Microsoft Word - 16585657

-i-

TABLE OF CONTENTS

Page

24216-0004/LEGAL16585657.1

STATEMENT OF INTEREST................................ 1

SUMMARY OF ARGUMENT ................................ 2

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

I. Striking Down the Long-Standing

Corporate Spending Restrictions

Would Undermine the Very

Architecture of Campaign Finance

Law and Is Not Necessary to Protect

Corporate Political Expression .................... 5

A. The Federal Campaign Finance

Laws Have Developed Through

a History of Close Attention to

the Differences Among Types of

Spenders............................................. 6

B. Corporations Have Ample and

Effective Means of Political

Participation, and Abrupt

Revisiting of Established

Restrictions on Their Spending

Is Not Warranted............................... 9

II. The Moment Is Wrong for the Court to

Radically Reverse Established Law .......... 12

A. The Moment Is Wrong for the

Court to Open the Channels for

Unlimited Corporate Spending ....... 12

-ii-

TABLE OF CONTENTS

(continued)

Page

24216-0004/LEGAL16585657.1

B. The Moment Is Wrong for the

Court to Upset a Regulatory

and Constitutional Balance

Now Featuring Unprecedented

Participation by Small Donors........ 14

III. The Court Lacks Any Record to

Support the Sudden Review of Core

Precedent on Corporate Spending, Nor

Does It Have the Time on This

Schedule to Address Complex

Doctrinal Issues.......................................... 16

CONCLUSION...................................................... 19

-iii-

TABLE OF AUTHORITIES

Page

24216-0004/LEGAL16585657.1

Cases

Austin v. Mich. State Chamber of Commerce,

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

Buckley v. Valeo, 424 U.S. 1 (1976) ............... 5, 7, 10

FEC v. Beaumont, 539 U.S. 146 (2003)........... 17, 18

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

238 (1986) ............................................. 5, 8, 17, 18

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

197 (1982) ....................................................... 6, 17

FEC v. Wis. Right to Life, Inc., 127 S. Ct.

2652 (2007) ................................................... 17, 19

First Nat’l Bank of Boston v. Bellotti, 435

U.S. 765 (1978) ............................................... 7, 11

McConnell v. FEC, 540 U.S. 93 (2003).............. 4, 10

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

(2000) .................................................................. 16

Nw. Austin Mun. Util. Dist. No. One v.

Holder, No. 08–322 (June 22, 2009) .................... 4

Planned Parenthood of Se. Pa. v. Casey, 505

U.S. 833 (1992) ..................................................... 5

Shays v. FEC, 528 F.3d 914 (D.C. Cir. 2008)........ 18

United States v. Int’l Union United Auto

-iv-

TABLE OF AUTHORITIES

(continued)

Page

24216-0004/LEGAL16585657.1

Workers, 352 U.S. 567 (1957)............................. 11

Statutes

2 U.S.C. § 431(14)..................................................... 1

2 U.S.C. § 4411e(a)(1)(A) ....................................... 18

2 U.S.C. § 4411e(a)(1)(C) ....................................... 18

2 U.S.C. § 441a............................................. 7, 10, 18

2 U.S.C. § 441b(b)(2)(A) ......................................... 10

2 U.S.C. § 441b(b)(2)(C) ......................................... 10

2 U.S.C. § 441b(b)(4)(D) ......................................... 10

2 U.S.C. § 441i(a) ..................................................... 7

2 U.S.C. § 441i(b) ..................................................... 7

18 U.S.C. § 610......................................................... 6

Taft-Hartley Act, 61 Stat. 136 (1947)...................... 6

War Labor Disputes Act of 1943, 57 Stat. 167........ 6

Regulations and Rules

11 C.F.R. § 113.4(c) ................................................ 11

11 C.F.R. § 114.2(f)(2) ............................................ 11

11 C.F.R. § 114.3(a)(1) ........................................... 10

11 C.F.R. § 114.3(c)(4)............................................ 11

-v-

TABLE OF AUTHORITIES

(continued)

Page

24216-0004/LEGAL16585657.1

11 C.F.R. § 114.4(c)(2)............................................ 11

11 C.F.R. § 114.4(c)(4)-(5) ...................................... 10

11 C.F.R. § 114.4(c)(6)............................................ 11

11 C.F.R. § 114.5 .................................................... 10

11 C.F.R. § 114.5(d)................................................ 10

11 C.F.R. § 114.8 .................................................... 10

Other Authorities

Ctr. for the Study of Elections & Democracy,

The Change Election: Money, Mobilization,

and Persuasion in the 2008 Federal

Elections 1-56 (David B. Magleby ed.,

2009).................................................................... 16

Institute for Politics Democracy & the

Internet & Campaign Finance Institute,

Small Donors and Online Giving: A Study

of Donors to the 2004 Campaigns (Mar.

