No. 08-205

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

IN THE

Supreme Court of the United States 

————

CITIZENS UNITED,

Appellant,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

————

On Appeal from

the United States District Court

for the District of Columbia

————

BRIEF OF AMICUS

CAMPAIGN FINANCE SCHOLARS

IN SUPPORT OF APPELLANT,

CITIZENS UNITED

————

PROFESSOR ALLISON R. HAYWARD

Counsel of Record

GEORGE MASON UNIVERSITY 

SCHOOL OF LAW

3301 Fairfax Dr. MS1G3

Arlington VA 22201

(703) 993-8746
(i)

TABLE OF CONTENTS

Page

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

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

SUMMARY OF ARGUMENT............................. 3

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

I. THE AUTO WORKERS OPINION HAS 

ALLOWED THIS COURT AND LOWER 

COURTS TO DEFER TO LEGISLATIVE JUDGMENTS WHEN CAMPAIGN FINANCE LAWS DESERVE 

SPECIAL SCRUTINY .............................. 5

II. RESTRICTIONS ON CORPORATIONS 

AND UNIONS IN POLITICS HAVE 

NOT BEEN THE PRODUCT OF CAREFUL LEGISLATIVE JUDGMENT, 

BUT INSTEAD HAVE BEEN A WEAPON DEPLOYED AGAINST POLITICAL RIVALS............................................. 6

A. The Roots of Corporate Campaign 

Finance Restrictions............................ 7

B. Extending Campaign Finance Restrictions to Labor Unions................... 10

C. Congress Bans Corporate and Labor 

Expenditures ....................................... 12

III. WHY DID THE COURT ADOPT THIS 

VERSION OF HISTORY? ........................ 16

CONCLUSION .................................................... 18
ii

TABLE OF AUTHORITIES

CASES Page

Austin v. Mich. Chamber of Commerce,

494 U.S. 652 (1990)............................4, 6, 10, 18

FEC v. Beaumont, 537 U.S. 146 (2003)....... 5, 6

FEC v. Colo. Republican Fed. Campaign 

Comm., 533 U.S. 431 (2001)..................... 5

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

U.S. 238 (1986).......................................... 10, 18

FEC v. Nat’l Right to Work Comm., 459 

U.S. 197 (1982).......................................... 6

McConnell v. FEC, 540 U.S. 93 (2003) ........ 4, 5

Nixon v. Shrink Miss. Gov’t PAC, 528 U.S. 

377 (2000).................................................. 5

United States v. CIO, 335 U.S. 106 (1948) .. 14-15

United States v. CIO, 77 F. Supp. 355 

(D.D.C. 1948)............................................. 14

United States v. Const. & Gen. Lab. Union 

No. 264, 101 F. Supp 869 (W.D. Mo. 

1951).......................................................... 14

United States v. Int’l Union United Auto., 

Aircraft, and Agric. Implement Workers 

of Am., 352 U.S. 567 (1957).....................passim

United States v. Painters Local Union No. 

481, 172 F.2d 854 (2d Cir. 1949), rev’g 79 

F. Supp 516 (1948).................................... 15

United States v. UAW-CIO, 138 F. Supp. 

53 (E.D. Mich. 1956) ................................. 16

STATUTES AND LEGISLATIVE 

MATERIALS

Federal Election Act of 1955: Hearing on S. 

636 Before the S. Comm. on Rules and 

Admin., 84th Cong. 201 (1955)................. 15

89 Cong. Rec. 5328 (1943)............................ 11
iii

TABLE OF AUTHORITIES—Continued

Page

93 Cong. Rec. 3522 (1947)............................ 13

H.R. Doc. No. 80-334 (1947)......................... 14

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81 (2002) . 5

S. Rep. No. 79-101 (1945)............................. 13

Special Committee to Investigate Attempts 

at Bribery, S. Rep. No. 606 (2d Sess. 

1894).......................................................... 8

S. Doc. No. 78-75 (1943) ............................... 11

SECONDARY AUTHORITIES

Abram C. Bernheim, The Ballot in New 

York, 4 Pol. Sci. Q. 151 (1889).................. 7

AFL to Scorn No-Strike Rule Pay Contracts, Wash. Post, June 29, 1947, at M1. 14

Allison R. Hayward, Revisiting the Fable 

of Reform, 45 Harv. J. on Legis. 421 

(2008)......................................................... 9, 17

Arthur Sears Henning, Pass Strike Law 

Over Veto, Chi. Daily Trib., June 26, 

1943, at 1................................................... 11

Brief for the United States, U.S. v. Congress of Industrial Organizations, 335 

U.S. 106 (1948).......................................... 17

Charles A. Miller, The Supreme Court and 

the Uses of History (1969)......................... 17

Cleared in Political Case, N.Y. Times, Nov. 

