No. 14-391

In the 

Supreme Court of the United States _________________

STOP THIS INSANITY, INC. EMPLOYEE LEADERSHIP 

FUND, et al.,

Petitioners,

v.

FEDERAL ELECTION COMMISSION,

Respondent.

_________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT

_________________

BRIEF OF COOLIDGE-REAGAN FOUNDATION AS 

AMICUS CURIAE IN SUPPORT OF PETITION FOR 

CERTIORARI

_________________

Danielle Frisa

Counsel of Record

COOLIDGE-REAGAN

FOUNDATION 

1629 K Street, N.W.

Suite 300

Washington, D.C. 20006

(202) 603-5397

danielle@shahlapc.com

Counsel for Amicus Curiae
TABLE OF CONTENTS

 Page

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

INTERESTS OF AMICUS CURIAE...................... 1

REASONS FOR GRANTING THE WRIT ............. 2

I. CORPORATIONS’ SEPARATE 

SEGREGATED FUNDS REMAIN 

A CRITICAL VEHICLE FOR 

PARTICIPATION IN THE 

POLITICAL PROCESS ..................................... 3

A. Separate Segregated Funds 

Remain an Important Feature of 

Federal Campaign Finance Law ................. 4

B. The D.C. Circuit Impermissibly 

Requires Entities to Demonstrate 

a Need to Exercise First Amendment 

Rights, Rather Than Requiring 

the Government to Demonstrate 

a Need to Limit Them .................................. 6

C. Separate Segregated Funds Have 

As Much of a Constitutionally 

Protected Interest as Other PACs 

In Establishing “Independent

Expenditure”-Only Accounts .................... 12
ii

II. THIS COURT SHOULD RESOLVE 

THE CIRCUIT SPLIT CONCERNING 

THE CONSTITUTIONAL RIGHT 

OF POLITICAL COMMITTEES 

TO ESTABLISH SEPARATE

“INDEPENDENT EXPENDITURE”

-ONLY ACCOUNTS................................... 16

III. THE D.C. CIRCUIT IGNORED 

THIS COURT’S PRECEDENTS 

BY PERMITTING THE GOVERNMENT 

TO LIMIT FIRST AMENDMENT 

RIGHTS TO FURTHER ITS INTEREST 

IN PROMOTING “DISCLOSURE” ........... 20

IV. THIS COURT SHOULD GRANT

CERTIORARI TO FORMALLY

OVERRULE BEAUMONT......................... 23

CONCLUSION ...................................................... 27
iii

TABLE OF AUTHORITIES

Cases Page(s)

Ala. Democratic Conf. v. Att’y Gen.,

541 F. App’x 931 (11th Cir. 2013) ................... 19

Austin v. Mich. Chamber of Comm., 

494 U.S. 652 (1990)...........................23-25, 27

Buckley v. Valeo, 

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

California Medical Assn v. FEC,

453 U.S. 180, 203 (1981).............................13

Carey v. FEC, 

791 F. Supp. 2d 121 (D.D.C. 2011)............ 10, 17

Citizens Against Rent Cont./

Coalition for Fair Hous. v. Berkeley, 

454 U.S. 290 (1981)............................................ 8

Citizens United v. FEC, 

558 U.S. 310 (2010)...................................passim

Colo. Republican Fed. 

Campaign Comm. v. FEC, 

518 U.S. 604 (1996)................................ 8, 11, 15

Emily’s List v. FEC, 

581 F.3d 1 (D.C. Cir. 2009).................. 10, 17, 18

FEC v. Beaumont, 

539 U.S. 146 (2003)..................................... 23-27

FEC v. Colo. Republican 
iv

Fed. Campaign Comm., 

533 U.S. 431 (2001).......................................... 26

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

479 U.S. 238 (1986)............................................ 7

FEC v. Nat’l Conservative 

Political Action Comm., 

470 U.S. 480 (1985)............................ 7, 8, 15, 21

FEC v. Nat’l Right to Work Comm., 

459 U.S. 197 (1982).......................................... 24

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)..................................... 24-25

Long Beach Area Chamber 

of Comm. v. City of Long Beach, 

603 F.3d 684 (9th Cir. 2010).............................. 9

McCutcheon v. FEC, 

134 S. Ct. 1434 (2014)...............................passim

N.C. Right to Life, Inc. v. Leake, 

525 F.3d 274 (4th Cir. 2008)............................ 10

N.Y. Prog. & Prot. PAC v. Walsh, 

733 F.3d 483 (2d Cir. 2013)........................... 109

Republican Party v. King, 

741 F.3d 1089 (10th Cir. 2013)........ 9, 10, 11, 17

SpeechNow.org v. FEC, 

599 F.3d 686 (D.C. Cir. 2010) (en banc)..... 9, 15,

16, 21
v

Texans for Free Enter. v. 

