Amicus Curiae Brief — National Republican Senatorial Committee, et al., Petitioners v. Federal Election Commission, et al.

Supreme Court briefOct 6, 2025

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No. 24-621

IN THE

Supreme Court of the United States

____________________

NATIONAL REPUBLICAN SENATORIAL COMMITTEE,

ET AL.,

Petitioners,

FEDERAL ELECTION COMMISSION, ET AL.,

Respondents,

AND

DEMOCRATIC NATIONAL COMMITTEE, ET AL.,

Intervenor-Respondents.

____________________

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

____________________

BRIEF OF AMICI CURIAE U.S. SENATORS

SHELDON WHITEHOUSE, CHRIS VAN

HOLLEN, RICHARD BLUMENTHAL, ADAM B.

SCHIFF, MAZIE K. HIRONO, AND CORY

BOOKER IN SUPPORT OF INTERVENORRESPONDENTS

____________________

GERSON H. SMOGER

Counsel of Record

SMOGER & ASSOCIATES

4228 Hallmark Drive

Dallas, TX 75229

(510) 531-4529

gerson@texasinjurylaw.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................iii

STATEMENT OF INTEREST .................................. 1

SUMMARY OF THE ARGUMENT .......................... 1

ARGUMENT .............................................................. 4

I. JUDICIAL DECISIONS WEAKENING CAMPAIGN

FINANCE

LAWS

HAVE

UNLEASHED

UNPRECEDENTED

SPECIAL

INTEREST

INFLUENCE IN U.S. ELECTIONS.............................. 4

A. Striking Down Limits on Coordinated

Party Expenditures Would Continue a

Harmful Trend of Weakening Basic

Campaign Finance Laws ................................. 4

B. Petitioners’ and Respondents’ Goal Is to

Find Another Way to Increase the

Unregulated Use of Money in Political

Campaigns ........................................................ 5

C. For One Example, Judicial Undermining

of Campaign Finance Laws Has Enabled

Massive Fossil Fuel Spending, Blocking

Legislative Progress and Promoting

Climate Denialism ........................................... 9

D. Judicial Dismantling of Campaign

Finance Laws Has Distorted Our

Elections ......................................................... 17

II. IF ANY CASE WARRANTS RECONSIDERATION

DUE TO A DEBUNKED FACTUAL PREDICATE, IT

IS CITIZENS UNITED ............................................ 19

A. Citizens United Is Responsible for the

Changed Circumstances the Petitioners

and Respondents Cite to Justify

Overruling Colorado II................................... 19

B. The Citizens United Decision Was Based

on Improper and Incorrect Appellate FactFinding............................................................ 21

C. This Court Should Now Also Correct the

Error It Refused to Address in Bullock ......... 26

CONCLUSION ........................................................ 28

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Tradition P’ship, Inc. v. Bullock, 567

U.S. 516 (2012) ............................................... 26, 27

Anderson v. City of Bessemer City, 470 U.S.

564 (1985) ............................................................. 21

Ariz. Free Enter. Club’s Freedom Club PAC

v. Bennett, 564 U.S. 721 (2011) ........................... 23

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir.

1975), aff’d in part, rev’d in part, 424 U.S.

1 (1976) ................................................................... 8

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ........................ 5, 6, 7, 8, 22, 23

Fed. Election Comm’n v. Colo. Republican

Fed. Campaign Comm., 533 U.S. 431

(2001) ...................................................................... 4

Fed. Election Comm’n v. Ted Cruz for

Senate, 596 U.S. 289 (2022) ................................... 5

Louis K. Liggett Co. v. Lee, 288 U.S. 517

(1933) ...................................................................... 6

Marbury v. Madison, 5 U.S. 137 (1803) .................. 21

McCutcheon v. Fed. Election Comm’n, 572

U.S. 185 (2014) ....................................................... 5

Standard Oil Co. of N.J. v. United States,

221 U.S. 1 (1911) .................................................... 6

Trump v. Am. Fed’n of Gov’t Emps., 145 S.

Ct. 2635 (2025) ..................................................... 22

U.S. Bank Nat’l Ass’n v. Vill. at Lakeridge,

LLC, 583 U.S. 387 (2018)..................................... 21

W. Tradition P’ship, Inc. v. Att’y Gen., 271

P.3d 1, cert. granted, rev’d sub nom., Am.

Tradition P’ship, Inc. v. Bullock, 567 U.S.

516 (2012) ............................................................. 26

Other Authorities

119 Cong. Rec. 26,321 (1973) .................................... 8

Amber Phillips, Congress’s Long History of

Doing Nothing on Climate Change, In 6

Acts, Wash. Post (Dec. 1, 2015),

https://www.washingtonpost.com/news/th

e-fix/wp/2015/12/01/congresss-longhistory-of-inaction-on-climate-change-in6-parts .................................................................. 10

America’s Climate Security Act of 2007, S.

2191, 110th Cong. (2007) ..................................... 10

Anna Massoglia, Dark Money Hit a Record

High of $1.9 Billion in 2024 Federal

Races, Brennan Ctr. for Just. (May 7,

2025),

https://www.brennancenter.org/ourwork/research-reports/dark-money-hitrecord-high-19-billion-2024-federal-races ....... 9, 24

Appendix: Speech of Charles J. Ingersoll,

U.S. Mag. & Democratic Rev., January

1839, at 99 .............................................................. 6

Ashley Parker, Outside Money Drives a

Deluge of Political Ads, N.Y. Times (July

27, 2014),

https://www.nytimes.com/2014/07/28/us/p

olitics/deluge-of-political-ads-is-driven-byoutside-money.html ............................................. 18

Brief for Petitioners, No. 24-621 (Aug. 21,

2025) ........................................................... 5, 19, 20

Brief for the Federal Respondents in

Support of Petitioners, No. 24-621 (Aug.

21, 2025) ..................................................... 5, 19, 20

Brief of U.S. Senators Sheldon Whitehouse

and John McCain as Amici Curiae in

Support of Respondents, Am. Tradition

P’ship, Inc. v. Bullock, 567 U.S. 516

(2012) (No. 11-1179) ................................. 24, 26, 28

Carbon Limits and Energy for America’s

Renewal (CLEAR) Act, S. 2877, 111th

Cong. (2009).......................................................... 10

Carrie Jenks & Sara Dewey, Environmental

and Energy Executive Orders: Initial

Insights and What We’re Watching (2025),

https://eelp.law.harvard.edu/wpcontent/uploads/2025/01/EELPEnvironmental-and-Energy-ExecutiveOrders-Jan.-2025.pdf ........................................... 15

Congress Climate History, Ctr. for Climate

& Energy Sols.,

https://www.c2es.org/content/congressclimate-history (last visited Sept. 4, 2025) ......... 10

Dan McCarthy, Chart: 96 Percent of New

US Power Capacity Was Carbon-free in

2024, Canary Media (Jan. 10, 2025),

https://www.canarymedia.com/articles/cle

an-energy/chart-96-percent-of-new-uspower-capacity-was-carbon-free-in-2024 ............ 16

Doris Kearns Goodwin, The Bully Pulpit:

Theodore Roosevelt, William Howard

Taft, and the Golden Age of Journalism

(2013) ...................................................................... 7

Edward A. Ross, Political Decay—An

Interpretation, 61 Independent 123 (1906) ........... 6

Elihu Root, Address on the Political Use of

Money (Sept. 3, 1894), in Addresses on

Government and Citizenship 141 (Robert

Bacon & James Brown Scott eds., 1916) ............... 7

Elizabeth Kolbert, How Did Fighting

Climate Change Become a Partisan

Issue?, New Yorker (Aug. 14, 2022),

https://www.newyorker.com/magazine/20

22/08/22/how-did-fighting-climatechange-become-a-partisan-issue ......................... 11

Erika Franklin Fowler & Travis N. Ridout,

Political Advertising in 2014: The Year of

the Outside Group (2014),

https://mediaproject.wesleyan.edu/wpcontent/uploads/2015/04/2014-ForumFowlerRidout_FINAL2.pdf .................................. 18

Exec. Order No. 14,154, 90 Fed Reg. 8353

(Jan. 29, 2025) ...................................................... 15

Exec. Order No. 14,261, 90 Fed. Reg. 15,517

(Apr. 8, 2025) ........................................................ 16

vii

Fossil Fuel Subsidies, IMF (Nov. 28, 2024),

https://climatedata.imf.org/datasets/d48cf

d2124954fb0900cef95f2db2724_0/about ............. 12

H.R. Rep. No. 93-1239 (1974) .................................... 8

Ian Vandewalker, Election Spending 2014:

Outside Spending in Senate Races Since

Citizens United (2015),

https://www.brennancenter.org/media/35

3/download/Report_Outside%20Spending

%20Since%20Citizens%20United.pdf?inli

ne=1 ...................................................................... 18

Inextricably Linked: How Citizens United

Halted Climate Action, Common Cause

(July 1, 2019),

https://www.commoncause.org/articles/in

extricably-linked-how-citizens-unitedhalted-climate-action ........................................... 11

Jane Mayer, Dark Money: The Hidden

History of the Billionaires Behind the Rise

of the Radical Right (Anchor Books 2017)

(2016) .................................................. 11, 12, 14, 15

Joe Hagan, The Coming Tsunami of Slime,

N.Y. Mag. (Jan. 20, 2012),

https://nymag.com/news/features/negative

-campaigning-2012-1.............................................. 9

John Kerry & Lindsey Graham, Yes We Can

(Pass Climate Change Legislation), N.Y.

Times (Oct. 10, 2009),

https://www.nytimes.com/2009/10/11/opin

ion/11kerrygraham.html...................................... 10

viii

Justin Farrell, Corporate Funding and

Ideological Polarization About Climate

Change, 113 PNAS 92 (2016),

https://www.pnas.org/doi/full/10.1073/pna

s.1509433112 ........................................................ 13

Justin Farrell, Network Structure and

Influence of the Climate Change CounterMovement, 6 Nature Climate Change 370

(2016), https://cssn.org/wpcontent/uploads/2020/12/Farrell_Nature_

climate2875.pdf .................................................... 12

Lisa Friedman et al., At a Dinner, Trump

Assailed Climate Rules and Asked $1

Billion from Big Oil, N.Y. Times (May 9,

2024),

https://www.nytimes.com/2024/05/09/clim

ate/trump-oil-gas-mar-a-lago.html ...................... 15

Martin Gilens & Benjamin I. Page, Testing

Theories of American Politics: Elites,

Interest Groups, and Average Citizens, 12

Persps. on Pol. 564 (2014) ...................................... 7

Michael A. Memoli, Senate Democrat

Defends Background Check Vote in First

Ad, L.A. Times (May 31, 2013),

https://www.latimes.com/politics/la-xpm2013-may-31-la-pn-democrat-defendsbackground-check-vote-20130531story.html ............................................................. 18

Naomi Oreskes & Erik M. Conway,

Merchants of Doubt: How a Handful of

Scientists Obscured the Truth on Issues

from Tobacco Smoke to Global Warming

(2010) .................................................................... 12

President Franklin Delano Roosevelt,

Acceptance Speech for the Renomination

for the Presidency (June 27, 1936),

https://www.presidency.ucsb.edu/docume

nts/acceptance-speech-for-therenomination-for-the-presidencyphiladelphia-pa .................................................. 6, 7

President Theodore Roosevelt, Speech on

the New Nationalism (Aug. 31, 1910), in

33 Theodore Roosevelt Ass’n J. 54 (2012),

https://theodorerooseveltcenter.org/Resea

rch/DigitalLibrary/Record?libID=o308460 ............................. 6

Press Release, Senate Foreign Rels. Comm.,

Kerry, Lieberman, Graham Release

Framework for Climate Change and

Energy Independence Legislation (Dec.

10, 2009),

https://www.foreign.senate.gov/press/rep/

release/kerry-lieberman-graham-releaseframework-for-climate-change-andenergy-independence-legislation ......................... 10

Progressive Party Platform of 1912, Am.

Presidency Project (Nov. 5, 1912),

https://www.presidency.ucsb.edu/docume

nts/progressive-party-platform-1912..................... 6

Robert C. Post, Citizens Divided: Campaign

Finance Reform and the Constitution

(2014) ...................................................................... 6

Robert J. Brulle, Institutionalizing Delay:

Foundation Funding and the Creation of

U.S. Climate Change Counter-Movement

Organizations, 122 Climatic Change 681

(2014),

https://www.researchgate.net/publication/

263114280_Institutionalizing_Delay_Fou

ndation_Funding_and_the_Creation_of_U

S_Climate_Change_CounterMovement_Organizations .............................. 13, 14

Saurav Ghosh et al., Campaign Legal Ctr.,

The Illusion of Independence: How

Unregulated Coordination Is

Undermining Our Democracy, and What

Can Be Done to Stop It (2023),

https://campaignlegal.org/sites/default/file

s/202311/Coordination%20Report%20%28Final

%20POST%20Proofing%29.pdf ........................... 24

Senator Sheldon Whitehouse, How Citizens

United Altered the Climate Debate (July

25, 2014),

https://www.whitehouse.senate.gov/news/

speeches/how-citizens-united-altered-theclimate-debate ...................................................... 10

Shawn Otto, The War on Science: Who’s

Waging It, Why It Matters, What Can We

Do About It (2016) .......................................... 13, 14

Simon Black et al., IMF Fossil Fuel

Subsidies Data: 2023 Update (Int’l

Monetary Fund, Working Paper No.

2023/169, 2023) .................................................... 12

Spencer Banzhaf, The Conservative Roots of

Carbon Pricing, Nat’l Affs. (2020),

https://nationalaffairs.com/publications/d

etail/the-conservative-roots-of-carbonpricing ................................................................... 11

Steve Coll, Private Empire: ExxonMobil and

American Power (2012) ........................................ 15

Taryn Salinas, Nature Never Forgives: 7 of

Pope Francis’s Greenest Quotes, Nat’l

Geographic (Sept. 20, 2015),

https://www.nationalgeographic.com/scie

nce/article/120150920-pope-francisenvironment-climate-quotes ................................ 16

Trevor Potter, The Failed Promise of

Unlimited “Independent” Spending in

Elections, ABA Human Rights Mag., June

25, 2020, at 22 ...................................................... 24

U.S. Energy Info. Admin., U.S. Developers

Report Half of New Electric Generating

Capacity Will Come from Solar (2025),

https://www.eia.gov/todayinenergy/detail.

php?id=65964 ....................................................... 16

U.S. S. Comm. on the Budget & U.S. H.

