Academic journal article Missouri Law Review

Giving a Voice to the Inanimate: The Right of a Corporation to Political Free Speech

Academic journal article Missouri Law Review

Giving a Voice to the Inanimate: The Right of a Corporation to Political Free Speech

Article excerpt

Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010).

I. INTRODUCTION

The decisions of the United States Supreme Court invariably incite considerable commentary from the general public. However, rarely does a judicial decision spawn such a vast condemnation from the other two branches of government as that witnessed after the Supreme Court case of Citizens United v. Federal Election Commission. (1) So controversial was the Court's decision that President Barack Obama disparaged the ruling in the State of the Union address, lambasting the decision as an "open[ing of] the floodgates for special interests--including foreign corporations--to spend without limit in [United States] elections." (2) President Obama pejoratively continued, "I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities." (3) Unfortunately, the President's treatment of Citizens United is partially incorrect, as the Court's holding only invalidated a U.S. statute prohibiting corporate political spending by domestic entities; (4) foreign nationals, including foreign corporations, remain subject to the federal statutory prohibition on election campaign contributions. (5) The President's mischaracterization of the Citizens United decision is a common misconception, but even sans fallacious warnings, the crux of the decision tests the boundaries of the Constitution's most eminent right--the First Amendment right to freedom of speech. (6)

This Note examines the concept of corporate personhood and whether the state-created corporate entity is contemplated by the First Amendment. To discuss this controversy in relation to federal election laws constraining corporate financing, this Note first explains the particulars giving rise to the Citizens United case. Next, this Note examines the legislative and judicial treatment of corporate financing laws in regard to elections. Building upon this milieu, this Note presents the viewpoints of both those opposed to unrestricted corporate political speech as well as those championing a broad interpretation of the First Amendment that encompasses the corporate entity. Finally, this Note concludes that while a dramatic decision like Citizens United would normally warrant a swift remedial response from Congress, the Court's unambiguous construction of the First Amendment has effectively foreclosed any legislative response short of a constitutional amendment.

II. FACTS AND HOLDING

The 2008 presidential election generated tremendous public attention, manifested most saliently in the Democratic presidential primaries, which featured two potential firsts for the office of the President of the United States: an African American in Barack Obama and a woman in Hillary Rodham Clinton. Predictably, the fervor surrounding the Democratic presidential primaries entailed a bevy of propaganda commensurate with the vehemence of those supporting each candidate. One particular production straddled the line separating an informative documentary from an impermissible "electioneering communication," which "refers to a clearly identified candidate for Federal office" and "is made within ... 30 days before a primary" election. (7) Citizens United released the film in controversy, Hillary: The Movie (Hillary), in January 2008. (8) Citizens United, a nonprofit corporation, derives most of its twelve million dollar budget from individual donations; however, a fraction of Citizens United's budget originates from for-profit corporations. (9)

This budget afforded Citizens United the opportunity to release and distribute the provocative Hillary. (10) Hillary is a ninety-minute documentary focusing on the titular political figure--then-Senator Hillary Clinton. (11) The substantive content of Hillary is an amalgamation of interviews with numerous individuals, including political commentators, which cast then-Senator Clinton in an unfavorable light. …

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