10, 1948 at 25............................................ 15

The Democratic Failure, Harper’s Wkly., 

Aug. 25, 1894, at 794 ................................ 8

Department of Justice Clears PAC, 4 Law. 

Guild Rev. 49 (1944) ................................. 12
iv

TABLE OF AUTHORITIES—Continued

Page

E. Dana Durand, Political and Municipal 

Legislation in 1897, 11 Annals Am. 

Acad. Pol. & Soc. Sci. 38 (1898)................ 7

George Fox, Corrupt Practices and Elections Laws in the Unites States Since 

1890, 2 Proc. Am. Pol. Sci. Ass’n 171 

(1905)......................................................... 7

John F. Lane, Political Expenditures by 

Labor Unions, 9 Lab. L.J. 725 (1958)....... 16

Joseph Gaer, The First Round: The Story 

of the CIO Political Action Committee

(1944)......................................................... 12

Joseph Tanenhaus, Organized Labor’s 

Political Spending: The Law and Its 

Consequences, 16 J. Pol. 441 (1954) ......... 12

Louise Overacker, Presidential Campaign 

Funds 1944, 39 Am. Pol. Sci. Rev. 899 

(1945)......................................................... 11, 13

Nicholas A. Masters, The Politics of Union 

Endorsement of Candidates in the Detroit Area, 1 Midwest J. Pol. Sci. 136 

(1957)......................................................... 12

Perry Belmont, Return to Secret Party 

Funds: Value of the Reed Committee

(1927)......................................................... 7

3 Revised Rec. Const. Convention N.Y. 876 

(1900)......................................................... 8, 9

Richard L. McCormick, The Discovery that 

Business Corrupts Politics: A Reappraisal of the Origins of Progressivism, 

86 Am. Hist. Rev. 247 (1981).................... 10

Robert E. Mutch, Campaigns, Congress 

and Courts (1988) ..................................... 11
v

TABLE OF AUTHORITIES—Continued

Page

Section 304, Taft-Hartley Act: Validity of 

Restrictions on Union Political Activity, 

57 Yale L.J. 806 (1948)............................. 14

UAW Found Innocent of Charge of Illegal 

Electioneering in ‘54, Wall St. J., Nov. 7, 

1957, at 8................................................... 16

UAW is Indicted for Election TV, Wash. 

Post & Times Herald, July 21, 1955, at 

34 ............................................................... 15
IN THE

Supreme Court of the United States 

————

No. 08-205

————

CITIZENS UNITED,

Appellant,

v.

FEDERAL ELECTION COMMISSION,

Appellee.

————

On Appeal from

the United States District Court

for the District of Columbia

————

BRIEF OF AMICUS

CAMPAIGN FINANCE SCHOLARS

IN SUPPORT OF APPELLANT,

CITIZENS UNITED

————

INTEREST OF THE AMICUS CURIAE 1

Amicus are a group of scholars who study the role 

of money in politics. Each has published scholarly 

works on this topic. Amicus are concerned about the 

 1 Counsel for all parties consented to the filing of this brief, 

and those consents are on file with the Clerk of the Court. No 

counsel for a party in this case authored this brief in whole or in 

part. The expenses to produce this brief are borne entirely by 

Professor Hayward, and no other person or entity public or 

private has made any monetary or in-kind contribution to its 

preparation or submission. 
2

broadening scope of regulation in this area, and the 

deleterious effects regulation has on democracy. 

Professor Allison Hayward is Assistant Professor of 

Law at George Mason University School of Law.2

Professor Michael Dimino is Associate Professor at 

Widener University School of Law and a Visiting 

Associate Professor at Florida State University College of Law.

Professor Clifford A. Jones is Associate in Law 

Research and Lecturer, Center for Governmental 

Responsibility, Levin College of Law, University of 

Florida.

Professor Raymond J. La Raja is Associate Professor

in the Department of Political Science, University of 

Massachusetts, Amherst.