Tex. Ethics Comm’n, 

732 F.3d 535 (5th Cir. 2013)........................ 9, 16

Thalheimer v. City of San Diego, 

No. 09-CV-2862-IEG (BGS), 

2012 U.S. Dist. LEXIS 6563

(S.D. Cal. Jan. 20, 2012)............................ 10, 18

United States v. Auto. Workers, 

352 U.S. 567 (1957).......................................... 24

Vt. Right to Life Comm. v. Sorrell, 

758 F.3d 118 (2014) ......................................... 19

Wis. Right to Life State PAC v. Barland, 

664 F.3d 139 (7th Cir. 2011)............................ 10

Statutes

26 U.S.C. § 501 ........................................................ 6

52 U.S.C. § 30101 ................................................ 4, 5

52 U.S.C. § 30118 .......................................... 5, 7, 27

Other Sources and Authorities

Allison Orr Larsen, Factual Precedents, 

162 U. PA. L. REV. 59, 65 (2013)........................ 3

FEC, 2014 Committee Summary, 

available at http://www.fec.gov/data/ 

CommitteeSummary.do

(last referenced Oct. 27, 2014) .......................... 6

Sup. Ct. R. 37.3a..................................................... .1
vi

Sup. Ct. R. 37.6........................................................ 1
1

INTERESTS OF AMICUS CURIAE1

Amicus curiae Coolidge-Reagan Foundation

(“CRF”) is a nonprofit public interest organization 

dedicated to advancing First Amendment freedoms, 

with a particular focus on political speech and 

associational rights, through education, advocacy 

and litigation. In furtherance of its mission, CRF 

has instituted and participated in numerous cases 

before this Court and others. See e.g., McCutcheon v. 

FEC, 134 S. Ct. 1434 (2014).

CRF has an interest in this case because it 

involves a restriction on protected political activity -

- curtailing the ability of certain entities to establish 

“independent expenditure”-only accounts, thereby 

reducing participation in the political marketplace.

CRF writes separately to underscore the flawed 

methodological paradigm used by the D.C. Circuit to 

justify this restriction. Specifically, CRF protests

the court below’s premise that entities should be 

required to demonstrate a need to exercise First 

Amendment rights, rather than requiring the 

Government to demonstrate a need to limit them.

 1 Pursuant to S. Ct. R. 37.6, amicus curiae certifies 

that no counsel for a party authored any part of this 

brief, nor did any person or entity other than amicus

or his counsel make a monetary contribution to fund 

the preparation or submission of this brief. 

Pursuant to S. Ct. R. 37.3(a), letters of consent to the 

filing of this brief from all parties have been filed 

with the Clerk of the Court. 
2

Such a perversion of this Court’s constitutional 

jurisprudence represents a sea change and, if 

unchecked, portends further abridgement of 

fundamental First Amendment freedoms.

REASONS FOR GRANTING THE WRIT

The D.C. Circuit’s ruling below establishes a 

dangerous new methodology for resolving campaign 

finance cases. The ruling creates a circuit split 

concerning the right of entities to create 

“independent expenditure”-only accounts. Moreover, 

the court’s justification for upholding the restrictions

on protected campaign finance activities directly 

conflicts with this Court’s precedents. This Court 

should grant Petitioner Stop the Insanity Inc, 

Employee Leadership Fund’s (“STI-ELF”) Petition 

for Certiorari to give these issues the careful 

consideration they deserve. 

I. CORPORATIONS’ SEPARATE 

SEGREGATED FUNDS REMAIN 

CRITICAL VEHICLES FOR 

PARTICIPATION IN THE 

POLITICAL PROCESS 

This Court should grant certiorari because the 

D.C. Circuit has denied corporations’ separate 

segregated funds (“SSFs”) their fundamental 

constitutional rights on the grounds that they are 
3

obsolete. This ruling sets a dangerous factual 

precedent, because SSFs remain a critical 

component of the federal campaign finance system. 

Cf. Allison Orr Larsen, Factual Precedents, 162 U.

PA. L. REV. 59, 65 (2013) (analyzing the tendency of 

lower courts to afford stare decisis effect to higher 

courts’ factual findings in unrelated cases). It sets a 

dangerous methodological precedent, by permitting

the Government to abridge constitutional rights if 

the court determines it is not “necessary” for an 

entity to exercise them, rather than based on a 

showing that such limitation is necessary to further 

an appropriate governmental interest, namely in 

this context, to prevent quid pro quo corruption. 

Finally, the D.C. Circuit’s ruling is a dangerous 

constitutional precedent, because it denies SSFs the 

ability to establish “independent expenditure”-only 

(“IE-only”) accounts that may solicit contributions 

from members of the general public, calling into 

question the constitutionality of separate, segregated 

IE-only accounts more generally. 

A. Separate Segregated Funds 

Remain an Important Feature of 

Federal Campaign Finance Law

The premise of the D.C. Circuit’s ruling is that

because corporations may “engage in unlimited 

political spending,” their SSFs have become nothing 

more than “functionally obsolete” “statutory 
4

artifacts” not entitled to exercise constitutional 

rights. Pet. App. 2a, 4a (op. at 2, 4); see also id. at 6a 

(op. at 6) (holding that SSFs have become “a 

vintage . . . relic”). 

This Court’s ruling in Citizens United v. FEC, 

558 U.S. 310, 320-21 (2010), recognizes the right of 

corporations to directly make independent 

expenditures concerning federal elections and 

candidates. However, federal law still prohibits 

corporations from directly contributing to federal 

candidates or political party committees. 52 U.S.C. 

§ 30118(a). 

To make contributions, corporations must create 

“separate segregated funds” (“SSFs”), whose finances 

are kept strictly separate from the corporation’s, id. 

§ 30118(b)(2), and are treated as PACs, id. 

