Posted July 31, 2009 by Tara Malloy

Brief in Citizens United Defends Key Elements of Campaign Finance Law

Today, the Campaign Legal Center and Democracy 21, on behalf of themselves and five other non-profit groups, filed an amici brief in the Supreme Court case, Citizens United v. FEC, to defend the constitutionality of the federal restrictions on corporate expenditures to influence candidate elections. 

The amici brief responds to the Supreme Court’s request for supplemental briefing to address the question of whether the Court should overrule its 1990 decision in Austin v. Michigan Chamber of Commerce and part of 2003 decision in McConnell v. FEC.  These two decisions upheld restrictions on corporate election-related expenditures and are cornerstones of the Court’s campaign finance jurisprudence. 

The Citizen United case arose as a much narrower as-applied challenge to the “electioneering communications” provisions in the Bipartisan Campaign Reform Act (BCRA) that both prohibit corporations and unions from using treasury fund to finance electioneering and require public disclosure in connection to electioneering communications.  Citizens United complained that the BCRA provisions were unconstitutional as applied to to its film entitled Hillary: The Movie and its advertisements promoting the film.

Only upon its appeal to the Supreme Court did Citizens United first extend the scope of its case and demand that Austin be overturned.  And the Supreme Court, instead of deciding the case in the first instance after it was argued on March 24, 2009, ordered reargument to address the broader issue of the validity of the Austin and McConnell decisions.

The Legal Center’s amici brief argues that overturning these decisions would be a radical step that would strike down the 60-year-old federal restriction on corporate expenditures in federal elections, as well as the statutes in 24 states that similarly restrict corporate spending.  The invalidation of these statutory checks on corporate expenditures would, in turn, expose federal elections to the corrosive and distorting effects of corporate money for the first time in 60 years.  

Amici also argue that Citizen United has provided no special justification for such a dramatic break from decades of election law.  The Supreme Court decisions in Austin and McConnell are part of a chain of the Court’s decisions dating back a half-century that have consistently approved restrictions on corporate and union activities in candidate elections.  Further, both decisions were cited as recently as two years ago in Chief Justice Roberts’ controlling decision in FEC v. Wisconsin Right to Life.  Given that no reason has been presented that would justify a departure from this Court precedents, amici argue the Supreme Court should respect principles of stare decisis, and decline to reconsider its past decisions.

In addition to the Legal Center and Democracy 21, the following groups joined the brief as amici curiae: Common Cause, U.S. PIRG, Americans for Campaign Reform, the League of United Latin American Citizens and the Asian American Legal Defense and Education Fund.  The Supreme Court will hear oral argument on September 9, 2009.

To read the brief, click here.