Comm. on Oversight & Accountability

Democrats, 118th Cong., Denial,

Disinformation, and Doublespeak: Big

Oil’s Evolving Efforts to Avoid

Accountability for Climate Change (2024) .......... 12

Rules

Fed. R. Civ. P. 52(a)(6)............................................. 21

xii

Regulations

Reconsideration of 2009 Endangerment

Finding and Greenhouse Gas Vehicle

Standards, 90 Fed. Reg. 36,288 (proposed

Aug. 1, 2025) (to be codified at 40 C.F.R.

pts. 85, 86, 600, 1036, 1037 & 1039) ................... 16

Repeal of Greenhouse Gas Emissions

Standards for Fossil Fuel-Fired Electric

Generating Units, 90 Fed. Reg. 25,752

(proposed June 17, 2025) (to be codified at

40 C.F.R. pt. 60) ................................................... 16

STATEMENT OF INTEREST 1

Amici curiae are U.S. Senators Sheldon

Whitehouse of Rhode Island, Chris Van Hollen of

Maryland, Richard Blumenthal of Connecticut,

Adam B. Schiff of California, Mazie K. Hirono of

Hawaii, and Cory Booker of New Jersey. Amici share

with this Court a strong interest in ensuring free and

fair elections, as well as preventing corrupting

influences from undermining our democracy.

SUMMARY OF THE ARGUMENT

Petitioners and respondents seek to invalidate

coordinated party expenditure limits under the

Federal Election Campaign Act, asking the Court to

overturn FEC v. Colorado Republican Federal

Campaign Committee (Colorado II).

Congress

enacted coordinated party expenditure limits to

prevent wealthy donors from circumventing

candidate contribution limits and curb the

heightened risk of corruption.

These limits,

supported by a substantial legislative record, were

part of a campaign finance system regulating the flow

of money from donors to campaigns to protect against

corruption.

Should the Court overrule Colorado II, it would

be contrary to Congress’s considered judgment,

further paving the way for corporate interests and

the mega-wealthy to exert disproportionate influence

on our democracy. We have already seen how this

1 Pursuant to Rule 37.6, no counsel for any party authored this

brief in any part, and no person or entity other than amici or

amici’s counsel made a monetary contribution to fund its

preparation or submission.

Court’s holding in Citizens United opened the

floodgates to billions in dark money, allowing

novelties like super PACs to emerge.

These

consequences distorted our political process while

exalting the wealthiest voices at the expense of

ordinary voters. In the years since, rulings by this

Court have continued to erode commonsense

campaign finance laws meant to prevent corruption,

such as aggregate limits and post-election loan

repayment limits.

This Court’s past decisions weakened Congress’s

ability to regulate the corrupting influence of money

in politics, and wreaked havoc on our political

system, causing genuine irreparable harm.

Take, for example, the prospect of legislation to

combat the dangers of climate change. Before the

fossil fuel industry was able to spend unlimited

amounts in our elections, popularly supported,

bipartisan proposals to combat climate change

flourished. Since Citizens United, barrages of fossilfuel dark money have killed any prospect of

advancing such legislation. What’s more, this erosion

of campaign finance regulation has fundamentally

disrupted the cadence of our elections by enabling

ever longer barrages of anonymous political attacks

backed by unlimited funding sources.

These results should be a cautionary tale against

the further erosion petitioners and respondents

request now.

Worse, many of petitioners’ and respondents’

arguments rely upon a foundation of fact-finding by

the Court that has been proven to be demonstrably

wrong. They point to facts that have become

obsolete—such as perceived party dominance—as a

reason this Court should consider overturning

Colorado II.

If any decision should be reconsidered, it is

Citizens United. Citizens United’s central reasoning,

which declared that unlimited corporate political

expenditures would not give rise to the reality or

appearance of corruption, was founded on two factfinding conclusions made by this Court, contrary to

Congress’s voluminous legislative record. The two

conclusions were that such expenditures would be:

(a) independent of political campaigns; and (b)

transparent to the public regarding their sources

(hereinafter “independence” and “transparency”).

Fifteen years later, it is now plain that this Court’s

fact-finding has proven to be incorrect. Further, the

Court’s erroneous conclusions of fact had no factual

record from the courts below supporting its

conclusion that unlimited corporate political

spending would not have a corrupting effect. Indeed,

the decision recognized the corrupting effect of dark

money in its insistence that the newly unlimited

political funding would be transparent.

This Court should heed the lessons learned in the

aftermath of Citizens United and decline the request

to further distort our political process by

undermining Congress’s ability to regulate campaign

finance. Rather than considering the reversal of

Colorado II, the Court should reconsider Citizens

United at the first possible opportunity.

ARGUMENT

JUDICIAL DECISIONS WEAKENING CAMPAIGN

FINANCE

LAWS

HAVE

UNLEASHED

UNPRECEDENTED

SPECIAL

INTEREST

INFLUENCE IN U.S. ELECTIONS

A. Striking Down Limits on Coordinated

Party Expenditures Would Continue a

Harmful Trend of Weakening Basic

Campaign Finance Laws

In this case, the petitioners and respondents ask

the Court to strike down coordinated party

expenditure limits that this Court previously upheld

in Colorado II. In affirming the constitutionality of

the limits, this Court in Colorado II reasoned that

without such limits, donors could circumvent

candidate contribution limits by availing themselves

of the higher contribution limit for political parties,

which could then be passed on to the candidates,

heightening the danger of corruption. 2

Coordinated party expenditure limits, which

range in the tens of thousands to a few million

dollars, may seem quaint in the current age of super

PACs. Therein lies the problem. The limits at issue

appear quaint only because so many other guardrails

to prevent corruption in our democracy have been cut

down.

In 2010, with Citizens United, the Court

empowered corporations and donor-obfuscating

nonprofits to pour unlimited amounts of money into

2 See Fed. Election Comm’n v. Colo. Republican Fed. Campaign

Comm., 533 U.S. 431, 464-65 (2001).

our elections, 3 changing the scale of donations from

any single entity from thousands to millions. In

2014, with McCutcheon, the Court struck down the

aggregate limits on the amount an individual may

contribute, 4 further expanding the influence of megawealthy individuals. In Ted Cruz for Senate, the

Court invalidated the post-election loan repayment

limit, allowing donors to fill the personal coffers of

someone already elected into office. 5

Now,

petitioners and respondents point to these same

decisions, and the reality created by these decisions

as reasons to overturn Colorado II. 6 However,

eliminating limits on coordinated party expenditures

would only exacerbate the harms that decades of

eroding checks on money in politics have inflicted on

our body politic and further diminish Congress’s

responsiveness to the public.

B. Petitioners’ and Respondents’ Goal Is

to Find Another Way to Increase the

Unregulated Use of Money in Political

Campaigns

There can be little question that money is

legendarily corrupting in politics, with particular

danger from concentrations of money, often in

corporate form. Presidents, justices, judges, and

historians over many decades have warned of “the

3 Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365-66

(2010).

4 McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 192-93

(2014).

