CCP files brief in Citizens United v. FEC

The Center for Competitive Politics (CCP) filed a friend-of-the-court brief today in Citizens United v. Federal Election Commission, which the Supreme Court will rehear Sept. 9. CCP’s brief argues the Court should overturn Austin v. Michigan Chamber of Commerce and a related holding in McConnell v. FEC.

CCP’s brief focuses on the Supreme Court’s historic treatment of economic legislation and the role of speech in those issues. In United States v. Carolene Products Co., the Court held that laws regulating the economy would receive a lower level of scrutiny because economic liberties could be protected through “political processes, which can ordinarily be expected to bring about repeal of undesirable legislation.” By upholding corporate independent expenditure bans, Austin denies corporations the means to participate in the very “political processes” they were assured would protect them from overreaching legislation.

Austin‘s ‘anti-distortion’ rationale is deeply flawed and badly out of step with the Court’s political speech jurisprudence,” said CCP Vice President Stephen M. Hoersting, the counsel of record on the brief. “Austin‘s concern for the corrosion supposedly caused by independent speech of incorporated organizations merely decries the absence of equalized resources for speech. It has nothing to do with preventing corruption of candidates and officeholders.”

Austin holds that the corporate independent expenditure ban can be justified because of the supposedly “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form.” However, such a justification is incompatible with the Supreme Court’s decisions in Buckley v. Valeo and Davis v. FEC, which upheld the right of wealthy individuals to make independent expenditures, even though in many cases individual wealth can also be earned through corporations. The Court has found that independent expenditures are not inherently corrupting, and that is no less true simply because a corporation makes the expenditure rather than an individual.

“All Americans, including those who have joined together in using the corporate form, must be allowed to speak,” said CCP President Sean Parnell. “Austin‘s other interest — protecting minority shareholders unwilling to fund corporate messages — is a matter of corporate governance and cannot negate the First Amendment rights of the majority.”

In June, the Supreme Court announced a rehearing of Citizens United, specifically asking if it should overrule Austin v. Michigan Chamber of Commerce or the portion of McConnell v. FEC that upheld the facial validity of the electioneering communications prohibition in McCain-Feingold — or both.

The Center for Competitive Politics (CCP) is a non-profit organization which seeks to protect the First Amendment political rights of speech, assembly, and petition.

The Center for Competitive Politics is now the Institute for Free Speech.