Professor Jeffrey Milyo is the Middlebush Professor 

of Social Science at the University of Missouri, and 

the Hanna Family Scholar in the Center for Applied 

Economics at the University of Kansas.

Professor Michael C. Munger is Chair of the 

Department of Political Science at Duke University.

Professor Michael J. New is an Assistant Professor 

of Political Science at the University of Alabama.

Professor David M. Primo is Associate Professor of 

Political Science, University of Rochester.

Dr. John Samples is Director, Center for Representative Government, Cato Institute and Adjunct 

Professor of Government at Georgetown University.

 2 Affiliations are provided for each amici for identification 

purposes only, and the views contained herein should not be 

construed to reflect the views of the affiliated institutions. 
3

Amicus intend to share with the Court the historic 

context behind federal campaign finance enactments. 

We believe this will help inform the Court’s deliberations on whether Congress is entitled to deference 

when it regulates the political speech of nongovernmental participants.

SUMMARY OF ARGUMENT

In United States v. International Union United 

Automobile, Aircraft, and Agricultural Implement 

Workers of America, 352 U.S. 567 (1957) [hereinafter 

Auto Workers], the landmark decision establishing 

congressional power to regulate political expenditures by labor unions, the Court described a history 

of Congress’s reasonable and measured regulation of 

campaign finance. Subsequent decisions have relied 

heavily on this history to justify deference to Congress and state legislatures in this area.

This brief corrects the flawed history depicted in 

Auto Workers by illustrating how reforms have been 

dictated by political strategy. Legislators used reform to exploit public sentiment and reduce rivals’

access to financial resources. These initiatives have 

been controversial, and the terms of that controversy 

have not changed much through the decades.

The Court should accordingly examine the appropriate scope and effect of campaign finance regulations and not defer to legislative choices. Undue

deference permits political actors to curtail the exercise

of protected political rights. Rejecting the flawed

historical account is an essential step toward restoring

appropriate scrutiny of campaign finance legislation.
4

ARGUMENT

The history of the corporate and labor expenditure 

ban is a history of political opportunism. The Court 

should consider this history in the context of the 

present claims in Citizens United v. FEC, and its 

review of its Austin and McConnell precedents, 

because the justification for barring corporate and 

union funds from electioneering communications rests 

on this same historical account. 

If, out of misplaced respect for a flawed account of 

history, the Court upholds laws that unduly burden 

political activity, citizens and activists outside the 

bubble of congressional protection risk disproportionate punishment for exercising political rights. The 

political process becomes less responsive, representatives need be less “representative,” and elections do 

a poorer job of reflecting public preferences for 

leadership and policy. Setting courts to the task of 

closely evaluating all these laws would go some 

distance to restoring proper checks upon campaign 

restrictions.

Not all campaign regulation is inappropriate. But 

any argument favoring the present broad and indiscriminate bans on the use of corporate or labor funds 

in politics must show that the law is tailored and justified. Thus far, that case has not been made. That 

argument must reflect an honest assessment of why 

these laws were enacted, what really happened, why 

it happened, and what effects were felt afterward. 

Only then can advocates make a convincing case that 

specific regulations are in fact the correct prescription for some real political ailment.
5

I. THE AUTO WORKERS OPINION HAS 

ALLOWED THIS COURT AND LOWER 

COURTS TO DEFER TO LEGISLATIVE 

JUDGMENTS WHEN CAMPAIGN FINANCE

LAWS DESERVE SPECIAL SCRUTINY

The constitutional burdens imposed by restrictions 

on corporate and labor political activity should be 

reexamined. Revisiting the history of campaign 

finance reform articulated in this Court’s Auto 

Workers decision is key. Thus far, the Court has 

adopted Auto Workers uncritically in several opinions, to show that lawmaking in this field has 

proceeded logically and reasonably toward the goal of 

reducing corruption in political campaigns.

This Court’s opinion in McConnell v. FEC, 540 U.S. 

93 (2003), is one example. In McConnell, the Court 

upheld against constitutional challenges the Bipartisan

Campaign Reform Act of 2002 (“BCRA”) Pub. L. No. 

107-155, 116 Stat. 81 (2002). That opinion began 

with a recitation of the history of reform as presented 

in Auto Workers. Id. at 115-17. It commenced with 

an invocation of the “sober-minded Elihu Root,”

drawn directly from that opinion. Id. at 115. The 

Court included this extensive reference to Auto 

Workers to justify judicial deference: “Congress’s 

careful legislative adjustment of the federal election 

laws, in a cautious advance step by step . . . warrants 

deference.” Id. at 117.

