Citizens United v. FEC (1)

Amici brief in Citizens United v. FEC (1)
Benjamin Barr

Filed: January 15, 2009 (U.S. Supreme Court)

Issues:
1. Can the prohibition on corporate electioneering communications in the Bipartisan Campaign Reform Act of 2002 (“BCRA”) be constitutionally applied to a feature-length documentary film about a political candidate funded almost exclusively through noncorporate donations and made available to digital cable subscribers through Video On Demand?

2. Can BCRA’s disclaimer, disclosure, and reporting requirements be constitutionally be applied to advertisements for that documentary film that the Federal Election Commission concedes are beyond its constitutional authority to prohibit?

Summary:
The first legal action taken by the Wyoming Liberty Group, this brief—joined by the Goldwater Institute—called for the Supreme Court to clarify its standard for the “appeal to vote” test, an analysis in a previous case that led the Federal Election Commission to adopt speech-suppressing rules that were as confounding as those overturned in the previous case. The brief concludes that the FEC makes routine practice of interpreting federal law to curtail political speech, and that it cannot be trusted with this responsibility.

Outcome:
The Supreme Court ruled that the First Amendment protects from the censorship of independent political messages paid for by associations, including corporations and unions.  When discussing the complexity of the campaign finance regime, the majority opinion cited this brief’s discussion of the two-part, 11-factor balancing test that FEC developed, as well as borrowing from the brief how the maintenance of a complex regulatory structure acts as a prior restraint against speech.

Click here to read the brief.

The full opinion is available here.