2006), available at

http://www.ipdi.org/UploadedFiles/Small%

20Donors%20Report.pdf ..................................... 15

Simon Johnson, The Quiet Coup, The

Atlantic, May 2009 ............................................. 13

Matthew Josephson, The Politicos, 1865-

1896 (1938) ......................................................... 12

-vi-

TABLE OF AUTHORITIES

(continued)

Page

24216-0004/LEGAL16585657.1

Richard A. Posner, A Failure of Capitalism:

The Crisis of ’08 and the Descent into

Depression (2009) ............................................... 13

Theodore Roosevelt, State of the Union

Message, December 5, 1905, available at

http://www.theodore-

roosevelt.com/sotu5.html ................................... 13

-1-

24216-0004/LEGAL16585657.1

STATEMENT OF INTEREST

The Democratic National Committee (DNC)

is the organization which, by virtue of the bylaws of

the Democratic Party of the United States, is

responsible for the day-to-day operation of that

party at the national level, within the meaning of

§ 301(14) of the Federal Election Campaign Act. 2

U.S.C. § 431(14). The DNC plans the Party’s

quadrennial presidential nominating convention;

promotes the election of Party candidates with both

technical and financial support; and works with

national, state, and local party organizations,

elected officials, candidates, and constituencies to

respond to the needs and views of the Democratic

electorate and the nation.

The DNC, the candidates that it supports,

and its contributors must all comply with campaign

finance laws. The DNC’s pursuit of its mission is

heavily influenced, if not decisively shaped, by the

long- and short-term structure and implementation

of those laws. Accordingly, the DNC is, by

necessity, deeply conversant with the laws and

constitutional principles that the Court has

requested parties and amici to address.

The DNC submits this brief pursuant to the written

consent of the parties. No party or counsel for a party has

authored this brief in whole or in part, and no person or

entity other than the DNC has made a financial contribution

to its preparation or submission.

-2-

24216-0004/LEGAL16585657.1

The Court has asked whether it need revisit

a cornerstone of campaign finance regulation—the

prohibition on corporate spending for express

advocacy in federal elections. From its perspective

as a major party organization, and drawing on

decades of experience with an evolving regulatory

scheme, the DNC will offer the Court its views on

the consequences of sudden upheaval in the

constitutional foundation of regulation.

SUMMARY OF ARGUMENT

This case is far from the right occasion for a

convulsive change in campaign finance doctrine

affecting corporations. The question posed by the

Court—the scope of the corporate right to intervene

directly in the political process—is one laden with

consequence, particularly at this time. The

relationship of corporation to government, and of

profit motive to public responsibility, is an all-

consuming topic in American politics and

government, more so than at any time since the

Great Depression. A decision now to sweep away

long-standing corporate spending limitations would

alter, much to the favor of one class of participants,

the very terms on which this great national debate

is being conducted.

As the Court has observed, the campaign

finance laws have developed over time, by a process

of incremental adjustment and with careful

attention to differences among types of

organizations and political actors. A decision to

abruptly recast the foundation of the laws, by

-3-

24216-0004/LEGAL16585657.1

reversing the corporate spending restrictions,

would reverberate throughout the campaign

finance system, materially and profoundly affecting

the position of other speakers, including political

parties such as the DNC and individual donors. In

considering so momentous a step, the Court does

not have at its disposal anything approaching the

necessary extensive evidentiary inquiry—for which

an expedited briefing schedule is no substitute.

The parties and amici cannot manufacture this

record now, and two months’ time is not enough.

Also lacking on this schedule is the opportunity for

the Court to fully consider complex doctrinal issues

it has never before addressed.

