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Citizens United v Fec Amicus

Citizens United v Fec Amicus

Page 1: Citizens United v Fec Amicus

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Number of Pages:28

Date Created:July 30, 2009

Date Uploaded to the Library:February 20, 2014

Tags:expenditures, Buckley, Bellotti, NCPAC, candidate, mcconnell, campaign, table, Austin, political, amendment, Speech, Counsel, watch, National, federal, judicial, court, EPA, IRS, ICE, CIA


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THE 

CITIZENS UNITED, Appellant, 
FEDERAL ELECTION COMMISSION, Appellee. Appeal from the United States 
District Court for the District Columbia
 
BRIEF AMICUS CURIAE JUDICIAL WATCH,
 INC. SUPPORT APPELLANT
 
Paul Orfanedes*
 Dale Wilcox**
 JUDICIAL WATCH, INC.
 501 School Street, S.W., Suite 700
 Washington, 20024
 (202) 646-5172
 
Counsel for Amicus Curiae Denotes Counsel Record Counsel QUESTION PRESENTED 
Whether, for the proper disposition this case, the Court should overrule either both Austin Michigan Chamber Commerce, 494 U.S. 652 (1990), and the part McConnell Federal Election Commn, 540 U.S. (2003), that addresses the facial validity Section 203 the Bipartisan Campaign Reform Act 2002, 
U.S.C.  441b. 
QUESTION PRESENTED .....................
 
TABLE CONTENTS .......................
 
TABLE CITATIONS .......................iv
 
INTEREST AMICUS CURIAE...............
 
SUMMARY ARGUMENT...................
 
ARGUMENT ................................	 
Political Speech the Heart the First Amendment and Entitled the Broadest 
Protection .............................
 
II.	 
Unlike Contributions Candidates, 
Independent Expenditures, Which 
Are Not Coordinated with Candidate Campaign, Not Pose Danger Corruption its Appearance ...........
 
TABLE CONTENTS (continued) 
III.	 This Court Has Consistently Invalidated Legislative Attempts Limiting Restricting Corporate Expenditures Violative First Amendment Free Speech........................... 
IV. 	Austin and McConnell Deviated from Established Precedent, And, Result, Should Overruled this Court .......................... 
CONCLUSION .............................
 
TABLE CITATIONS 
Cases Page 
Austin Michigan Chamber Commerce, 494 U.S. 652 (1990) ................... passim 
Buckley Valeo, 424 U.S. (1976) ..................... passim 
Colorado Republican Campaign Committee FEC, 518 U.S. 604 (1996) ....................... 
FEC Massachusetts Citizens For Life, Inc., 479 U.S. 238 (1986) ...................... 
FEC National Conservative Political Action Committee, 470 U.S. 480 (1985) .......... 7,13, 14, 15, 
First National Bank Bellotti, 435 U.S. 765 (1978) ......... 6,11, 12, 13, 17, 
McConnell Federal Election Commn, 540 U.S. (2003) .................... passim 
Mills Alabama, 384 U.S. 214 (1966) ........................ 
New York Times Co. Sullivan, 
376 U.S. 254 (1964) ........................
 
Palko
 Connecticut, 

302 U.S. 319 (1937) ........................
 
Red Lion Broadcasting Co. FCC, 
395 U.S. 367 (1969) .......................
 
Roth
 U.S., 

354 U.S. 476 (1957) ........................
 
U.S. National Treasury 

Employees Union, 

513 U.S. 454 (1995) .......................
 
Whitney
 California, 

274 U.S. 357 (1927) ........................
 
Constitutional Provisions 
U.S.CONST. amend. .................... passim
 
Statutes, Rules and Regulations
 U.S.C.  434(f)(3)(A)(i) ......................
 U.S.C.  441b ........................... U.S.C.  591(g) ...........................
 
Federal Election Campaign Act 1971, Stat. amended 1974, Stat. 1263 ................3, 7,10, 13, 

SUP.CT.R. 37.3(a) ............................
 
Other Authorities Page 
William Shakespeare, Hamlet, 
act sc. ...............................
 