§ 30101(4)(B). SSFs may solicit only the connected 

corporation’s shareholders, executives, and 

administrative personnel, as well as their families,

not the general public. Id. § 30118(b)(4)(A)(i). Such 

solicitations must be in writing, and may occur only 

twice annually. Id. § 30118(b)(4)(B). 

The D.C. Circuit expresses a degree of incredulity 

over the fact that Stop This Insanity Inc. (“STI”)

“decided to form” its SSF, Petitioner STI-ELF, Pet. 

App. 6a (op. at 6), emphasizing that “the statutory 

scheme did not compel [STI] to form the segregated 

fund, id. at 8a (op. at 8); see also id. at 10a (op. at 9) 

(critiquing the “idiosyncratic and outmoded 

congressional arrangement,” as well as the “oddity 

of . . . segregated funds’ existence in the wake” of 

Citizens United); id. at 14a (op. at 12) (“We may 
5

never know why Appellants wish to do things the 

hard way.”). Yet forming an SSF such as Petitioner 

STI-ELF is the only way a corporation may make 

contributions to a candidate. And, despite the D.C. 

Circuit’s intimations to the contrary, there are 

numerous reasons why an entity may wish to engage 

in the political process through contributions rather 

than, or in addition to, independent expenditures. 

Whereas independent expenditures, by definition, 

may not be made in association with a candidate, see

52 U.S.C. § 30101(17)(B), one of the main functions 

of a political contribution is to associate the 

contributor with the candidate, see Buckley v. Valeo, 

424 U.S. 1, 22 (1976). Contribution limits “impinge 

on protected associational freedoms” because 

“[m]aking a contribution, like joining a political 

party, serves to affiliate a person with a candidate. 

In addition, it enables like-minded persons to pool 

their resources in furtherance of common political 

goals.” Id. 

Moreover, corporations that directly engage in 

independent expenditures in support of candidates 

may jeopardize their tax-exempt status. See 26 

U.S.C. § 501(c)(4) (allowing non-profit organizations 

to claim tax-exempt status if they are “operated 

exclusively for the promotion of social welfare” and 

their net earnings “are devoted exclusively to 

charitable, educational, or recreational purposes”). 

Empirical evidence confirms the inaccuracy of the 

D.C. Circuit’s premise. The FEC’s online database 

reveals that over 1,600 PACs associated with 

corporations and other such entities are active 
6

during the 2014 campaign cycle. See FEC, 2014 

Committee Summary, available at

http://www.fec.gov/data/CommitteeSummary.do (last 

referenced Oct. 27, 2014).2 Thus, the First 

Amendment rights of PACs that are SSFs cannot be 

categorically dismissed on the grounds that such 

entities have become antiquated. 

B. The D.C. Circuit Impermissibly Requires 

Entities to Demonstrate a Need to 

Exercise First Amendment Rights, 

Rather Than Requiring the Government 

to Demonstrate a Need to Limit Them.

The D.C. Circuit’s ruling below also establishes a 

dangerous methodological precedent that conflicts 

with this Court’s well-established standards for 

adjudicating the constitutionality of limits on 

independent expenditures. It is undisputed that 

federal law prohibits SSFs from soliciting members 

of the general public for contributions, even if such 

contributions would be placed in a specially 

segregated account used solely for subsidizing 

independent expenditures. 52 U.S.C. 

§ 30118(b)(4)(A)(i). 

 2 A search was run with “committee type” specified 

as “Political Action Committees (PACs)—All,” and 

“organization type” specified as “corporation.” The 

search returned 88 pages of results, with most pages 

listing 20 SSFs each. 
7

This Court repeatedly has held that the First 

Amendment does not permit the Government to 

limit independent expenditures, because whatever 

risk of corruption they purportedly may pose is 

insufficient to warrant such a direct limitation on 

political expression. See generally Buckley, 424 U.S. 

at 39 (invalidating limits on independent 

expenditures by individuals).3 Independent 

expenditures are not associated with actual or 

apparent quid pro quo corruption because the 

“absence of prearrangement and coordination of an

expenditure with the candidate or his agent not only 

undermines the value of the expenditure to the 

candidate, but also alleviates the danger that 

expenditures will be given as a quid pro quo for 

improper commitments from the candidate.” 

Buckley, 424 U.S. at 47.4

 3 See also FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480, 496 (1985) (“[T]he PACs’ 

[independent] expenditures are entitled to full First 

Amendment protection.”) (hereafter, “NCPAC”); FEC 

v. Mass. Citizens for Life, Inc., 479 U.S. 238, 263 

(1986) (same for certain non-profit corporations); 

Colo. Republican Fed. Campaign Comm. v. FEC, 518 

U.S. 604, 614 (1996) (“Colorado I”) (same for political 

parties); Citizens United v. FEC, 558 U.S. 310, 365 

(2010) (same for all domestic corporations). 

4 Accord Colorado I, 518 U.S. at 616 (holding that a 

political party committee’s independent expenditures 

are constitutionally protected because “the absence 
8

Based on these rulings, the consensus among the 

circuits is that, because the Government may not 

limit the amount of independent expenditures a 

person makes, restricting the amount that people 

may contribute to make independent expenditures 

collectively through a political committee would 

violate First Amendment associational rights. “To 

place a Spartan limit—or indeed any limit—on 

individuals wishing to band together to advance 

their views . . . while placing none on individuals 

acting alone, is clearly a restraint on the right of 

association.” Citizens Against Rent Cont./Coalition 

for Fair Hous. v. Berkeley, 454 U.S. 290, 296 (1981). 

