Bench Memos

Freedom in Citizens United

Today, in Citizens United v. FEC, the Supreme Court overturned its 1990 precedent, Austin v. Michigan Chamber of Commerce, removing the prohibition on corporations seeking to finance independent, electoral advertising without using political action committees funded by employees.  The Court also, and necessarily, invalidated McCain-Feingold’s ban on corporate electioneering advertising within 60 days of a general election.

Corporate contributions to candidates, party committees, and political committees remain banned, whether direct or in-kind (think coordination).

Corporate funding sources for ads that technically fall within the McCain-Feingold statute but are what the Court calls “genuine issue advocacy” in an earlier opinion (Wisc .Rt. to Life II) must still be disclosed.

The Austin precedent was always an outlier, upholding as it did outright bans on corporate (and union) electoral speech to prevent “corrosive and distorting effects” on political debate by “large aggregations of wealth” garnered via the corporate form.   In short, the Austin rationale was gussied up egalitarianism; silencing some to make way for others.  This had always been “foreign to the First Amendment,” with the Court making clearer, since the high-water mark for regulation in McConnell v. FEC, and with the arrival of C.J. Roberts and J. Alito, that campaign finance restrictions are constitutional only to prevent the corruption of candidates that may one day act as elected officials.

Justice Stevens dissented in a 90 page opinion.  And Justice Thomas filed a partial dissent, probably on the matter of disclosure.  More on those opinions in the near future.

For now, there is little doubt that the Citizens United ruling will free up many more resources for politics in coming election cycles.  We can expect existing unions to turn on the spigots even more openly, and for new entities to crop up to accept corporate money.

The only real question is whether corporations brave enough to take advantage of the opinion, and go against the Democrats, will risk audits or the nationalization of their businesses.

 – Steve Hoersting is vice president of the Center for Competitive Politics.