No. 08-205 

THE LEX GROUPDC ♦ 1750 K Street N.W. ♦ Suite 475 ♦ Washington, D.C. 20006 

(202) 955-0001 ♦ (800) 815-3791 ♦ Fax: (202) 955-0022 ♦ www.thelexgroupdc.com

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 AMICI CURIAE

AMERICAN JUSTICE PARTNERSHIP 

AND LET FREEDOM RING 

IN SUPPORT OF APPELLANT 

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

Cleta Mitchell 

Counsel of Record

Michael J. Lockerby 

Andrew D. Morton 

FOLEY & LARDNER LLP 

Washington Harbour 

3000 K Street NW, Suite 600 

Washington, DC 20007 

(202) 672-5300 

July 31, 2009 Counsel for Amici Curiae
i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................................iv 

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

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

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

I. RATHER THAN PREVENT 

CORRUPTION, AUSTIN HAS 

CORRODED AND DISTORTED 

THE POLITICAL PROCESS................4 

A. The Government Has No 

Compelling Interest in 

Limiting Either The 

Amount of Political Speech 

or the Quantity of 

Speakers......................................7 

B. Restrictions on Corporate 

Speech Alone Are 

Overbroad Because They 

Apply Regardless of 

Wealth, Size, or Actual 

Facts Related to the 

Speaker .......................................9 
ii

C. Restrictions on 

Corporation Speech Are 

Under-Inclusive Because 

They Exempt Wealthy 

Media Corporations, 

Individuals, and 

Unincorporated Entities...........11 

D. Neither the Exception for 

“MCFL” Organizations 

Nor the PAC “Alternative” 

Is Sufficient to Cure 

Austin’s Constitutional 

Infirmity....................................15 

1. The MCFL

exception violates 

the First 

Amendment by 

prohibiting all forprofit corporations 

from expressing 

their political views .......15 

2. Political action 

committees are not 

a viable option for 

many corporations 

and impose undue 

burdens on 

corporate free 

speech .............................16 
iii

II. BY ALLOWING 

RESTRICTIONS ON 

CORPORATE SPEECH, 

MCCONNELL HAS 

PERMITTED 

CIRCUMVENTION OF THE 

FIRST AMENDMENT ITSELF..........18 

CONCLUSION .........................................................20 
iv

TABLE OF AUTHORITIES

Page(s)

CASES

Associated Press v. United States, 

 326 U.S. 1 (1945)..............................................6 

Austin v. 

Mich. State Chamber of Commerce, 

494 U.S. 652 (1990)................................ passim 

Buckley v. Valeo, 

424 U.S. 1 (1976).................................... 4, 5, 16 

Davis v. Federal Election Comm’n, 

128 S. Ct. 2759 (2008)............................ 6, 7, 16 

Federal Election Comm’n v. 

Massachusetts Citizens for Life, 

479 U.S. 238 (1986) (“MCFL”) ............... passim

Federal Election Comm’n v. 

National Conservative Political Action Comm., 

 470 U.S. 480 (1985) (“NCPAC”)....... 4, 7, 10, 11

First Nat’l Bank of Boston v. Bellotti, 

435 U.S. 765 (1978)......................................5, 8

McConnell v. Federal Election Comm’n, 

540 U.S. 93 (2003).................................. passim

Nixon v. Shrink Missouri Gov’t PAC, 

528 U.S. 377 (2000)........................................15 
v

Wisc. Right to Life, Inc. v. 