One of the most notable rulings to this extent 

came from the D.C. Circuit itself, sitting en banc, 

which held:

In light of the [Supreme] Court’s holding as a 

matter of law that independent expenditures 

do not corrupt or create the appearance of 

quid pro quo corruption, contributions to 

groups that make only independent 

expenditures also cannot corrupt or create the 

 

of prearrangement and coordination . . . help[s] to 

alleviate any danger that a candidate will 

understand the expenditure as an effort to obtain a 

quid pro quo”) (quotation marks omitted); NCPAC, 

470 U.S. at 498 (“[I]ndependent expenditures by 

political committees” have “no tendency . . . to 

corrupt or to give the appearance of corruption.”); see 

also Citizens United, 558 U.S. at 357. 
9

appearance of corruption. The Court has 

effectively held that there is no corrupting 

‘quid’ for which a candidate might in exchange 

offer a corrupt ‘quo.’ . . . [T]he government 

can have no anti-corruption interest in 

limiting contributions to independent 

expenditure-only organizations. 

SpeechNow.org v. FEC, 599 F.3d 686, 695-96 (D.C. 

Cir. 2010) (en banc) (emphasis added); see also 

Texans for Free Enter. v. Tex. Ethics Comm’n, 732 

F.3d 535, 538 (5th Cir. 2013) (holding that, because 

an IE-only committee has an unlimited right to 

“engag[e] in . . . advocacy” through independent 

expenditures, the Government may not indirectly 

restrict such communications by limiting the 

committee’s ability to “seek[] funds to engage in that 

advocacy”).5

 5 Republican Party v. King, 741 F.3d 1089, 1096-97 

(10th Cir. 2013) (“Because there is no corruption 

interest in limiting independent expenditures, there 

can also be no interest in limiting contributions to 

non-party entities that make independent 

expenditures.”); Wis. Right to Life State PAC v. 

Barland, 664 F.3d 139, 154 (7th Cir. 2011) (“[A]fter 

Citizens United there is no valid governmental 

interest sufficient to justify imposing limits on 

fundraising by independent-expenditure 

organizations.”); Long Beach Area Chamber of 

Comm. v. City of Long Beach, 603 F.3d 684, 696, 698 

(9th Cir. 2010); N.C. Right to Life, Inc. v. Leake, 525 
10

And, as discussed in greater detail below, many 

courts have taken the next logical step, holding that 

when a committee makes both contributions and 

independent expenditures, it may establish a 

separate fund, free from many of the restrictions 

that apply to “hard money” accounts (i.e., accounts 

from which contributions may be made), for the sole 

purpose of subsidizing such non-corrupting 

independent expenditures. See Carey v. FEC, 791 F. 

Supp. 2d 121, 126-27, 131 (D.D.C. 2011); Republican 

Party v. King, 741 F.3d 1089, 1096-97 (10th Cir. 

2013); Thalheimer v. City of San Diego, No. 09-CV2862-IEG (BGS), 2012 U.S. Dist. LEXIS 6563, at 

*38-40 (S.D. Cal. Jan. 20, 2012); see also Emily’s List 

v. FEC, 581 F.3d 1 (D.C. Cir. 2009).

The D.C. Circuit, however, declined to require the 

Government to justify its restrictions on STI-ELF’s 

independent expenditures according to the rigorous 

standards that generally apply to such limitations. 

Rather, it held that an SSF may not invoke “the 

closest sort of scrutiny” under the First Amendment 

because it can simply have its connected corporation 

engage in speech on its behalf. Pet. App. 10a (op. 

at 9). The “critical flaw” in STI-ELF’s argument, 

according to the D.C. Circuit, is that “[n]othing 

prevents [STI-ELF’s connected] corporation from 

speaking on behalf of the PAC . . . . Moreover, 

independent expenditures are less burdensome 

 

F.3d 274, 293 (4th Cir. 2008); see also N.Y. Prog. & 

Prot. PAC v. Walsh, 733 F.3d 483, 487 n.1 (2d Cir. 

2013).
11

through the corporate alternative.” Id. at 8a (op. 

at 7). The court later reiterates that, if an SSF “is 

unable to speak on an issue or candidate of concern, 

the [connected] Corporation can [do so], making any 

burden ‘merely theoretical,’ rather than substantial.” 

Id. at 11a (op. at 10) (quoting Buckley, 424 U.S. 

at 19). 

The D.C. Circuit’s reasoning presents a startling 

new methodology for adjudicating campaign finance 

cases that is directly at odds with this Court’s wellestablished precedents. Rather than requiring the 

Government to establish a compelling need to limit 

an entity’s independent expenditures, see Buckley, 

424 U.S. at 44-45, the D.C. Circuit held that STIELF’s right to engage in such expenditures is 

somehow diminished because its affiliated 

corporation may speak on its behalf. The simple fact 

that alternate avenues for expression or association 

may exist has never been held, in itself, to warrant 

applying a lower level of scrutiny to restrictions 

relating to independent expenditures. And an 

entity’s right to engage in “core” First Amendment 

activities, Colorado I, 518 U.S. at 616, does not 

depend on whether other, albeit related, entities are 

willing and available to engage in such expression on 

its behalf. The D.C. Circuit deprived STI-ELF of the 

protection of strict scrutiny review for its First 

Amendment rights simply because it purportedly 

had alternate avenues for conveying its desired 

message. This not only led to an incorrect ruling in 

this case, but is a dangerous precedent for future 

cases and flatly at odds with this Court’s 
12

independent expenditure jurisprudence. This Court 

should grant certiorari to consider this issue on the 

merits. 

