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Stakes Increase in Citizens United Case

The Supreme Court was expected to issue a long-anticipated decision in Citizen United today, but instead will hear new oral arguments on the case in September 2009.The two questions the Court asked parties to address at the new oral argument are:

June 30, 2009

For Immediate Release 


Contact: Jeanine Plant-Chirlin, 212–998–6289
             Susan Lehman, 212–998–6318 

New York—The Supreme Court was expected to issue a long-anticipated decision in Citizen United today, but instead will hear new oral arguments on the case in September 2009.The two questions the Court asked parties to address at the new oral argument are: should the Court overrule either or both Austin v. Michigan Chamber of Commerce, and a part of McConnell v. Federal Election Commission (FEC), which upheld the facial validity of Section 203 of the Bipartisan Campaign Reform Act (BCRA) of 2002.  In enlarging the scope of its record to explicitly include an examination of these important precedents, the Supreme Court is signaling its willingness to re-examine more than one hundred years of law that supported limiting the expenditures of corporations in elections.

The first case mentioned by the Court, Austin, upheld in1990 a Michigan law that restricted corporations from using corporate treasury funds to pay for independent expenditures in support of, or in opposition, to any candidate in elections for state office, instead requiring them to establish separate, limited-contribution entities with disclosure of the source of contributions.  As the Court explained, the Michigan law’s purpose was to address “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”

The second case named by the Court was McConnell v. FEC, which upheld Section 203 of BCRA against a facial challenge. That section of BCRA extended to all “electioneering communications” the existing federal restrictions on using corporate and union general treasury funds. Electioneering communications under BCRA are broadcast ads that are aired 30 days before a primary and 60 days before a general election that mention a federal candidate and are targeted to the relevant electorate.

In 2003, the Rehnquist-led Court in McConnell upheld the corporate treasury fund restrictions due to the long-standing support for restrictions on corporate expenditures in elections as an anti-corruption concern. The Court noted that corporations could still use political action committees (PACs) to pay for these communications. The Court in McConnell also upheld the related disclosure provisions, because they “provid[e] the electorate with information, deter[] actual corruption and avoid[] any appearance thereof, and gather[] the data necessary to enforce more substantive electioneering restrictions.”

As Brennan Center Counsel Ciara Torres-Spelliscy stated, “Impeding Congress’s or states’ ability to curb corporate spending in elections has the potential to amplify corporate speech, and drown out less well-financed speakers who lack corporate backing. It could well roll back many of the substantial gains made among small donors in the last election cycle.” 

The overruling of Austin and/or McConnell's reading of Section 203 of BCRA could open the floodgates of corporate money into federal elections, rendering meaningless restrictions on corporate expenditures in elections which date back, in their earliest incarnation, to 1907. 

As the Supreme Court explained in the McConnell, “the history of federal campaign finance regulation, having its origins in the Administration of President Theodore Roosevelt, is a long-standing and recurring problem that has challenged our government for nearly half of the life of our Republic.”[1]  For over one hundred years, since 1907's Tillman Act, corporations have been prohibited from making contributions to candidates for federal office.[2] 

Over the years, Congress has acted many times to keep corporate money out of federal elections.  Most recently, in 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA) into law.  Among many other provisions, BCRA prohibits corporate treasury funds from being used to run electioneering communications and requires detailed disclosure of who pays for electioneering communications.

“The Supreme Court’s invitation today to consider overruling these two key cases is a disappointing indication of where the Court may be headed on campaign finance law,” said Deputy Director of the Brennan Center’s Democracy Program, Laura MacCleery. “We hope that the Court will use this time and new argument to fully consider the magnitude of the change that would occur in elections if corporate expenditures went totally unchecked.”  

Both sides in Citizens United will file their opening briefs simultaneously by July 24, 2009 with Amici briefs due by July 31, 2009. Reply briefs are due by Aug. 19, 2009.

For more information or to speak with Laura MacCleery or Ciara Torres-Spelliscy, please contact Jeanine Plant-Chirlin at 212–998–6289 or


[1] McConnell v. FEC, 251 F.Supp.2d 176, 188 (D.D.C. 2003).

[2] See 2 U.S.C. § 441b(a) (banning contributions and expenditures by corporations, banks, and labor unions).