The Court relied on the same historical account in 

FEC v. Beaumont, 537 U.S. 146, 152 (2003); FEC v. 

Colorado Republican Federal Campaign Committee, 

533 U.S. 431, 452 (2001); and Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 389 (2000). 

In Beaumont, the majority reasoned, a statutory 

prohibition on contributions by ideological non-profit 
6

organizations fit comfortably within this legislative 

history, and such a “historic prologue would discourage any broadside attack on corporate campaign 

finance regulation.” 537 U.S. at 156.

Auto Workers is also important to the Court’s opinion in FEC v. National Right to Work, 459 U.S. 197, 

208-09 (1982). Here, the Court considered whether 

federal law could restrict an ideological group from 

soliciting political contributions from certain donors. 

This opinion noted that the history in Auto Workers

“is set forth in great detail” and concluded that 

it “need only summarize the development here.” 

Id. at 208. Notably, when this Court in Austin v. 

Michigan Chamber of Commerce, 494 U.S. 652, 661 

(1990) relied on National Right to Work for showing 

“that the federal campaign statute, 2 U.S.C. 441b, 

‘reflect[ed] a legislative judgment that the special 

characteristics of the corporate structure require 

particularly careful regulation’” it was citing, in reality, Auto Workers to justify deference.

II. RESTRICTIONS ON CORPORATIONS 

AND UNIONS IN POLITICS HAVE NOT 

BEEN THE PRODUCT OF CAREFUL 

LEGISLATIVE JUDGMENT, BUT INSTEAD HAVE BEEN A WEAPON DEPLOYED AGAINST POLITICAL RIVALS

Auto Workers opened by asserting that the first 

corporate contribution restrictions were a remedy for 

inadequate publicity laws. It explained the imposition

of corporate contribution prohibitions as a logical step 

in the wake of the “failure” of publicity laws. 352 

U.S. at 570-71. This passage stands as one of the 

most frequently cited, and thus most influential, in 

the Auto Workers decision. Yet it is not accurate.
7

A. The Roots of Corporate Campaign 

Finance Restrictions

Statutes banning corporate contributions were not 

a product of dissatisfaction with publicity laws. The 

first law requiring disclosure of campaign finance 

activity—especially expenditures—was part of a larger effort to thwart corrupt campaign practices, vote 

buying, bribery, and voter intimidation centered in 

the “machines”—parties and candidate campaigns. 

PERRY BELMONT, RETURN TO SECRET PARTY FUNDS:

VALUE OF THE REED COMMITTEE 134 (1927); George 

Fox, Corrupt Practices and Elections Laws in the 

Unites States Since 1890, 2 PROCEEDINGS OF THE AM.

POL. SCI. ASS’N 171, 177 (1905); Abram C. Bernheim, 

The Ballot in New York, 4 POL. SCI. Q. 151 (1889). 

Corporate contribution bans arose once particular 

corporations provoked the ire of legislators. See E. 

Dana Durand, Political and Municipal Legislation in 

1897, 11 ANNALS OF AM. ACAD. POL. & SOC. SCI. 38, 43 

(1898). 

Since Elihu Root’s address to the 1894 New York 

Constitutional Convention continues to receive favorable attention from the Court, one should take special care to appreciate the context of that speech. As 

Auto Workers notes, New York first considered a 

corporate contribution ban during this convention. 

As early as 1894, the sober-minded Elihu Root 

saw the need for more effective legislation. He 

urged the Constitutional Convention of the State 

of New York to prohibit political contributions by 

corporations:

The idea is to prevent . . . the great railroad 

companies, the great insurance companies, the 

great telephone companies, the great aggrega-
8

tions of wealth from using their corporate 

funds, directly or indirectly, to send members 

of the legislature to these halls in order to vote 

for their protection and the advancement of 

their interests as against those of the public. 

352 U.S. 570-71.3

Yet Elihu Root called up his amendment banning 

corporate contributions out of order on Labor Day, 

when convention attendance was low. 3 REVISED 

RECORD OF CONSTITUTIONAL CONVENTION OF NEW 

YORK 876 (1900). The oft-quoted passage from his 

address castigating political activity by large corporations was made in response to other delegates worried about his amendment’s impact on political 

groups. Id. at 894-95. In context, Root meant to 

 Root, a Republican leader at the 

convention, possessed great influence. Proposing a 

corporate contribution ban at the 1894 New York 

constitutional convention allowed the Republicans 

controlling the convention to score political points by 

exploiting another unpopular corporate activity—in 

this case the unfolding Sugar Trust scandal, to the 

embarrassment of Democrats. See SPECIAL COMMITTEE TO INVESTIGATE ATTEMPTS AT BRIBERY, S. REP.