Any such radical adjustment to the intricate

structure of the law also threatens to arrest a trend

in progress toward the empowerment of the

individual “small donor” who contributes to

candidates and to parties such as the DNC. The

campaign laws protect the political participation of

individuals, as volunteers and otherwise, in the

political process. They also provide numerous

outlets for corporate, including for-profit, political

expression. But only now, through the interaction

of the law and new technologies, have small

individual givers grown in importance, closer than

ever before to matching the aggregate, but

modestly constrained, giving power and associated

influence of corporations and other institutional

actors.

-4-

24216-0004/LEGAL16585657.1

A rough balance in the operation of the law,

just recently established, would not survive the

sudden revision of the rules to the great and

instant advantage of the for-profit corporate

community. The predictable outcome would be a

heightened risk of corruption—both corruption in

fact and corruption in appearance.

ARGUMENT

Reconsidering Austin v. Michigan State

Chamber of Commerce, 494 U.S. 652 (1990), and

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

unnecessary in this case. The issues presented by

the type of nonprofits and activity before the Court

are quite separate from the large questions posed

for reargument. Not even the Appellant, in the

first round of briefing before the Court, suggested

that the relief it seeks turns on confronting those

questions.

Just last Term the Court held: “[T]he

importance of the question does not justify our

rushing to decide it. Quite the contrary: Our usual

practice is to avoid the unnecessary resolution of

constitutional questions.” Nw. Austin Mun. Util.

Dist. No. One v. Holder, No. 08–322, at 2 (June 22,

2009).

That is the rule followed in the case of open

constitutional issues. It applies even more

compellingly to settled ones, where the established

law has been applied to a number of different

statutory iterations over many years, and where

the federal and state legislatures have been part of,

-5-

24216-0004/LEGAL16585657.1

and have relied on, a larger dialogue with the

Court that has influenced the course of

constitutional interpretation. Cf. Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854-

56 (1992).

Campaign finance regulation, as this Court

has noted, has proceeded incrementally, and the

Court has reviewed the constitutional issues as

necessarily—and only as necessarily—presented.

See FEC v. Mass. Citizens for Life, Inc., 479 U.S.

238, 258, n.11 (1986). As evident from Buckley v.

Valeo, 424 U.S. 1, 25 (1976) (per curiam), to the

present day, the Court has been mindful of the

pressures on the Congress to fashion regulation

sensitive to the complexity of the political process

and to constitutional constraints. The law as it

stands today, and in its fundamental parts,

represents a laboriously wrought balance, a historic

component of which is control on corporate political

spending.

I. Striking Down the Long-Standing

Corporate Spending Restrictions Would

Undermine the Very Architecture of

Campaign Finance Law and Is Not

Necessary to Protect Corporate

Political Expression

Especially where the law has evolved in this

way, institutional modesty, as well as fairness to

the other branches, counsels great hesitation when

considering an abrupt reversal in the law’s

-6-

24216-0004/LEGAL16585657.1

direction without thorough consideration of the

consequences.

A. The Federal Campaign Finance Laws

Have Developed Through a History of

Close Attention to the Differences

Among Types of Spenders

As Justice Rehnquist wrote for a unanimous

Court, “the differing structures and purposes of

different entities may require different forms of

regulation in order to protect the integrity of the

electoral process.” FEC v. Nat’l Right to Work

Comm., 459 U.S. 197, 210 (1982) (internal

quotation marks and citation omitted). In

regulating campaign finance within the limits

established by the Court, Congress has paid proper

heed to the differences among spenders and the

interrelationship of rules established for each.

Regulation in this field is not a “one size fits all”

proposition, nor is the rule established for one type

of organization, in conducting any particular

activity, without consequences for the rules

established for other types of organizations and

their operations.

The statutory prohibition implicated in this

case is a fitting example, for Congress, having

imposed source restrictions on corporations,

concluded that it should extend them to labor

organizations as well. See Hatch Act, 18 U.S.C.

§ 610; War Labor Disputes Act of 1943, ch. 144, § 9,

57 Stat. 167; Taft-Hartley Act, 61 Stat. 136 (1947).

In the Bipartisan Campaign Reform Act of 2002

-7-

24216-0004/LEGAL16585657.1

(BCRA), Pub. L. No. 107-155, 116 Stat. 81, §§ 202,

214 (codified at 2 U.S.C. § 441a), Congress

distinguished even among types of political party

committees, setting out different financing rules for

national parties, on the one hand, and state

parties, on the other. Compare 2 U.S.C. § 441i(a)

with id. § 441i(b).

