No. 12-579

In The

Supreme Court of fije Utiiteb States*William P. Danielczyk, Jr. and Eugene R. Biagi,

Petitioners,

v.

United States, Respondent.

On Petition for Writ of Certiorarito the United States Court of Appeals

for 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

U.S. Justice Foundation

Ramona, CA 92065Attorney for U.S. Justice

Foundation

Mark B. Weinberg

Weinberg, Jacobs &Tolani, LLPBethesda, MD 20817

Attorney for FSC and FSDEF

*Counsel of RecordDecember 10, 2012

Herbert W. Titus*William J. Olson

John S. Miles

Jeremiah L. Morgan

Robert J. Olson

William J. Olson, P.C.370 Maple Avenue WestSuite 4

Vienna, VA 22180-5615(703) 356-5070wjo@mindspring.com

Attorneys for Amid Curiae

TABLE OF CONTENTSPage

Table of Authorities u

Interest of the AmiciCuriae l

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 inCtttzens United 4

II. The Questions Presented Should BeExtended to Include WhetherCampaign Finance Restrictions onSpeech and Press Should Ever BePermitted Based on OverridingGovernmental Interests n

III. The Various Standards of Review,Which Enable the Government to .Override the Speech and PressGuarantees of the First Amendment,Are Illegitimate Encroachments

upon the Sovereign Power of thePeople to Constitute And, WhenNecessary, Reconstitute TheirGovernment 18

Conclusion 26

n

TABl^OFAUTHORITIESPas

y^CQNSJTTUTIQN4,25

Article V 7Article VI, Clause 2 •••' ' 2'pass;mAmendment I 3, 4, 23Amendment II 21Amendment V 22Amendment XIV

CASES

A^v.MugmOmBbai^aM^f* 6 10U S 652 (1990) ; ' ' ' 9«

C^iiunited v. FEC, 558 U.S. 310, 130

^a^K^fli^^ 22^.SS9u:s:i90(i976):.::::::::: 22Digtriciof^olumbiav. Heller, 554 U.S. ^ ^ ^ ^

570 (2008) .••.•^ ^ ---^-872 (i990) . 22F.WovmentDiv,v. Sjmth, 4^4 u.0 v

F^cTjiSSS^^—79 U.S. 238 (1986) ...•••••• •••• \ ; / ^Graham v. Richardsoa, 403 US. 365i (1«^E2r^ma^v.yjiited^tates,323U.b.2l4 ^

Ma^Sv.' Madisgn,' 5*U.S.*(1 Cranch) 137, ^ ^180 (1803)

Ill

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

rV. 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 SpeechDefenseand 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 ofstate and federal constitutionsand statutes. Amicus Citizens United was theplsintiff/pptJtirmprin CitizensUnited v. FEC.558U.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

1It ishereby certified that counsel for the partieshaveconsentedto 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 ofit; 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.

the panel below believed was controlling in this case.

SUMMARY OF ARGUMENT

The Court's summary reversal of the MontanaSupreme Court in Americ_ar, Tr^itio^l Partnership,v Bullock confirmed that Citizens United v. FEC hadruled that the First Amendment speech and pressguarantees establish acategorical 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 scrutinytest - the test normally applied to bans onexpenditures supporting or opposing candidates forelection to federal office. Having made thaterroneousassumption, the court of appeals incorrectly assumedthat r.i*i»»nfl 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 sidentity, lnatFirst Amendment principle applies across the board,including to corporate political speech, whether itis inthe form of an independent expenditure related to apolitical campaign, as in Cifeejis_United, or adirectcontribution to acandidate's campaign as in this caseBecause the decision of the court below conflicts

directly with Citizens United, the petition should begranted.

