No. 12-579444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States____________________

WILLIAM P. DANIELCZYK, JR. AND EUGENE R. BIAGI,Petitioners,

v.UNITED STATES, Respondent.

____________________On Petition for Writ of Certiorari

to the United States Court of Appealsfor the Fourth Circuit____________________

BRIEF AMICUS CURIAE OF CITIZENS UNITED,FREE SPEECH COALITION, INC., FREE SPEECH

DEFENSE AND EDUCATION FUND,U.S. JUSTICE FOUNDATION, DOWNSIZE DC

FOUNDATION, DOWNSIZEDC.ORG, GUNOWNERS FOUNDATION, GUN OWNERS OF

AMERICA, INC., INSTITUTE ON THECONSTITUTION, AND CONSERVATIVE LEGAL

DEFENSE AND EDUCATION FUND IN SUPPORTOF PETITIONERS

____________________GARY G. KREEP HERBERT W. TITUS*

U.S. JUSTICE FOUNDATION WILLIAM J. OLSON

Ramona, CA 92065 JOHN S. MILES

Attorney for U.S. Justice JEREMIAH L. MORGAN

Foundation ROBERT J. OLSON

WILLIAM J. OLSON, P.C.MARK B. WEINBERG 370 Maple Avenue West

WEINBERG, JACOBS & Suite 4TOLANI, LLP Vienna, VA 22180-5615Bethesda, MD 20817 (703) 356-5070

Attorney for FSC and FSDEF wjo@mindspring.comAttorneys for Amici Curiae

*Counsel of RecordDecember 10, 2012444444444444444444444444444444444444444444

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . ii

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

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

ARGUMENT

I. THE COURT BELOW FAILED TO APPLY THECATEGORICAL FIRST AMENDMENT RIGHT OFCORPORATE ENTITIES TO ENGAGE INPOLITICAL SPEECH ESTABLISHED BY THEU.S. CONSTITUTION AND REAFFIRMED INCITIZENS UNITED . . . . . . . . . . . . . . . . . . . . . . 4

II. THE QUESTIONS PRESENTED SHOULD BEEXTENDED TO INCLUDE WHETHERCAMPAIGN FINANCE RESTRICTIONS ONSPEECH AND PRESS SHOULD EVER BEPERMITTED BASED ON OVERRIDINGGOVERNMENTAL INTERESTS . . . . . . . . . . . . 11

III. THE VARIOUS STANDARDS OF REVIEW,WHICH ENABLE THE GOVERNMENT TOOVERRIDE THE SPEECH AND PRESSGUARANTEES OF THE FIRST AMENDMENT,ARE ILLEGITIMATE ENCROACHMENTSUPON THE SOVEREIGN POWER OF THEPEOPLE TO CONSTITUTE AND, WHENNECESSARY, RECONSTITUTE THEIRGOVERNMENT . . . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

ii

TABLE OF AUTHORITIESPage

U.S. CONSTITUTION

Article V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 25Article VI, Clause 2 . . . . . . . . . . . . . . . . . . . . . . . . . 7Amendment I . . . . . . . . . . . . . . . . . . . . . . . . 2, passimAmendment II . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 23Amendment V . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Amendment XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CASES

American Tradition Partnership, Inc. v. Bullock, U.S. , 132 S.Ct. 2490 (2012) . . . . . . 2, passim

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) . . . . . . . . . . . . . . . . . . . 3, 5, 6, 10

Buckley v. Valeo, 424 U.S. 1 (1976) . . . . . . . . . . . 23Citizens United v. FEC, 558 U.S. 310, 130

S.Ct. 876 (2010) . . . . . . . . . . . . . . . . . . . 2, passimCity of Cleburne v. Cleburne Living Center, 473

U.S. 432 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . 22Craig v. Boren, 429 U.S. 190 (1976) . . . . . . . . . . . 22District of Columbia v. Heller, 554 U.S.

570 (2008) . . . . . . . . . . . . . . . . . . . . . 4, 12, 23, 24Employment Div. v. Smith, 494 U.S. 872 (1990) . 22FEC v. Massachusetts Citizens for Life, Inc.,

479 U.S. 238 (1986) . . . . . . . . . . . . . . . 13, 14, 15Graham v. Richardson, 403 U.S. 365 (1971) . . . . 22Korematsu v. United States, 323 U.S. 214

(1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Marbury v. Madison, 5 U.S. (1 Cranch) 137,

180 (1803) . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 25

iii

McConnell v. FEC, 540 U.S. 93 (2003) . . . . . . . 5, 23McLaughlin v. Florida, 379 U.S. 184 (1964) . . . . 22New York Times v. Sullivan, 376 U.S. 254

(1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17New York Times v. United States, 403 U.S.

713 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Pickett v. Brown, 462 U.S. 1 (1983) . . . . . . . . . . . 22Regents of the University of California v.

Bakke, 438 U.S. 265 (1978) . . . . . . . . . . . . . . . 22Sherbert v. Verner, 374 U.S. 398 (1963) . . . . . . . 22Western Tradition Partnership, Inc. v.

