdens 

than are absolutely necessary. MCFL, 479 U.S. at 

265. 

The FEC has failed to meet any of these burdens. 

It has not demonstrated the existence of an actual 

harm, rather than a speculative one, and even assuming the Court accepts the FEC’s speculative harm as 

real, it has not bothered to provide any evidence that 

the reporting requirements do anything in the real 

world to ameliorate that harm. See Mot. to Dismiss at 
 

 

18 


14-22. Thus, the FEC has failed to meet its burden in 

this case. 

II. 	BURDENSOME REPORTING REQUIREMENTS CHILL SPEECH 

The fear of retribution is not the only disincentive created by mandatory disclosure rules. Even in 

the unlikely event that a candidate or position is so 

innocuous that there is no chance of retribution, the 

process of mandatory disclosure creates a significant 

disincentive to the vigorous exercise of First Amendment rights. 

This Court has previously recognized that campaign finance regulations may place significant and 

unconstitutional burdens on First Amendment rights. 

See, e.g., FEC v. Mass. Citizens for Life, Inc., 479 U.S. 

238, 251-56 (1986) (plurality opinion) (analyzing the 

burdens imposed by Massachusetts campaign finance 

restrictions). Even state governments have been 

known to identify the potential burdens they imposed 

through extensive reporting and disclosure requirements: In 2000, a bipartisan commission appointed to 

study California’s campaign finance laws conducted a 

number of focus group sessions to assess the public’s 

view of that state’s laws. One of its focus groups gave 

an apt description of the effect of complicated laws: 

The unintended consequence of this is that 

the price of admission into politics becomes 
 

19 

too high. People do not want to become candidates or treasurers because of the potential 

liability. Thus the regulations have injured 

grassroots democracy and have essentially 

professionalized politics so that you have to 

have lawyers and accountants on your campaign staff. 

Bipartisan Comm’n on the Political Reform Act of 

1974, Overly Complex and Unduly Burdensome: The 

Critical Need to Simplify the Political Reform Act at 

62, http://www.fppc.ca.gov/McPherson.pdf (last visited 

January 12, 2009). 

Dr. Jeffrey Milyo observed similar reactions 

when he conducted an experiment in 2007 using 255 

subjects who attempted to comply with disclosure 

laws from three states regulating ballot issue committees. Jeffrey Milyo, Ph.D., Campaign Finance Red 

Tape: Strangling Free Speech & Political Debate at 

27, Institute for Justice, October 2007 http://www.ij. 

org/publications/other/campaign-finance-red-tape.html 

(last visited January 12, 2009). Dr. Milyo is a professor in the Truman School of Public Affairs and the 

Department of Economics at the University of Missouri in Columbia. Id. He has taught and written 

extensively on campaign finance laws and conducted 

research and statistical analysis of the effects of 

political regulations and institutions. Id. Dr. Milyo’s 

research has been recognized and supported by the 

National Science Foundation and is frequently cited 

in the national media. Id. 
 

20 


To analyze the potential difficulties of complying 

with mandatory reporting and disclosure laws, Dr. 

Milyo used a simple hypothetical scenario involving 

the formation of a ballot issue committee and scored 

only basic tasks: 

The scenario include[d] only one expenditure 

item and a handful of small and large 

contributions, including non-monetary and 

anonymous donations . . . . This scenario was 

given to 255 experimental subjects, who were 

asked to complete the disclosure forms for a 

particular state, using the actual instructions and handbooks. Subjects had 90 minutes to complete the forms and were paid for 

their participation. To give participants an 

incentive to fill out their forms correctly, subjects were paid $20 for participating and up 

to an additional $20 based on their performance. 

The experimental subjects in this study were 

recruited primarily from graduate students 

in political science, public affairs and economics at the University of Missouri and 

from non-student adults (age 25-64) in Columbia, Mo.; a few undergraduate students, 

mostly graduating seniors in economics or 

political science and all at least 20 years old, 

also participated. 

Id. at 5-6. Not one subject completed all of the tasks 

correctly; on average they managed to correctly 

complete 41% of the tasks, and no one completed 

more than 80% correctly. Id. at 8. As Dr. Milyo noted, 
 

 

21 


“It is particularly disconcerting that subjects could 

not complete half of the disclosure tasks that were 

scored . . . ; after all, the subject pool was composed of 

mostly college-educated people, many of whom were 

pursuing advanced degrees in political science and 

public affairs.” Id. 

