Election Law Blog - The Government's Remarkable Supplemental Brief in Citizens United: No Mention of Corporate "Distortion"

July 27, 2009

On the last scheduled day of the Court's term in June, the Court issued an order in Citizens United v. Federal Election Commission requiring the parties to brief whether the Court should overturn two cases upholding corporate (and union) independent spending in candidate elections: Austin v. Michigan Chamber of Commerce and the relevant portion of McConnell v. FEC.

The briefs were filed Friday. I have now had a chance to review the government's supplemental brief and Citizen United's supplemental brief. (Amicus briefs are due Friday, and simultaneous reply briefs are due August 19).

There is much to like about the government's brief, and I have more about that below. But let me begin with the most interesting feature of the brief: the government does not even mention the central holding of Austin, much less defend it. To put this in context, before Austin, in Buckley v. Valeo the Court had held that contributions to candidates could be limited because of the government's interest in preventing the corruption of elected officials (through quid pro quos and otherwise) and the appearance of such corruption, but that independent spending by individuals could not be limited consistent with the First Amendment. With truly independent spending, the Court in Buckley said, the link to corruption of candidates is too tenuous, and the costs to freedom of speech and association too high to justify such limits. Buckley did not deal with corporate spending limits, but in a 1981 case, First National Bank of Boston v. Bellotti, the Court held that corporate spending limits in ballot measure elections, in which candidates are not involved, are unconstitutional. In Austin, however, the Court held that corporate spending limits are constitutional.