Attorney General, 33 Mt. 220, 271 P.3d 1 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

MISCELLANEOUS

L. Tribe, American Constitutional Law, (2d ed. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Sources of Our Liberties 130 (R. Perry and J.Cooper, eds., American Bar Foundation, Rev.Ed.: 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IV. W. Blackstone, Commentaries on the Laws ofEngland (U. Chi. Facsimile ed.: 1769) . . . . . . . 16

INTEREST OF THE AMICI CURIAE1

Citizens United, Free Speech Coalition, Inc.,DownsizeDC.org, and Gun Owners of America, Inc.,are nonprofit social welfare organizations, exemptfrom federal income tax under section 501(c)(4) of theInternal Revenue Code (“IRC”). The U.S. JusticeFoundation, Free Speech Defense and Education Fund,Downsize DC Foundation, Gun Owners Foundation,and Conservative Legal Defense and Education Fundare nonprofit educational organizations, exempt fromfederal income tax under IRC section 501(c)(3). Institute on the Constitution is an educationalorganization.

Each of these amici have filed amicus curiae briefsin this and other courts, and each is interested in theproper interpretation of state and federal constitutionsand statutes. Amicus Citizens United was theplaintiff/petitioner in Citizens United v. FEC, 558 U.S.310 (2010), which Judge James C. Cacheris (in thedistrict court below) believed to be controlling in thiscase. Most of the other amici herein were amici inthat case. Amici DownsizeDC.org (then known asRealCampaignReform.org), Conservative LegalDefense and Education Fund, Gun Owners of Americaand U.S. Justice Foundation filed an amicus curiaebrief in FEC v. Beaumont, 539 U.S. 146 (2003), which

1 It is hereby certified that counsel for the parties have consentedto the filing of this brief; that counsel of record for all partiesreceived notice of the intention to file this brief at least 10 daysprior to the filing of it; that no counsel for a party authored thisbrief in whole or in part; and that no person other than theseamici curiae, their members, or their counsel made a monetarycontribution to its preparation or submission.

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the panel below believed was controlling in this case.

SUMMARY OF ARGUMENT

The Court’s summary reversal of the MontanaSupreme Court in American Traditional Partnershipv. Bullock confirmed that Citizens United v. FEC hadruled that the First Amendment speech and pressguarantees establish a categorical rule against any lawabridging corporate political speech. The court ofappeals below, like the Montana Supreme Court,mistakenly assumed that in Citizens United, theGovernment had simply flunked the “strict scrutiny”test — the test normally applied to bans onexpenditures supporting or opposing candidates forelection to federal office. Having made that erroneousassumption, the court of appeals incorrectly assumedthat Citizens United left intact prior precedentswhereby this Court applied the test of “intermediatescrutiny” — requiring the Government only tofactually demonstrate an important interest — tosustain the ban on direct corporate contributions to afederal election campaign.

In fact, however, Citizens United discarded thestrict scrutiny test in favor of a categorical rule thatthe First Amendment “prohibits the suppression ofpolitical speech based upon speaker’s identity.” ThatFirst Amendment principle applies across the board,including to corporate political speech, whether it is inthe form of an independent expenditure related to apolitical campaign, as in Citizens United, or a directcontribution to a candidate’s campaign, as in this case. Because the decision of the court below conflicts

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directly with Citizens United, the petition should begranted.

The petition should also be granted to address thequestion whether speech and press rights can beoverridden by judicially invented tests, subordinatingthose constitutional guarantees to overridinggovernmental interests. This question is an importantone that can only be settled by this Court. CitizensUnited broke from earlier precedents that permittedprohibitions against full participation of corporateentities in the marketplace of ideas. Citizens Unitedalso, as previously noted, abandoned the balancing testthat had been used to justify the ban on corporateexpenditures in election campaigns, overruling Austinv. Michigan Chamber of Commerce. To justify thischange of direction, Citizens United reaffirmed theprinciple that its First Amendment speech and pressjurisprudence should be conformed to theconstitutional text, devoid of any competinggovernmental interests.

To be sure, Citizens United also found that thefederal ban on corporate expenditures forelectioneering communications failed to demonstratethe requisite “compelling governmental interest,” butit did not formulate a rule based on what wasessentially a factual finding. And for good reason. Recognizing that the Court is “bound by the FirstAmendment” just like the legislative and executivebranches, Citizens United refused to embracejudicially crafted tests divorced from the text andhistoric context of the speech and press guarantees. Inshort, as it had already done in the Second

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Amendment case of District of Columbia v. Heller, theCourt in Citizens United shed the judicially invented“baggage” of “a free standing interest balancingapproach.” By doing so, it recognized the sovereigntyof the people whose will, as stated in the originalwritten United States Constitution, may be overriddenonly by the Amendment processes spelled out inArticle V, and not by judicial fiat based on agovernmental interest, compelling or otherwise.