These and other distinctions are grounded in

the concern to prevent corruption or its appearance.

See First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765, 787 n.26 (1978) (opinion of Powell, J.) (“The

importance of the governmental interest in

preventing [the problem of corruption of elected

representatives through the creation of political

debts] has never been doubted.”). But such

distinctions also serve the requirement that

restrictions must be closely tailored to the

constitutional source of government authority.

Buckley, 424 U.S. at 25. The result is a scheme of

varied limits, built around different organizational

characteristics and sources of funding.

Spenders adjust to and function under rules

that, if radically altered, have immediate and far-

reaching effects on political competition. The full

impact over time of a tectonic shift in the

constitutional balance is unknowable. That there

will be an impact is certain, and the

consequences—for the rights and relative influence

of spenders within the political system—are sure to

be profound. There can be no question that

revisiting the core constitutional law governing

-8-

24216-0004/LEGAL16585657.1

corporate spending, and particularly Austin, would

be just such a radical step of vast consequence.

A major political party such as the DNC,

closely regulated in its activities, does not function

in isolation from the spending of other political

actors. Whether as allies or adversaries, other

organizations raise and spend money within the

same political process to influence the same

elections. Should the corporate sector as a whole be

freed to make use of its large aggregations of

wealth to influence voter choice, the very terms on

which political parties compete to be heard will

undergo dramatic, wholesale revision.

Some aspects of what this would mean are

foreseeable. For-profit, statutorily-created

corporations could devote unlimited sums,

generated through business activity, to express

advocacy. Parties could respond, where response is

required, only with funds raised contributor by

contributor, within meaningful limits, including

restrictions on the universe of lawful contributors.

Parties are indeed limited in their fundraising

reach by the power of their political appeal. Unlike

corporations, their donors must choose to give, as

contributors; parties are not free to set up ancillary

lines of business and generate funds by

establishing a “customer” base from which funds,

gathered in commercial exchange, may be tapped

for political purposes.

Of course, not all corporations are alike, as

the Court has affirmed. See Mass. Citizens for Life,

-9-

24216-0004/LEGAL16585657.1

479 U.S. at 259. Since l907, the corporate sector

has become more differentiated, and nonprofit

corporations have proliferated. The Court has

distinguished for-profit corporations, with wealth

accrued without regard to levels of political

support, from nonprofit corporations established for

ideological purposes and independent of

commercial firms. The case before the Court falls

into this latter category. Resolution of this case

does not compel the Court to revisit, much less

overturn, its decisions validating Congressional

controls on for-profit corporate spending on

elections.

Distinctions of this kind have supplied the

analytic tools for the Court’s (and the Congress’s)

labors in this field. Disposing of the Appellant’s

claim does not require disregarding such

distinctions. And to disregard them would lead the

Court to demolish virtually overnight one of the

foundations of federal and many state campaign

finance laws.

B. Corporations Have Ample and Effective

Means of Political Participation, and

Abrupt Revisiting of Established

Restrictions on Their Spending Is Not

Warranted

In no event need the Court be concerned

that, absent radical surgery on the campaign

finance laws, corporations will be shut out of the

political process by a misguided application of

notions of “equality.” The statute analyzed in

-10-

24216-0004/LEGAL16585657.1

Austin and BCRA § 203 as analyzed in McConnell

represent “marginal restriction[s].” Buckley, 424

U.S. at 20. Indeed, one can hardly say that the

development of the campaign finance laws since

Austin has rendered corporations voiceless or

without the means of participating in the federal

elections process. Nothing before the Court—either

argued directly or intimated—would suggest that

for-profit corporations, though restricted by law,

have been silenced by it, suffering injury

disproportionate to the rationale for regulation.

Corporations may finance political action

committees (PACs) and may devote considerable

resources to these vehicles for expressing their

preferences among electoral choices. 2 U.S.C.

§ 441b(b)(2)(C); 11 C.F.R. § 114.5. PAC funds are

supplied by executives and shareholders, yet they

are a corporate enterprise through which the

monies on hand are controlled by corporate

managers, in the corporate interest. 11 C.F.R.