INTEREST AMICUS CURIAE1 
Judicial Watch, Inc. (Judicial Watch) 501(c)(3) not-for-profit corporation that seeks promote transparency, accountability, and integrity government and fidelity the rule law. Since its establishment 1994, Judicial Watch has investigated and monitored the activity government officials and politicians and reported its findings the public through radio, television, and print media and via the Internet. Due the nature its mission, Judicial Watch regularly discusses elected officials and candidates for public office via multitude media, and these discussions may happen occur days before elections. Judicial Watch assiduously avoids any type electioneering other advocacy for against the election any particular candidate for federal office. Nonetheless, Judicial Watch concerned that, the ruling under review allowed stand, its watchdog activities and public education efforts might misconstrued trying influence and/or having the effect influencing federal elections.  Because such result could substantially and adversely impact how Judicial Watch carries out its public interest mission, Pursuant Rule 37.3(a), letters consent have been submitted the Clerk. All parties consent the filing this brief. counsel for party authored this brief whole part, and counsel party made monetary contribution intended fund the preparation submission this brief. person other than Amicus Curiae its members, its counsel made monetary contribution its preparation submission. 
has obvious interest this matter and therefore respectfully submits this Amicus Curiae Brief. 
SUMMARY ARGUMENT 
The Courts solicitude for free speech has led fashion the fundamental principle that government may curtail speech only the degree necessary meet particular, compelling interest andmust avoid infringing speech that does not pose the danger that has prompted regulation. 
Until Austin, preventing corruption and the appearance corruption were the only legitimate interests identified for restricting campaign finances. This Court had held that independent expenditures, which are not coordinated with candidate campaign, not pose danger corruption its appearance, and, result, cannot limited restricted, even when made corporation.  The Court had consistently invalidated legislative attempts limiting restricting corporate expenditures violating the First Amendment. 
The Austin Court deviated from this precedent, holding that independent expenditures made corporations, even when not coordinated with candidate campaign, pose danger corruption its appearance. Likewise deviating from precedent, sanctioned the interest equalizing the relative ability individuals and groups influence the outcome elections. The McConnell Court compounded the error made Austin expanding the scope suppressed speech include any reference candidate that might influence election. Because this expansion direct conflict with long-established precedent, Austin and McConnell should overruled. 
ARGUMENT	 Political Speech the Heart the First Amendment and Entitled the Broadest Protection. Buckley Valeo, 424 U.S. (1976), this Court declared that political speech the heart the First Amendment and entitled the broadest protection. reviewing certain provisions the Federal Election Campaign Act 1971 (FECA Act), Stat. amended 1974, Stat. 1263, the Buckley Court stated: 
The Acts contribution and expenditure limitations operate area the most fundamental First Amendment activities. Discussion public issues and debate the qualifications candidates are integral the system government established our Constitution. The First Amendment affords the broadest protection such political expression order assure [the] unfettered interchange ideas for the bringing about political and social changes desired the people. 
424 U.S. (quoting Roth U.S., 354 U.S. 476, 484 (1957)). 
The rationale underlying this broad protection has two major aspects.  First, the Framers the First Amendment specifically intended protect political speech: there practically universal agreement that major purpose [the First] Amendment was protect the free discussion governmental affairs. Id. (quoting Mills Alabama, 384 U.S. 214, 218 (1966)). The second aspect related the first:  the Framers intended protect political speech because they understood that was integral the operation the system government established our Constitution. Id. That is, representative government depends for its very existence uninhibited, wide-open, and robust debate public issues. Id. (quoting New York Times Co. Sullivan, 376 U.S. 254, 270 (1964)). the Court explained, republic where the people are sovereign, the ability the citizenry make informed choices among candidates for office essential, for the identities those who are elected will inevitably shape the course that follow nation. 
Id. 14-15. Or, the Court stated elsewhere the opinion, [d]emocracy depends well-informed electorate, not citizenry legislatively limited its ability discuss and debate candidates and issues. Id. n.55. 
The Buckley Court thus was solicitous protect political speech not only matter individual liberty, and not only because was the intention the Framers, but because political speech crucial the survival our representative government and its system ordered liberty. This principle, turn, presupposes that First Amendment protection political speech the precondition all other freedoms protected the Constitution. See FEC Massachusetts Citizens For Life, Inc., 479 U.S. 238, 264 (1986) (MCFL) (Freedom speech plays fundamental role democracy [It] is the matrix, the indispensable condition nearly every other form freedom.) (quoting Palko Connecticut, 302 U.S. 319, 327 (1937)). 
The First Amendment protects speech not only because fosters free government, but because fosters the development the individual protecting freedom thought and conscience.  Quoting Justice Brandeis, this Court has stated: 
Those who won our independence believed that the final end the State was make men free develop their faculties; and that its government the deliberative forces should prevail over the arbitrary. They valued liberty both end and means. 
MCFL, 479 U.S. 258 n.10 quoting Whitney California, 274 U.S. 357, 375 (1927)) (emphasis added). Thus, free speech not only plays vital role protecting democracy itself, but allows people develop their faculties the fullest extent possible. 
Considering these fundamental truths, wonder that the Buckley Court was avid protecting political speech against infringement the FECA. 
II. Unlike Contributions Candidates, Independent Expenditures, Which Are Not Coordinated with Candidate Campaign, Not Pose Danger Corruption its Appearance. 
The Courts solicitude for free speech caused fashion the fundamental principle that [w]here all possible, government must curtail speech only the degree necessary meet the particular problem hand, and must avoid infringing speech that does not pose the danger that has prompted regulation. MCFL, 479 
U.S. 265 (emphasis added).  This principle reformulation the strict scrutiny test the Court applies all cases where regulation challenged content-based restriction speech. Id. 251, 252; see also Buckley, 424 U.S. 24, 25; First National Bank
 Bellotti, 435 U.S. 765, 786 (1978). essence, because nation value free speech highly, our government permitted regulate only where the governments interest compelling and only the extent absolutely necessary achieve that interest. 