For all these reasons the writ should be granted. It is time to cut completely the Gordian Knot by whichconstitutional rights have been sacrificed based onatextual judicial balancing tests.

ARGUMENT

I. THE COURT BELOW FAILED TO APPLYTHE CATEGORICAL FIRST AMENDMENTRIGHT OF CORPORATE ENTITIES TOENGAGE IN POLITICAL SPEECHE S T A B L I S H E D B Y T H E U . S .CONSTITUTION AND REAFFIRMED INCITIZENS UNITED.

Prior to Citizens United, the Constitutional rightof corporations to engage in political speech wassubject to a balancing test, whereby the Governmentwas required to demonstrate a sufficiently stronginterest to override a corporation’s right to fullparticipation in the free marketplace of ideas, assecured by the First Amendment. See generallyCitizens United v. FEC, 558 U.S. 310, 130 S.Ct. 876,899-911 (2010). Even when applying the most

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stringent “strict scrutiny” test, requiring a “compellingstate interest” which was “narrowly tailored,” andusing the “least restrictive means,” this Courtpermitted governmental restrictions on muchcorporate political speech, notwithstanding the FirstAmendment’s general categorical ban ondiscriminatory laws based upon the identity of thespeaker. See id., 130 S.Ct. at 898-99. In CitizensUnited, this Court took the initiative to revisit theelectoral exception to the general rule, addressing thequestion of whether Austin v. Michigan Chamber ofCommerce, 494 U.S. 652 (1990), should be overruled,because “Austin had held that political speech may bebanned based on the speaker’s corporate identity.” SeeCitizens United, 130 S.Ct. at 886.2

According to the Citizens United Court, Austin,applying the “strict scrutiny” test, found that the Stateof Michigan had “a compelling governmental interestin preventing ‘the corrosive and distorting effects ofimmense aggregations of wealth that are accumulatedwith the help of the corporate form and that have littleor no correlation to the public’s support for thecorporation’s political ideas.’” See Citizens United, 130S.Ct. at 903. In Citizens United, however, the Courtabandoned the “strict scrutiny” test, refusing to applya balancing test, and asserting that “Austin interfereswith the ‘open marketplace’ of ideas protected by theFirst Amendment.” Id. 130 S.Ct. at 906. In essence,

2 At the request of the Court, the issue of overruling Austin andportions of McConnell v. FEC, 540 U.S. 93 (2003), was set forreargument (174 L.Ed.2d 599 (2009)), and then reargued onSeptember 9, 2009.

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the Citizens United Court reasoned that:

[t]he First Amendment does not permitCongress to make ... categorical distinctionsbased on the corporate identity of the speakerand the content of the political speech. [Id.,130 S.Ct. at 913.]

By overruling Austin, the Court “return[ed] to theprinciple”:

that the Government may not suppresspolitical speech on the basis of the speaker’scorporate identity. No sufficient governmentalinterest justifies limits on the political speechof nonprofit or for-profit corporations. [Id.]

Under the Citizens United precedent, no court canjustify any law that discriminates on the basis of thespeaker’s identity, no matter how strong thegovernment’s countervailing interest — compelling,important, or otherwise.

Earlier this year, the Court made this point crystalclear, summarily reversing the Montana StateSupreme Court’s decision upholding a state law ban oncorporate political speech. See American TraditionPartnership, Inc. v. Bullock, U.S. , 132 S.Ct. 2490(2012). In that case, the Montana State SupremeCourt had attempted to cabin Citizens United as anarrow factual ruling where Congress had failed todemonstrate a compelling interest to impose anationwide ban on corporate electioneeringcommunications with respect to federal election

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campaigns. The state court found that Montana’s banon corporate speech rested upon a very differentfactual base — Montana’s special historic experienceof corporate corruption of state elections of governmentofficials. See Western Tradition Partnership, Inc. v.Attorney General, 363 Mont. 220, 271 P.3d 1, 11-48(2011). The Montana court explained:

Citizens United was decided under its facts orlack of facts.... Therefore, the factual recordbefore a court is critical in determining thevalidity of a governmental provisionrestricting speech.... The Supreme Courtheld [in Citizens United] that laws thatburden political speech are subject to strictscrutiny, which requires government to provethat the law furthers a compelling stateinterest and is narrowly tailored to thatinterest. The Court ... clearly endorsed ananalysis of restrictions on speech, placing theburden upon the government to establish acompelling interest.... Here the governmentmet that burden. [Id., 271 P.3d at 15(emphasis added).]

In its opinion announcing summary reversal, thisCourt relied first upon the Constitution’s Article VIsupremacy clause, thereby verifying that the CitizensUnited “holding” rested upon a fixed rule of law, notupon a flexible standard of review dependent uponvariances of fact. See American Tradition, 132 S.Ct.2490 at 2491. Second, the Court explained that“Montana’s arguments in support of the judgmentbelow either were already rejected in Citizens United,

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or fail to meaningfully distinguish that case.” Id. Ina last-ditch effort to preserve the power of the courts tobalance government interests against FirstAmendment rights, Justice Breyer dissented,protesting that:

this Court’s legal conclusion [in CitizensUnited] should not bar the Montana SupremeCourt’s finding, made on the record before it,that independent expenditures by corporationsdid in fact lead to corruption or the appearanceof corruption in Montana. Given the historyand political landscape in Montana, that courtconcluded that the State had a compellinginterest in limiting independent expendituresby corporations. [Id. (emphasis added).]