 

C. Separate Segregated Funds Have 

As Much of a Constitutionally 

Protected Interest as Other PACs 

In Establishing “Independent

Expenditure”-Only Accounts 

After employing an incorrect methodology and 

choosing the wrong level of scrutiny, the D.C. Circuit 

ultimately reached an incorrect conclusion that not 

only violates the constitutional rights of SSFs but, as 

discussed in the Parts that follow, creates a circuit 

split and directly conflicts with this Court’s 

precedents. The court held that an SSF may not 

solicit members of the general public to contribute to 

an IE-only account that is entirely quarantined from 

its general hard-money account (from which the SSF 

makes contributions). Pet. App. at 2a (op. at 10, 12). 

And such a prohibition is constitutionally 

permissible solely because it purportedly will result 

in greater public disclosure of information about 

contributions to the corporation and SSF. Id. at 13a 

(op. at 12). 

Even assuming that restrictions on 

solicitations by SSFs, including solicitations for 

putative IE-only accounts, should be subject only to 

intermediate or heighted scrutiny, the D.C. Circuit’s 

reasoning still fundamentally inverts this Court’s 

First Amendment jurisprudence. A restriction on 
13

First Amendment rights may pass heightened 

scrutiny only if it furthers “a sufficiently important 

interest” and is “closely drawn to avoid unnecessary 

abridgement of associational freedoms.” Buckley, 

424 U.S. at 25 (quotation marks omitted); accord 

McCutcheon v. FEC, 134 S. Ct. 1434, 1444 (2014)

and California Medical Assn v. FEC, 453 U.S. 180, 

203 (1981) (Blackmun, J., concurring) (“contributions 

to political committees can be limited only if those 

contributions implicate the governmental interest in 

preventing actual or potential corruption, and if the 

limitation is no broader than necessary to achieve 

that interest.”). And the only interests this Court 

has recognized as sufficiently weighty to warrant the 

imposition of contribution limits are preventing quid 

pro quo corruption, and circumvention of base limits. 

Buckley, 425 U.S. at 26-27; Citizens United, 558 U.S. 

at 359 (reiterating that the Government’s ability to 

restrict First Amendment rights to combat 

corruption is “limited to quid pro quo corruption”); 

McCutcheon, 134 S. Ct. at 1450-51.

Neither court below made any factual findings or 

offered any explanation as to how permitting SSFs 

to solicit members of the public—either in general, 

or specifically to raise funds for separate IE-only 

accounts—would lead to quid pro quo corruption or 

circumvention of base limits. And neither court

below made any factual findings or offered any 

explanation as to why solicitations by SSFs for IEonly accounts raise corruption or anti-circumvention 

concerns, but identical solicitations for identical IEonly accounts belonging to non-connected PACs do
14

not. Rather than basing its ruling on true anticorruption or anti-circumvention concerns, the D.C. 

Circuit held that the solicitation restrictions on SSFs 

are a closely tailored means of furthering the 

Government’s interest in obtaining and publicizing 

more information about an SSF’s funding. Pet. App. 

at 13a (op. at 12). And again, the court below 

neither made any factual findings nor offered any 

explanation as to how the availability of such 

information is a closely tailored means of preventing 

corruption. 

In short, the D.C. Circuit expressly sanctioned 

burdening SSFs’ First Amendment rights to solicit 

the public and engage in independent expenditures 

solely to prevent their connected corporations from 

being able to help subsidize the SSFs’ operating 

expenses without publicly disclosing those amounts. 

See Pet. App. at 13a (op. at 11-12) (“‘[T]he public has 

an interest in knowing who is speaking about a 

candidate and who is funding that speech, no matter 

whether the contributions were made towards 

administrative expenses or independent 

expenditures.’”) (quoting SpeechNow, 599 F.3d at 

698); see also id. at 13a (op. at 9). 

Nothing in this Court’s jurisprudence allows 

restrictions on such flimsy, “attenuated” grounds. 

Colorado I, 518 U.S. 616. And to the extent the 

Government has a legitimate interest in encouraging 

the public release of such information, enacting a 

law requiring the disclosure of that information is a 

much more direct and tailored means of achieving 

that goal. Cf. Citizens United, 558 U.S. at 362 
15

(holding that the Government may not prohibit 

independent expenditures from all corporations as a 

means of “preventing foreign individuals or 

associations from influencing our Nation’s political 

process”); NCPAC, 470 U.S. at 498 (invalidating 

prohibition on independent expenditures by PACs 

because, “[e]ven were we to determine that the large 

pooling of financial resources [by PACs] did pose the 

potential for corruption or the appearance of 

corruption,” the challenged statute was “not limited 

to multimillion dollar war chests,” but rather 

“appl[ied] equally to informal discussion groups that 

solicit neighborhood contributions”). This Court’s 

intervention is once again necessary to enforce basic 

First Amendment rights concerning campaign 

finance. 