Until Austin, preventing corruption the appearance corruption were the only legitimate and compelling interests identified for restricting campaign finances. FEC National Conservative Political Action Committee, 470 U.S. 480, 496 (1985) ( NCPAC). NCPAC, the Court explained what meant corruption: 
Corruption the subversion the political process.  Elected officials are influenced act contrary their obligations office the prospect financial gain themselves infusions money into their campaigns. The hallmark corruption the financial quid pro quo: dollars for political favors. 
Id. 497. 
With this mind, the Court Buckley addressed the contribution and expenditure limits imposed the FECA. Although the Court found that the FECAs contribution and expenditure limits implicate fundamental First Amendment interests, Buckley, 424 
U.S. 14, enunciated constitutional distinction between contributions and independent expenditures. The Court found that contribution limits did not place significant burdens protected speech and associational freedoms. The Court reasoned that limitation upon the amount that any one person group may contribute candidate political committee entails only marginal restriction the contributors ability engage free communication. 
Id. 21, 22. This conclusion follows from the fundamental differences between independent expenditures and contributions. Whereas independent expenditures entail expressive and articulate communications the public, contribution candidate merely serves general expression support for the candidate and his views, but does not communicate the underlying basis for the support. Id. 21. Contributions thus are not political speech the same sense independent expenditures because their communicative effect provides only rough index the contributors support for the candidate. Id. 
Moreover, contributions differ from independent expenditures that limit contributions does not result diminishing the quantity political speech. This principle related the idea that contributions not constitute political speech the same sense independent expenditures. the Court explained, 
[t]he quantity communication the contributor does not increase perceptibly with the size his contribution, since the expression rests solely the undifferentiated, symbolic act contributing. 
Id. 21. The Courts reasoning this regard was essentially that, whereas increasing the amount independent expenditure will result more political speech the person group making the expenditure, increasing the size contribution (which definition made directly the candidate campaign) will not increase the amount political speech the person group making the contribution.  This follows from the fact that, while contributions may allow candidate increase the amount that spends political speech, they not constitute articulate expressive political speech the contributor such. the Court explained: 
While contributions may result political expression spent candidate association present views the voters, the transformation contributions into political debate involves speech someone other than the contributor. 
Id. The Court concluded, 
[a] limitation the amount money person may give candidate campaign organization thus involves little direct restraint his political communication, for permits symbolic expression support evidenced contribution but does not any way infringe the contributors freedom discuss candidates and issues. 
Id. 
The Court also found that contributions could limited because they posed the danger quid pro quo corruption (and the appearance thereof) the political system.  Independent expenditures contrast, which are not coordinated with candidate campaign, not pose danger corruption its appearance.  This because candidate does not necessarily benefit from (and may well even harmed by) expenditure that made independently his campaign. the Court recognized, 
[u]nlike contributions, such independent expenditures may well provide little assistance the candidates campaign and indeed may prove counterproductive. The absence prearrangement and coordination expenditure with the candidate his agent not only undermines the value the expenditure the candidate, but also alleviates the danger that expenditures will given quid pro quo for improper commitments from the candidate. 
Id. 47. Thus, because practical matter the candidate may well not benefit from independent expenditure made without coordination, the danger quid pro quo obviated. This not only alleviates the danger corruption, but the appearance corruption well. 
III.	 This Court Has Consistently Invalidated Legislative Attempts Limiting Restricting Corporate Expenditures Violative First Amendment Free Speech. light these principles, the Buckley Court addressed the constitutionality FECA provision that prohibited any person from making independent expenditures above $1,000.  The Act defined person broadly include corporations.  424 U.S. 23, n.45 (citing U.S.C.  591(g)).  The Court found that the governments interest preventing corruption and the appearance thereof was not applicable independent expenditures because there was threat political quid pro quo with this type core independent political expression. Id. 45-48. other words, candidate could not corrupted expenditures which had knowledge, let alone any control. The Court held that the limit independent expenditures, including those made corporations, violated the First Amendment because there was compelling interest justify the burdens such restrictions imposed upon the exercise free speech and association. Id. 39-51. Bellotti, the Court again addressed restriction corporate expenditures. The challenged statute prohibited expenditures corporations for the purpose influencing the vote referendum proposals.  The Court framed the question presented whether the corporate identity the speaker deprives this proposed speech what otherwise would its clear entitlement protection. Belotti, 435 U.S. 778. this regard, noted, 