5 Fed. Election Comm’n v. Ted Cruz for Senate, 596 U.S. 289,

311-13 (2022).

See, e.g., Brief for the Federal Respondents in Support of

Petitioners at 3-5, No. 24-621 (Aug. 21, 2025); Brief for

Petitioners at 43, No. 24-621 (Aug. 21, 2025).

distinctive corrupting potential of corporate

electioneering,” 7 calling it a “resolute enemy within

our gates,” 8 “an invisible government,” 9 a “sinister

influence,” 10 an “overshadowing influence,” 11 a “force

devoted to wresting government from the people,” 12 a

“real danger,” 13 an “insidious menace,” 14 a “web of

7 Citizens United, 558 U.S. at 479 (Stevens, J., concurring in

part and dissenting in part).

8 President Franklin Delano Roosevelt, Acceptance Speech for

the Renomination for the Presidency (June 27, 1936),

https://www.presidency.ucsb.edu/documents/acceptancespeech-for-the-renomination-for-the-presidency-philadelphiapa [hereinafter Roosevelt, Acceptance Speech].

9 Progressive Party Platform of 1912, Am. Presidency Project

(Nov.

1912),

https://www.presidency.ucsb.edu/documents/progressive-partyplatform-1912.

President Theodore Roosevelt, Speech on the New

Nationalism (Aug. 31, 1910), in 33 Theodore Roosevelt Ass’n J.

54,

(2012),

https://theodorerooseveltcenter.org/Research/DigitalLibrary/Record?libID=o308460.

11 Appendix: Speech of Charles J. Ingersoll, U.S. Mag. &

Democratic Rev., January 1839, at 99, 105.

12 Robert C. Post, Citizens Divided: Campaign Finance Reform

and the Constitution 28 (2014) (emphasis omitted) (quoting

Edward A. Ross, Political Decay—An Interpretation, 61

Independent 123, 124 (1906)).

13 Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 83 (1911)

(Harlan, J., concurring in part and dissenting in part).

14 Louis K. Liggett Co. v. Lee, 288 U.S. 517, 549 (1933) (Brandeis,

J., dissenting in part).

corruption,” 15 “a constantly growing evil,” 16 and “a

dictatorship by . . . the over-privileged.” 17

It is worse, as Citizens United recognized, when

the concentrations of money are shrouded in

anonymity. 18 Money being the “mother’s milk of

politics,” huge concentrations of anonymized money

naturally shift the attention of the political class

away from regular voters and toward big donors.

Academic studies have confirmed this: “economic

elites and organized groups representing business

interests have substantial independent impacts on

U.S. government policy, while mass-based interest

groups and average citizens have little or no

independent influence.” 19

With the Federal Election Campaign Act of 1971

(FECA) and the McCain-Feingold Bipartisan

Campaign Reform Act of 2002 (BCRA), Congress

tried to stem the tide of special interest influence in

our political system by setting bipartisan,

commonsense, fact-based limits on election spending.

The members of Congress who passed these bills had

firsthand knowledge of how money flows between

campaigns and donors, how susceptible members of

Congress may become to donor influence, and

15 Doris Kearns Goodwin, The Bully Pulpit: Theodore Roosevelt,

William Howard Taft, and the Golden Age of Journalism 372

(2013).

16 Elihu Root, Address on the Political Use of Money (Sept. 3,

1894), in Addresses on Government and Citizenship 141, 143

(Robert Bacon & James Brown Scott eds., 1916).

17 Roosevelt, Acceptance Speech, supra note 8.

18 See Citizens United, 558 U.S. at 370-71.

19 Martin Gilens & Benjamin I. Page, Testing Theories of

American Politics: Elites, Interest Groups, and Average Citizens,

12 Persps. on Pol. 564, 565 (2014).

consequently how important it is to set appropriate

rules and limits for the system. But they did not rely

solely on their own experiences. For both FECA and

BCRA, Congress compiled “a virtual mountain of

research” supporting why the bills were necessary to

curb corruption. 20

Despite this extensive record and the

bipartisanship of the reforms, a series of this Court’s

rulings have made it easier for corporations and

wealthy individual megadonors to unleash their

corporate wealth in U.S. elections. These rulings

have eroded our most fundamental campaign finance

rules, unbalancing our efforts to limit corruption in

our democracy against the power of corporations and

the mega-wealthy to drown out everyone else.

20 Citizens United, 558 U.S. at 400 (Stevens, J., concurring in

part and dissenting in part); see also H.R. Rep. No. 93-1239, at

3 (1974) (“The unchecked rise in campaign expenditures,

coupled with the absence of limitations on contributions and

expenditures, has increased the dependence of candidates on

special interest groups and large contributors. Under the

present law the impression persists that a candidate can buy an

election by simply spending large sums in a campaign.”); 119

Cong. Rec. 26,321 (1973) (debating a predecessor bill to the

Federal Election Campaign Act Amendments of 1974, which

amended FECA, Senator Mathias stated, “An [individual] who

could contribute $100,000 to a party could well envision that

that money, by some arrangement, would be directed to a

candidate. Such arrangements are not unknown.”); Buckley v.

Valeo, 519 F.2d 821, 836-40 (D.C. Cir. 1975), aff’d in part, rev’d

in part, 424 U.S. 1 (1976).

C. For

One

Example,

Judicial

Undermining of Campaign Finance

Laws Has Enabled Massive Fossil Fuel

Spending,

Blocking

Legislative

Progress and Promoting Climate

Denialism

One obvious example of how vast contributions

by well-heeled corporate and private entities have

had malignant practical effect is in the corrupting

efforts of the fossil fuel industry. Through the use of

their vast resources, they have been able to drown out

the public’s voice and thwart extremely popular

attempts at reform.

The presence of enormous anonymous political

spending degrades the quality of political speech, and

the damage since Citizens United in particular has

been profound. Stripping political advertising of

accountability by allowing speech through shell

entities washed a “tsunami of slime” 21 over voters.

Novel anonymizing creatures like super PACs (which

need only reveal the immediate, not the actual,

donor), emerged to stalk our political landscape.

Anonymizing schemes have grown like weeds. 22

Before Citizens United, there was lively and

popularly supported bipartisan Senate activity to

21 Joe Hagan, The Coming Tsunami of Slime, N.Y. Mag. (Jan.

20,

2012),

https://nymag.com/news/features/negativecampaigning-2012-1.

22 See Anna Massoglia, Dark Money Hit a Record High of $1.9

Billion in 2024 Federal Races, Brennan Ctr. for Just. (May 7,

2025),

https://www.brennancenter.org/our-work/researchreports/dark-money-hit-record-high-19-billion-2024-federalraces.

address

fossil-fuel-induced

climate

change. 23

Republican Senator John Warner of Virginia had a

climate bill with Independent Joe Lieberman of

Connecticut (who caucused with Democrats); 24

Democratic Senator Maria Cantwell of Washington

had a climate bill with Republican Senator Susan

Collins of Maine. 25 The bipartisan climate work of

Senator John Kerry of Massachusetts and Senator

Lindsey Graham of South Carolina was widely

reported. 26

John McCain ultimately ran for

President in 2008 on a Republican party platform

with a sound and sturdy climate change plank. 27

23 See, e.g., Senator Sheldon Whitehouse, How Citizens United

Altered

the

Climate

Debate

(July

25,

2014),

https://www.whitehouse.senate.gov/news/speeches/howcitizens-united-altered-the-climate-debate; Congress Climate

History,

Ctr.

for

Climate

Energy

Sols.,

https://www.c2es.org/content/congress-climate-history

(last

visited Sept. 4, 2025).