II. THIS COURT SHOULD RESOLVE 

THE CIRCUIT SPLIT CONCERNING 

THE CONSTITUTIONAL RIGHT 

OF POLITICAL COMMITTEES TO 

ESTABLISH SEPARATE 

“INDEPENDENT EXPENDITURE”

-ONLY ACCOUNTS 

This case is especially ripe for adjudication 

because it implicates a deep split among the circuits 
16

concerning whether PACs that contribute to 

candidates may establish special, separate 

“independent expenditure”-only accounts to accept 

contributions solely for the purpose of subsidizing 

independent expenditures. As discussed above, the 

vast majority of circuits throughout the nation—

including the en banc D.C. Circuit, see SpeechNow, 

559 F.3d at 694-95— have held that, because 

Congress may not limit an entity’s ability to engage 

in independent expenditure, it likewise may not 

limit the ability of political committees which 

exclusively make such expenditures (i.e., they do not 

make political contributions or coordinated 

expenditures) to raise funds in order to subsidize 

them. See supra note 5 and accompanying text. 

“There is no difference in principle . . . between 

banning an organization . . . from engaging in 

advocacy [through independent expenditures] and 

banning it from seeking funds to engage in that 

advocacy.” Texans for Free Enter., 732 F.3d at 538. 

Building on this analysis, many courts, including 

the D.C. Circuit, have held that committees which 

choose to exercise their fundamental First 

Amendment right to contribute to the candidates 

and political parties they support should not be 

forced to surrender their ability to raise unlimited 

funds for the purpose of subsidizing their 

independent expenditures. See Emily’s List, 581 

F.3d at 12 (“A non-profit that makes [independent] 

expenditures to support federal candidates does not 

suddenly forfeit its First Amendment rights when it 

decides also to make direct contributions to parties 
17

or candidates.”). Those courts have held that a noncandidate, non-party, non-connected committee may 

raise unlimited funds so long as they are deposited 

exclusively into an independent IE-only account, 

which is kept strictly segregated from the “hard 

money” fund the committee uses to pay for 

contributions and coordinated expenditures. 

The D.C. District Court, for example, held that 

“maintaining two separate accounts is a perfectly 

legitimate and narrowly tailored means to ensure no 

cross-over” between the IE-only funds and the funds 

for campaign contributions. Carey, 791 F. Supp. 2d 

at 131. A political committee is “free to seek and 

expend unlimited . . . funds geared toward 

independent expenditures.,” so long as it 

“strictly segregate[s] these funds and maintain[s] the 

statutory limits on soliciting and spending hard 

money.” Id. at 134-35. 

Other courts have reached the same conclusion. 

In Republican Party v. King, 741 F.3d at 1097, for 

example, the Tenth Circuit agreed that a political 

committee had the fundamental First Amendment 

right to both contribute to candidates from a “hard 

money” account subject to contribution limits, while 

making independent expenditures from a separate 

segregated account that could accept unlimited 

contributions. The court explained, “[N]o anticorruption interest is furthered as long as [the 

political committee] maintains an [IE-only] account 

segregated from its candidate contributions” and 

“adheres to contribution limits for donations to its 

candidate account.” Id. 
18

The Tenth Circuit later reiterated that, because 

the committee’s contributions to candidates from its 

“hard money” account “do[] not alter the 

uncoordinated nature of its independent

expenditures.” Id. at 1101. Such independent 

expenditures cannot give rise to actual or apparent 

corruption, and therefore may not be limited. Id.; see 

also Emily’s List, 581 F.3d at 12 (holding that, “to 

avoid circumvention of individual contribution limits 

by its donors,” a political committee with a noncontribution account “simply must ensure . . that its 

contributions to parties or candidates come from a 

hard-money account”); Thalheimer, 2012 U.S. Dist. 

LEXIS 6563, at *38-39 (enjoining limit on 

contributions to political committees that make 

independent expenditures, “regardless of whether 

independent expenditures are the only expenditures 

that those committees make”).

Other courts have adopted a different approach. 

The Second Circuit, for example, held that a political 

committee is not entitled to receive the same 

treatment with regard to its separate, segregated IEonly account as a committee that engages solely in 

independent expenditures. Vt. Right to Life Comm. 

v. Sorrell, 758 F.3d 118, 141 (2014). The court 

concluded that the establishment of such a 

segregated account is not “enough to ensure that 

there is an absence of prearrangement and 

coordination” between the committee and a 

candidate or political party. It explained, “A 

separate bank account may be relevant, but it does 

not prevent coordinated expenditures.” Id. 
19

The Eleventh Circuit likewise held, 

When an organization engages in independent 

expenditures as well as campaign 

contributions, . . . its independence may be 

called into question and concerns of corruption 

may reappear. At the very least, the public 

may believe that corruption continues to exist, 

despite the use of separate bank accounts, 

because both accounts are controlled and can 

be coordinated by the same entity.

Ala. Democratic Conf. v. Att’y Gen., 541 F. App’x 931, 

935 (11th Cir. 2013). 