[i]f the speakers here were not corporations, one would suggest that the State could silence their proposed speech. the type speech indispensable decisionmaking democracy, and this less true because the speech comes from corporation rather than individual. The inherent worth the speech terms its capacity for informing the public does not depend upon the identity its source, whether corporation, association, union, individual. 
Id. 777 (footnotes omitted). The Court concluded that the corporate speech issue was deserving First Amendment protection there was support the First Fourteenth Amendment, precedent, for the proposition that speech that otherwise would within the protection the First Amendment loses that protection simply because its source corporation . Id. 784. 
The Court recognized that any such attempt legislature regulate who can speak fraught with peril First Amendment freedom speech: the realm protected speech, the legislature constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address public issue. legislature may direct business corporations stick business, also may limit other corporations  religious, charitable, civic  their respective business when addressing the public. Such power government channel the expression views unacceptable under the First Amendment. 
Id. 784-85 (citation and footnotes omitted). result, the statute could stand only the state could demonstrate subordinating interest which compelling, and used closely drawn means further that interest. Id. 786. The state argued that had interest sustaining the active role the individual citizen the electoral process and thereby preventing diminution the citizens confidence government. Id. 787. According the state, corporations are wealthy and powerful and their views may drown out other points view. Id. 789. The Court rejected this interest, evidence existed the record legislative history that corporate speech threatened imminently undermine democratic processes. Id. 
The state also argued had interest in protecting the rights shareholders whose views differ from those expressed management behalf the corporation. Id. 787. The Court again rejected the states argument because assuming, arguendo, that protection shareholders compelling interest, could find no substantially relevant correlation between the governmental interest asserted and the States effort prohibit corporations from speaking. Id. 795 (citation omitted). Because the state could not demonstrate that the statute advanced any compelling interest that was closely drawn advance any alleged interest, the statute was declared unconstitutional. NCPAC, 470 U.S. 480, the Court reviewed FECA provision that prohibited certain groups from making independent expenditures above $1,000. The Court rejected the states argument that the speech rights these groups were not entitled full First Amendment protection (i.e., that they could treated differently) simply because they were political action committees (PACs). Id. 494. then recognized that PACs are not corrupting simply because they are groups individuals; other words, the structure PACs does not, ipso facto, make them corrupting. Id. 497. The Court held that the fact that PACs might able make greater independent expenditures due the collective efforts their members did not alter the calculus: because independent expenditures were made without the knowledge candidates, there was danger quid pro quo between PAC and (unknowing) candidate, regardless the amount the expenditure. Id. 497, 498. Because there was danger corruption, the statute did not advance any compelling interest; result, was unconstitutional. 
Clearly, this Court has consistently held that independent expenditures are protected speech which require the broadest protection the First Amendment. This Court has also consistently invalidated legislative attempts limiting restricting corporate expenditures violative First Amendment free speech because the governments interest preventing corruption and the appearance thereof inapplicable independent expenditures, there threat political quid pro quo with this type core independent political expression. 
But then came Austin and McConnell 
IV.	 Austin and McConnell Deviated from Established Precedent, And, Result, Should Overruled this Court. Austin, the Court addressed state statute that prohibited corporations from using corporate treasury funds for independent expenditures support of, opposition to, any candidate elections for state office. 494 U.S. 654.  The Court first determined that the statute burdened expressive activity. Id. 658. The Court rightly recognized that the mere fact that entity is corporation does not remove its speech from the ambit the First Amendment. Id. 657. result, the statute could not stand unless the state could demonstrate compelling interest for its existence. Id. 658. 