24 America’s Climate Security Act of 2007, S. 2191, 110th Cong.

(2007).

25 Carbon Limits and Energy for America’s Renewal (CLEAR)

Act, S. 2877, 111th Cong. (2009).

26 See, e.g., John Kerry & Lindsey Graham, Yes We Can (Pass

Climate Change Legislation), N.Y. Times (Oct. 10, 2009),

https://www.nytimes.com/2009/10/11/opinion/11kerrygraham.h

tml; Press Release, Senate Foreign Rels. Comm., Kerry,

Lieberman, Graham Release Framework for Climate Change

and Energy Independence Legislation (Dec. 10, 2009),

https://www.foreign.senate.gov/press/rep/release/kerrylieberman-graham-release-framework-for-climate-change-andenergy-independence-legislation.

27 See Amber Phillips, Congress’s Long History of Doing Nothing

on Climate Change, In 6 Acts, Wash. Post (Dec. 1, 2015),

https://www.washingtonpost.com/news/thefix/wp/2015/12/01/congresss-long-history-of-inaction-onclimate-change-in-6-parts.

After Citizens United in January of 2010, this

bipartisan activity ended—instantly. Since Citizens

United, the number of serious bipartisan bills in the

Senate on climate change, over a period of now more

than fifteen years, is zero. 28 The before-and-after of

dark money’s power could not be more stark.

This about-face happened because the fossil fuel

industry could go to Senate leadership and credibly

assert that they could funnel unlimited money into

elections, and further credibly assert that they could

hide that it was them. All they needed in return was

an immediate end to bipartisanship on any

significant legislation directed at reducing fossil-fuel

emissions. 29

To put this fossil-fuel campaign in scale:

Economics 101 teaches that the harms of a product,

what economists call “negative externalities,” are a

cost of production and belong in the price of the

product. Even uber-conservative economist Milton

Friedman believed that. 30 Getting to pollute for free

is a subsidy, in economic terms, and the pollute-forfree subsidy of the fossil fuel industry in the United

See, e.g., Elizabeth Kolbert, How Did Fighting Climate

Change Become a Partisan Issue?, New Yorker (Aug. 14, 2022),

https://www.newyorker.com/magazine/2022/08/22/how-didfighting-climate-change-become-a-partisan-issue; Inextricably

Linked: How Citizens United Halted Climate Action, Common

Cause

(July

2019),

https://www.commoncause.org/articles/inextricably-linkedhow-citizens-united-halted-climate-action.

29 See Jane Mayer, Dark Money: The Hidden History of the

Billionaires Behind the Rise of the Radical Right 275-76 (2016).

30 See Spencer Banzhaf, The Conservative Roots of Carbon

Pricing,

Nat’l

Affs.

(2020),

https://nationalaffairs.com/publications/detail/theconservative-roots-of-carbon-pricing.

States has been calculated at $700 billion every

year. 31 A $700 billion annual subsidy is a lot of

motive for the fossil fuel industry to exert political

influence. 32

Experts who examine the climate denial

apparatus describe it as “a complex network of think

tanks, foundations, public relations firms, trade

associations, and ad hoc groups” whose “complex

counter-movement

efforts . . . foster

intractable

uncertainty” about real climate science, “to create

31 See Simon Black et al., IMF Fossil Fuel Subsidies Data: 2023

Update 18 (Int’l Monetary Fund, Working Paper No. 2023/169,

2023); Fossil Fuel Subsidies, IMF (Nov. 28, 2024),

https://climatedata.imf.org/datasets/d48cfd2124954fb0900cef95

f2db2724_0/about.

32 It has not just been election spending, either. There has been

a full, often covert, campaign of disinformation and influence.

Front groups by the dozen were established to communicate the

disinformation.

Existing political advocacy groups were

enlisted into the fossil-fuel effort. Deregulatory doctrines that

would help fossil-fuel polluters were seeded, watered and

fertilized in fossil-fuel-funded legal-theory hothouses. Polltested messaging was developed and propagated by fossil-fuelfunded public relations shops.

An entire ecosystem of

disinformation and secretive influence emerged. See generally

Mayer, supra note 29, at 243-77; U.S. S. Comm. on the Budget

& U.S. H. Comm. on Oversight & Accountability Democrats,

118th Cong., Denial, Disinformation, and Doublespeak: Big

Oil’s Evolving Efforts to Avoid Accountability for Climate

Change 5-6 (2024); Naomi Oreskes & Erik M. Conway,

Merchants of Doubt: How a Handful of Scientists Obscured the

Truth on Issues from Tobacco Smoke to Global Warming 169215 (2010).

33 Justin Farrell, Network Structure and Influence of the

Climate Change Counter-Movement, 6 Nature Climate Change

370,

373

(2016),

https://cssn.org/wpcontent/uploads/2020/12/Farrell_Nature_climate2875.pdf.

ideological polarization around climate change” 34

because it is “well understood that polarization is an

effective strategy for creating controversy and

delaying policy progress, especially around

environmental issues.” 35

This “deliberate and

organized effort to misdirect the public discussion

and distort the public’s understanding of climate

change” 36 spans “a wide range of activities, including

political lobbying, contributions to political

candidates, and a large number of communication

and media efforts that aim at undermining climate

science.” 37

When “vested economic interests sense a

potentially lethal blow to their production systems,”

they “fight the proposed changes by denying the

environmental effects, maligning and impeaching

witnesses, questioning the science, attacking or

impugning the scientists, and/or arguing that other

factors are causing the mounting disaster.” 38 They

do this using an

industry and public-relations front, financed

by corporations and conducted by PR experts,

shills, and front groups, who take advantage

Justin Farrell, Corporate Funding and Ideological

Polarization About Climate Change, 113 PNAS 92, 93 (2016),

https://www.pnas.org/doi/full/10.1073/pnas.1509433112.

35 Id. at 96-97.

36 Robert J. Brulle, Institutionalizing Delay: Foundation

Funding and the Creation of U.S. Climate Change CounterMovement Organizations, 122 Climatic Change 681, 682 (2014),

https://www.researchgate.net/publication/263114280_Institutio

nalizing_Delay_Foundation_Funding_and_the_Creation_of_U

S_Climate_Change_Counter-Movement_Organizations.

37 Id.

38 Shawn Otto, The War on Science: Who’s Waging It, Why It

Matters, What Can We Do About It 130 (2016).

of journalists’ naivety about objectivity and

truth in order to manipulate the media,

thereby shaping public opinion using

“uncertainties,” deception, personal attacks,

and outrage to move public policy toward an

antiscience position that supports the

funders’ business objectives. 39

The loosening of campaign restrictions has

empowered this anti-democratic apparatus.