The petition should also be granted to address thequestion whether speech and press rights can beoverridden byjudicially invented tests, subordinatingthose constitutional guarantees to overridinggovernmental interests. This question is animportantone that can only be settled by this Court. CitizensUnited broke from earlier precedents that permittedprohibitions against full participation of corporateentities in the marketplace ofideas. Citizens Unitedalso, aspreviously noted, abandoned thebalancingtestthat had been used to justify the ban on corporateexpenditures inelection campaigns, overrulingAustmv. 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 andhistoriccontextofthe speechand press guarantees. Inshort, as it had already done in the Second

fnistrictofColurnbiav. Heller, theAmendment case fT^SlhI]udIcially inventedCourt in Qaz^^tS^ing Merest balancing"baggage" of "a &ee ^g^ed the sovereigntyapproach." By doing;sc, rt recog ^ ^ a)„£ the people whose ™''**ion,maybe overridden^ttenUmtedStatesConstiW^,^ 7 ^ m0iuy by the Y^fj^eial fiat based on a^—l",,Celling or otherwise.

Itistimetocutcompletdythe ^^ based onconstitutional rights have datextual judicial balancing tests.

ARGUMENT

THE COUKT BELOW FATLEr^TO A• t5e categorical first ame^

BIGHT OF CORPORATE HENGAGE W POL1' THE U.S.EC^TUTIOHNEAND REAFFIRMED INCJTJZENSJJNTTED.

tt -^ the Constitutional rightPrior to OSi^ess^.f0^ speech wasof corporations to engage P ^ Governmentsubject to abalancing test »h > nt,y strongwas required to "Ration's right to fallinterest to override . c0^ k iace 0f ideas, asparticipation in the free^ma P ^ ,;secured by the First Amend ^ mC^^v.^^^^^most

stringent "strict scrutiny" test, requiringa"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 exceptionto 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,applyingthe "strict scrutiny"test, foundthat the Stateof Michigan had "a compelling governmental interestin preventing 'the corrosive and distorting effects ofimmenseaggregationsofwealth that are accumulatedwith the help ofthe corporateform and that have littleor no correlation to the public's support for thecorporation'spolitical ideas."' SeeCitizens 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 Atthe request ofthe Court, the issue ofoverruling Austin andportions ofMcConnell v. FEC. 540 U.S. 93 (2003), was set forreargument (174 L.Ed.2d 599 (2009)), and then reargued onSeptember 9, 2009.

the Citizens United Court reasoned that:

rtlhe 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. Lid.J

Under the Ci^emUnited precedent no court canjustify any law that discriminates on the basis of heSpeaker'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 State.Supreme Court's decision upholdingastate law ban on„te political speech See Apnca^aitoPartnerjhijUn-v. Bullock, US. _,182S£t 2490(2012). In that case, the Montana State SupremeCourt had attempted to cabin Citi^United as anarrow factual ruling where Congress had failed todemonstrate a compelling interest to impose anationwde ban on corporate electioneeringcommunications with respect to federal election

campaigns. The state court found that Montana's banon corporate speech rested upon a very differentfactual base — Montana's special historic experienceofcorporate corruption ofstate elections ofgovernmentofficials. Srr W°°^" 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 offacts.... Therefore, the factual recordbefore a court is critical in determining thevalidity of a governmental provisionrestricting speech.... The Supreme Courtheld [in Cit.J7.ens United] that laws thatburden political speech are subject to strictscrutiny, which requiresgovernment toprovethat 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 Amprirnn 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,

or fail to meaningfully distinguish that^case.' tt Inhnlance government interests agoDaiance guv T,,ot;„p Brever dissented,Amendment rights, Justice creyoprotesting that:

this Court's legal conclusion [in SJtBfiaaUnited] should not bar the Montana SupremeSourfs finding, made on the record before itthatindependentexpenditnresbycorporationsMinfac?leadtocorruptionortheappearanceof corruption in Montana. Given the historyand political landscape in Montana, that court^elided that the State had acompeUinginterest in limitingindependent«P»^turesby corporations. [Id. (emphasis added).]By refusing even to entertain argument*, based

.pon^he Montana ruhng this Cou^sent »