The D.C. Circuit’s opinion below exacerbates this 

split, calling into question the extent to which the 

creation of a separate, segregated IE-only account, 

whose funds may not be transferred into an entity’s 

main account or used for contributions, is sufficient 

to alleviate potential corruption concerns. The lower 

court denied STI’s right to establish such an account 

to solicit members of the public to fund its 

independent expenditures, solely because of STI’s 

“connection” to a corporation. This Court should 

grant certiorari to resolve the deep and widening 

split concerning the constitutional status of such 

separate, segregated IE-only accounts; the right of 

entities to solicit to raise funds to pay for 

independent expenditures from such accounts; and 

determine whether entities such as STI may be 

prohibited from creating them. 
20

III. THE D.C. CIRCUIT IGNORED THIS 

COURT’S PRECEDENTS BY 

PERMITTING THE GOVERNMENT 

TO LIMIT FIRST AMENDMENT RIGHTS 

TO FURTHER ITS INTEREST IN 

PROMOTING “DISCLOSURE”

Another crucial aspect of the D.C. Circuit’s 

opinion that warrants careful consideration by this 

Court is its conclusion that the FEC’s asserted 

interest in obtaining additional “disclosure” of 

information relating to corporate and PAC activities 

is sufficiently “‘important’” and “‘tailored’” to 

warrant restrictions on First Amendment rights. 

Pet. App. at 11a (op. at 10) (quoting Buckley, 424 

U.S. at 25). As mentioned earlier, the Court held 

that the Government may bar SSFs from soliciting 

for funds for a separate, quarantined IE-only 

account because “‘the public has an interest in 

knowing who is speaking about a candidate and who 

is funding that speech, no matter whether the 

contributions were made towards administrative 

expenses or independent expenditures.’” Pet. App. 

at 13a (op. at 11-12) (quoting SpeechNow, 599 F.3d 

at 698). 

As recently as McCutcheon, 134 S. Ct. at 1450, 

this Court reiterated that it has “consistently 

rejected attempts to suppress” First Amendment 

rights based on “legislative objectives” other than 

“preventing corruption or the appearance of 

corruption.” This Court has never held that limiting 

an entity’s ability to make contributions, or solicit 
21

members of the public for the purchase of 

subsidizing independent expenditures, is a closely 

tailored way of furthering the Government’s anticorruption interest.

Indeed, limiting contributions or the ability to 

solicit for the purpose of subsidizing independent 

expenditures is an extremely indirect and peculiar 

way of furthering a purported anti-corruption 

interest in obtaining more information about an 

entity’s funding. As a practical matter, the D.C. 

Circuit’s holding is self-defeating, for if its 

exhortation to petitioner to resort to “an 

unrestrained vehicle, in the form of the parent 

corporation to engage in unlimited political 

spending” is abided by, the result will certainly be

less disclosure, not more. See op. at 2. If the 

Government truly has a valid anti-corruption 

interest in learning more about an entity’s funds, the 

reasonably tailored way of achieving that goal is to 

require the entity to disclose more information about 

its funding. Completely prohibiting a corporation 

from making contributions, or an SSF from soliciting 

members of the general public, are grossly overbroad 

and ineffectual ways of attempting to gather more 

information from them. Cf. NCPAC, 470 U.S. at 498 

(“Even were we to determine that the large pooling 

of financial resources by [political committees] did 

pose a potential for corruption or the appearance of 

corruption, § 9012(f) is a fatally overbroad response 

to that evil.”). Such heavy-handed measures sweep 

in vastly broader swaths of constitutionally 
22

protected conduct than is necessary to achieve the 

Government’s asserted goals. 

The D.C. Circuit’s ruling is also inconsistent with 

the McCutcheon Court’s treatment of disclosure

requirements. McCutcheon recognized that 

“disclosure of contributions minimizes the potential 

for abuse of the campaign finance system.” 134 S. 

Ct. at 1459; see also Citizens United, 558 U.S. at 364-

71. They “often represent[] a less restrictive 

alternative to flat bans on certain types or quantities 

of speech” because they “do not impose a ceiling on 

speech.” McCutcheon, 134 S. Ct. at 1459-60. Thus, 

under McCutcheon, disclosure requirements are a 

less burdensome means of promoting the 

Government’s interest in combatting actual and 

apparent quid pro quo corruption. 

The ruling below transmutes disclosure from 

being an alternative to burdensome restrictions on 

political contributions, expenditures, and 

solicitation, to a rationale for them. Such a holding 

is a dangerous distortion of this Court’s First 

Amendment jurisprudence. McCutcheon and 

Citizens United endorsed disclosure requirements as 

a means of avoiding greater impositions on First 

Amendment rights. Attempting to bootstrap from 

these holdings, the panel below presents disclosure 

as a valid justification for such restrictions, 

purportedly furthering a “more robust” 

“anticorruption interest” than this Court’s 

precedents recognize. Pet. App. at 12a (op. at 11). 

The Government’s interest in learning how much 

corporations subsidize their associated SSFs does 
23

not warrant a completely unrelated prohibition on 

SSFs’ solicitations to the general public for the 

purpose of funding independent expenditures—

which lie at the “core” of the First Amendment, 

McCutcheon, 134 S. Ct. at 1444; accord Buckley, 424 

U.S. at 44-45. This Court must grant certiorari to 

prevent a vague and potentially unquenchable public 

interest in the “disclosure” of ever-growing amounts 

of information from serving as a new blanket 

rationale for campaign finance restrictions. 

IV. THIS COURT SHOULD GRANT 

CERTIORARI TO FORMALLY 

OVERRULE BEAUMONT

Finally, this Court should grant certiorari to take 

this opportunity to overturn its ruling in FEC v. 