The state argued that the statute was necessary stem corruption the appearance corruption caused the unique legal and economic characteristics corporations that, the Courts words, permits them to use resources amassed the economic marketplace obtain unfair political advantage the political marketplace.  Id. 659. The Court did not find that the state had proven the existence quid pro quo corruption its appearance, the only legitimate and compelling government interes[t] thus far identified for restricting campaign finances, NCPAC, 470 U.S. 496, 497, but invented new species corruption: the corrosive and distorting effects immense aggregations wealth that are accumulated with the help the corporate form and that have little correlation the publics support for the corporations political ideas. Austin, 494 U.S. 654. The Court stated that [c]orporate wealth can unfairly influence elections when deployed the form independent expenditures, just can when assumes the guise political contributions. Id. 660. Ay, theres the rub. William Shakespeare, Hamlet, act sc. 
Not only did the Austin Court deviate from Buckleys clear pronouncement that corporate independent expenditures, which are not coordinated with candidate campaign, not pose danger corruption its appearance, Buckley, 424 U.S. 45-48, embarked upon path refuted Buckley. Specifically, Buckley, the government claimed its independent expenditure limit served its alleged interest equalizing the relative ability individuals and groups influence the outcome elections . Id. 
48. The Court, uncertain terms, rejected this interest incompatible with First Amendment free speech: 
But the concept that government may restrict the speech some elements our society order enhance the relative voice others wholly foreign the First Amendment, which was designed secure the widest possible dissemination information from diverse and antagonistic sources, and assure unfettered interchange ideas for the bringing about political and social changes desired the people. The First Amendments protection against government abridgement free expression cannot properly made depend persons financial ability engage public discussion. 
Id. 48-49 (citations and internal quotation marks omitted). Bellotti, the Court again rejected such argument, especially light the complete lack evidence that corporate wealth threatens imminently undermine democratic processes. 435 U.S. 785, 786, 
789. And sure, the suppressor speechs burden prove the actual existence the alleged harm: 
When the government defends regulation speech must more than simply posit the existence the disease sought cured. must demonstrate that the recited harms are real, and that the regulation will fact alleviate these harms direct and material way. 
U.S. National Treasury Employees Union, 513 U.S. 454, 475 (1995) (citation and internal quotation marks omitted); see also Colorado Republican Campaign Committee FEC, 518 U.S. 604, 618 (1996) (Striking down regulation independent party expenditures because the government failed point record evidence legislative findings suggesting any special corruption problem respect independent party expenditures); and NCPAC, 470 U.S. 490 (Recognizing there must real substance the fear corruption; mere suspicion, i.e., a tendency demonstrate distrust not sufficient, matter how widely the suspicion shared.). Austin, the state utterly failed make this showing. 
The underinclusiveness the statute only confirms the statute exists quiet the voices certain segments society. While the statute suppresses the voices corporations whose wealth allegedly can unfairly influence elections, Austin, 494 U.S. 660, leaves uninhibited, inter alia, wealthy individuals, many whom gained their wealth through the corporate form, and mega media corporations (some which are owned for-profit non-media corporations), who undoubtedly pose much more realistic threat valid interests than similar entities not regularly concerned with shaping popular opinion public issues. Bellotti, 435 
U.S. 796, 797 (Burger, J., concurring); see also id. 797 (In Tornillo [418 U.S. 241, 250 (1974)], for example, noted the serious contentions advanced that result the growth modern media empires has been place few hands the power inform the American people and shape public opinion.).2 
  The so-called institutional press not deserving special protection the First Amendment applies equally all persons. Bellotti, 435 U.S. 782 (the press does not have monopoly either the First Amendment the ability enlighten); see also Red Lion Broadcasting Co. FCC, 395 U.S. 367, 390 (1969) (It the purpose the First Amendment preserve uninhibited marketplace ideas which truth will ultimately prevail, rather than countenance monopolization that market, whether the Government itself private licensee.) (citations omitted). McConnell, the Court upheld against First Amendment challenge Congress amendment the FECA provision prohibiting corporate independent expenditures, U.S.C.  441(b), which, until McConnell, were defined expenditures that explicit words express terms advocate the election defeat clearly identified candidate, i.e., express advocacy. Buckley, 424 U.S. 43, 44. The Court upheld Congress amended provision that not only prohibits corporate express advocacy, but any corporate electioneering communication, which defines broadly any broadcast, cable, satellite communication that: 
(I)
 refers clearly identified candidate for Federal office; 

