BY NICHOLAS JOY
In its decision in Citizens United v. Federal Election Commission on January 21, the Supreme Court upheld the disclaimer and disclosure provisions of the Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold law) while at the same time invalidating a ban on electioneering communications by corporations and unions, political speech that the Court said the government may not suppress simply because of the speaker’s identity.
Citizens United has already caused an uproar. President Barack Obama ’91 has said of the decision that he “can’t think of anything more damaging to the public interest.” Justice Stevens wrote in his partial dissent that the Court has rejected a century of history of regulating corporate electioneering, a claim that many pundits have taken up. In all, the critics have painted a picture of Citizens United as a dangerous innovation that will allow unbridled abuse of the electoral system by corporations and shake the very foundations of our democracy.
These hysterics are overblown for a number of reasons. First, the regulation that the Court overturned covered only a relatively limited category of advocacy. The provision that the Court declared unconstitutional prohibited corporations from using their general treasury funds to pay for “electioneering communications.” Electioneering communications are defined as any broadcast, cable, or satellite communication that refers to a candidate for federal office and that is broadcast within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction in which that candidate is running for office.
Unless the election law statute were to be read so broadly as to make the “electioneering communications” language redundant, this restriction did not even touch commercials broadcast outside the specified window before an election, political appeals in print such as newspaper advertisements and books, or internet campaigning tools such as the YouTube videos and Google ads that have become so important in recent elections.
Even before Citizens United, corporations were not prevented from broadcasting so-called “issue” ads on TV and radio right up to elections so long as they did not expressly support one candidate or another, even if the intentions behind the ads were thinly veiled. Although electioneering communications certainly play a major role in modern political campaigns, it is hard to imagine these organizations gaining dramatically more influence as a result of this decision, given the numerous avenues available in the past for corporations and unions to influence the electorate.
Furthermore, the notion that the Citizens United decision runs counter to a century of regulation of corporate electioneering is not, strictly speaking, accurate. The practice of prohibiting corporations from making political contributions does indeed date back at least to the Tillman Act of 1907 and is unaffected by this ruling. But the line of cases which allowed the regulation of independent expenditures by corporations is of much more recent vintage.
Citizens United overturns the 1990 case Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) which upheld a Michigan statute prohibiting corporations from making independent expenditures supporting or opposing state candidates. The court’s holding in Austin that such expenditures could be restricted put that decision in tension with the 1976 case Buckley v. Valeo, 424 U.S. 1 (1976) in which the Court distinguished between direct contributions to political campaigns and independent expenditures and held that a limit on independent expenditures was unconstitutional. The Bipartisan Campaign Reform Act, which restricted independent expenditures at the federal level, was only enacted as recently as 2002.
Some of the criticisms of the Citizens United decision ignore the ways in which its impact could be mitigated through means that do not implicate speech so strongly. For instance, Justice Stevens worries in his dissent that some corporations might spend money in support of candidates whom their shareholders oppose. But corporate laws can be changed to require permission from shareholders before a corporation supports particular candidates. Members of labor unions already have the right to choose not to have their dues used to support political causes.
Even if this decision did signify the sea change that its detractors suggest it does, Citizens United would still have been rightly decided based on First Amendment law. First Amendment protection is generally considered to be most necessary in the domain of political speech. The Supreme Court has repeatedly and consistently held that First Amendment protection of speech rights extends to corporations, stating in First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) that, even in a political context, speech does not lose its protection “simply because its source is a corporation.” Because the free speech right enshrined in the First Amendment is so fundamental to our democracy, any law which places a restriction on that right must survive strict scrutiny by being narrowly tailored to serve a compelling state interest. The government interest stated in Austin is that of avoiding the “corrosive and distorting effects of immense aggregations of wealth” on the political process. But the Court stated in Buckley that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Even if Buckley had allowed this rationale, the restriction on corporations would be both under- and overinclusive. Such restrictions would not stop exceptionally wealthy individuals from attempting to influence elections, but they would freeze out both nonprofit corporations and the small for-profit corporations with revenues of under $1 million which make up the vast majority of all corporations.
An argument can be made that the Court showed a lack of judicial restraint by choosing to overturn the precedent established in Austin. But in truth, it is Austin that is the outlier in regards to First Amendment precedent. No case before Austin had held that Congress could prohibit independent expenditures for political speech based on the speaker’s corporate identity. Buckley, in fact, had suggested just the opposite. Two and a half years ago, the Court arguably foreshadowed a move in this direction by upholding an as-applied challenge to the prohibition in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) and the decision in Citizens United merely brings First Amendment jurisprudence back in line with the bulk of the case law. Protecting the ability of corporations and unions to voice their support for candidates may not be politically correct, but it is legally so.
Nicholas Joy is a 2L.