Beaumont, 539 U.S. 146, 155-156 (2003), either 

entirely, or to the extent it provides a basis for 

restricting solicitation by SSFs. Beaumont upheld 

the statutes that prohibit corporations from making 

political contributions in the first place, requiring 

them instead to establish SSFs for that purpose. Id. 

at 150. None of the rationales underlying Beaumont

survive Citizens United. First, the Beaumont Court 

recognized that the ban on corporate contributions 

stemmed from a desire “‘for elections free from the 

power of money.’” Id. at 152 (quoting United States 

v. Auto. Workers, 352 U.S. 567, 575 (1957)). A 

simple desire to limit the amount of money involved 

in politics, or “‘the skyrocketing cost of political 

campaigns,’” however, is insufficient to warrant 
24

burdens on First Amendment rights. Citizens 

United, 558 U.S. at 350 (quoting Buckley, 424 U.S. 

at 28). 

Second, Beaumont justified the prohibition on 

corporate contributions and severe restrictions on 

corporate solicitation as ways of preventing 

corporations from “‘obtaining an unfair advantage in 

the political marketplace.’” Id. at 154 (quoting 

Austin v. Mich. Chamber of Comm., 494 U.S. 652, 

658-59 (1990)). The “‘special advantages’” 

corporations enjoy, such as “‘limited liability, 

perpetual life, and the favorable treatment of the 

accumulation and distribution of assets,’” allow them 

to “‘attract capital’” and obtain “‘an unfair advantage 

in the marketplace.’” Id. (quoting Austin, 494 U.S. 

at 658-59). 

Citizens United, however, rejected the premise 

that corporations should be treated differently under 

the First Amendment “simply because [they] are not 

‘natural persons.’” 558 U.S. at 343 (quoting First 

Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776 

(1978)). It is “‘rudimentary’” that “‘the State cannot 

exact as the price of those special advantages the 

forfeiture of First Amendment rights.’” Citizens 

United, 558 U.S. at 351 (quoting Austin, 494 U.S. at 

680 (Scalia, J., dissenting)). Moreover, Citizens 

United recognized that Buckley “rejected the premise 

that the Government has an interest in ‘equalizing 

the relative ability of individuals and groups to 

influence the outcome of elections.’” 558 U.S. at 350 

(quoting Buckley, 424 U.S. at 48-49). 
25

Third, Beaumont contended that severe 

restrictions on corporations 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.’” 

Beaumont, 539 U.S. at 154 (quoting FEC v. Nat’l 

Right to Work Comm., 459 U.S. 197, 208 (1982)). 

Again, Citizens United dispatched with this 

rationale, pointing out the indisputable and obvious 

facts that “[a]ll speakers, including individuals and 

the media, use money amassed from the economic 

marketplace to fund their speech. The First 

Amendment protects the resulting speech, even if it 

was enabled by economic transactions with persons 

or entities who disagree with the speaker's ideas.” 

Citizens United, 558 U.S. at 351. Moreover, there is 

“little evidence of abuse that cannot be corrected by 

shareholders ‘through the processes of corporate 

democracy.’” Id. at 361-62 (quoting Bellotti, 435 U.S. 

at 794)). 

Finally, Beaumont reaffirmed that “‘restricting 

contributions by various organizations hedges 

against their use as conduits for ‘circumvention of 

[valid] contribution limits.’” Beaumont, 539 U.S. at 

155 (quoting FEC v. Colo. Republican Fed. 

Campaign Comm., 533 U.S. 431, 456 & n.18 (2001) 

(“Colorado II”)). Neither Beaumont nor any other 

case, however, explains why a contribution by a 

corporation or its SSF is more likely than a 

contribution by any other PAC to constitute 
26

impermissible circumvention. As McCutcheon 

recognized:

[T]here is not the same risk of quid pro quo 

corruption or its appearance when money 

flows through independent actors to a 

candidate, as when a donor contributes to a 

candidate directly. When an individual 

contributes to a . . . PAC, the individual must 

by law cede control over the funds. . . . [I]f the 

funds are subsequently re-routed to a 

particular candidate, such action occurs at the 

initial recipient’s discretion—not the donor’s. 

134 S. Ct. at 1452. 

If connected SSFs were permitted to raise funds 

like non-connected PACs, it is unclear how they 

would be more likely than ordinary PACs to be used 

as tools for circumvention. And it is unclear why 

members of the general public would be more likely 

to attempt to use them as vehicles for circumvention 

than the class of people from whom SSFs presently 

may solicit contributions: stockholders, executives, 

administrative personnel, and their families. 52 

U.S.C. § 30118(b)(4)(A)(i). 

Like Austin, Beaumont’s doctrinal underpinnings 

have been severely eroded and are inconsistent with 

this Court’s modern campaign finance jurisprudence. 

This Court therefore should grant certiorari to 

reassess Beaumont’s continued validity in the wake 

of Citizens United and McCutcheon, concerning the 

validity of both the overall ban on corporate 
27

contributions, as well as the narrower issue of 

whether SSFs may validly solicit people outside of 

§ 30118(b)(4)(A)(i)’s restricted class. 

CONCLUSION

For the foregoing reasons, this Court should 

grant certiorari to afford this case full consideration 

on the merits. 

Respectfully submitted, 

Danielle Frisa

Counsel of Record

COOLIDGE-REAGAN

FOUNDATION 

1629 K Street, N.W.

Suite 300

Washington, D.C. 20006

(202) 603-5397

danielle@shahlapc.com

Counsel for Amicus Curiae

Dated: November 5, 2014