Taking a Hard Line on Soft Money: Corporate Campaign Finance Reform from Buckley to Hillary

Hiroki Ogawa, Staff Writer

          On the 9th of September, the Supreme Court heard rearguments on Citizens United v. Federal Election Commission,[1] a case involving entrenched campaign finance policies.[2]  It is unsurprising if the case or the movie at its heart, Hillary: The Movie, do not sound familiar; the Federal Election Commission (“FEC”) swiftly silenced advertising attempts for the movie[3] pursuant to the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act.[4] 

           Citizens United, the producer of the movie, is a non-profit organization advocating “traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security.”[5]  It aims to restor[e] [the] government to citizens’ control . . . [t]hrough a combination of education, advocacy, and grass roots organization . . . .”[6]  Citizens United (hoped to) achieve this by producing Hillary: The Movie, which criticized Hillary Clinton’s background and policies.[7]  It might have produced the movie unfettered were it not funded with corporate donations.  Because the movie was effectively a political advertisement funded partially by corporate donations, it met the definition for “electioneering communications.”[8]  The McCain-Feingold Act specifically restricts release of electioneering communications shortly before elections.[9]  Consequently, Citizens United was left with a film it could not advertise over traditional channels.

          Regulation of electioneering communications, inter alia, is a response to the increased use of “soft money” support for campaign finance.[10]  Contemporarily, political money is divided into two types—hard money, and soft money.[11]  The difference between hard money and soft money is twofold.  First, hard money and soft money differ on how they may be used to support candidates.  Hard money may be used for direct support of a candidate, while soft money can only be used for indirect support, e.g. “party building” activities.  Second, hard and soft money differ in by whom the money can be donated.  Hard money may not be donated by corporations or labor unions, while soft money can.  In practice, these distinctions affect how political money is spent for advertising, which is why campaign finance issues frequently boil down to balancing potential corruption and infringement on free speech.

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