Citizens United v. Federal Election Commission

Whether the Court should overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. 441b. (This is the question that was presented for reargument.)

NCLC filed two briefs in this case. In its first brief, NCLC urged the U.S. Supreme Court to hold that the disclosure requirement under the Bipartisan Campaign Reform Act (BCRA) is unconstitutional when applied to advertisements protected under the standard articulated in Wisconsin Right to Life v. FEC. Political speech that is permissible under BCRA is likely to be chilled if organizations are required to disclose donor information for such speech.

In its second brief, NCLC urged the Supreme Court to overrule its faulty 1990 Supreme Court decision, Austin v. Michigan Chamber of Commerce, a decision which had been used to justify bans on independent corporate advocacy for or against political candidates. In 2008, the interest group Citizens United sued the FEC for an injunction and a declaration that it would be unconstitutional to ban as "electioneering communications" the group's advertisements marketing its feature film, Hillary: The Movie. Among other campaign restrictions, BCRA prohibits corporations from using their own funds for "electioneering" communications" 30 days before primary elections or 60 days before general elections. Criticizing Austin’s claim that the government has an interest in banning corporate advocacy because the public may not support a corporation’s political ideas, NCLC’s brief argued that the First Amendment protects unpopular ideas as much as ideas that already have wide support. NCLC also described the positive experiences of the 26 states that allow unfettered corporate advocacy, refuting Austin’s that corporate advocacy inherently corrupts the political process.

The Supreme Court clarified that the First Amendment protects the rights of corporations, unions and other organizations across the spectrum - independent of any coordination with the relevant candidates - to expressly advocate for or against candidates in political elections.

First amicus brief filed 1/15/09. Moot court held 3/17/09. Order for supplemental briefing and re-argument issued 6/29/09. Second amicus brief filed 7/31/09. Oral argument held 9/9/09. Decided 1/21/10.