Academic journal article Iowa Law Review

A Penny for Your Votes: Eliminating Corporate Contribution Bans and Promoting Disclosure after Citizens United

Academic journal article Iowa Law Review

A Penny for Your Votes: Eliminating Corporate Contribution Bans and Promoting Disclosure after Citizens United

Article excerpt

I. INTRODUCTION

Money has been intertwined with American politics since the birth of our nation, but the injection of capital into our electoral process has now proliferated to an unprecedented degree.1 In the 2012 presidential election, for example, Barack Obama and Mitt Romney raised a record-breaking sum of $2.06 billion to fund their respective presidential campaigns.2 The cost of congressional campaigns has skyrocketed as well, with one senator raising over $45 million in the months preceding the 2014 midterm election.3 The dramatic growth in campaign fundraising has similarly affected state-level politics; Iowa Governor Terry Branstad, for example, raised $1.26 million in a three-month period leading up to the 2014 gubernatorial election.4 As money plays an increasingly powerful role in American elections, campaign finance law is crucial to maintaining the integrity of our democratic process.

Campaign finance law classifies the use of money in campaigns as political speech:5

A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money.6

The landmark campaign finance decision in Citizens United v. Federal Election Commission applied strict scrutiny to the federal ban on corporate independent expenditures, holding that a blanket ban was an unconstitutional restriction on corporate political speech.7 Citizens United thus established that the First Amendment protects all political speech, regardless of whether the speaker is a corporation or an individual.8

The facts of Citizens United only gave the Court an occasion to address the constitutionality of corporate independent expenditure bans. However, because the same identity discrimination concerns also apply to corporate contribution bans, the Court should also subject these bans to strict scrutiny under Citizen United's rationale.9 Even if the Court upholds some limitations on corporate contributions, a blanket contribution ban would fail strict scrutiny because it is not narrowly tailored to governmental interests underlying the ban.10

Corporate contribution bans seek to avoid corruption and the "appearance of corruption."11 This corruption is often described as quid pro quo corruption, or corruption that involves "[a]n action or thing that is exchanged for another action or thing of more or less equal value."12 For instance, corruption would occur if a corporation exchanged independent expenditures or contributions for influence over an elected official's actions. By banning corporate contributions, the government seeks to eliminate opportunities for such quid pro quo corruption.

As Iowa exemplifies, however, loopholes in many corporate contribution bans-including the federal bans-render the bans ineffective in preventing corruption or the appearance of corruption.13 In light of these loopholes, implementing intermediate campaign finance disclosure will more effectively achieve the anti-corruption goals of a corporate contribution ban without restricting corporations' political speech.14

This Note argues that the constitutionality of corporate contribution bans should be assessed using a strict scrutiny standard to maintain consistency with Citizens United. Part II provides an introduction to federal campaign finance law regarding corporate contributions. It also describes Iowa's current corporate contribution law, which presents a case study of state law influenced by the federal contribution ban. Part III explains how the holding of Citizens United supports the application of strict scrutiny to corporate contribution bans. It argues that even if the bans further compelling governmental interests, they are not narrowly tailored to serve those interests, and are therefore unconstitutional. …

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