The machine that has developed is enormous. As

much as $750 million has been redistributed through

the identity-scrubbing DonorsTrust, 40 an entity

which has provided about a quarter of the funding for

the climate denial operation. 41 Other front groups

routinely hide the source of their funding, getting

over 90 percent of their money from hidden sources. 42

Exxon, for instance, worked through

a kaleidoscope of overlapping and competing

influence campaigns, some open, some

conducted by front organizations, and some

entirely clandestine.

Strategists created

layers of disguise, subtlety, and subterfuge—

corporate-funded “grassroots” programs and

purpose-built think tanks, as fingerprint-free

as possible.

In such an opaque and

untrustworthy atmosphere, the ultimate

advantage lay with any lobbyist whose goal

was to manufacture confusion and perpetual

39 Id. at 342.

40 Mayer, supra note 29, at 253.

41 Id. at 254.

42 Brulle, supra note 36, at 685.

controversy. On climate, this happened to be

the oil industry’s position. 43

The Koch political operation, representing Koch

Industries fossil fuel operations and fossil fuel

generally, had as its primary political dreadnought

Americans for Prosperity. That group is happy to

brag about its influence, touting its message to

candidates that if you support clean energy, “you do

so at your political peril,” and crowing about its

success: “The vast majority of people who are

involved in the [Republican] nominating process—

the conventions and the primaries—are suspect of

the science. And that’s our influence. Groups like

Americans for Prosperity have done it.” 44

The situation has become so dire that the current

president himself made an ask to a roomful of fossilfuel executives for a billion dollars in campaign

support. 45 Upon election, he then redefined “energy”

in an executive order as not including solar energy or

wind energy, 46 even though they constitute, together

with batteries, 95 percent of the new energy added to

43 Steve Coll, Private Empire: ExxonMobil and American Power

86 (2012).

44 Mayer, supra note 29, at 342.

45 See Lisa Friedman et al., At a Dinner, Trump Assailed

Climate Rules and Asked $1 Billion from Big Oil, N.Y. Times

(May

2024),

https://www.nytimes.com/2024/05/09/climate/trump-oil-gasmar-a-lago.html.

46 See, e.g., Exec. Order No. 14,154, 90 Fed Reg. 8353, 8354 (Jan.

29, 2025); Carrie Jenks & Sara Dewey, Environmental and

Energy Executive Orders: Initial Insights and What We’re

Watching

(2025),

https://eelp.law.harvard.edu/wpcontent/uploads/2025/01/EELP-Environmental-and-EnergyExecutive-Orders-Jan.-2025.pdf.

the grid last year. 47 Instead, the administration

launched a barrage of policies favoring fossil fuel. 48

Unlimited anonymous political money has thus

created a parallel political universe unhinged from

reality, in which climate science is a “hoax” despite

having a universal scientific consensus; wind and

solar energy are not “energy” (at this level of climate

denial, even the dictionary no longer pertains); and

in which it is now routine that fossil fuel executives

will be expected to produce for political candidates

hundreds of millions of dollars in return for influence.

When we face dangers to Earth’s natural systems

driven by the laws of physics, chemistry, and biology,

this parallel political universe is a very dangerous

place. Natural laws of science cannot be repealed or

amended. To paraphrase Pope Francis, “Nature does

not forgive. You slap her, and she will slap you

back.” 49

47 See U.S. Energy Info. Admin., U.S. Developers Report Half of

New Electric Generating Capacity Will Come from Solar (2025),

https://www.eia.gov/todayinenergy/detail.php?id=65964; Dan

McCarthy, Chart: 96 Percent of New US Power Capacity Was

Carbon-free in 2024, Canary Media (Jan. 10, 2025),

https://www.canarymedia.com/articles/clean-energy/chart-96percent-of-new-us-power-capacity-was-carbon-free-in-2024.

48 See, e.g., Repeal of Greenhouse Gas Emissions Standards for

Fossil Fuel-Fired Electric Generating Units, 90 Fed. Reg. 25,752

(proposed June 17, 2025) (to be codified at 40 C.F.R. pt. 60);

Reconsideration of 2009 Endangerment Finding and

Greenhouse Gas Vehicle Standards, 90 Fed. Reg. 36,288

(proposed Aug. 1, 2025) (to be codified at 40 C.F.R. pts. 85, 86,

600, 1036, 1037 & 1039); Exec. Order No. 14,261, 90 Fed. Reg.

15,517 (Apr. 8, 2025).

49 Taryn Salinas, Nature Never Forgives: 7 of Pope Francis’s

Greenest Quotes, Nat’l Geographic (Sept. 20, 2015),

https://www.nationalgeographic.com/science/article/120150920

-pope-francis-environment-climate-quotes.

Since Citizens United, a science question has

been torqued into a political litmus test in the culture

wars by a special interest with a multi-hundredbillion-dollar motive to wreak political mischief. The

one consistent message to Republican politicians has

been that you participate in bipartisanship on

climate pollution at your electoral peril. And the

result after Citizens United is that bipartisanship

has been snuffed out.

D. Judicial Dismantling of Campaign

Finance Laws Has Distorted Our

Elections

To political observers, another notable effect in

the Senate has been the disruption of the customary

cadence of our elections. Ordinarily, a candidate

would declare candidacy, begin raising money, and

the race for money would become an interim proxy

for how well the candidate is doing. Cash on hand is

closely watched as a sign of strength. Unless an

unknown candidate needs to spend money early for

name recognition, election money is usually

husbanded for the final surge before Election Day

when voters are tuned in. At this point, campaigns

tend to saturate the media with ads, and gear up fully

with staff, volunteers, and phone-bankers. This was

our customary cadence. Spending money too early,

outside this customary cadence, rarely made sense.

Almost immediately, Citizens United upended

this usual cadence. Money began to pour in earlier

in the cycle and in unprecedented amounts. In 2014,

candidates running for the Senate began to be

attacked with paid media as early as May the year

before the election; 50 by that August all the major

contests were being blanketed with political

advertisements. 51 That early-spending tactic would

not make sense unless one knew that there would be

unlimited monetary support all the way through the

election; that political money was now a non-scarce

resource; that money no longer had to be husbanded

until the closing surge, because it was unlimited—at

least for those candidates with big-money backers

who had assured the campaigns that they were

willing to spend whatever, whenever.

Indeed, at over $480 million, outside spending on

the 2014 Senate elections more than doubled that of

Outside groups actually outspent the

2010. 52

candidates—sometimes by more than double—in 80

percent of competitive 2014 Senate races. 53

Billionaires and corporate entities were catching on

50 See Michael A. Memoli, Senate Democrat Defends Background

Check Vote in First Ad, L.A. Times (May 31, 2013),

https://www.latimes.com/politics/la-xpm-2013-may-31-la-pndemocrat-defends-background-check-vote-20130531story.html.

51 See, e.g., Ashley Parker, Outside Money Drives a Deluge of

Political

Ads,

N.Y.

Times

(July

27,

2014),

https://www.nytimes.com/2014/07/28/us/politics/deluge-ofpolitical-ads-is-driven-by-outside-money.html; Erika Franklin

Fowler & Travis N. Ridout, Political Advertising in 2014: The

Year

the

Outside

Group

(2014),

https://mediaproject.wesleyan.edu/wpcontent/uploads/2015/04/2014-ForumFowlerRidout_FINAL2.pdf.