Federal Election Comm’n, 

546 U.S. 410 (2006)..........................................9 

CONSTITUTIONAL PROVISION

U.S. CONST. amend. I ....................................... passim

STATUTES, RULES & REGULATIONS

26 U.S.C. § 501(c)(4) ................................... 1, 2, 10, 15 

Alaska Stat. §§ 15.13.010, .135 (2009)...................n. 3 

Ariz. Rev. Stat. Ann. § 16-907 (2008).......................11 

Ariz. Rev. Stat. Ann. § 16-919 (2008)...............n. 3, 18 

Col. Const. art. XXVIII § 2(8)(b)(II) (2008)..............11 

Col. Const. art. XXVIII § 3(4)(a) (2008) ...................18 

Col. Const. art. XXVIII § 3(7)(b) (2008) ...................19 

Col. Const. art. XXVIII § 5 (2008)..........................n. 3 

Col. Const. art. XXVIII § 6 (2008)..........................n. 3 

Conn. Gen. Stat. § 9-613(a) (2008).........................n. 3 

Conn. Gen. Stat. § 9-613(c) (2008) .........................n. 3 

Fla. Stat § 106.011(1)(a)1.c (2009) ...........................19 

Fla. Stat § 106.011(18) (2009) ..................................19 

Fla. Stat § 106.071 (2009) ........................................19 
vi

Iowa Code § 68A.503 (2009) .....................................17 

Ky. Rev. Stat. Ann. § 121.025 

 (West 2009)...................................................n. 3 

Ky. Rev. Stat. Ann. § 121.035 

 (West 2009)...................................................n. 3 

Mass. Gen. Laws ch. 55, § 8 (2009)..........................12 

Mich. Comp. Laws § 169.206.6(2)(a) (2009).............12 

Mich. Comp. Laws § 169.254 (2009) ......................n. 3 

Mich. Comp. Laws § 169.255 (2009) ......................n. 3 

Minn. Stat. § 10A.27 (2008) ...................................n. 3 

Minn. Stat. § 10A.211B.15(3) (2008)......................n. 3 

Mont. Code Ann. § 12-35-227 (2007)........................19 

N.C. Gen. Stat. § 163-278.15 (2009).......................n. 3 

N.C. Gen. Stat. § 163-278.19(a) (2009) ..................n. 3 

N.D. Cent. Code § 16.1-08.1-03.3 (2009)................n. 3 

N.D. Cent. Code §§ 16.1-08.1-03.5 (2009) ..............n. 3 

N.Y. C.L.S. Elec. § 14-100 ........................................11 

Ohio Rev. Code Ann. § 3517.01(17) 

 (LexisNexis 2009)...........................................11 
vii

Ohio Rev. Code Ann. § 3517.082 

 (LexisNexis 2009).........................................n. 3 

Ohio Rev. Code Ann. § 3517.105 

 (LexisNexis 2009)...........................................11 

Ohio Rev. Code Ann. § 3599.03 

 (LexisNexis 2009).........................................n. 3 

Okla. Stat. Ann. tit. 21, § 187.7.b(7) (2009).............12 

Okla. Stat. Ann. tit. 21, § 187.8.b (2009) .........n. 3, 12 

Okla. Stat. Ann. tit. 74, 

 app. § 257:1-1-2 (2009)...........................n. 3, 12 

25 Pa. Cons. Stat. § 3247 (2009) ............................n. 3 

25 Pa. Cons. Stat. § 3253 (2009) ............................n. 3 

R.I. Gen. Laws § 17-25-10.1 (2009) ........................n. 3 

S.D. Codified Laws § 12-27-1 (2009) ......................n. 3 

S.D. Codified Laws § 12-27-18 (2009) ....................n. 3 

Tenn. Code Ann. § 2-19-132 (2009)........................n. 3 

Tex. Elec. Code Ann. § 253.094 

 (Vernon 2009)...............................................n. 3 

W. Va. Code § 3-8-8 (2009) .....................................n. 3 

Wis. Stat. § 11.38 (2008).........................................n. 3 

Wyo. Stat. Ann. § 22-25-102 (2008) .......................n. 3 
viii

OTHER AUTHORITIES

AMER. TORT REFORM FOUND., White Paper, 

Defrocking Tort Deform: Stopping 

Personal Injury Lawyers from 

Repealing Existing Tort Reforms and 

Expanding Rights to Sue in State 

Legislatures (2008) ........................................13 

U.S. Internal Revenue Service, Statistics of 

Income, Corporation Income Tax 

Returns, Table 732 (“Corporations by 

Receipt-Size Class and Industry: 2005”).........9 

www.guidestar.org/FinDocuments/2007/132/

630/2007-132630359-049cff52-9O.pdf......................16 

www.letfreedomringusa.com/about ...........................1 

www.opensecrets.org ................................................14 

www.triallawyersinc.com .........................................14 
1

BRIEF OF AMICI CURIAE

AMERICAN JUSTICE PARTNERSHIP 

AND LET FREEDOM RING 

IN SUPPORT OF APPELLANT 

____________ 

INTEREST OF AMICI CURIAE1

American Justice Partnership (“AJP”) is a 

non-profit, Section 501(c)(4) corporation dedicated to 

reform of the civil justice system at the state level. 

AJP seeks to educate citizens, public officials, and 

candidates of the dangers to states’ economic wellbeing resulting from runaway litigation and 

excessive damage awards. 

Let Freedom Ring (“LFR”) is also a non-profit, 

Section 501(c)(4) corporation, formed for the express 

purpose of mobilizing citizens on issues regarding 

protection of fundamental American values and free 

enterprise, and educating voters about candidates’ 

views and votes on its priority issues.2

AJP rarely if ever contributes to political 

campaigns. LFR never contributes to political 

candidates. The interest of both AJP and LFR in 

this case is prompted by the fact that they are 

subject to restrictions on their right to free speech 

solely by virtue of the fact that they are 

incorporated. 