After making some adjustments “to account for 

subject characteristics that could affect performance 

(such as age, voter registration status, education and 

whether the subject completed the form)” it became 

clear “that there are few differences across subject 

types; all subjects had difficulties across the board 

and regardless of their background.” Id. As Dr. Milyo 

explained, “it is telling that ordinary people without 

special expertise struggle to follow these procedures. . . . [T]he effect of campaign finance regulations should not be to reserve politics to a 

professional elite; the political process should be open 

to all citizens.” Id. at 10. 

 The inability of every single subject to complete 

even basic campaign finance reporting tasks is significant because failure to perfectly comply with 

reporting requirements leads to potentially devastating consequences. 

A ballot issue committee that omits or misreports even one transaction is subject to 

fines that can cumulate with each oversight. 

For even a very small group with just a few 

contributors and expenditures, missing one 

filing deadline might generate hundreds 

of thousands of dollars in fines, or more. 
 

22 


California hit a political committee that 

spent just over $100,000 with $808,000 in 

fines, even though the maximum fine was 

$2,000 per violation: The state tallied each 

missing name, address and employer name 

as a separate violation. 

Id. at 3. Based on this experience, the subjects had 

little doubt that the burdens of compliance, particularly when combined with the potential for severe 

penalties, would chill participation in the political 

process: 

Subjects were sincerely frustrated in their 

attempts to complete the disclosure forms – 

and believed these difficulties would deter 

political activity. . . . About two-thirds of respondents agreed that the disclosure requirements would deter many people from 

engaging in independent political activity. 

That figure rose to 85% to 89% when the 

specter of fines and punishment for incorrect 

compliance was raised. Also, about a quarter 

to one-half of the respondents expressed 

strong reluctance about making contributions to political groups because of public 

disclosure. 

Id. at 14-16. 

To ensure a full understanding of subjects’ feelings about their experience, they were given a voluntary opportunity to comment. 94 subjects chose to 

provide comments, and by a ratio of more than 20 to 

one, the comments were negative. Some examples 

typifying these comments are: 
23 


“A lawyer would have a hard time wading 

through this disclosure mess and we read legal jargon all the time.” 

“Good Lord! I would never volunteer to do 

this for any committee.” 

“Worse than the IRS!” 

“Seriously, a person needs a lawyer to do this 

correctly.” 

“This is horrible!” 

“This was awful. I feel bad for anyone who 

encounters these forms in real life.” 

Id. at 17. Interestingly, one subject turned out to be a 

campaign treasurer for a political action committee in 

Missouri and was generally sympathetic to the concept of disclosures. Even she did not successfully 

complete the tasks in the study. In her postexperiment comments she noted, 

Even with [my] limited experience I found 

this exercise to be complicated and mentally 

challenging. I took nearly the alloted [sic] 

amount of time to complete the forms and 

still made two major errors. The burdensome 

paper work and fines imposed for errors in reporting proved to be a hurdle that prevented 

the formation of our PAC . . . for a number of 

years. 

Id. at 18. Dr. Milyo concluded: 

There should be no doubt that state disclosure laws for ballot measure committees are 
 

 

24 


indeed “overly burdensome and unduly complex”; the compliance experiment demonstrates that ordinary citizens, even if highly 

educated, have a great deal of difficulty deciphering disclosure rules and forms. 

Id. at 21. 

Professor Elizabeth Garrett of the University of 

Southern California Gould School of Law, who specializes in the legislative process and the study of 

democratic institutions, has also recognized that 

“[d]isclosure is not costless. It imposes burdens on 

those who must comply with complex laws,” it “may 

place a heavy penalty on groups that face retaliation 

when their support for unpopular positions becomes 

public, and it may undermine the ability of disliked or 

distrusted groups to influence policy in ways consistent with their interests.” Elizabeth Garrett, Commentaries on Bruce Ackerman and Ian Ayres’s Voting 

with Dollars: A New Paradigm for Campaign Finance 

Reform: Voting with Cues, 37 U. Rich. L. Rev. 1011, 

1011 (May 2003). Professor Garrett, having recognized that the potential for costs exists, also acknowledged the lack of systematic research up to that point 

examining the issue of costs: “[t]hese costs may be 

worth paying if the benefits of disclosure are substantial. But before we can reach that conclusion, we 

must have a better sense of costs and benefits.” Id.