52 See Ian Vandewalker, Election Spending 2014: Outside

Spending in Senate Races Since Citizens United 1 (2015),

https://www.brennancenter.org/media/353/download/Report_O

utside%20Spending%20Since%20Citizens%20United.pdf?inlin

e=1.

53 See id.

to the fact that they could make a political donation

in any amount, launder it through one or more

501(c)(4) organizations, which do not have to disclose

donors, and land it in a super PAC to launch fullscale attack campaigns. With this new construct in

place, the prospects of meaningful, bipartisan climate

legislation, and many other reforms that could be

done on a bipartisan basis, were buried. Among

political practitioners, the lesson has been learned.

History will report harshly on how Congress has

been disabled in so many areas by industry pressure,

made possible by the combined threat and actuality

of unlimited anonymous special-interest spending.

This Court should reject the invitation to venture

further down this road here.

II.

IF ANY CASE WARRANTS RECONSIDERATION

DUE TO A DEBUNKED FACTUAL PREDICATE, IT

IS CITIZENS UNITED

A. Citizens United Is Responsible for the

Changed

Circumstances

the

Petitioners and Respondents Cite to

Justify Overruling Colorado II

Urging the Court to overrule Colorado II,

petitioners and respondents point to “factual

presuppositions” that have “become obsolete” 54 and

“eroded the foundations” 55 of the Court’s judgment in

that case. 56 The petitioners point out how, although

Colorado II assumed that political parties would

remain dominant players in federal elections, the

54 Brief for the Federal Respondents in Support of Petitioners,

supra note 6, at 4.

55 Id. at 12.

56 Id. at 4, 35; Brief for Petitioners, supra note 6, at 44-45.

“official arrival of Super PACs . . . made them a ‘far

better vehicle’ for donors,” with “non-party

independent expenditures . . . [having] shot up by

over 114 times.” 57 The respondents also argue,

“Colorado II assumed that donors would try to

circumvent contribution limits by giving money to

political parties, but donors now have ample

alternative avenues to make contributions for

political speech, such as giving to Super PACs.” 58

The argument in a nutshell is “we have made the

system rotten, make it rotten all the way.” The

appropriate remedy is not to further dismantle

Congress’s anti-corruption protections, but to

reconsider Citizens United. It is that decision that

unleashed brazen coordination between super PACs

and candidates, belying the supposed “independence”

of the newly unlimited funding. Billions in dark

money, where the true source of a political donation

is obscured from the public, has been spent since

Citizens United, belying the supposed “transparency”

of the unlimited spending.

Our present reality explodes the factual

presuppositions underlying the Court’s central

reasoning in Citizens United. This Court should take

the first possible opportunity to revisit and correct

those false facts. And the resulting holding in

Citizens United, which lies at the heart of our

crumbling anti-corruption efforts, should be

reconsidered—not Colorado II.

57 Brief for Petitioners, supra note 6, at 45.

58 Brief for the Federal Respondents in Support of Petitioners,

supra note 6, at 4.

B. The Citizens United Decision Was

Based on Improper and Incorrect

Appellate Fact-Finding

It has long been the Court’s assertion that it is its

“province and duty . . . to say what the law is.” 59

Other branches have long given deference to that

state of affairs. It has never, however, been the role

of the Supreme Court to conduct independent factfinding.

This Court’s private deliberations may actually

be the worst venue in all of government for factfinding to take place. The judicial fact-finding

function belongs in lower courts, where facts are

informed by the disclosures of discovery, challenged

in the contest between adversaries, tested by the

rigor of trial, subject (often) to the scrutiny of experts,

and ultimately reviewable on appeal (albeit protected

by the daunting “clearly erroneous” standard of

review). 60 That most deferential standard of review

reflects that fact-finding belongs in lower courts;

indeed, it is commonplace for appellate courts to send

decisions back to the trial court for further factfinding consistent with the appellate opinion. As

Justice Jackson has explained, “[d]istrict courts are

59 Marbury v. Madison, 5 U.S. 137, 177 (1803).

60 See, e.g., U.S. Bank Nat’l Ass’n v. Vill. at Lakeridge, LLC, 583

U.S. 387, 394 (2018) (“By well-settled rule . . . factual findings

are reviewable only for clear error . . . .”); Fed. R. Civ. P.

52(a)(6); Anderson v. City of Bessemer City, 470 U.S. 564, 573

(1985) (“This [clearly erroneous] standard plainly does not

entitle a reviewing court to reverse the finding of the trier of fact

simply because it is convinced that it would have decided the

case differently.”).

far better suited than appellate courts (this one

especially) to evaluate facts on the ground.” 61

The errors the Court made fifteen years ago were

errors of fact-finding. Since the errors were made

during the Court’s private deliberations, they

enjoyed few of the safeguards of lower-court factfinding. Indeed, the Court found these facts without

the benefit of a record.

The Court might have suggested that its

proposed facts were possible, perhaps even plausible,

and sent them back for a robust factual

determination as to whether they were accurate;

instead, the Court made final factual determinations

itself, sua sponte. Justice Stevens recognized at the

time that the record supporting that determination

was “not simply incomplete or unsatisfactory; it is

nonexistent. Congress crafted BCRA in response to

a virtual mountain of research on the corruption that

previous legislation had failed to avert. The Court

now negates Congress’ efforts without a shred of

evidence.” 62 Errors in fact-finding by the Court are

not entitled to separation-of-powers deference from

other branches in our constitutional scheme. Rather,

the Supreme Court is here to say what the law is.

The factual determination in Citizens United

that no risk of corruption would result from the

61 Trump v. Am. Fed’n of Gov’t Emps., 145 S. Ct. 2635, 2636,

2640 (2025) (Jackson, J., dissenting from the grant of stay)

(“[F]rom its lofty perch far from the facts or the evidence, this

Court lacks the capacity to fully evaluate, much less responsibly

override, reasoned lower court factfinding about what this

challenged executive action actually entails.”).

62 Citizens United, 558 U.S. at 400 (Stevens, J., concurring in

part and dissenting in part).

release of unlimited political money into American

elections 63 was at best a debatable proposition at the

time. This determination relied on two factual

predicates, both of which have been proven false.

One factual predicate was that the newly

released funding would remain independent of

candidates’ campaigns. As this Court explained,

“[b]y definition, an independent expenditure is

political speech presented to the electorate that is not

coordinated with a candidate.” 64 The Court then

incorrectly predicted there would be “separation

between candidates and independent expenditure

groups.” 65

The second factual predicate was that the newly

unleashed political funding would be transparent (or

as the decision said, subject to “effective

disclosure” 66). Essentially, this Court concluded that

voters would know who was behind the newly

unleashed funding. Neither of these predictions has

proven true.

Id. at 357 (majority opinion) (“[W]e now conclude that

independent expenditures, including those made by

corporations, do not give rise to corruption or the appearance of

corruption.”).

64 Id. at 360.

65 Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 564

U.S. 721, 751 (2011) (citing Citizens United, 558 U.S. at 357-61).

66 Citizens United, 558 U.S. at 370 (“A campaign finance system

that pairs corporate independent expenditures with effective

disclosure has not existed before today. . . . With the advent of

the Internet, prompt disclosure of expenditures can provide

shareholders and citizens with the information needed to hold

corporations and elected officials accountable for their positions

and supporters.”).