 1 This brief is filed with the written consent of all 

parties. No counsel for a party authored this brief in whole or 

in part, and no counsel for a party made a monetary 

contribution intended to fund the preparation or submission of 

this brief. 

2 See www.letfreedomringusa.com/about. 
2

Unlike its adversaries, AJP is a corporation 

and therefore subject to state laws restricting its 

right to express its views on public policy issues. 

AJP’s philosophical opponents include trial lawyers 

(some of whom have amassed a net worth of millions 

of dollars) and associations of trial lawyers. Unlike 

AJP, trial lawyers — both individually and in 

combination — are free during an election year in 

any state to criticize by name candidates for public 

office at the state level who support caps on punitive 

damages and other aspects of tort reform. In 

contrast, AJP would in many states face severe civil 

— and in some states and circumstances — criminal 

sanctions if it were even to mention specific political 

candidates who support (or oppose) its legal reform 

agenda. 

LFR was created to operate within the 

parameters of the exemption from corporate political 

speech restrictions established by the Court’s 

decision in Federal Election Comm’n v. 

Massachusetts Citizens for Life, 479 U.S. 238 (1986) 

(“MCFL”). LFR is thus permitted to engage in 

political speech of the type that AJP cannot, but only 

if it foregoes corporate membership and financial 

support altogether. To qualify for the MCFL

exception, LFR cannot even hold meetings at a 

church, synagogue, or mosque without paying for use 

of the facility out of fear that otherwise it might be 

deemed to have accepted an “in-kind” corporate 

contribution. 

Both AJP and LFR were organized under 

Section 501(c)(4) so that their members could pool 

their resources and speak in support of a common 

agenda. AJP and LFR therefore jointly file this 
3

amici brief to seek restoration of their rights to free 

speech by asking the Court to overturn its prior 

decisions in Austin v. Mich. State Chamber of 

Commerce, 494 U.S. 652 (1990) and McConnell v. 

Federal Election Comm’n, 540 U.S. 93 (2003). 

SUMMARY OF THE ARGUMENT

Empowered by the Court’s decisions in Austin 

and McConnell, twenty-two states now impose 

severe restrictions on corporate political activity, 

including contributions to candidates, expenditures 

on behalf of candidates, and/or “electioneering 

communications” (collectively, the “Offending State 

Statutes”).3 The Offending State Statutes apply to 

all corporate political activity — even when 

undertaken independently from political candidates 

or their campaign organizations. Under this 

patchwork quilt of state laws proscribing and 

restricting corporate political speech, AJP and — to 

a lesser extent — LFR cannot engage in 

unrestrained discussion of the issues that they were 

specifically formed to address. The restrictions that 

Austin has permitted states to enact serve no 

compelling government interest. Nor can they 

survive strict scrutiny, because they are both 

overbroad and under-inclusive. On their face, the 

Offending State Statutes deny the fundamental 

right of free speech to AJP and LFR, to their 

members, and indeed to all Americans who choose to 

organize, work, and speak through the corporate 

form. The only one way to right this constitutional 

wrong is to overturn Austin and McConnell. 

 3 Citations to the statutes of these twenty-two states 

are listed in the Table of Authorities. 
4

ARGUMENT

I. RATHER THAN PREVENT CORRUPTION, 

AUSTIN HAS CORRODED AND DISTORTED 

THE POLITICAL PROCESS.

Before Austin, the Court’s precedents were 

clear that the “the only legitimate and compelling 

government interests” sufficient to justify 

restrictions on protected First Amendment political 

speech were “preventing corruption or the 

appearance of corruption.” Federal Election Comm’n 

v. National Conservative Political Action Comm., 470 

U.S. 480, 496 (1985) (“NCPAC”). By “corruption,” 

the Court meant large contributions to “secure a 

political quid pro quo from current and potential 

officeholders.” Buckley v. Valeo, 424 U.S. 1, 26 

(1976). In Austin, however, the Court recognized a 

compelling government interest in preventing “a 

different type of corruption in the political arena.” 

494 U.S. at 660. Austin expanded the definition of 

“corruption” to include “the corrosive and distorting 

effects of immense aggregations of wealth that are 

accumulated with the help of the corporate form and 

that have little or no correlation to the public’s 

support for the corporation’s political ideas.” Id. 

