Economics Trumps Politics; Market Trumps Democracy: The US Supreme Court's Decision on Campaign Financing

Abstract

In the appeal of Citizens United v. Federal Election Commission 2009, the US Supreme Court decided on 29 January in a vote of 5 : 4 to overturn the existing Bipartisan Campaign Reform (McCainFeingold) Act of 2002 (BCRA). The BCRA is a federal law that prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech that is an ‘electioneering communication’ or for speech that expressly advocates the election or defeat of a candidate. Citizens United (CU), a non-profit corporation, released a documentary that was critical of then Senator Hilary Clinton, a candidate for her party’s presidential nomination. Assuming that the documentary would run on cable television 30 days before the election, CU produced advertisements. Paragraph 441b of the BCRA defines an ‘electioneering communication’ as ‘any broadcast, cable, or satellite communication’ that ‘refers to a clearly identified candidate for Federal office’ and is made within 30 days of a primary election. CU, the appellant in the dispute, argued that the documentary was unconstitutional in terms of Paragraph 441b and to the reporting and disclosure requirements of the BCRA. CU sought an injunction on the grounds that the documentary was not an ‘electioneering communication’ because it was not publicly distributed. Perhaps, more importantly, CU held that the case could not be resolved on narrower grounds without chilling political speech, which runs counter to the First Amendment. The Court had to consider the continuing effect of the speech suppression upheld in Austin v. Michigan Chamber of Commerce. This was the case in which the Supreme Court held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and Fourteenth Amendments. The Court upheld the restriction on corporate speech based on the notion that ‘[c]orporate wealth can unfairly influence elections’, and the Michigan law still allowed the corporation to make contributions from a segregated fund. The result of the Court’s decision was to overrule Austin. Chief Justice Roberts, with whom Justice Alito agreed, wrote: The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations – as the major