NO. 606 (2d Sess. 1894). Democratic Party leaders 

found themselves targets of public outrage, as that 

party had campaigned successfully against the 

“McKinley tariff” in 1892, only to succumb to the 

demands of the Sugar Trust. The Democratic Failure, HARPER’S WKLY, Aug. 25, 1894, at 794.

 3 Root continued: “ . . . the time has come when something 

ought to be done to put a check to the giving of $50,000 or 

$100,000 by a great corporation toward political purposes . . . ” 

In 1894, $50,000 had the purchasing power of about $1.18 

million in 2007 dollars. Inflation calculation courtesy of www.

westegg.com/inflation, visited July 23, 2009.
9

draw a distinction between incorporated political 

organizations (that should not be limited) and large 

corporations like the Sugar Trust. Root was emphasizing his proposed amendment’s limited scope. 

Even with Root’s central role in the convention’s 

leadership, the amendment failed. The fatal blow 

came from a Republican colleague just one day after 

the vote to adopt it. 3 REVISED RECORD at 979. The 

full account of the parliamentary manipulation that 

led to this defeat, and Root’s likely complicity, is 

beyond the scope of this brief.4

The Auto Workers version of the 1894 corporate 

contribution debate is deficient in several respects. 

First, it describes a logical progression not supported 

by any evidence. Corporate contribution laws were 

not advocated as a remedy for deficient publicity 

laws. Publicity laws were intended to expose bad 

acts by committees and candidates. Corporate contribution bans struck back at specific corporations 

and the “supply side” of political finance. 

 In short, one should 

conclude that Root and the amendment’s other supporters had not expected the corporate contribution 

ban to survive. 

Second, Auto Workers quoted fragments from the 

1894 constitutional convention debate out of context. 

Root’s address meant to reassure the convention that 

his amendment would only affect large entities like 

the Sugar Trust spending enormous sums of money, 

not corporations formed for political purposes. Third, 

the Auto Workers account leaves the reader ignorant 

of the partisan implications, and why this issue 

would be appealing to Republicans. In any case, the 

 4 See Allison R. Hayward, Revisiting the Fable of Reform, 45 

HARV. J. LEGIS 421, 434-40 (2008).
10

wave of corporate contribution legislation appeared 

over a decade afterwards, in the wake of the New 

York life insurance scandal, which resulted in the 

passage of several state bans, as well as a federal ban 

in the Tillman Act. Richard L. McCormick, The Discovery that Business Corrupts Politics: A Reappraisal 

of the Origins of Progressivism, 86 AM. HIST. REV.

247, 259–70 (1981). 

B. Extending Campaign Finance Restrictions to Labor Unions

With the preceding “history of progress” in campaign finance regulation as prologue, Auto Workers

then addresses the roots of the corporate and labor 

expenditure ban—the statute at issue in Auto Workers, and eventually in Massachusetts Citizens for Life, 

Austin v. Michigan Chamber of Commerce, and Citizens United v. FEC. Congress took its first step 

toward the expenditure ban in 1943, when it added a 

labor union contribution ban to federal law. As Auto 

Workers states:

Thus, in 1943, when Congress passed the SmithConnally Act to secure defense production against

work stoppages, contained therein was a provision extending to labor organizations, for the

duration of the war, § 313 of the Corrupt Practices Act. 57 Stat. 163, 167. The testimony of 

Congressman Landis (R-Ind.), author of this 

measure, before a subcommittee of the House 

Committee on Labor makes plain the dominant 

concern that evoked it:

[P]ublic opinion toward the conduct of labor 

unions is rapidly undergoing a change. . . . The 

public was aroused by many rumors of huge 

war chests being maintained by labor unions, 
11

of enormous fees and dues being extorted from 

war workers, of political contributions to parties

and candidates which later were held as clubs 

over the head of high Federal officials. . . .