By expanding the definition of “corruption,” 

Austin narrowed the protections of the First 

Amendment. And it did so based on a purported 

government interest that was factually dubious and 

without legal precedent. As Justice Kennedy 

observed in dissent at the time, “the notion that the 

government has a legitimate interest in restricting 

the quantity of speech to equalize the relative 
5

influence of speakers on elections” is “antithetical to 

the First Amendment.” Id. at 704. 

Austin’s expansive definition of “corruption” 

eviscerated the principle that the First Amendment 

protects speech itself regardless of the identity of 

the speaker. Before Austin, the Court found “no 

support ... for the proposition that speech that 

otherwise would be within the protection of the First 

Amendment loses that protection simply because its 

source is a corporation.” First Nat’l Bank of Boston 

v. Bellotti, 435 U.S. 765, 784 (1978). The Michigan 

statute that the Court upheld in Austin, however, 

“discriminates on the basis of the speaker’s identity,” 

allowing “any person or group other than a 

corporation” to “engage in political debate over 

candidate elections” while corporations “must 

remain mute.” 494 U.S. at 699 (Kennedy, J., 

dissenting). Before Austin, at least, the Court’s 

“precedents condemn[ed] this censorship.” Id.

In Austin, the Court accepted a notion that it 

had previously rejected in MCFL, that associations 

“suddenly present the specter of corruption merely 

by assuming the corporate form.” 479 U.S. at 263. 

Before Austin, the only “corruption” that the 

government legitimately could seek to prevent was 

that caused by campaign contributions. In 

Buckley, the Court thus upheld limits on campaign 

contributions while reaffirming the principle that 

spending money to influence elections is a form of 

constitutionally protected free speech. 424 U.S. at 

963-64. By expanding the definition of “corruption,” 

Austin thus excised from the Bill of Rights — at 

least for corporations — the principle that the First 

Amendment protects independent expenditures 
6

expressing political speech. In contrast, campaign 

expenditures by individuals continue to enjoy First 

Amendment protection as free speech. Davis v. 

Federal Election Comm’n, 128 S. Ct. 2759 (2008). By 

permitting restrictions on corporate free speech that 

do not apply to individuals, Austin had the 

unintended consequence of depriving individuals of 

their First Amendment right to “the widest possible 

dissemination of information from diverse and 

antagonistic sources.” Associated Press v. United 

States, 326 U.S. 1, 20 (1945). 

The Offending State Statutes deprive 

individuals of their right to hear AJP’s message and 

impair LFR’s ability to communicate its views if it 

accepts corporate contributions, resulting in the very 

“corrosive and distorting effects” on the political 

process about which Austin expressed concern. The 

total censorship to which AJP is subject in many 

states does not apply to trial lawyers, many of whom 

can and do accumulate “immense aggregations of 

wealth.” Austin, 494 U.S. at 660. The jury verdicts 

and other sources of income from which this wealth 

is often accumulated “have little or no correlation to 

the public’s support for [trial lawyers’] political 

ideas.” Id. Yet the Offending State Statutes allow 

only one side of the debate to be heard, particularly 

during the election years in which robust debate 

matters most. Contrary to the premise of Austin, the 

government has no compelling interest in restricting 

the amount of political speech or the identity of 

speakers. 
7

A. The Government Has No 

Compelling Interest in Limiting 

Either The Amount of Political 

Speech or the Quantity of Speakers. 

Reversing Austin would not undermine the 

government’s ability to protect the political process 

from “corruption” as that term long has been 

understood. “The hallmark of corruption is the 

financial quid pro quo: dollars for political favors.” 

NCPAC, 470 U.S. at 497. Like the Michigan statute 

at issue in Austin, the Offending State Statutes are 

not intended merely to prevent corruption resulting 

from the exchange of “dollars for political favors.” 

Rather than being limited to campaign 

contributions, these statutes also restrict 

independent expenditures by corporations. As a 

result, they limit free speech in violation of the First 

Amendment. 

The government has no compelling interest in 

“protecting” the political process from too much 

political speech by too many speakers (or too many of 

the “wrong” types of speakers, such as corporations 

and labor unions). A campaign finance law that 

inhibits political speech is particularly invalid when 

it fails to deal with an identifiable problem of 

corruption in politics. On that basis, the Court’s 

recent decision in Davis rejected Congress’ attempt 

to legislate in the name of “level[ing] electoral 

opportunities” through the so-called Millionaires 

Amendment. See 128 S. Ct. at 2774. 

Rather than setting limits on political 

dialogue, the First Amendment is intended to 

facilitate robust debate. The First Amendment 
8

entrusts not the government but rather “the people 

in our democracy ... with the responsibility for 

judging and evaluating the relative merits of 

conflicting arguments.” Bellotti, 435 U.S. at 791. 

