01/29/2010
The U.S. Supreme Court last Thursday decided Citizens United v. Federal Election Commission, holding that the First Amendment provides free speech protections not only to individuals, but also to corporations, unions and other associations.
In Citizens United, a non-profit political organization produced a documentary about Sen. Hillary Clinton, who was then a candidate for president. The non-profit organization contracted with cable companies to offer the documentary to viewers in states with upcoming presidential primaries. The Bipartisan Campaign Reform Act of 2002 (commonly known as McCain-Feingold) prohibited "electioneering communication" within thirty days of a presidential primary if the communication could be viewed by more than 50,000 people in a primary state. The restriction was intended to decrease or prevent the influence of last-minute attack ads, the funders of which would remain largely anonymous until after election day. The electioneering communication restriction was upheld by the U.S. Supreme Court in a 2003 decision, McConnell v. Federal Election Commission.
In Citizens United, the Supreme Court reversed course and overruled McConnell on the electioneering communications issue. While noting the importance of free and open debate regarding political and policy choices, the Court viewed the McCain-Feingold restriction on the source of funding of electioneering communications as an impermissible speech restriction based on the identity of the speaker. Justice Kennedy wrote for the majority: "Speech restrictions based on the identity of the speaker are all too often simply a means to control content."
The decision permits corporations, unions, associations and other corporate entities to enter the fray of federal campaign advertising with their general treasury funds; however, the decision only invalidates restrictions on independent corporate expenditures for issue advertising. Citizens United does not permit corporate entities to expressly advocate for the election or defeat of specific federal candidates (i.e., "vote for Candidate X" or "vote against Candidate Y"), nor does it lift restrictions on corporate entity or political action committee donations directly to federal candidates. Further, the decision explicitly leaves open the possibility that Congress might place new restrictions on "disclaimer and disclosure" of the identity of the speaker. Because Citizens United is limited in scope, if your corporate entity decides to engage into this area of political advocacy, do so with the advice of experienced counsel.