5 

5 Moreover, the empirical data demonstrates that, in the 

ballot issue context at least, citizens do not pay attention to the 

(Continued on following page) 
 

 

25 


Here, the FEC requests that, in order to run a 

television commercial promoting a movie about 

Hillary Clinton, Citizens United should compile and 

disclose the names and addresses of all individuals 

who have donated, in the aggregate, $1,000 or more 

toward the airing of the commercials since the first 

day of the preceding year. This means that Citizens 

United must track every single donation it receives 

(just in case they later add up to the trigger amount), 

it cannot accept any anonymous donations (because 

how would it otherwise be able to track the aggregates), and it faces penalties if a clerical or mathematical error occurs in the aggregation of donations. 

What may seem on paper an innocuous regulation is 

in reality a considerable burden that carries with it 

the potential for sizeable penalties. 

data compiled and disseminated from disclosures (except 

perhaps for purposes of retaliation). See Disclosure Costs at 11­

12. Further, the availability of this information has not improved journalists’ reporting on issues such as potentially 

improper contributions. See Raymond LaRaja, Sunshine Laws 

and the Press: The Effect of Campaign Disclosure on News 

Reporting in the American States, 6 Election L. J. 236 (2007) 

(comparing print news coverage of campaign finance in states 

with disclosure requirements to those without requirements). If 

neither journalists nor citizens tend to access and use this 

information, certainly there is no need for the information to be 

made publicly available. Conceivably the government could 

address its enforcement needs by accumulating this data 

without widespread dissemination. This would not solve the 

problem of burdensome compliance, however. 
 

 

26 


III. 	THE GOVERNMENT SHOULD CARRY THE 

BURDEN TO DEMONSTRATE THE NEED 

FOR DISCLOSURE INSTEAD OF SPEAKERS BEARING THE BURDEN TO PROVE 

THE NEED TO REMAIN ANONYMOUS 

Despite the burdens on First Amendment rights 

created by mandatory disclosure requirements, the 

FEC nonetheless argues in favor of extremely broad 

mandatory disclosures: “legislatures may require the 

disclosure of information concerning the source of 

funds used to influence public policy, even when that 

influence occurs outside the election context,” Mot. 

Dismiss at 19, and that “compelled disclosure of 

financing information may be permissible even when 

the disbursements in question have nothing to do 

with any candidate election.” Mot. Dismiss at 20. The 

First Amendment demands more than that the government should get the information because the 

government wants it. 

It is well-established in the First Amendment 

context that the government always bears the burden 

of justifying its intrusion into the rights of free speech 

and association. Yet, in this one area, the courts have 

routinely reversed that burden to rest on citizens’ 

shoulders. This Court has previously held that minor 

parties may avoid mandatory disclosure rules because of their small contributor base and the fact that 

small fringe parties may have little influence on 

policy. See McConnell, 540 U.S. at 198; Brown v. 

Socialist Workers’ ’74 Campaign Comm., 459 U.S. 87, 

94 (1982); Buckley, 424 U.S. at 74. Such parties, this 
 

 

 

27 


Court has held, may avoid disclosure if they are able 

to show “a reasonable probability that the compelled 

disclosure of a party’s contributors names will subject 

them to threats, harassment, or reprisals from either 

Government officials or private parties.” Buckley, 424 

U.S. at 74. 

The Institute respectfully suggests that it is time 

to bring this area in line with the rest of First Amendment jurisprudence by switching this burden from 

the speaker to the government and requiring the 

agency seeking to collect and post information regarding a citizen’s political activity and personal information to prove that such disclosure and dissemination 

will not result in threats, harassment, or reprisals. 

There are three compelling reasons demonstrating 

the need for this change. 

First, as discussed above, the Internet allows 

such information to be disseminated around the 

world for almost no cost. It is simply impossible for a 

speaker to identify the potential sources of threats, 

harassment, or reprisals, regardless of whether they 

are reasonable or unreasonable. It should be enough 

for a speaker to identify that they are speaking about 

a controversial topic – such as abortion, affirmative 

action, same-sex marriage – or a controversial political figure to create a presumption that their speech 

should remain anonymous. 