The First Amendment allows the people to “consider, 

in making their judgment, the source and credibility 

of the advocate.” Id. The First Amendment does not 

permit the government to silence certain advocates 

“on the basis of the speaker’s identity.” Austin, 494 

U.S. at 699 (Kennedy, J., dissenting). 

Under the First Amendment, a non-profit 

corporation like AJP has the same right to 

participate in public policy and electoral debates as 

individuals and unincorporated entities — for-profit 

and non-profit alike. Under the First Amendment, 

other corporations have the right to express their 

support for LFR’s agenda by contributing financial 

support. Even if AJP and LFR were for-profit 

corporations that had accumulated “immense 

aggregations of wealth,” both would have the same 

right of free speech as individuals and 

unincorporated associations at all levels of income 

and wealth. In this regard, the Austin majority cited 

no authority for the proposition that the First 

Amendment permits “progressive taxation” of 

political free speech — including outright 

confiscation of all corporate free speech. 

The Offending State Statutes prevent AJP 

from engaging in public discussion that is 

“indispensable to decision-making in a democracy.” 

Bellotti, 435 U.S. at 777. LFR’s free speech is 

shackled in ways that individuals and 

unincorporated entities (and media corporations) are 

not. The restrictions that Austin has permitted 
9

states to enact serve no compelling government 

interest and otherwise do not pass constitutional 

muster because they are both overbroad and underinclusive. 

B. Restrictions on Corporate Speech 

Are Overbroad Because They 

Apply Regardless of Wealth, Size, 

or Actual Facts Related to the 

Speaker. 

For censorship of corporate speech to survive 

strict scrutiny, the government must demonstrate 

that it “furthers a compelling interest and is 

narrowly-tailored to achieve that interest.” Wisc. 

Right to Life, Inc. v. Federal Election Comm’n, 546 

U.S. 410 (2006). Even if the government had a 

compelling interest in protecting the marketplace of 

ideas from a “corrosive and distorting effect” caused 

by “immense aggregations of wealth,” Austin, 494 

U.S. at 660, banning corporate political speech is not 

“narrowly-tailored” to accomplish that purpose 

according to the government’s own data. When the 

IRS sampled corporate tax returns filed in 2005, it 

found that 81 percent of corporations had annual 

revenues of less than $1 million, and 95 percent had 

annual revenues of less than $5 million.4 

Incorporation alone is no guarantee that an entity 

will amass “immense aggregations of wealth.” To 

the contrary, many corporations end up in 

bankruptcy. In any event, there is no constitutional 

 4 U.S. Internal Revenue Service, Statistics of Income, 

Corporation Income Tax Returns, Table 732 (“Corporations by 

Receipt-Size Class and Industry: 2005”), available at 

www.census.gov/compendia/statab/cats/business_enterprise.ht

ml. 
10

basis for Austin’s premise that corporations are 

demons that must be exorcised from the body politic. 

The absurdity of Austin’s rationale for 

restricting corporate political speech is demonstrated 

by the facts and circumstances of AJP and LFR 

themselves. Both are non-profit corporations. 

Neither one has accumulated “immense aggregations 

of wealth.” By virtue of Section 501(c)(4), both are 

prohibited from doing so. AJP’s total annual budget 

for educational and advocacy activity nationwide is 

approximately $3 million. LFR conducts events in 

numerous states across the country, yet operates on 

a budget of roughly $1 million. Expenditures of this 

magnitude by AJP and LFR, made in multiple 

states, hardly threaten to have a “corrosive and 

distorting effect” on political debate in those states 

in which corporations have not been silenced. Like 

the statute that the Court invalidated in NCPAC, 

the Offending State Statutes are unconstitutionally 

overbroad: 

Even were we to determine that the 

large pooling of financial resources ... 

did pose a potential for corruption or 

the appearance of corruption, [the 

statute] is a fatally overbroad response 

to that evil. It is not limited to 

multimillion dollar war chests; its 

terms apply equally to informal 

discussion groups that solicit 
11

neighborhood contributions to publicize 

their views about a particular 

Presidential candidate. 

470 U.S. at 498. 

C. Restrictions on Corporate Speech 

Are Under-Inclusive Because They 

Exempt Wealthy Media 

Corporations, Individuals, and 

Unincorporated Entities. 