§ 114.5(d).

Corporations are similarly able to fund

unlimited communications on political topics with

their executives and shareholders. 2 U.S.C.

§ 441b(b)(2)(A); 11 C.F.R. § 114.3(a)(1). They may

fund additional PAC activity through trade

associations of which they are members, 2 U.S.C.

§ 441b(b)(4)(D); 11 C.F.R. § 114.8; they may

distribute voting guides and voting records, 11

C.F.R. § 114.4(c)(4)-(5); and they may underwrite

both partisan and nonpartisan voter registration

-11-

24216-0004/LEGAL16585657.1

and turn-out activity, id. §§ 114.3(c)(4), 114.4(c)(2).

They may host fundraising events for candidates,

fully associating themselves with specific partisan

causes. Id. §§ 113.4(c), 114.2(f)(2). They may even

publicly endorse candidates. Id. § 114.4(c)(6).

No one has suggested to the Court that for

the last 102 years, following passage of the Tillman

Act, American corporations have been absent from

the political process, somehow rendered mute.

However, as state-created mechanisms for

artificially large aggregations of wealth, they have

been subject to limits on the use of that wealth to

prevent them from dominating and corrupting the

political process. Austin, 494 U.S. at 658.

The Court poses its question directly about

Austin, but the law constraining corporate general

treasury express advocacy was settled well before

Austin. The Court has long defended Congress’s

efforts to protect the electoral process “from what it

deemed to be the corroding effect of money

employed in elections by aggregated power.”

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

352 U.S. 567, 582 (1957). For decades, “the

[i]mportance of the governmental interest in

preventing this occurrence has never been

doubted.” Bellotti, 435 U.S. at 787 n.26.

-12-

24216-0004/LEGAL16585657.1

II. The Moment Is Wrong for the Court to

Radically Reverse Established Law

A. The Moment Is Wrong for the Court to

Open the Channels for Unlimited

Corporate Spending

The Court’s decisions are not rendered in a

vacuum. It would be strange indeed if historic

limits on the political use of artificially aggregated

wealth were summarily swept away at a time of

heightened national concern about corporate social

and political accountability.

In this regard, the current environment is

much like that of a century ago, when the same

concerns first resulted in limitations on the use of

corporate wealth in campaigns. As trusts and

corporate wealth grew, so did corporate

contributions, beginning in earnest in the 1896

presidential election. See Matthew Josephson, The

Politicos, 1865-1896 at 699 (1938). Responding to

public outrage, President Theodore Roosevelt

repeatedly urged Congress to forbid all corporate

campaign contributions. In his 1905 State of the

Union address, he stated,

The fortunes amassed through

corporate organization are now so

large, and vest such power in those

that wield them, as to make it a

matter of necessity to give to the

sovereign—that is, to the Government,

which represents the people as a

-13-

24216-0004/LEGAL16585657.1

whole—some effective power of

supervision over their corporate use.

Theodore Roosevelt, State of the Union Message,

December 5, 1905, available at

http://www.theodore-roosevelt.com/sotu5.html.

Two years later, Congress passed the first statute

of the type at issue here.

These issues are just as salient, under

changed conditions, in this era. Huge aggregations

of wealth, facilitated by state-created mechanisms

and other forms of public support, are front and

center in the national policy dialogue of the day.

The notion of “firms too big to fail” figures

prominently in this debate. So, too, does a range of

other statutory enactments, regulatory initiatives

and new proposals that underscore the complex,

politically sensitive relationship of the private and

public sectors, of public interest and private profit.

See Richard A. Posner, A Failure of Capitalism: The

Crisis of ’08 and the Descent into Depression 208-

09, 242-43 (2009).

In his analysis of contemporary policy challenges,

Judge Posner urges close attention to corporate interaction

with the political process. Judge Posner considers how “a

profound failure of the market was abetted by government

inaction. That inaction was the result in part of political

pressures (to keep interest rates down . . . and to conciliate

powerful political interests that are—not incidentally—large

contributors to political campaigns).” Posner, supra, at 242-

43; see also Simon Johnson, The Quiet Coup, The Atlantic,

May 2009 (alleging the connection of campaign finance,

-14-

24216-0004/LEGAL16585657.1

These circumstances, echoing as they do the

nation’s experience at the outset of the last century,

do not favor a sudden and major shift in political

spending power to the benefit of the for-profit

corporate sector. A public already troubled by the

great pending questions of corporate influence and

responsibility would be still more troubled. The

balance holding under the current regulatory

scheme would, if so violently disturbed, give way to

deep anxieties about potential, perceived, and

actual corruption.