ZTZ pro ection of the First Amendment. See

preventing quid pro quo corruption. Id. at 911.Having carefully reviewed this portion of Citizens

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. Danielczvk. 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

10

ff p3 Instead the Fourth Circuit panel misreadoffice. Instead, xne Montana

C***?1^;?^^ *anel assumedState Supren^^hjddo ^^^fothatCjti^ensJJmtednaaempi * h t theoverrule Austin, P^^^^^B^,alleged B^^^^testofacompellingWeighty to meet^^^J^,was to level theBtatemteiert-w^her^^^^ of .^ protectplaying field in thejnar• * stcorporate shareholder interests, ?r P Seecorruption or the appearance oiE ^£ig (4*Danielczyk v. XSMteif*"1^^3^^"^™dtoCir.2012). I^^^r^Xtiona toconstitutionality of corporate ^ ^individual candidates byq^f ^^^portant""intermednatteiSr^,F^SeaBL, the court ofgovernment interest *o ^^^Q^ited ruling -appeals concluded that the^£-7-—^olated thethat aban on «*P^n^^did not apply,speech and press guarantees simpiyId., 683 U.S. at 618-19.

But the Citoi^United rule, protecting corporate

lagWmatoi^^J^^^ 683 F.3d at 816 (4*corporations ns^^J^-^^^rous exceptions to thisCiic^O^atalicsonpn^.^^ finance rules, aregeneral principle winch like a11 ^P^lection. For alist ofdesigned to favor incumbents seekmg red** see Briefthese types of permissible "J^™^ et al, FEC v.AmicuS ^02^?^E2£S) (February 11. 2003)pp. - .•RoaiiTnont.pai.

11

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 ofpolitical 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 thequestionofwhether the ban oncorporate contributionsviolates the First Amendment. That question concernswhether such a ban violates the Citizens Unitedcategorical rule protectingcorporate speech and pressrights. For the reasons stated in Part I, supra, theseamici support the granting of the petition on thatquestion. However, the petition also presentsa secondquestion, whether the First Amendment rights ofspeech and press may be overridden, under either astrict scrutiny standard of review, or under a less

12

m-otective J^^rt^E sISeither standard of review, or any other free stanaing"1J balancing- test, ought to be,.ppb^o.speech or ^^.f^^^^IZAmendment. * Vj^^gS^«mMsummary reversalm ^g^^j^Amendmentbelieve that thequestion ofwhether i irsi_«mriUts are ever to be balanced against allegedgovernmental interests is an ^"^Sfederal law that should be settled by this Court, beeRule !0*) Eules of the United States Supreme Court.

Properly understood, the CjiMHisUnitei decisiondoes nofrest upon any judicially invented baUncintest, but rather upon the First^f^*™"^embodied in the speech and press textual g—^

id., 130 S.Ct. at 898-99):

Premised on amistrust of 9°™™™%^newer the First Amendment stands againstattempts to disfavor certain subjects or

see m^Mm^ v. ate5M u's- 57°-634 C2008)'

13

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 andpressprinciples, 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 todeciding thecase on such narrow groundsare equally applicable to the administration of thevarious judicial balancing tests.

In FEC v. Massachusetts Citizens for Life. Inc.

14

("MCFL"), 479 U.S. 238 (1986), this Court ruled thatcertain nonprofit corporations retained their FirstAmendment rights of speech and press because thestatecould not demonstrate to the court's satisfactionthat it had a compelling interest to override MCFL'sFirst Amendment interest. While thelitigants 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 ofreview, one administrativeand another judicial. Inthe meantime, there could beno doubt that "archetypical political speech" was being"chilled." Tn Citizens United, thisCourt 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 intelligencemustnecessarily guess at [the law's] meaningand differ as to its application...." Thegovernment may not render aban on politicalspeech constitutional by carrying out alimitedexemption through an amorphous regulatoryinterpretation. [Id. 130 S. Ct. at 889.]