Restrictions on corporate speech alone are 

plainly insufficient to protect the political process 

from “the corrosive and distorting effects of immense 

aggregations of wealth.” With the blessing of Austin, 

the Offending State Statutes impose no restrictions 

on wealthy media corporations,5 wealthy 

associations and other business entities that are not 

incorporated,6 or wealthy individuals. To be heard 

effectively, individuals with less financial 

wherewithal must pool their resources. If they seek 

 5 See, e.g., Col. Const. art. XXVIII § 2(8)(b)(II) 

(exempting “[a]ny editorial endorsements or opinions aired by a 

broadcast facility not owned or controlled by a candidate or 

political party” from the definition of “expenditure”). 

6 See, e.g., Ariz. Rev. Stat. Ann. § 16-907 (political 

contributions by partnerships permitted and allocated in the 

name of partner(s)); N.Y. C.L.S. Elec. § 14-100 (limited liability 

companies treated as individuals and subject to individual, 

rather than corporate, campaign finance limits); Ohio Rev. 

Code Ann. §§ 3517.01(17), .105 (independent expenditures by 

partnerships, unincorporated business organizations or 

associations, and other non-corporate business entities 

permitted, subject to disclosures). 
12

to do so by forming a corporation, Austin permits 

them to be silenced rather than heard. Meanwhile, 

the Offending State Statutes impose no restrictions 

on individuals like George Soros, Ross Perot, and T. 

Boone Pickens who have “immense aggregations of 

wealth” — even if their wealth originally was 

amassed in a corporation before being distributed to 

them in the form of profits or distributions. 

In states that restrict both corporate 

contributions and corporate expenditures, the 

prohibitions of the Offending State Statutes are not 

limited to public communications regarding 

candidates. Indeed, corporations are prohibited even 

from telling their own employees which candidates 

are sympathetic to furthering the company’s 

interests — information that may well be of interest 

and importance to employees in deciding whom to 

support or oppose at election time.7

While silencing AJP solely because it is a 

corporation, Austin leaves voters free to hear the 

viewpoints of AJP’s political opponents, who are not 

subject to the same political speech restrictions 

imposed on AJP. AJP was formed to combat the 

well-organized efforts of trial lawyers to influence 

state legislation and policies related to civil justice 

reform. Personal injury lawyers actively engage in 

the political process to protect and promote 

 7 See, e.g., Okla. Stat. Ann. tit. 21, 

§§ 187.7.b(7), .8.b (2009); id. tit. 74, app. § 257:1-1-2 (2009); 

Mass. Gen. Laws ch. 55, § 8 (2009); Mich. Comp. Laws 

§ 169.206.6(2)(a) (2009). 
13

candidates and policies that oppose, repeal, or chip 

away at tort reform laws.8 Trial lawyers are able to 

use their “immense aggregations of wealth” to 

engage in unlimited political speech, while AJP and 

its members are not. For example: 

 The American Association for 

Justice (formerly the Association of 

Trial Lawyers of America), ranks as 

the sixth-highest donor to federal 

candidates and national political 

parties — across all contributors — 

over the last two decades (1989-

2008). 

 Lawyers and law firms as an 

industry have given the most or the 

second most amount of federal 

campaign contributions each cycle 

for at least the past two decades, 

giving more than any other industry 

over that time period. 

 In 2008, lawyers and law firms 

contributed $232,763,315 to federal 

campaigns, with 92.5 percent of that 

 8 See, e.g., Amer. Tort Reform Found., White Paper, 

Defrocking Tort Deform: Stopping Personal Injury Lawyers 

from Repealing Existing Tort Reforms and Expanding Rights to 

Sue in State Legislatures (2008) (“[P]ersonal injury lawyer 

groups have contributed substantially to the election of 

representatives on key legislative committees and to state 

legislatures as a whole”). 
14

amount coming from individual 

lawyers.9

 Lawyers in tobacco settlement cases 

received $30 billion in fees, with 

$8 billion going to the lawyers in 

Mississippi, Florida, and Texas who 

pioneered the claims. The Florida 

litigation team was awarded 

$233 million per lawyer.10

Even when not acting as individuals, trial 

lawyers typically do not organize in the form of 

corporations. Instead, many law firms are 

structured as partnerships, limited liability 

partnerships, professional limited liability 

companies, and other types of unincorporated 

entities. Unlike AJP, individual lawyers, law firms, 

and associations to which they belong can make 

direct political contributions to and expenditures — 

in unlimited amounts — on behalf of candidates. 

This unintended consequence of Austin is yet 

another reason that overturning that decision is 

necessary to restore the primacy of the First 

Amendment: 

Our First Amendment principles surely 

tell us that an interest thought to be 

the compelling reason for enacting a 

law is cast into grave doubt when a 

worse evil surfaces in the law’s actual 

operation. And our obligation to 

 9 See www.opensecrets.org. 

10 See www.triallawyersinc.com. 
15

examine the operation of the law is all 

the more urgent when the new evil is 

itself a distortion of speech. 

