Subordinating the Economic to the Political: The Evolution of the Corporate Speech Doctrine

Abstract

The jurisprudence of the Supreme Court of the United States on corporate speech regulation has evolved to distinguish markedly what once appeared a more expansive precedent in First National Bank of Boston v. Bellotti. This article considers the manner in which a doctrine of corporate speech regulation has been fashioned in the case law that derives from the special nature of the corporate form and justifies regulation of corporate political spending in candidate elections in order to address the potential for real or apparent corruption of democratic processes. That line of jurisprudence was most recently extended in McConnell v. Federal Election Commission, the Court's landmark ruling on campaign-finance regulation handed down at the end of 2003. As it had done on multiple occasions since early in the twentieth century, the Court accepted legislative judgment that corporate treasuries represent a threat of corruption when deployed directly in candidate elections.