Transforming Corporate Political Media Spending into Freedom of Speech: A Story of Alchemy and Finesse, 1977–78

Abstract

This article documents the late seventies behind-the-scenes battle led by Justice Lewis F. Powell, Jr., that forged a five-justice majority for a narrow Supreme Court holding in First National Bank of Boston v. Bellotti to bring corporate political media spending within the protections of the First Amendment. It shows that justices on the Court then recognized the holding as a considerably greater alteration of established law than another five-justice majority would maintain in 2010—when it expanded the influence of corporate money on democratic processes and the marketplace of ideas far beyond that seventies precedent. Justices William H. Rehnquist and Byron R. White remained so dissatisfied with the result in Bellotti that each authored harsh dissents declaring the majority holding to be completely at odds with settled law, and both remained on the Court long enough to have the opportunity to help form majorities in a series of subsequent cases that served to substantially narrow its holding. Nevertheless, Bellotti established a firm enough footing in the case law to allow the majority at the Court in 2010 to extend its reach far beyond what was established in 1978.