Campaign Finance Ruling: Wall St. is Main St.?

Campaign Finance Ruling: Wall St. is Main St.?

by Michelle Kaminsky, Esq., February 2010

In Citizens United v. Federal Election Commission, the Supreme Court of the United States (SCOTUS) ruled that it is unconstitutional to limit corporations and unions from using general treasury funds in elections. The ruling suggested that Wall Street and Main St. are the same—at least in court's view. Specifically, in legal terms, corporations (Wall St. or otherwise) are viewed as “people” and have the same constitutional rights as individuals.

In reaching this decision, a majority of the court found that portions of the Bipartisan Campaign Reform Act of 2002, more commonly known as the McCain-Feingold Act, that prohibited "any broadcast, cable or satellite communications" regarding a candidate for federal office within certain time periods before elections or primaries unconstitutionally limited corporations' First Amendment freedom of speech rights.

The case came about because of a film criticizing Senator Hillary Clinton, made by Citizens United, a conservative nonprofit organization, intended for pay-per-view and theater audiences before the 2008 presidential primaries. The FEC prohibited its showing because it violated McCain-Feingold; Citizens United sued because they felt this imposed upon its freedom of speech.

Indicating just how complicated an issue it was facing; the Court actually held oral arguments twice on this case. In the end, Justice Anthony M. Kennedy wrote for the majority and called McCain-Feingold's provisions "censorship...vast in its reach."

The majority, including Chief Justice John G. Roberts, Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr., found that corporations, long considered "people" under American law, have the same First Amendment rights as individuals—and that political spending is an expression of free speech that should not be limited absent a compelling government interest.

Kennedy wrote: By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests....When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.

But the dissent was vociferous, both figuratively and literally as Justice John Paul Stevens made the unusual move to read a summary of his dissenting opinion from the bench. Although not denying that corporations are considered people under the law and are entitled to some First Amendment protections, Stevens felt that by putting them on the same free speech field as individuals, so to speak, the Court was "blaz[ing] through our precedents," referring to previous cases that upheld campaign finance restrictions on corporations.

"At bottom," Stevens wrote, "the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding." Stevens specifically named the danger of the Court's holding as the threat to "undermine the integrity of elected institutions across the nation." Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined Stevens in dissent.

What does this mean for the future of campaign contributions by corporations? While it could mean that corporations now see a green light to spend, it also possible that the ruling will have little effect on corporations unwilling to overtly place themselves on one side of the political spectrum in any given race.

Moreover, some legal commentators like Glenn Greenwald of Salon, have suggested that the fear that corporations may now become excessively intertwined with politics is unfounded as it's already happened.

In addition to how corporations will act in the upcoming mid-term elections, it will also be interesting to see how Congress reacts to this decision, and whether it will take steps to reduce any potential impact on elections. Both President Obama and Congress members on both sides of the aisle have already vowed to continue this discussion, with even a constitutional amendment a possibility.

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