By refusing even to entertain arguments basedupon the Montana ruling, this Court sent anunequivocal message that Citizens United had notbeen decided on the ground that there was insufficientfactual evidence of a compelling governmental interest. Rather, the Court ruled that, because corporateexpenditures do not, per se, constitute “quid pro quocorruption,” such speech could not be found to beoutside the protection of the First Amendment. SeeCitizens United, 132 S.Ct. at 909-11. Indeed, thisCourt found that “[a]n outright ban on corporatepolitical speech during the critical preelection period isnot a permissible remedy,” Congress having “createdcategorical bans on speech that are asymmetrical topreventing quid pro quo corruption.” Id. at 911.

Having carefully reviewed this portion of Citizens

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United, Judge James C. Cacheris concluded in theDistrict Court below:

That logic remains inescapable. Ifhuman beings can directly contributewithin FECA’s limits without riskingquid pro quo corruption or itsappearance, and if “the FirstAmendment does not allow politicalspeech restrictions based on a speaker’scorporate identity,” Citizens United,130 S. Ct. at 903, then corporations likeGalen must be able to do the same. [SeeUnited States v. Danielczyk, 791 F.Supp. 2d 513, 515 (2011).]

Although the Constitutional principle involved in theinstant case is of enormous significance, it is of nogreat import from a political standpoint. UnderCitizens United, Exxon Mobil already has the libertyto spend $1 million or more on an independentexpenditure to support a candidate. The only questionnow is whether Exxon Mobil also may make a directcontribution of $2,500 per election to that candidate. If the political map was not radically altered by thelegalization of unlimited corporate expenditures, it isbeyond question that it will not be changed bylegalizing a $2,500 corporate contribution.

The court of appeals below failed to apply theclean-cut reasoning of Citizens United to the FECAfederal statutory ban on corporate contributions toindividual political campaigns for election to federal

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office.3 Instead, the Fourth Circuit panel misreadCitizens United in much the same way as the MontanaState Supreme Court had done. The panel assumedthat Citizens United had employed a balancing test tooverrule Austin, purportedly having found that thealleged government interests were insufficientlyweighty to meet the strict scrutiny test of a compellingstate interest — whether that interest was to level theplaying field in the marketplace of ideas, protectcorporate shareholder interests, or protect againstcorruption or the appearance of corruption. SeeDanielczyk v. United States, 683 F.3d 611, 617-19 (4th

Cir. 2012). Further, the court of appeals measured theconstitutionality of corporate contributions toindividual candidates by the lower standard of“intermediate scrutiny,” requiring only an “important”government interest. For this reason, the court ofappeals concluded that the Citizens United ruling —that a ban on corporate electoral speech violated thespeech and press guarantees — simply did not apply. Id., 683 U.S. at 618-19.

But the Citizens United rule, protecting corporate

3 While the panel below sweepingly referred to “Congress’slegitimate interests in regulating direct contributions made by allcorporations” United States v. Danielczyk, 683 F.3d at 616 (4th

Circ. 2012) (italics original), there are numerous exceptions to thisgeneral principle which, like all campaign finance rules, aredesigned to favor incumbents seeking re-election. For a list ofthese types of permissible corporate contributions, see BriefAmicus Curiae of RealCampaignReform.org, et al., FEC v.Beaumont, No. 02-403 (U.S. Supreme Court) (February 11, 2003),pp. 8-13, http://www.lawandfreedom.com/site/election/Beaumont.pdf.

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speech, was adopted not because the Federal ElectionCommission had failed to demonstrate a sufficientlystrong governmental interest. To the contrary, thefederal ban on such corporate expenditures was struckdown because, categorically, the “First Amendment ...prohibits the suppression of political speech based onthe speaker’s identity.” Citizens United, 130 S.Ct. at905.

Because the court of appeals ruled contrary to thiscategorical principle, its decision is in conflict withCitizens United, and the petition should be granted toaddress the merits. See Rule 10(c), Rules of the UnitedStates Supreme Court.

II. THE QUESTIONS PRESENTED SHOULD BEEXTENDED TO INCLUDE WHETHERCAMPAIGN FINANCE RESTRICTIONS ONSPEECH AND PRESS SHOULD EVER BEPERMITTED BASED ON OVERRIDINGGOVERNMENTAL INTERESTS.