Full fact-finding in a trial court at the time would

surely have revealed the extent to which the

supposed “independence” of outside spending would

prove to be a sham. There is simply too little evidence

of “independence,” and too much evidence of

coordination, for this factual proposition to remain

credible. 67

Absolutely erroneous is the Court’s fact-finding

about transparency.

Since the Citizens United

decision, at least $4.3 billion dollars in dark money

has been spent. 68 Multiple billions of dark-money

dollars, indisputably disproving that predicate fact,

should count for something.

The Court must reckon now with the fact that

these two factual predicates, “independence” and

“transparency,” have both proven incorrect; one

67 See, e.g., Brief of U.S. Senators Sheldon Whitehouse and John

McCain as Amici Curiae in Support of Respondents at 9-12, Am.

Tradition P’ship, Inc. v. Bullock, 567 U.S. 516 (2012) (No. 111179) (“In sum, super PACs are coordinating with campaigns,

and they are using methods the Court did not contemplate in its

Citizens United decision.”); Saurav Ghosh et al., Campaign

Legal Ctr., The Illusion of Independence: How Unregulated

Coordination Is Undermining Our Democracy, and What Can

Done

Stop

(2023),

https://campaignlegal.org/sites/default/files/202311/Coordination%20Report%20%28Final%20POST%20Proofin

g%29.pdf (“There is a severe disconnect between the

aspirational vision of independent electoral advocacy outlined

in Citizens United and the everyday reality of how super PACs,

nonprofits, and other outside spending groups are operating.

The lofty notion that corporate electoral spending would be

‘independent,’ and would therefore not raise the risk of

corruption, has fallen short.”); Trevor Potter, The Failed

Promise of Unlimited “Independent” Spending in Elections, ABA

Human Rights Mag., June 25, 2020, at 22.

68 Massoglia, supra note 22.

almost certainly, and the other absolutely certainly.

Indisputably, both conclusions now amount to “clear

error.”

The analytical structure of Citizens United

collapses without these findings. This brief is not

here to kibitz about passing or incidental errors of

fact exhumed from the past; these fact-finding errors

were mission-critical to this Court’s result.

Congress has the power and duty to defend the

integrity, and even the appearance of integrity in

voters’ minds, of the elections that are at the heart of

our American experiment. The only way for the

Court to erase Congress’s role in election integrity

was for the decision to erase the prospect of

corruption (or even the appearance thereof); and the

only way to erase the prospect of corruption and the

role of Congress was to find as a fact that there would

not be corruption. That counter-intuitive (and now

demonstrably counter-factual) proposition needed

legs to stand on, and the legs it stood on were the two

predicate factual findings described above. Without

them, the legs of the argument collapse, the

argument about corruption falls, the prospect of

corruption (or the appearance thereof) re-emerges,

and Congress should regain its role protecting the

integrity of elections from corruption (or the

appearance thereof). The bottom line is that these

now-clearly-erroneous

“facts”

were

outcomedeterminative, as well as false.

C. This Court Should Now Also Correct

the Error It Refused to Address in

Bullock

Shortly after Citizens United let unlimited

money into federal elections, a case from Montana

came to this Court challenging that decision’s

application to state-run elections. 69 The challenge

came from a state with a proven history of big-money

election corruption and a 100-year-old campaign

finance law that the Montana Supreme Court had

held was justified by a compelling anti-corruption

interest

in limiting

corporate

independent

expenditures in the state.

In that case, Senators

McCain and Whitehouse filed an amicus brief

explaining that, even only two years post-decision,

both of Citizens United’s factual predicates had

already collapsed and been conclusively proven

false. 71

Senator McCain was perhaps uniquely

knowledgeable about election law and election

integrity: as an elected official subject to regular

election, as the author of the McCain-Feingold

election finance reform, and as a candidate who at

the highest level of political contest carried his

party’s banner into a presidential election. Decorrupting American elections was a battle that

69 See Am. Tradition P’ship, Inc., 567 U.S. at 516 (per curiam).

70 W. Tradition P’ship, Inc. v. Att’y Gen., 271 P.3d 1, 7-11, cert.

granted, rev’d sub nom., Am. Tradition P’ship, Inc. v. Bullock,

567 U.S. 516 (2012) (per curiam).

71 Brief of U.S. Senators Sheldon Whitehouse and John McCain

as Amici Curiae in Support of Respondents, supra note 67, at 817.

defined Senator McCain’s long and distinguished

career in the Senate.

The Court failed to consider the import of that

brief, refusing to allow argument and summarily

reversing the Montana Supreme Court’s judgment on

the basis that the case was controlled by Citizens

United—without attending to or addressing the plain

errors of fact-finding within Citizens United. 72

Justice Breyer pointed out in dissent that “Montana’s

experience, like considerable experience elsewhere

since the Court’s decision in Citizens United, casts

grave doubt on the Court’s supposition that

independent expenditures do not corrupt or appear to

do so.” 73 Yet the factual errors lived on, and billions

in corrupting dark money kept flowing.

Proper fact-finding, in its proper place in the

judicial structure, would likely show that Citizens

United has in fact already corrupted American

elections. The proposition that secretly sourced,

unlimited election funding induces corruption is

almost too obvious to require argument. Citizens

United implicitly accepted that obvious truth by

embarking on the fact-finding excursion to declare

that unlimited election funding would be

transparent.

In effect, the Court has already

accepted that unlimited dark money in elections

produces, or at least risks, political corruption.

As Senators Whitehouse and McCain’s brief

argued, money actually need not even to be spent to

be corrupting; mere threats and promises backed by

the power to spend unlimitedly (and anonymously)

72 See Am. Tradition P’ship, Inc., 567 U.S. at 516-17.

73 Id. at 517 (Breyer, J., dissenting).

could be corrupting, while leaving no financial

trace. 74 The natural secrecy of such threats and

promises actually makes the threat of undetected

corruption far worse than if massive funds are

actually visibly (though anonymously) spent.

Humankind faces a lot of danger right now; and

it is in significant part the result of political failure,

a failure enabled by two demonstrably false facts

arrived at in closed, private deliberations, and the

legal conclusions that followed. Now is no time to

compound the error of Citizens United and use its

unfortunate results to overrule Colorado II. Instead,

this Court should take the first opportunity to

reconsider and correct Citizens United, while at the

same time repairing American democracy’s grave

vulnerability to secret special-interest political

influence.

CONCLUSION

For the foregoing reasons, this Court should

affirm the judgment of the court of appeals and

reconsider the clearly erroneous fact-finding, and the

resulting outcome, of Citizens United at the first

possible opportunity.

74 Brief of U.S. Senators Sheldon Whitehouse and John McCain

as Amici Curiae in Support of Respondents, supra note 67, at 7,

19 (“The ability to make and to credibly threaten large

expenditures gives outside groups the opportunity to exert

improper leverage over politicians running for office. . . . A

promise or threat to a candidate that goes unseen or unheard

by the public is a means of corruption that was not considered

in Citizens United.”).

Respectfully submitted,

GERSON H. SMOGER

Counsel of Record

SMOGER & ASSOCIATES

4228 Hallmark Drive

Dallas, TX 75229

(510) 531-4529

gerson@texasinjurylaw.com

OCTOBER 6, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.