B. The Moment Is Wrong for the Court to

Upset a Regulatory and Constitutional

Balance Now Featuring Unprecedented

Participation by Small Donors

Also at risk in any radical revision of the

campaign finance laws is the nascent—and so, still

tenuous—power of small individual donors.

Parties, political committees, and candidates,

working within the structure of the campaign

finance laws and with the aid of new technologies,

among other factors, to failed government policy and

oversight). The feared or actual deployment in the political

process of massive corporate resources, calculated to induce

government inaction or thwart regulatory controls, is what

defines the corruption addressed by long-standing campaign

finance limits. Reconsideration of these limits, in this case

and its non-record

, would be—to understate the point—poorly

timed

-15-

24216-0004/LEGAL16585657.1

have mobilized small individual donors in

unprecedented numbers.

Those same donors are now enlisting to

volunteer in their political causes, forming a new

online corps of freshly empowered average citizens

of varying party affiliations and political

commitments. This is a new development, the

further maturation of which is being awaited with

keen anticipation. Quite apart from this new

development’s established success in bolstering

public participation, it promises to increase long

lagging public confidence in the political process.

The 2008 election in particular proved that

the small donor increase was not an anomaly but

rather was indicative of an emerging trend.

Senator John McCain raised $35 million from

about 827,000 small donors, while Senator Barack

The convergence of BCRA and the Internet in 2004

was a watershed moment for small donors. See Institute for

Politics Democracy & the Internet & Campaign Finance

Institute, Small Donors and Online Giving: A Study of Donors

to the 2004 Campaigns (Mar. 2006), available at

http://www.ipdi.org/UploadedFiles/Small%20Donors%20Report.pdf.

Senator John Kerry raised 37 percent of his contributions

from small donors—those contributing $200 or less—while

President George W. Bush raised 31 percent from small

donors. For perspective, during the 2000 election, Vice

President Al Gore’s small donor base was 20 percent of his

total fundraising efforts, while then-Governor Bush’s was 16

percent. Id. at 3-4. Overall, the total number of small donors

tripled or quadrupled, from close to 625,000 in 2000 to

perhaps 2.8 million in 2004. Id. at 5.

-16-

24216-0004/LEGAL16585657.1

Obama raised $178 million from 3.7 million small

donors. See generally Ctr. for the Study of

Elections & Democracy, The Change Election:

Money, Mobilization, and Persuasion in the 2008

Federal Elections 1-56 (David B. Magleby ed.,

2009). The Presidential elections are leading

indicators: the political parties and their

candidates are building on this “small donor”

participatory model throughout the country.

A sudden change in the law, to the

advantage of corporate wealth amassed in

commercial transactions, would cause a violent

disruption in this process. An emerging balance,

years in the making, would be undone. In the place

of a sense of empowerment could be expected

another spell of disillusionment. What will

predictably follow is a widespread sense that the

rules were changed, and corporate political power

restored to commanding levels, just as the era of

the small individual donor had begun.

III. The Court Lacks Any Record to Support

the Sudden Review of Core Precedent

on Corporate Spending, Nor Does It

Have the Time on This Schedule to

Address Complex Doctrinal Issues

If “[t]he quantum of empirical evidence

needed . . . will vary up or down with the novelty

and plausibility of the justification raised,” Nixon v.

Shrink Mo. Gov’t PAC, 528 U.S. 377, 391 (2000),

then a very complete record should be demanded of

any party asking to overturn established law built

-17-

24216-0004/LEGAL16585657.1

on accepted public law facts. It is novel indeed for

the Court to consider revisiting those factual

understandings in a case in which there is no

relevant record whatsoever. And the record

suitable for a case involving nonprofit ideological

corporations does not suffice to support the review

of spending restrictions on for-profit corporations.