The Petition for a Writ of Certiorari hereinsubmits for consideration two questions. First is thequestion of whether the ban on corporate contributionsviolates the First Amendment. That question concernswhether such a ban violates the Citizens Unitedcategorical rule protecting corporate speech and pressrights. For the reasons stated in Part I, supra, theseamici support the granting of the petition on thatquestion. However, the petition also presents a secondquestion, whether the First Amendment rights ofspeech and press may be overridden, under either astrict scrutiny standard of review, or under a less

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protective standard of intermediate scrutiny. Theseamici would urge this Court to amend the secondquestion presented by petitioners to include whethereither standard of review, or any other “free standing‘interest balancing’”4 test, ought to be applied to aspeech or press right otherwise secured by the FirstAmendment. In light of Citizens United, and thesummary reversal in American Tradition, these amicibelieve that the question of whether First Amendmentrights are ever to be balanced against allegedgovernmental interests is an important question offederal law that should be settled by this Court. SeeRule 10(b), Rules of the United States Supreme Court.

Properly understood, the Citizens United decisiondoes not rest upon any judicially invented balancingtest, but rather upon the First Amendment principlesembodied in the speech and press textual guarantees. This Court maintained that corporate “political speechsimply cannot be banned or restricted as a categoricalmatter.” See Citizens United, 130 S.Ct. at 898. Nevertheless, the Citizens United Court did not makea clean break from the strict scrutiny test, and invokedthat test — but only as a back-up for what it hadalready determined — that the ban on corporatepolitical speech was categorically unconstitutional (seeid., 130 S.Ct. at 898-99):

Premised on a mistrust of governmentalpower, the First Amendment stands againstattempts to disfavor certain subjects or

4 See District of Columbia v. Heller, 554 U.S. 570, 634 (2008).

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viewpoints.... Prohibited, too, arerestrictions distinguishing amongdifferent speakers, allowing speech by somebut not others. As instruments to censor,these categories are interrelated: Speechrestrictions based on the identity of thespeaker are all too often simply a means tocontrol content. [Id. (emphasis added).]

Indeed, prior to summarizing these twoestablished speech and press principles, the Court hadalready rejected several invitations to “resolve thiscase on a narrower ground without chilling politicalspeech, speech that is central to the meaning andpurpose of the First Amendment.” Id., 130 S.Ct. at892. First, the Court wisely declined an invitation to“carve out an exception ... for nonprofit corporatepolitical speech funded overwhelmingly byindividuals.” Id., 130 S.Ct. at 891. It reasoned that todo so “would thus require case-by-casedeterminations,” while “in the meantime,”“archetypical political speech would be chilled.” Id.,130 S.Ct. at 892. Second, the Court correctly rejecteda proposed distinction between types of mediaofferings based upon the degree of “risk of distortingthe political process,” noting that the “interpretiveprocess itself would create an inevitable, pervasive,and serious risk of chilling protected speech....” Id.,130 S. Ct. at 890-91. The Court’s First Amendmentobjections to deciding the case on such narrow groundsare equally applicable to the administration of thevarious judicial balancing tests.

In FEC v. Massachusetts Citizens for Life, Inc.

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(“MCFL”), 479 U.S. 238 (1986), this Court ruled thatcertain nonprofit corporations retained their FirstAmendment rights of speech and press because thestate could not demonstrate to the court’s satisfactionthat it had a compelling interest to override MCFL’sFirst Amendment interest. While the litigants soughta “bright-line rule,” the Court demurred, in light offactual variables that, when combined, might revealthat the state could demonstrate a compelling stateinterest in some cases. See id., 479 U.S. at 260-65. Inresponse to this fluid MCFL ruling, the FederalElection Commission promulgated detailed rules bywhich it sought to distinguish which particularnonprofit corporations were entitled to the MCFLexception. See 11 CFR § 114.10. The result of MCFLwas to create two layers of review, one administrativeand another judicial. In the meantime, there could beno doubt that “archetypical political speech” was being“chilled.” In Citizens United, this Court observed that:

[t]he First Amendment does not permit lawsthat force speakers to retain a campaignfinance attorney, conduct demographicmarketing research, or seek declaratoryrulings before discussing the most salientpolitical issues of our day. Prolix laws chillspeech for the same reason that vague lawschill speech: People of “common intelligencemust necessarily guess at [the law’s] meaningand differ as to its application....” Thegovernment may not render a ban on politicalspeech constitutional by carrying out a limitedexemption through an amorphous regulatoryinterpretation. [Id. 130 S. Ct. at 889.]

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Of course, that is exactly what the MCFL Court haddone, employing its balancing test to permit only somecorporate speakers to engage in political speech,thereby opening the door to government censorshipover all who were not clearly protected. Theadministration of the MCFL exemption is not theexception, but reflects standard protocol in the overalladministration of the federal campaign finance laws. As the Citizens United case unveiled:

Campaign finance regulations now impose“unique and complex rules” on “71 distinctentities”.... These entities are subject toseparate rules for 33 different types of politicalspeech.... The FEC has adopted 568 pages ofregulations, 1,278 pages of explanations andjustifications for those regulations, and 1,771advisory opinions since 1975.... [and] a two-part, 11-factor balancing test to implementWRTL’s ruling. [Id., 130 S.Ct. at 895(emphasis added).]

