Research Paper

Campaign Finance Law: Wisconsin Right to Life Inc. - A Break from
Supreme Court Precedent
Jake Forken
PAM 4060 - Politics and Policy: Theory, Research, and Practice
Abstract
This paper will examine campaign finance regulation as it relates to decisions within the
Supreme Court and attempt to resolve why, after a well-documented history of Congressional
action that defended and extended campaign finance law, the regulation eventually unraveled in
the Court system. An emphasis will be placed on evaluating the consistency of the Citizens
United decision against previous Court rulings and determining whether the Citizens United
decision represents a break from previous judicial analysis or if there is a preceding case that
establishes a groundwork for future campaign finance-related decisions.

INTRODUCTION
Campaign finance regulation has been a debated topic domestically throughout multiple
centuries; when George Washington lost an election within the Virginia House of Burgesses in
1755, he improved his outreach the next election cycle by purchasing $195 worth of punch and
hard cider for friends. While Washington proved victorious in the election, the elected legislature
quickly passed legislation prohibiting candidates, “or any persons on their behalf” from
providing voters “money, meat, drink, entertainment, or provision…or any present, gift, or
reward etc. in order to be elected.”1
In 1907, the Tillman Act was passed barring corporations
from contributing to federal elections. Three years later the Federal Corrupt Practices Act was
implemented to require House members to disclose their finances. The year after, in 1911, the
same requirement was passed to apply to Senate members and primary candidates and
expenditure limits were set for all congressional candidates. Ten years later, the Supreme Court
overturned congressional regulation of primaries in Newberry v. United States before a 1941
Court case returned such regulation authority back to Congress after the legislative branch tried
to legislate it again with the Hatch Act, also know as An Act To Prevent Pernicious Political
Activity. Thus began the ebb and flow of regulation and deregulation between the elite Supreme
Court and more-democratic Congress regarding the constitutionality of campaign finance law.
Throughout the first six decades of the 20th
century, the majority of campaign finance law
served to increase regulation in federal campaigns. This trend continued into the Seventies, as,
with the occurrence of Watergate, public confidence in elected officials plummeted. In response,
Congress passed various amendments in 1974 to the Federal Election Campaign Act including

1
Washington Post. “From George Washington to Shane McCutcheon,” last modified April 3, 2014,
http://www.washingtonpost.com/blogs/the-fix/wp/2014/04/03/a-history-of-campaign-finance-reform-from-george-
washington-to-shaun-mccutcheon/

contribution limits for individuals and PAC’s as well as spending limits for federal candidates.2
As the amendments also included a provision to establish the Federal Election Commission3
, an
agency created with the purpose of overseeing and enforcing campaign law, it appeared as
though campaigns were transforming into a more heavily regulated undertaking. However, it
took a mere two years for Senator James Buckley (R-NY) to challenge a number of the Federal
Election Campaign Act amendments on the basis of free speech. The case made it to the
Supreme Court in 1976 and, though the Court upheld limits on contributions from individuals as
well as various disclosure rules, the Court struck down spending limits on total expenditures by
individuals, candidates, and outside groups. The Court maintained that as long as advertisements
from individuals or groups didn’t contain express advocacy for the election or defeat of a
candidate, then they were protected under the First Amendment to spend as much as they were
willing to promote a candidate and their platform.4
There is widespread consensus that the ruling
blasted open the door for issue ads that clearly endorsed or attacked a candidate but didn’t
include words such as “vote for” or “defeat”. Buckley v. Valeo is considered to be the
cornerstone of establishing modern campaign finance law.
The paper will thoroughly examine campaign finance law, including the Bipartisan
Campaign Reform Act and six Supreme Court cases, beginning with Buckley v. Valeo and
traveling through Citizens United v. Federal Election Commission, in order to determine how,
after a well-documented history of Congressional action that defended and extended campaign
finance law, the regulation eventually unraveled in the Court system. An emphasis will be placed

2
NPR. “A Century of U.S. Campaign Finance Law,” last modified January 21, 2010,
http://www.npr.org/templates/story/story.php?storyId=121293380
3
4
http://www.washingtonpost.com/blogs/the-fix/wp/2014/04/03/a-history-of-campaign-finance-reform-from-george-
washington-to-shaun-mccutcheon/

on the divergence between Congress, the most democratic branch and a proponent of reform, and
the Court, the most elite branch of government, which stripped away regulation as it moved into
the 21st
century. Though Buckley in 1976 and First National Bank of Boston v. Bellotti in 1978
reversed existing campaign finance regulation, the pendulum was seemingly swinging in the
direction of reform with the passage of the Bipartisan Campaign Reform Act in 2002 and the
Court’s upholding of that law in McConnell v. Federal Election Committee in 2003. However, a
series of three Supreme Court cases ranging from 2006 to 2008 rolled back much of the
Bipartisan Campaign Reform Act and established a framework from which Citizens United could
emerge.
In general, the paper will serve as an in-depth guide to seven major Supreme Court cases
regarding campaign finance law that preceded Citizens United. It will explain Citizens United in
the context of the seven cases and attempt to clarify how the incremental changes in those cases
relate to Citizens United. Furthermore, this work will review why, after the Bipartisan Campaign
Reform Act and the Court’s initial backing of the legislation, major Court decisions switched
direction and chipped away at campaign finance law. Finally, the paper will make an effort to
determine if Citizens United is consistent with previous rulings by the Supreme Court or if the
decision represents a noticeable shift in campaign finance interpretation by the Court. If the
ruling was simply the inevitable result of a string of decisions spanning four decades, where was
the Court’s true break from regulation towards deregulation?
While numerous scholars interpret Citizens United as a sudden alteration in constitutional
analysis, others assert that Citizens United is consistent with previous rulings in the Court, and
that the true break in judicial consistency occurred much earlier in Bellotti. This paper takes a
stance similar to the latter, but instead of recognizing First National Bank of Boston v. Bellotti as

