Academic journal article Harvard Law Review

Citizens United V. FEC: Corporate Political Speech

Academic journal article Harvard Law Review

Citizens United V. FEC: Corporate Political Speech

Article excerpt

If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.

For more than one hundred years, Congress has prevented corporations from donating directly to candidates in federal elections. (2) Throughout the twentieth century, legislators and presidents from both sides of the aisle made the ban more robust. More than sixty years ago, the political branches banned campaign expenditures made by corporations and labor unions out of their general treasuries. (3) And the Supreme Court upheld such bans despite the adverse effects they had on political speech. In the foundational case Buckley v. Valeo, (4) the Court struck down election expenditure limits for candidates and individuals as First Amendment violations but left intact corporate and union expenditure bans. (5) In a 1990 case, Austin v. Michigan State Chamber of Commerce, (6) the Supreme Court specifically addressed the question of whether laws preventing corporations from spending funds from their general treasuries to independently support or oppose state-level candidates violated the First Amendment. (7) The Court affirmed the concept that curbing the capability of the corporate form to expend disproportionate resources to influence elections was a sufficiently important government interest to restrict speech. (8)

Twelve years later, Congress followed suit in passing "McCain-Feingold," the Bipartisan Campaign Reform Act of 2002 (9) (BCRA), which, among other things, further entrenched the idea that corporations should be banned from participating in the electoral arena unless they participate through political action committees (PACs). (10) One provision of BCRA--42 U.S.C. [section] 441b--closed a loophole that had allowed corporations and unions to fund advertisements regarding candidates near an election. The Supreme Court upheld this provision in McConnell v. FEC. (11) Since the Court considered the availability of speech through a corporation's associated PAC an acceptable alternative to direct independent campaign expenditures, the BCRA provision banning direct expenditures by corporations and unions was considered only partially speech-restrictive. (12) Last Term, in Citizens United v. FEC, (13) the Supreme Court again addressed a First Amendment challenge to the ban on corporate electioneering activities. After two rounds of briefing and oral argument, a narrow majority of the Court overturned Austin and portions of McConnell and struck down the portions of BCRA that prohibited expenditures on electioneering communications (14) by corporations. (15) Citizens United leaves corporations and unions free to speak and spend independently of candidates during elections for the first time in decades.

In 2008, Citizens United, a conservative group organized as a nonprofit corporation, produced and released a feature-length documentary film criticizing then-Senator Hillary Rodham Clinton, who was seeking the Democratic nomination for President of the United States. (16) Citizens United sought to release the film, entitled Hillary: The Movie, through "video on demand" via a digital cable provider and market the movie with television advertising. (17) This release of the documentary and the accompanying television advertisements would have occurred during the thirty-day window before a primary election in which corporations and unions were barred by BCRA from using general treasury funds for electioneering communications. To avoid potential sanctions under BCRA for these expenditures, Citizens United brought suit seeking declaratory and injunctive relief against the Federal Elections Commission (FEC) in December 2007, before the scheduled release of the film in the television format. …

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