352 U.S. at 578-79. Yet the 1943 extension of the 

contribution ban to unions is more persuasively 

traced to two political factors: the relative strength of 

anti-labor members in the 1943-44 Congress, and the 

staggering unpopularity of the United Mine Workers’

1943 strike. ROBERT E. MUTCH, CAMPAIGNS, CONGRESS AND COURTS 153 (1988). The labor contribution ban was added not in committee (as the 

excerpt suggests), but on the floor during a flood of 

activity, and had been drafted mere hours before. 89 

Cong. Rec. 5328 (1943). The subsequent vote on the 

bill was marked by procedural confusion. Id. at 5341-

47. Moreover, “the provisions were not germane to 

the main purpose of the bill . . . [and] were inserted 

with little discussion of underlying issues.” Louise 

Overacker, Presidential Campaign Funds 1944, 39 

AM. POL. SCI. REV. 899, 919 (1945).

Roosevelt vetoed Smith-Connally in part because it 

included the labor contribution ban, which “obviously 

ha[d] no relevancy to a bill prohibiting strikes.”

S. Doc. No. 78-75, at 3 (1943). Noting that Congress 

had not focused on this section, Roosevelt added: “If 

there be merit in the prohibition, it should not be confined to wartime, and careful consideration should be 

given to the appropriateness of extending the prohibition to other nonprofit organizations.” Id. Both 

Houses overrode Roosevelt’s veto that same day, a 

mere three hours later, with something less than “full 

consideration.” Arthur Sears Henning, Pass Strike 

Law Over Veto, Chi. Daily Trib., June 26, 1943, at 1.
12

After a careful look at the events surrounding the 

1943 labor contribution ban, it is impossible to see 

any exercise of reasoned policy judgment. Congress’s 

attention was focused on unpopular strikes and how 

to bring the UMW to heel. The contribution ban was 

a lucky stowaway swept into the law by the parliamentary footwork of certain House Republicans. If 

the Court’s deference depends on Congress’s use of 

reasoned legislative judgment, on this occasion such 

care was not evident.

Two weeks after enactment, the Congress of Industrial Organizations (“CIO”) established the first 

political action committee. JOSEPH GAER, THE FIRST 

ROUND: THE STORY OF THE CIO POLITICAL ACTION 

COMMITTEE 60–63 (1944). The CIO PAC openly 

favored Democrats. Nicholas A. Masters, The Politics 

of Union Endorsement of Candidates in the Detroit 

Area, 1 MIDWEST J. OF POL. SCI. 136, 142–44 (1957). 

Union officers and counsel contended that the scope 

of “contribution” in Smith-Connally did not reach this 

union spending. Joseph Tanenhaus, Organized Labor’s

Political Spending: The Law and Its Consequences, 

16 J. OF POL. 441, 447 (1954). On this point, the 

Department of Justice concurred with the unions. 

Department of Justice Clears PAC, 4 LAW. GUILD REV.

49 (1944) (quoting Department press release).

C. Congress Bans Corporate and Labor 

Expenditures

Unions’ willingness to invest time, energy, and 

money in politics alarmed Republicans and anti-labor 

Democrats. After the 1946 election, Republicans 

dominated both houses of Congress, and the Labor 

Management Relations Act of 1947 (or “Taft-Hartley”) moved up the legislative agenda. Section 304 of 

that Act made permanent the union contribution ban 
13

and added an expenditure ban against both corporations and unions.

As the Auto Workers history described it:

Shortly thereafter, Congress again acted to protect the political process from what it deemed to 

be the corroding effect of money employed in 

elections by aggregated power . . . this section 

gave rise to little debate in the House. . . . the 

Senate as a whole did not consider the provisions 

of § 304 until they had been adopted by the Conference Committee.

352 U.S. at 582-83. “Little debate” here meant that, 

over a three-day debate in the House, only one member, George P. Miller (D-Cal.), mentioned Section 304 

at all, calling it “irrelevant” and “unnecessary.” 93 

Cong. Rec. 3522–23 (1947). One may sense a pattern 

by now, in which successful efforts to limit contributions and expenditures are enacted as obscure and 

little-debated provisions buried in hotly contested 

legislation.