Second, this Court’s current test requires a 

speaker to experience, or have a reasonable fear of 

experiencing, threats, harassment, or reprisals before 
 

 

28 


they may be relieved of mandatory disclosure requirements. Quite frankly, by the time such threats, 

harassment, or reprisals occur, or by the time a 

speaker can reasonably expect them to occur, it is 

already too late and the harm to First Amendment 

rights has already probably happened. Certainly for 

speakers who are new to public discussions, the safe 

harbor discussions of Buckley, Brown, and McConnell 

provide no comfort because they assume the speaker 

is already controversial. 

Finally, placing the burden on the speaker to 

prove the need for the protections of the First 

Amendment is profoundly in tension with this Court’s 

First Amendment jurisprudence, which requires the 

government to prove the need for a regulation that 

interferes with First Amendment rights. 

Before opening the floodgates to ever-increasing 

reporting and disclosure requirements, reaching, as 

the FEC argues, well beyond any election or campaign context, courts should ensure the burden for 

justifying such requirements rests squarely where it 

should: on the government. In this particular area, 

First Amendment jurisprudence has been turned on 

its head, with courts requiring citizens whose rights 

are infringed to bear the burden of proving – with 

ever-increasing degrees of particularity – harm. This 

is exactly wrong. It is the government’s job to justify 

its intrusion into the speech and associational rights 

of the citizens. 
 

 

 

29 


Too many legislatures and courts discount entirely the chilling effect that compelled disclosure has 

on political speech. But the Institute’s empirical data 

indicates that, for grassroots political groups, disclosure is often the most burdensome aspect of campaign-finance regulation. At the same time, the 

benefits of disclosure – often of information increasingly attenuated from anything this Court has recognized as corruption6

 – appear vastly oversold. 

Accordingly, this Court should provide appropriate 

guidance to the lower courts that takes account of 

this new empirical data and the modern realities of 

online disclosure, and examine disclosure with the 

same level of scrutiny applied to all other burdens on 

core political speech. At the very least, this Court 

should require the FEC to prove that disclosure of 

Citizen United’s donors has some impact on deterring 

corruption or the appearance of corruption. 

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

6 Indeed, there have even been recent calls for “grassroots 

lobbying disclosure,” which would require disclosure of donors 

and compelled registration for anyone assisting citizens in their 

efforts to contact and organize other citizens. See Stephen M. 

Hoersting and Bradley A. Smith, Policy Primer: Grassroots 

Lobbying Proposals Seem Not to Further Congress’ Interest in 

Correcting Lobbying Abuses at 1, available at http://www. 

campaignfreedom.org/docLib/20060607_PolicyPrimer.pdf. 
 

30 

CONCLUSION 

The First Amendment was intended to limit the 

government’s authority to infringe on the rights of 

American citizens to only the most compelling of 

circumstances, and even then in only the most narrow of ways. This long-standing basis of First 

Amendment jurisprudence dictates that the FEC 

must bear the burden in this case, and must provide 

actual data to meet that burden. The Institute’s 

empirical data, however, definitively demonstrates 

that, contrary to broad, previously unchallenged 

assumptions by legislatures, the FEC, and many 

courts, mandatory disclosure and reporting requirements constitute a significant infringement on the 

First Amendment rights of free speech and association. The FEC’s burden is indeed a high one and 

arguably insurmountable in the face of the conclusions derived from the Institute’s empirical research. 

Respectfully submitted, 

INSTITUTE FOR JUSTICE INSTITUTE FOR JUSTICE 

WILLIAM R. MAURER* WILLIAM H. MELLOR 

101 Yesler Way STEVEN M. SIMPSON 

Suite 603 PAUL SHERMAN 

Seattle, WA 98104 901 North Glebe Road 

(206) 341-9300 Suite 900 

*Counsel of Record Arlington, VA 22203 

(703) 682-9320 INSTITUTE FOR JUSTICE 

JENNIFER M. PERKINS 

398 South Mill Avenue 

Suite 301 

Tempe, AZ 85281 

(480) 577-6877 

Counsel for Amicus Curiae