15

Of course, that is exactly what the MCFL Court haddone, employing its balancing test to permit onlysomecorporate 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 for33different typesofpoliticalspeech.... 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 ofthe 17th century English Star Chamber, biitthey 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)

16

("Sources"). Additionally, it was the Star Chamberthat administered the licensing of printing (Sources at130), whereby the Government exercised censorshipover publications, keeping them out ofthe hands ofthepeople 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 viewsofthe freedoms ofspeech 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).

17

for the proposition that the government may overridethe freedom of speech in order to protect thegovernment's reputation. It has long been settledthatthe freedomofspeechforbids prosecutions forseditiouslibel, 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, 4Annalsof 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 limitingprinciple." Id., 130 S.Ct. at910. Moreover, the oft-claimedgovernment 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 topresent obstacles tochallenges isexplained by Dr. James C. Miller II inhisexpert witness report inPaul v. FEC. consolidated with McConnell v. FEC. See Brief forAppellants Congressman Ron Paul et al., pp. 17a-36a,

18

legislators to portray themselves asfree from improperinfluence:

[l]est the people lose faith in their governmentofficials and in their current system ofgovernment.... When government isperceivedas 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 ofthe "corruption orappearance 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.

Ill THEVARIOUS STANDARDS OFREVIEW,WHICH ENABLE THE GOVERNMENT TOOVERRIDE THE SPEECH AND PRESS

ht.tp://lawardfrBedom.com/ait.R/election/PaulApp.pdf.

7 http://lawandfreedom.cnm/site/electinn/PaulApp.pdf.

19

GUARANTEES OF THE FIRST

AMENDMENT, ARE ILLEGITIMATEENCROACHMENTS UPON THE

SOVEREIGN POWER OF THE PEOPLE

TO 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 ifcourts 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

20

well other departments, are bound by thatinstrument." Marburv 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). AfterAmerican 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

21

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 First

Amendment 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.

22

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,11to various additional classifications,12 the Courtextended and modified the equal protection guaranteeof the Fourteenth Amendment, invoking a variety ofstandards, ranging from strict scrutiny, to jintermediate scrutiny, to rational basis, and joverriding, or sustaining, those classifications jdepending upon how "suspect" the class and how j"strong" the governmental interests. Thesebalancing jtests also invaded First Amendment litigation jrespecting the free exercise of religion,13 and the j

8 See, e.g., Regents ofthe University ofCalifornia 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., Citv ofCleburne 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 tothe free exercise guaranteestanding alone, was rejected in Employment Division v. Smith,494 U.S. 872 (1990).)

freedom of speech.14 By the beginning of the 21thcentury, this Court's constitutionaljurisprudencewassteepedin balancingformulas, sociological studies andeconomic models, and other nonconstitutional sources.See, e.g., McConnell v. FEC. 540 U.S. 93 (2003); seealso Citizens Unit.pH 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, onMarch 18, 2008, at oral argument in theSecond Amendment case of District of Columbia v.HeUer, 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 kindofdeveloped

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

24

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 Courtrefusedto 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 dischargedbyemployment of"afree-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.,

25

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 maybebypassed 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."Marburv. 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,

Herbert W. Titus*

William J. Olson

Johns. Miles

Jeremiah L. Morgan

Robert J. Olson

William J. Olson, P.C.370 Maple Avenue WestSuite 4

Vienna, VA 22180-5615(703) 356-5070wj o@mindspring.com

Attorneys for Amici Curiae

*Counsel ofRecordDecember 10, 2012

Gary G. Kreep

U.S. Justice

Foundation

932 D Street, Ste. 2Ramona, CA 92065(760) 788-6624

Attorney for U.S. JusticeFoundation

Mark B. Weinberg

Weinberg, Jacobs &TOLANI, LLP10411 Motor City Dr.Ste. 500

Bethesda, MD 20817(301) 468-5500

Attorney for FSCand FSDEF