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377 

(2000) (Kennedy, J., dissenting). 

D. Neither the Exception for “MCFL” 

Organizations Nor the PAC 

“Alternative” Is Sufficient to Cure 

Austin’s Constitutional Infirmity. 

Rather than overturn Austin, this Court has 

carved out various exceptions to the ban on 

corporate political activity. This effort to address 

Austin’s constitutional infirmities on a piecemeal 

basis has not cured the fundamental flaws in Austin, 

as demonstrated by the experience of both AJP and 

LFR. 

1. The MCFL exception violates 

the First Amendment by 

prohibiting all for-profit 

corporations from expressing 

their political views. 

The MCFL exception does not apply to 

organizations that receive corporate contributions or 

funding through corporate membership dues. 

Because AJP’s members are corporations and other 

for-profit businesses, AJP does not qualify for the 

MCFL exception. In contrast, certain other 501(c)(4) 

corporations, such as NARAL-ProChoice America 

(“NARAL”), fall within the MCFL exception solely 

because their membership is comprised entirely of 

individuals. Whether a 501(c)(4) is comprised of 
16

individuals or corporations bears no rational 

relationship to the wealth of the organization (again, 

to the extent that wealth is even a valid basis for 

restricting free speech). NARAL, for example, 

reports annual revenues and expenditures of more 

than $12 million — more than four times the annual 

budget of AJP.11 Discrimination among social 

welfare organizations, based solely on the source of 

the organization’s members and dues, is contrary to 

the First Amendment as interpreted by Buckley and 

Davis, among other precedents. 

Unlike AJP, LFR has made the conscious 

decision to forego corporate support so that it can 

qualify for the MCFL exception. But why should it 

have to? To qualify for an exception to a ban on 

corporate political speech that was unconstitutional 

in the first place, LFR is subject to burdens and 

restrictions on its free speech that do not apply to 

individuals, unincorporated entities, or media 

corporations. 

2. Political action committees 

are not a viable option for 

many corporations and 

impose undue burdens on 

corporate free speech. 

The FEC would have the Court believe that 

corporations and labor unions should be relegated to 

the back of the constitutional bus by exercising their 

political free speech rights solely within the confines 

of a political action committee (“PAC”). Regardless 

 11 See www.guidestar.org/FinDocuments/2007/132/

630/2007-132630359-049cff52-9O.pdf. 
17

of how many PACs have been organized by large forprofit corporations and labor unions, this “separate 

but equal” approach to the First Amendment is not a 

viable option for either AJP or LFR. A PAC is 

typically used to make direct contributions to 

candidates. LFR never contributes to candidates, 

and AJP rarely does so. The primary purpose of 

both organizations is to make public communications 

about issues, positions of candidates, and voting 

records. 

Relatively few corporations in the United 

States have resources approaching those of the 

Fortune 100. For AJP, LFR, and other small 

corporations, forming a PAC is not a viable option. 

PACs can normally solicit only a select “restricted 

class” (defined by law) consisting of executive and 

managerial employees or the individual members of 

an association. A PAC is not a viable option for AJP, 

whose only members are themselves corporations. A 

small company or organization lacks the expertise 

and personnel to manage the administrative burdens 

of registering and reporting to a state agency 

multiple times each year. And in Iowa, for example, 

state law prohibits a corporation from absorbing the 

administrative, accounting, compliance, and 

fundraising costs of the company PAC. Iowa Code 

§ 68A.503 (2009). A PAC is a separate legal entity, 

distinct from the corporation itself. It must 

maintain a separate bank account, file a separate 

tax return, and otherwise be a wholly separate legal 

organization under the law. In short, establishing a 

PAC imposes administrative and financial burdens 

on corporations simply to exercise rights of free 

speech that the Constitution permits them to 

exercise in their own right. 
18

II. BY ALLOWING RESTRICTIONS ON 

CORPORATE SPEECH, MCCONNELL 

HAS PERMITTED CIRCUMVENTION OF 

THE FIRST AMENDMENT ITSELF. 

The constitutional defects in Austin were 

compounded when, in McConnell, the Court 

permitted restrictions intended to prevent 

“circumvention” of the corporate contributions ban 

through independent spending in support of election 

campaigns. The federal prohibitions that this Court 

upheld in McConnell have — in a perverse display of 

“trickle-down unconstitutionalism” — resulted in 

state law prohibitions and restrictions on corporate 

contributions and expenditures alike. Every state 

that prohibits corporate contributions directly to 

candidates also imposes draconian restrictions and 

prohibitions on corporate political expenditures — 

even those that are independent of candidates, and 

often even where no express advocacy is involved. 