The Auto Workers narrative suggested that extending this ban to expenditures was the only logical next 

step. But other approaches to reform, among them a 

proposal to remove limits and rely instead on publicity, were considered at the time. S. REP. NO. 79-101, 

at 80–83 (1945); Overacker, supra at 924–25. Reasoned congressional deliberation should include 

weighing the advantages of different approaches, or 

at least involve some debate, argument, and responsive amendments. Yet, again, only after the TaftHartley conference committee had met and submitted 

its report for final passage, very late in the legislative 

day, did members ponder the Taft-Hartley expenditure ban.
14

President Truman’s Taft-Hartley veto message 

criticized the expenditure ban as a “dangerous intrusion on free speech, unwarranted by any demonstration of need, and quite foreign to the stated purposes 

of this bill.” H.R. DOC. NO. 80-334 (1947) at 9. Truman noted that the Section 304 expenditure ban 

would extend as well to radio and newspaper corporations. Id. at 9-10. As the Yale Law Journal stated 

in a 1948 comment evaluating Taft-Hartley, “[T]he 

prohibition on ‘expenditures’ may be interpreted as 

placing drastic limitations upon the activity of any 

political group, such as, for example, the League of 

Women Voters, which happens to be corporate in 

structure.” Section 304, Taft-Hartley Act: Validity of 

Restrictions on Union Political Activity, 57 YALE L.J.

806, 811 n.19 (1948).

Five days after Congress overrode Truman’s veto, 

AFL counsel advised all affiliated unions to “affirmatively violate” the new law “to bring about a constitutional test of the law.” AFL to Scorn No-Strike Rule 

Pay Contracts, WASH. POST, June 29, 1947, at M1. 

The first case arose quickly out of the endorsement of 

a candidate in a special election of July 1947 by the 

CIO News. The District Court dismissed the indictment, finding that the expenditure ban violated the 

First Amendment. United States v. CIO, 77 F. Supp. 

355 (D.D.C. 1948). This Court concluded that Congress could not have intended Taft-Hartley to reach 

this activity and refused to consider the constitutional question. United States v. CIO, 335 U.S. 106, 

121–22 (1948). 

By the time the Department of Justice proceeded 

against the UAW in Auto Workers, federal prosecutors had litigated three other cases alleging union 

violations of Taft-Hartley’s expenditure ban. United 
15

States v. CIO, 335 U.S. 106; United States v. Painters 

Local Union No. 481, 172 F.2d 854 (2d Cir. 1949), 

rev’g 79 F. Supp 516 (1948); United States v. Const. & 

Gen. Lab. Union No. 264, 101 F. Supp 869 (W.D. Mo. 

1951). As with the case against the CIO, none went 

well.5

Yet times change, and in July 1955 the Eisenhower 

Administration’s Justice Department empanelled a 

Detroit grand jury, seeking indictment of the United 

Auto Workers Union. The union had spent about 

$5,000 on four Meet the UAW-CIO broadcasts, part of 

a regular series covering unions news and activities 

on Detroit’s WJBK-TV. The Department argued that 

these episodes contained “expressions of political 

advocacy . . . intended by defendant to influence the 

electorate generally, including electors who were not 

members of defendant union.” UAW is Indicted for 

Election TV, WASH. POST & TIMES HERALD, July 21, 

1955, at 34. .

After these defeats, the Department of Justice 

declined to prosecute union political expenditures for 

about six years. The Department doubted that the 

Court would find the expenditure ban constitutional. 

After all, no Justice on the CIO Court signaled any 

inclinations in that direction. FEDERAL ELECTION 

ACT OF 1955: HEARING ON S. 636 BEFORE THE S.

COMM. ON RULES AND ADMIN., 84th Cong. 201–10 

(1955) (statement of Warren Olney III, Assistant 

Attorney General).

The district court granted the UAW’s motion to 

dismiss the indictment. Following what the court saw 

to be CIO’s clear precedent, it described the govern-

 5 Similarly, a 1948 federal trial against Michigan auto dealers 

for making illegal corporate contributions ended with acquittal. 

Cleared in Political Case, N.Y. TIMES, Nov. 10, 1948 at 25.
16

ment’s efforts to distinguish CIO and other adverse 

authority as “either futile or picayune.” United 

States v. UAW-CIO, 138 F. Supp. 53, 58 (E.D. Mich. 

1956).

The Government appealed under the Criminal 

Appeals Act to the Supreme Court, and this time 

prevailed, partially. 352 U.S. at 567. In Auto Workers

this Court held that the facts could state a violation 

of the federal statute prohibiting labor expenditures 

in federal elections. The Court declined to reach 

whether prosecution would violate the union’s constitutional rights. The constitutional issues avoided in 

this round of Auto Workers never matured. After a 

trial on the merits, on November 6, 1957, a jury 

found the union defendants not guilty. UAW Found 

Innocent of Charge of Illegal Electioneering in ‘54, 

WALL ST. J., Nov. 7, 1957, at 8.6

III. WHY DID THE COURT ADOPT THIS 

VERSION OF HISTORY?