(II) made within--(aa) days before general, special, runoff election for the office sought the candidate; (bb) days before primary preference election, convention caucus political party that has authority nominate candidate, for the office sought the candidate; and 

(III) the case communication which refers candidate other than President Vice President, targeted the relevant electorate. U.S.C.  434(f)(3)(A)(i).  The Court reasoned that the justifications for the regulation express advocacy apply equally ads aired during those periods the ads are intended influence the voters decisions and have that effect. McConnell, 540 U.S. 206. Herein lies the error. 
Buckley clearly stated that issue advocacy, which unquestionably cannot restricted any way consonant with the First Amendment, may include discussion candidates, including discussion that incidentally advocates candidates success defeat: 
Public discussion public issues which also are campaign issues readily and often unavoidably draws candidates and their positions, their voting records and other official conduct. Discussion those issues, well more positive efforts influence public opinion them, tend naturally and inexorably exert some influence voting elections. long persons and groups eschew expenditures that express terms advocate the election defeat clearly identified candidate, they are free spend much they want promote the candidate and his views. 
Buckley, 424 U.S. n.50 and (emphasis added). short, McConnell suppresses speech that this Court has unambiguously held cannot suppressed. compounds the error made Austin [], and silences political speech central the civic discourse that sustains and informs our democratic processes. McConnell, 540 U.S. 323 (Kennedy, J., Rehnquist, C.J., and Scalia, J., dissenting). 
CONCLUSION 
For the foregoing reasons, Judicial Watch respectfully submits that the Court should overrule Austin and McConnell. 
Respectfully submitted, 
Paul Orfanedes*
 Dale Wilcox**
 JUDICIAL WATCH, INC.
 501 School Street, S.W.,
 Suite 700
 Washington, 20024
 
(202) 646-5172 Counsel for Amicus Curiae
 Denotes Counsel Record Counsel