“These onerous restrictions,” the Court continued,“thus function as the equivalent of prior restraint bygiving the FEC power analogous to licensing lawsimplemented in 16th- and 17th century England, lawsand governmental practices of the sort that the FirstAmendment was drawn to prohibit.” Id., 130 S. Ct. at896. Not only are the FEC’s powers analogous to thepowers of the 17th century English Star Chamber, butthey also parallel that horrid institution’s practice ofpolicing “the conduct of municipal elections.” SeeSources of Our Liberties 130 (R. Perry and J. Cooper,eds., American Bar Foundation, Rev. Ed.: 1978)

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(“Sources”). Additionally, it was the Star Chamberthat administered the licensing of printing (Sources at130), whereby the Government exercised censorshipover publications, keeping them out of the hands of thepeople by refusing the requisite permit — a practicewhich this Court has flat-out recognized in CitizensUnited to be, without exception, an invalid restriction. See Citizens United, 130 S.Ct. at 896.

Indeed, the freedom of the press, a freedomrecognized and reaffirmed in Citizens United (id. at905-06), originally embraced the absolute right topublish whatever opinion he chose without any priorrestraint, such “liberty of the press [being] indeedessential to the nature of a free state.” See IV. W.Blackstone, Commentaries on the Laws of England151 (U. Chi. Facsimile ed.: 1769). Thus, the CitizensUnited Court, rejecting the notion that the governmentcould censor “media corporations,” asserted:

There is simply no support for the view thatthe First Amendment, as originallyunderstood, would permit the suppression ofpolitical speech by media corporations [or anyother] salient media. [Id., 130 S.Ct. at 906(emphasis added).]5

Nor is there any support in the First Amendment

5 By this statement Citizens United appeared to adopt the anti-balancing views of the freedoms of speech and press expressed byJustices Hugo Black and William O. Douglas in the 1950's, ‘60'sand ‘70's. See Citizens United, 130 S.Ct. at 901. See also NewYork Times v. United States, 403 U.S. 713, 720 (1971).

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for the proposition that the government may overridethe freedom of speech in order to protect thegovernment’s reputation. It has long been settled thatthe freedom of speech forbids prosecutions for seditiouslibel, which has that purpose. See New York Times v.Sullivan, 376 U.S. 254 (1964). As James Madison putit, “the censorial power is in the people over theGovernment, and not in the Government over thepeople.” See J. Madison, Speech in Congress, 4 Annalsof Congress 934 (November 27, 1794), as quoted inSullivan, 376 U.S. at 275.

As Citizens United has reminded us, there isnothing wrong with efforts by persons, groups, andorganizations to seek to influence the outcome ofelections, and to seek thereafter to obtain politicaloutcomes that the supporter favors. Id., 130 S.Ct. at909-10. What is impermissible, the Court continued,is “‘the financial quid pro quo: dollars for politicalfavors.’” Id., 130 S.Ct. at 910. Any governmentalinterest beyond that narrow definition of “corruptionor the appearance of corruption” is, as the CitizensUnited Court ruled, “at odds with standard FirstAmendment analyses because it is unbounded andsusceptible to no limiting principle.” Id., 130 S.Ct. at910. Moreover, the oft-claimed government interest inprotecting government officials from the “appearanceof corruption” is, in reality, an effort by incumbent6

6 The manner in which the campaign finance laws aremanipulated by incumbents to present obstacles to challenges isexplained by Dr. James C. Miller II in his expert witness report inPaul v. FEC, consolidated with McConnell v. FEC. See Brief forAppellants Congressman Ron Paul et al., pp. 17a–36a,

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legislators to portray themselves as free from improperinfluence:

[l]est the people lose faith in their governmentofficials and in their current system ofgovernment.... When government is perceivedas corrupt, it is the incumbents, not thechallengers, who are at risk. Combating the“appearance of corruption,” then, is a rusedesigned by incumbents to justify limits on thefreedom of others to further their owninterests. [See Brief for AppellantsCongressman Ron Paul, et al., Paul v. FEC,pp. 13, 15 (U.S. Supreme Court, No. 02-1747.July 8, 2003)7 (bold original).]

The Citizens United opinion has opened the doorto a reexamination of the “corruption or appearance ofcorruption” rationale undergirding campaign financereform legislation, by asserting “that interest [is]limited to quid pro quo corruption.” Id., 130 S.Ct. at909. In fashioning remedies to combat suchcorruption, the Court ruled that they “must complywith the First Amendment; and it is our law and ourtradition that more speech, not less, is the governingrule.” Id., 130 S.Ct. at 911.

III. THE VARIOUS STANDARDS OF REVIEW,WHICH ENABLE THE GOVERNMENT TOOVERRIDE THE SPEECH AND PRESS

http://lawandfreedom.com/site/election/PaulApp.pdf.

7 http://lawandfreedom.com/site/election/PaulApp.pdf.