After reviewing the context and legislative manipulation behind campaign finance regulation, in particular the ban on expenditures in federal elections, 

one may now wonder why Justice Frankfurter, writing for the Court’s majority, included this long 

historical passage in the Auto Workers decision. As 

the opinion ultimately rests on the statute’s text, it 

would seem a long discourse on history in defense of 

 6 The District Court’s jury instructions noted that no union 

members objected when their dues were set in 1954, and that 

the jury should take this into account when deciding whether 

the money for the broadcasts was obtained on a voluntary basis. 

John F. Lane, Political Expenditures by Labor Unions, 9 LAB.

L.J. 725, 733–35 (1958).
17

deference would be unnecessary to reach the Court’s 

modest conclusion. 

Two of Frankfurter’s colleagues welcomed the additional history in the opinion enough to comment on it 

specifically. Justice Burton wrote in his note concurring with Justice Frankfurter’s draft that “the 

legislative history is appropriate and extremely helpful,” and Justice Reed called the draft “a fine example 

of the persuasiveness of the historical treatment.”

Hayward, supra at 468. The dissenters focused on 

the law’s constitutionality, noting that “[u]ntil today, 

political speech has never been considered a crime.” 

352 U.S. at 594.

Moreover, the drafters found this history readymade in an older brief to the Court. The Government 

briefed the history of campaign finance reform thoroughly, yet unsuccessfully, in its CIO brief. That 

brief is practically identical in many places to Auto 

Workers. Hayward, supra, at 464-65; Brief for the 

United States, U.S. v. Congress of Industrial Organizations, 335 U.S. 106 (1948) available at The Making 

of Modern Law: U.S. Supreme Court Records and 

Briefs, 1832-1978, www.gale.cengage.com. For instance, the precise quote from Elihu Root’s 1894 

address is in the Government’s CIO brief (although 

deeming him “sober-minded” was Justice Frankfurter’s

flourish.) Hayward, supra at 464-65. One might 

be troubled when the Court uncritically adopts an 

advocate’s account: “The lawyer’s use of history is 

entirely pragmatic or instrumental. His history may 

be fiction from the standpoint of a scholarly historian, 

but if it produces victory it has served its purpose.” 

CHARLES A. MILLER, THE SUPREME COURT AND THE 

USES OF HISTORY 192 (1969).
18

Whatever the reason, the Court’s invocation of this 

history has had important consequences. It has 

suppressed legitimate questions about the purpose, 

scope, and permissibility of legislative restrictions on 

corporations and unions in politics. In many other 

areas of the law, judges question regulations articulated by those who stand to benefit. This conflict of 

interest justifies greater scrutiny and less deference. 

In campaign finance, Congress’s compromised position instead has been overshadowed by its claimed 

expertise in campaigns, justifying deference from the 

Court.

CONCLUSION

This Court may be persuaded that the Auto Workers history is unreliable and conclude that previous 

reliance on it was misplaced. Conversely, it might 

conclude that this argument, while potentially interesting, is of limited present relevance. Were this a 

stable area of constitutional law, this second perspective might be more persuasive. In this world, however, litigants continue to raise difficult questions 

about the propriety of restricting political speech, 

especially by incorporated advocacy groups or political 

groups supported by business corporations or unions. 

Instead of relying on a flawed history of campaign 

reform “progress,” defenders of political regulation 

must argue their positions on the merits, fully 

accounting for how similar reforms may have worked, 

or not, before. This Court should take a fresh look at 

the scope, tailoring, intent, and effects of the TaftHartley corporate and labor expenditure ban at issue 

in Auto Workers, Massachusetts Citizens for Life, 

Austin and Citizens United. Campaign finance regulation, like war, is politics by other means, with 
19

serious implications for the constitutional rights of 

targeted individuals and groups.

Respectfully submitted,

PROFESSOR ALLISON R. HAYWARD

Counsel of Record

GEORGE MASON UNIVERSITY 

SCHOOL OF LAW

3301 Fairfax Dr. MS1G3

Arlington VA 22201

(703) 993-8746