Throughout the Court’s jurisprudence, from

National Right to Work, 459 U.S. 197, through

Massachusetts Citizens for Life, 479 U.S. 238, and

Federal Election Commission v. Beaumont, 539

U.S. 146 (2003), to Federal Election Commission v.

Wisconsin Right to Life, Inc., 127 S. Ct. 2652

(2007), the Court has expressly recognized the

significance of the difference in type of corporation.

Compounding the problem of a missing

record is the doctrinal challenge of adapting the

contribution/expenditure distinction to the field of

corporate political spending. Buckley laid down

this distinction in cases where the spender was

authorized to contribute directly, but was subject to

contribution limits. This same corruption rationale

was inadequate to sustain the same limits when

the spending was truly “independent” of the

candidate. In the case of corporations, barred from

contributing directly, the question never before

addressed is whether an entity prohibited from

giving at all may claim the same right to escape all

limits on a claim of “independence.”

Is the right the same where the concern at

the heart of the regulatory scheme is the source of

-18-

24216-0004/LEGAL16585657.1

funds, not the amount that an otherwise lawful

source may donate? The Court has never spoken to

this issue;

it was not presented and briefed in this

case to date; and reargument on this schedule

affords minimal opportunity, without a record, to

achieve the “comprehensive examination” that such

an issue calls for. Beaumont, 539 U.S. at 164 (Kennedy,

J., concurring).5

The Court has sanctioned express electoral advocacy

by a special class of nonprofit corporations, Mass. Citizens for

Life, 479 U.S. at 263-64, but only on the condition that these

entities are not funded by prohibited sources, including

business corporations. This unusual case does address the

larger question of whether prohibited sources themselves,

barred from direct giving, free themselves of all limits by

asserting independence under the Buckley rationale. The

significance of this question extends beyond this case. See,

e.g., 2 U.S.C. § 4411e(a)(1)(A), (C) (statutory ban on foreign

national contributions and independent expenditures).

The issue of bona fide independence is not a simple

one, as the history of regulation on this point amply

demonstrates. In 2002, Congress enacted a revision of the

“coordination rules” designed to more clearly distinguish truly

independent from coordinated spending. BCRA, 2 U.S.C.

§ 441a. Litigation ensued and has yet to conclude. Shays v.

FEC, 528 F.3d 914 (D.C. Cir. 2008). Corporate “independent

spending,” if sanctioned by a reversal of Austin, raises a host

of other questions unique to the corporate sector. For

example, may a corporation running a full lobbying operation

in regular contact with Members successfully establish

independence from those same Members when proposing to

spend without limit on their campaigns? How the

contribution/expenditure distinction is maintained for for-

profit corporations within the framework of congressional

-19-

24216-0004/LEGAL16585657.1

A nation’s political integrity is “a value

second to none in a free society.” Wis. Right to Life,

127 S. Ct. at 2689 (Souter, J., dissenting). The

Court should not consider a radical reversal of its

precedents without a high level of confidence that

such action would not damage the nation’s political

integrity, real and perceived. Such a risk should

certainly not be courted without the support of a

full record and the opportunity for a complete

engagement with the difficult constitutional

questions presented.

CONCLUSION

What the Court does on the merits of this or

any case is not going to be affected by public

opinion. But it is surely appropriate for the Court,

in applying the jurisprudential principles behind

constitutional avoidance and stare decisis, to

consider whether the time, case, and process are

right.

The DNC fears that few things could be

worse, for the country and for the Court, than to

make a hurried decision on the merits of an issue

that the Court need not decide, using an expedited

reargument process unfamiliar to the public. The

Court should take all action to avoid the impression

or conclusion that it is in an unusual rush to

reconsider, abruptly, principles that were

authority to guard against corruption or its appearance

presents a novel question, and a complex one.

-20-

24216-0004/LEGAL16585657.1

developed during a long and careful process and

were reaffirmed just years ago.

A hasty rush to decide these particular

questions would represent a sharp break from the

constitutional decision-making discipline that the

Court has avowed. Moreover, for the reasons

stated, the time and case chosen for abandoning

that discipline would be deeply inopportune.

RESPECTFULLY SUBMITTED,

Robert F. Bauer

Counsel of Record

David J. Burman

ERKINS COIE LLP

607 14th Street N.W.

Washington, D.C. 20005

202.628.6600

Attorneys for Amicus

Curiae

July 31, 2009