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GUARANTEES OF THE FIRSTAMENDMENT, ARE ILLEGITIMATEE N C R O A C HMEN TS U P O N T H ESOVEREIGN POWER OF THE PEOPLETO CONSTITUTE AND, WHENNECESSARY, RECONSTITUTE THEIRGOVERNMENT.

Early in the Citizens United opinion, the Courtexpressed concern about the role of the courts ininterpreting the free speech and press guarantees ofthe First Amendment. In response to CitizensUnited’s argument that 2 U.S.C. section 441b shouldbe invalidated as applied to a pay-for-view movie ondemand, because that delivery system “has a lowerrisk of distorting the political process,” the Courtresponded:

[A]ny effort by the Judiciary to decide whichmeans of communications are to be preferredfor the particular type of message and speakerwould raise questions as to the courts’ ownlawful authority. Substantial questionswould arise if courts were to begin saying whatmeans of speech should be preferred ordisfavored. [Id., 130 S.Ct. at 890 (emphasisadded).]

Not only did the Citizens United Court decline theinvitation, but it also candidly reminded itself that“[c]ourts, too, are bound by the First Amendment.” Citizens United, 130 S. Ct. at 891. Indeed, the veryfoundation for judicial review of a statute, federal orstate, under the U.S. Constitution, is that “courts, as

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well other departments, are bound by thatinstrument.” Marbury v. Madison, 5 U.S. (1 Cranch)137, 180 (1803) (italics original). Thus, in exercisingits “province and duty to say what the law is” (id., 5U.S. at 177), the judiciary must be careful not to adoptrules of interpretation that stray from theconstitutional text, and thus substitute its own will forthat of the people, who alone have the sovereign powerto lay down the binding rules upon those authorized togovern. See id. at 176-78. Yet, that is precisely whatthis Court has done with its interest-balancingstandards of review in First Amendment speech andpress cases.

In his treatise on American Constitutional Law,Lawrence Tribe revisits the “recurring debate in firstamendment jurisprudence ... whether first amendmentrights are ‘absolute’ in the sense that government may‘abridge’ them at all, or whether the first amendmentrequires the ‘balancing’ of competing interests in thesense that free speech values and the government’scompeting justifications must be isolated and weighedin each case.” L. Tribe, American Constitutional Law,§12-2, p. 792 (2d ed. 1988). After American Tradition’ssummary reversal of the Montana State SupremeCourt’s decision, there can be no doubt that CitizensUnited is of the former class, not the latter. AsProfessor Tribe has observed:

The “absolutists” may very well have beenright ... that their approach was bettercalculated to protect freedoms of expression.... If the judicial branch is to protect dissentersfrom a majority’s tyranny, it cannot be

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satisfied with a process of review that requiresa court to assess after each incident a myriadof facts, to guess at the risks created byexpressive conduct, and assign a specific valueto the hard-to-measure worth of particularinstances of free expression. [Id. at 793.]

Although Professor Tribe seems to favor bothinterpretive approaches, he recognizes that the“absolutists” offer a surer foundation for FirstAmendment freedoms:

[C]ategorical rules, by drawing clear lines, areusually less open to manipulation because theyleave less room for the prejudices of thefactfinder.... Categorical rules thus tend toprotect the system of free expression betterbecause they are more likely to work in spite ofthe defects in the human machinery on whichwe must rely to preserve fundamentalliberties. The balancing approach iscontrastingly a slippery slope; once an issue isseen as a matter of degree, first amendmentprotections become especially reliant on thesympathetic administration of the law. [Id. at793-94.]

What Professor Tribe says about First Amendmentfreedoms applies across the board. In the infamousJapanese-American internment case, Korematsu v.United States, 323 U.S. 214 (1944), the Court,applying “the most rigid scrutiny,” concluded that a“pressing public necessity” of World War II overrodethe due process guarantee of the Fifth Amendment.

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After Korematsu, the Court extended its balancing testto other “race” cases, ruling that race as a legalclassification bore “a heavy burden of justification ...and will be upheld only if necessary, and not merelyrationally related, to the accomplishment of apermissible state policy.” See McLaughlin v. Florida,379 U.S. 184, 196 (1964).

From race,8 to sex,9 to illegitimacy,10 to alienage,11

to various additional classifications,12 the Courtextended and modified the equal protection guaranteeof the Fourteenth Amendment, invoking a variety ofstandards, ranging from strict scrutiny, tointermediate scrutiny, to rational basis, andoverriding, or sustaining, those classificationsdepending upon how “suspect” the class and how“strong” the governmental interests. These balancingtests also invaded First Amendment litigationrespecting the free exercise of religion,13 and the

8 See, e.g., Regents of the University of California v. Bakke, 438U.S. 265 (1978).

9 See, e.g., Craig v. Boren, 429 U.S. 190 (1976).

10 See, e.g., Pickett v. Brown, 462 U.S. 1 (1983).

11 See, e.g., Graham v. Richardson, 403 U.S. 365 (1971).

12 See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S.432 (1985).

13 See, e.g., Sherbert v. Verner, 374 U.S. 398 (1963). (Thecompelling interest test, as applied to the free exercise guaranteestanding alone, was rejected in Employment Division v. Smith,494 U.S. 872 (1990).)