Arizona, for example, allows only political 

committees (not corporations) to make “independent 

expenditures,” which are treated as in-kind 

contributions to candidates even if made totally 

independently of a candidate. Ariz. Rev. Stat. Ann. 

§ 16-919 (2009). And Colorado is one of at least 

sixteen other states prohibiting corporate 

independent expenditures, defined as “express 

advocacy” for and against candidates, not in 

coordination with candidates. Col. Const. art. 

XXVIII § 3(4)(a). 

Many states also prohibit corporations from 

making or contributing to “electioneering 

communications.” Since McConnell, many states 

have prohibited much more than the radio and 
19

television broadcast advertising regulated by 

federal law. The speech restrictions include 

communications made in print advertising, 

billboards, direct mail, telephone, and even direct 

delivery by a “person” to a personal residence.12

In the name of preventing “circumvention” of 

prohibitions on corporate contributions, the states 

have enacted not just parallel — but greatly 

expanded — prohibitions on any and all corporate 

expenditures referencing state candidates. 

Montana, for example, prohibits “all” political 

expenditures by corporations. Mont. Code Ann. 

§ 12-35-227 (2007). Other state speech restrictions 

are wholly counter to the Court’s reasoning in 

Austin. Florida, for example, allows corporate direct 

contributions to candidates but imposes severe 

restrictions on a corporation’s ability to “speak,” 

requiring a corporation to register as a “political 

committee” if it makes independent expenditures 

and requiring the creation of an “electioneering 

communications organization” to make any public 

communications that reference a clearly identified 

candidate within 120 days of any election. Fla. Stat. 

§§ 106.011(1)(a)1.c, 106.011(18), and 106.071 (2009). 

Both in theory and in practice, McConnell

represents an even more radical departure from 

 12 In Colorado, for example, “electioneering 

communications” are communications to voters that 

unambiguously refer to a candidate that are distributed, 

broadcast, printed, directly mailed or delivered by hand to 

residence of individual 30 days before a primary or 60 days 

before a general election. Col. Const. art. XXVIII, § 3(7)(b) 

(2008). 
20

prior First Amendment jurisprudence. Austin at 

least paid lip service to the principle that 

“preventing corruption or the appearance of 

corruption” is the only constitutionally valid basis for 

government restrictions on political speech (while 

expanding the definition of “corruption” to the point 

where it became barely recognizable). McConnell

has since recognized a new compelling interest in 

“avoiding circumvention” of prohibitions that were 

unconstitutional in the first place. 

The result is a regulatory regime in state after 

state that stifles political participation by non-profit 

corporate organizations such as AJP and LFR, by 

for-profit corporations such as AJP’s members, and 

by for-profit corporations that cannot contribute to 

LFR without jeopardizing its MCFL exception. The 

entire regime is counter to basic First Amendment 

principles and must fail. 

CONCLUSION

In Austin, the Court stepped onto (if not 

through) constitutionally thin ice by endorsing the 

notion that restrictions on free speech can and 

should vary depending upon the identity of the 

speaker. The resultant censorship of corporate 

political speech is based upon the constitutionally 

indefensible position that the government has a 

compelling interest in silencing the expression of 

those deemed to be inordinately wealthy. Even if the 

government had a compelling interest in silencing 

the wealthy, Austin permits restrictions on free 

speech that are at once overbroad and underinclusive. Like most U.S. corporations, for-profit and 

non-profit alike, AJP and LFR have not amassed the 
21

“immense aggregations of wealth” with which the 

Austin majority seemed preoccupied. Silencing AJP 

while allowing wealthy trial lawyers and 

associations of trial lawyers to monopolize the legal 

reform debate does nothing to address the type of 

alleged “corruption” upon which Austin was based. 

Under the weight of McConnell, the flawed 

logic upon which Austin was resting has simply 

collapsed altogether. McConnell has permitted 

restrictions to “avoid circumvention” of restraints on 

corporate free speech that were constitutionally 

impermissible in the first place. The resultant 

corrosive and distorting effects on the First 

Amendment itself can be corrected only by reversing 

both Austin and McConnell. 

 Respectfully submitted, 

 Cleta Mitchell 

Counsel of Record

 Michael J. Lockerby 

Andrew D. Morton 

FOLEY & LARDNER LLP 

Washington Harbour 

3000 K Street NW, Suite 600 

Washington, DC 20007 

(202) 672-5300 

 Counsel for Amici Curiae

July 31, 2009