Michael C. Dorf: The Supreme Court Rejects a Limit on Corporate-Funded Campaign Speech
[Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.]
Last week, in Citizens United v. FEC, the Supreme Court struck down a provision of federal election law that forbids corporations and unions from spending their general treasury funds to support or oppose candidates for federal office. The ruling is significant in its own right, but may be more important still for what it portends about the Supreme Court's placid acceptance of money's influence on politics.
In reaching its decision, the high court expressly overruled two of its precedents, one of them decided only seven years ago. With the Court showing such little regard for its own case law governing regulation of corporate speech, one may legitimately wonder whether Citizens United is merely the first step on the road to the judicial invalidation of all campaign-finance regulation. After all, most of the Justices in the 5-4 majority in Citizens United have previously criticized Buckley v. Valeo—the 1976 ruling that established the modern framework for evaluating such regulation—on the ground that it permits too much regulation of campaign finance....
Section 203 of the Bipartisan Campaign Reform Act (BCRA), commonly known as "McCain-Feingold," forbids corporations and unions from using their general treasury funds for "electioneering communications," a term of art that is defined in the Act and the Court's prior cases to cover advocacy by broadcast, cable, or satellite communication for or against a candidate for federal office in the period leading up to an election. The provision is the descendant of a similar prohibition that was first enacted in 1947, which itself built on legislative efforts to control corporate influence on politics dating back over a century....
Although much of the discussion in the lengthy opinions in Citizens United focused on procedural issues, the core of the majority decision proceeded by the following, relatively straightforward steps: (1) BCRA § 203 should be treated as a ban on a form of political speech by corporations and unions, even though they are permitted to form separate political action committees (PACs) to engage in electioneering communications, because the requirements for forming and speaking through a PAC are onerous; (2) As a ban on political speech, BCRA § 203 must be measured by the demanding standard of strict judicial scrutiny, which requires that it both serve a compelling interest and be the least speech-restrictive means of furthering that interest; and (3) None of the interests that have been advanced in support of BCRA § 203 satisfies that test....
Good-government groups have already condemned the decision in Citizens United as being likely to open a new era of corporate control of American politics. Whether the decision will have a large impact remains to be seen. Even prior to the Court's ruling, campaign finance regulation was so shot through with loopholes that individuals and corporations seeking to buy influence in Washington had little difficulty doing so.
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Last week, in Citizens United v. FEC, the Supreme Court struck down a provision of federal election law that forbids corporations and unions from spending their general treasury funds to support or oppose candidates for federal office. The ruling is significant in its own right, but may be more important still for what it portends about the Supreme Court's placid acceptance of money's influence on politics.
In reaching its decision, the high court expressly overruled two of its precedents, one of them decided only seven years ago. With the Court showing such little regard for its own case law governing regulation of corporate speech, one may legitimately wonder whether Citizens United is merely the first step on the road to the judicial invalidation of all campaign-finance regulation. After all, most of the Justices in the 5-4 majority in Citizens United have previously criticized Buckley v. Valeo—the 1976 ruling that established the modern framework for evaluating such regulation—on the ground that it permits too much regulation of campaign finance....
Section 203 of the Bipartisan Campaign Reform Act (BCRA), commonly known as "McCain-Feingold," forbids corporations and unions from using their general treasury funds for "electioneering communications," a term of art that is defined in the Act and the Court's prior cases to cover advocacy by broadcast, cable, or satellite communication for or against a candidate for federal office in the period leading up to an election. The provision is the descendant of a similar prohibition that was first enacted in 1947, which itself built on legislative efforts to control corporate influence on politics dating back over a century....
Although much of the discussion in the lengthy opinions in Citizens United focused on procedural issues, the core of the majority decision proceeded by the following, relatively straightforward steps: (1) BCRA § 203 should be treated as a ban on a form of political speech by corporations and unions, even though they are permitted to form separate political action committees (PACs) to engage in electioneering communications, because the requirements for forming and speaking through a PAC are onerous; (2) As a ban on political speech, BCRA § 203 must be measured by the demanding standard of strict judicial scrutiny, which requires that it both serve a compelling interest and be the least speech-restrictive means of furthering that interest; and (3) None of the interests that have been advanced in support of BCRA § 203 satisfies that test....
Good-government groups have already condemned the decision in Citizens United as being likely to open a new era of corporate control of American politics. Whether the decision will have a large impact remains to be seen. Even prior to the Court's ruling, campaign finance regulation was so shot through with loopholes that individuals and corporations seeking to buy influence in Washington had little difficulty doing so.