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freedom of speech.14 By the beginning of the 21th

century, this Court’s constitutional jurisprudence wassteeped in balancing formulas, sociological studies andeconomic models, and other nonconstitutional sources. See, e.g., McConnell v. FEC, 540 U.S. 93 (2003); seealso Citizens United, 130 S.Ct. 894 (“[The] inquiry intothe facial validity [of section 441(b)] was facilitated bythe extensive record, which was over 100,000 pageslong....”).

Then, on March 18, 2008, at oral argument in theSecond Amendment case of District of Columbia v.Heller, 554 U.S. 570 (2008), as the Solicitor Generalwas contending that “intermediate scrutiny,” ratherthan “strict scrutiny,” should be the standard by whichthe constitutionality of gun control laws should bemeasured, Chief Justice Roberts laid down thegauntlet:

[T]hese various phrases under the differentstandards that are proposed, “compellinginterest,” “significant interest,” “narrowlytailored,” none of them appear in theConstitution.... Isn’t it enough to determinethe scope of the existing right that theamendment refers to ... and determine ... howthis restriction and the scope of this rightlooks in relation to [it].... I’m not sure why wehave to articulate some very intricatestandard. I mean, these standards that applyin the First Amendment just kind of developed

14 See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976).

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over the years as sort of baggage that the FirstAmendment picked up. [Transcript of OralArgument, p. 44, Dist. Of Columbia v. Heller,554 U.S. 570 (2008)].

Later, in the Heller opinion itself, the Courtrefused to formulate an “interest-balancing answer” toissues arising under the Second Amendment. SeeHeller, 554 U.S. at 634-35. Not only did the Courtreject the Solicitor General’s plea to apply“intermediate scrutiny,” but it also jettisoned theentire notion that the task of judicial review, underany constitutional right, could be lawfully dischargedby employment of “a free-standing ‘interest balancing’approach”:

The very enumeration of the right takes out ofthe hands of the government — even the ThirdBranch of Government — the power to decideon a case-by-case basis whether the right isreally worth insisting upon. A constitutionalguarantee subject to future judges’assessments of its usefulness is noconstitutional guarantee at all. Constitutionalrights are enshrined with the scope they wereunderstood to have when the people adoptedthem, whether or not future legislatures or(yes) even future judges think that scope toobroad. [Id. (italics original) (bold added).]

In the exercise of their sovereignty, the people ofthe United States have laid down the principled rulethat “Congress shall make no law ... abridging thefreedom of speech, or of the press....” U.S. Const.,

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Amendment I. In the exercise of their respectivepowers, it is not for Congress or the courts to makeexceptions based upon countervailing governmentinterests, compelling, substantial, or otherwise. Indeed, if a governmental interest is so compelling,then those who support it are required by Article V ofthe U.S. Constitution to follow an amendment processby which such interests are established by the will ofthe people — by a two-thirds vote in both houses ofCongress and ratification by three-fourths of the statelegislatures. If this super-majoritarian process may bebypassed by the judicial fiat of five justices of theUnited States Supreme Court, then the “writtenconstitution [is an] absurd attempt[], on the part of thepeople, to limit a power, in its own nature illimitable.” Marbury, 5 U.S. at 177.

By rejecting the federal Government’s appeal tothe Court to subordinate the freedoms of speech andpress to supposedly overriding governmental interests,including the interest of preventing corruption or theappearance thereof, the Citizens United Court took agiant step towards restoring the sovereignty of thepeople “to make informed choices among candidates foroffice” through free “[s]peech, [the] essentialmechanism of democracy .... to hold officialsaccountable to the people.” See id., 130 S.Ct. at 898. The flawed notion that the government might, bydemonstrating an important, or even a compelling,governmental interest, override the will of the peopleenshrined in a written constitution, is reason enoughto repudiate the balancing tests that have underminedthe freedoms of speech and of the press for too long.

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CONCLUSION

For the foregoing reasons, the Petition for Writof Certiorari should be granted.

Respectfully submitted,

GARY G. KREEP HERBERT W. TITUS*U.S. JUSTICE WILLIAM J. OLSONFOUNDATION JOHN S. MILES932 D Street, Ste. 2 JEREMIAH L. MORGANRamona, CA 92065 ROBERT J. OLSON(760) 788-6624 WILLIAM J. OLSON, P.C.

Attorney for U.S. Justice 370 Maple Avenue West Foundation Suite 4

Vienna, VA 22180-5615MARK B. WEINBERG (703) 356-5070

WEINBERG, JACOBS & wjo@mindspring.comTOLANI, LLP Attorneys for Amici Curiae10411 Motor City Dr.Ste. 500 *Counsel of Record Bethesda, MD 20817 December 10, 2012(301) 468-5500

Attorney for FSCand FSDEF