Amicus Brief in Citizens United v. FEC

Amicus Brief in Citizens United v. FEC

July 15, 2009
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Democracy Program Director Brenda Wright co-authored (with the American Independent Business Alliance) the following amicus brief.  It was filed in July of 2009.

The Supreme Court’s decisions in Austin and McConnell both are premised on the long-standing recognition that “the special characteristics of the corporate structure require particularly careful regulation” with respect to corporate participation in the electoral process. FEC v. Nat’l Right to Work Committee (NRWC), 459 U.S. 197, 209-210 (1982). Plaintiff’s request to overrule those decisions purports to bring into play not merely the question whether and under what conditions non-profit, expressly ideological corporations require First Amendment protection for the use of corporate funds in elections, but whether the deployment of huge corporate treasuries amassed through for-profit activities may ever be treated differently from individual citizen participation in electoral campaigns. Supplemental Brief for Appellant at 3, 6-9. Accordingly, the wisdom of overruling those decisions must be evaluated by understanding the structure and role of large, publicly traded corporations and the implications of according these artificial entities the same protections for electoral participation that are enjoyed by citizens.

The governance system of such corporations is highly successful for the pursuit of profit, making them important instruments in the economic sphere. But the very factors that make the corporate form an effective instrument of wealth accumulation are the factors that make it inappropriate for corporations to claim the full panoply of First Amendment protections for political speech and participation that are enjoyed by natural persons. Because of the way corporations are structured, corporate speech does not express the political views of any individual or group of individuals associated with the corporation. Moreover, the constraints that drive a corporation’s political speech – the requirement that corporate actions all must be calibrated toward profit – directly undermine the notion that a corporation can be a free participant in the marketplace of ideas. And precisely because a corporation enjoys significant state-created economic advantages designed for the narrow purpose of furthering wealth-accumulation, corporate participation in candidate campaigns promotes market entrenchment and corrupts the political marketplace in a fundamentally undemocratic manner.

ARGUMENTS

  • The Court should not overrule Austin or McConnell because both decisions properly recognize the fundamental differences between corporations and individuals with respect to First Amendment protections for participation in electoral campaigns.
  • Because corporate “speech” is legally constrained and does not reflect views of any citizen, business corporations do not have a legitimate claim to First Amendment “expressive” protection as speakers in the marketplace of ideas.
  • Corporate electoral participation interferes with republican self-government, contrary to the First Amendment’s political goals.
  • Corporate participation in candidate campaigns promotes market entrenchment, contrary to First Amendment goals of self-governance.