Melissa Ann Dizon, Government Law Review Member
The Supreme Court, in a 5-4 decision, recently held that corporate funding of political broadcasts in candidate elections cannot be limited because to do so would run afoul of the First Amendment. This ruling stemmed from the non-profit corporation Citizens United’s case before the court regarding its documentary Hilary: The Movie. The group wanted to air the documentary during the 2008 presidential primary season through a cable television video-on-demand service and to advertise for it on television. However, the Bipartisan Campaign Reform Act of 2002, commonly known as the McCain-Feingold Act (hereinafter “MFA”) prohibits certain corporate-funded television broadcasts, such as this documentary, in the sixty days before a general election (or the thirty days before a primary). The law also requires disclosure by the funders of election-related broadcast advertising, such as these ads. Citizens United argued against the prohibitions on corporations and unions from using their general treasury funds to make independent expenditures for speech that is an “electioneering communication” or speech that expressly advocates the election or defeat of a candidate.
In so holding, the Supreme Court overturned its prior decision in Austin v. Michigan Chamber of Commerce, as well as part of the ruling in McConnell v. Federal Election Commission. The Court rejected the very idea that the government can decide who gets to speak and that the government can actually ban some from speaking at all, particularly those doing their speaking through associations of members who share their beliefs. Austin was a case in which the Supreme Court held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and Fourteenth Amendments. The Court upheld the restriction on corporate speech based on the notion that “[c]orporate wealth can unfairly influence elections,” and also rationalized that the Michigan Act still allowed the corporation to make contributions from a “segregated fund.” Over a decade later, the Supreme Court in McConnell upheld the key provisions of the MFA: (1) the aforementioned “electioneering communication” provisions; and (2) the “soft money” ban, which prohibits federal parties, candidates, and officeholders from raising or spending funds not in compliance with contribution restrictions, and prohibited state parties from using such “soft money” in connection with federal elections. For almost twenty years, the Supreme Court has erred on the side of fairness with respect to our democratic election process, by upholding these restrictions on corporate expenditures. The intent of these pieces of legislation has not been to block free speech; rather, it has been to block the use of large amounts of money as a means of unevenly influencing the political process.
And now? Bring on the corporations.