Constitution Daily

Smart conversation from the National Constitution Center

Supreme Court hears campaign-finance challenge

March 29, 2011 by Dr. Steve Frank


Editor's Note: Yesterday, the Supreme Court heard its first campaign-finance challenge since Citizens United v. Federal Election Commission, the 2010 ruling that permits corporations and unions to spend as much as they wish to promote or defeat political candidates. From Flickr user takomabibelotAt issue is an Arizona law that provides public financing for candidates who agree to forgo private contributions. The Citizens United decision will influence the outcome of the case. John Kenneth White of Catholic University of America explains the arguments in Citizens United in this excerpt from "Money Talks: Campaign Finance and the Constitution," a monograph in the National Constitution Center's Constitutional Spotlight series.

In its 5-to-4 decision, the Court sought to demonstrate that the First Amendment as conceived by the founders included the right for corporations to engage in free, unregulated speech. By making it a felony for corporations to expressly advocate either the election or defeat of candidates (either 30 days before a primary or 60 days prior to a general election), the Court determined that this portion of McCain-Feingold violated the First Amendment and was therefore unconstitutional.

Writing for the majority, Justice Anthony Kennedy declared:  “No sufficient governmental interest justified limits on the political speech of non-profit or for-profit corporations. . . .For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. . . .There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations.”  Chief Justice Roberts agreed, saying, “The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.”

Virtually the only portion of McCain-Feingold the Court majority left intact were its disclosure requirements.

Virtually the only portion of McCain-Feingold the Court majority left intact were its disclosure requirements.  Justice Kennedy found that disclosure did not inhibit political speech, noting that “disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.  This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

The majority view was countered by Justice John Paul Stevens.  In his opinion, Stevens ridiculed the majority’s view that corporations are akin to persons and are therefore subject to First Amendment protections, saying: “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.  Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction.  But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established."

By treating them as such, Stevens maintained that “corporations and unions will be free to spend as much general treasury money as they wish on ads that support or attack specific candidates, whereas national parties will not be able to spend a dime of soft money on ads of any kind.”  Stevens concluded that the ruling “enhances the role of corporations and unions–and the narrow interests they represent–vis a vis the role of political parties–and the broad coalitions they represent–in determining who will hold public office.”


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