the precursor to Citizens United – as various scholars do – the paper will argue that Federal
Election Commission v. Wisconsin Right to Life Inc. represents the critical adjustment in judicial
decision-making. After detailing major Court decisions regarding campaign finance and
explaining their impact within the context of Citizens United, it should become quite evident that
while the Citizens United decision does appear to be breaking from Court rulings made right
before and after the turn of the 21st
century, the holding is an extension of previous
Constitutional analysis found in several other cases and specifically in the Wisconsin Right to
Life Inc. case.
HISTORIOGRAPHY
While there is an extensive volume of research regarding campaign finance law, most work can
be divided into one of four positions regarding the development of campaign finance law:
1. Campaign finance regulation stems not from Court decisions or case law, but from
competition for electoral resources between national parties, in which a given party
attempts to avoid reform that harms their resources while supporting reform that
impairs the resources of an opposing party
2. Citizens United is a reversal of existing case law and legislation
3. Citizens United is not a departure from existing case law
First Group
Scholars such as La Raja and Corrado focus largely on the symbiotic relationship between
campaign finance regulation and political parties.5
Specifically, La Raja advances one central

5
La Raja, Raymond J. "Consequences of Reform for Party Campaigning." In Small Change: Money, Politics
Parties, and Campaign Finance Reform. Ann Arbor: University of Michigan Press, 2008.

argument -- changes in campaign finance regulation have stemmed not from a progressive notion
of anti-corruption and transparent governance, but rather from a competition for electoral
resources occurring within differing factions of each national party: “Each major party possesses
unique electoral resources derived from the different constellation of constituencies that support
them. Party leaders must ensure that these resources are protected from ‘harmful’ reforms, while
foisting regulations that typically impair the resources of the other major party.”6
La Raja notes
that this type of maneuvering occurs within factions of a party as well. Moreover, instead of
reducing corruption and soft money in elections, La Raja maintains that the Bipartisan Campaign
Reform Act serves to fracture political campaigns from coordination with the national party and
increase candidate reliance on ideological donors.7
Corrado continues this interpretation of reform stating that, after the rise of soft money
contributions in the late 20th
century, “party financing became a focal point of intense
controversy and of proposals for reform.”8
Additionally, due to party committees’ penchant for
attracting corporate donors and other forms of soft money, the Bipartisan Campaign Reform Act
explicitly limited funds that party committees could accept and so, in 2002, a brief trend towards
focusing on small donors was established.
La Raja and Corrado contend that it is not Supreme Court cases or legislation alone that
have affected campaign finance reform, but rather the actions and response of parties to
campaigns that shape the system.

Corrado, Anthony. "Party Finances." In The New Campaign Finance Sourcebook. Washington, D.C.: Brookings
Institution Press.
6
7
8
Institution Press, 2005.

Second Group
Another significantly sizeable group holds that Citizens United represents a stark reversal in the
direction of campaign finance interpretation from the Court. Scholars such as Mutch, Potter,
Hansen, Mann, and Corrado reason that the Citizens United decision overturned a century of
campaign reform, most notably including the Bipartisan Campaign Reform Act.9
Mutch and
Hansen explicitly recognize the decision as a return to Court precedents set in Buckley and
Bellotti.10
Mutch is skeptical of arguments that claim Citizens United is not a departure from
previous interpretation of campaign finance at the federal level: “(Justice) Kennedy said ‘history
and logic’ led the majority to its Citizens United decision. But the history is fanciful and the logic
is ideological, producing a conservative conclusion from a conservative premise. Had the
Citizens United majority been sitting in judgment on the 1974 FECA, it is possible there would
now be no reforms to overturn.”11
Mutch refers to the amendments passed – in response to the
Watergate scandal – to the Federal Election Campaign Act, which included contribution limits
for individuals and PAC’s as well as spending limits for federal candidates. Clearly, Mutch
believes that the Citizens United decision overturned existing campaign finance regulation dating

9
Mutch, Robert E. "From Buckley to Austin." In Buying the Vote: A History of Campaign Finance Reform. New
York City: Oxford Press, 2014.
Potter, Trevor. "The Current State of Campaign Finance Reform." In The New Campaign Finance Sourcebook.
Washington, D.C.: Brookings Institution Press.
Hansen, Richard L. "Citizens United and the Illusion of Coherence." Michigan Law Review 109, no. 9 (2011): 581-
623.
Corrado, Anthony. "Money and Politics: A History of Federal Campaign Finance Law." In The New Campaign
Finance Sourcebook. Washington, D.C.: Brookings Institution Press,
Mann, Thomas E. "The FEC: Administering and Enforcing Campaign Finance Law." In The New Campaign
Finance Sourcebook. Washington, D.C.: Brookings Institution Press.
10
623.
11
Mutch, Robert E. "From Reform to Reaction: Since 1996." In Buying the Vote: A History of Campaign Finance
Reform. New York City: Oxford Press, 2014.

back to 1974, even suggesting that had the Citizens United court been sitting on the Federal
Election Campaign Act court, the difference in constitutional thinking between the two may have
rendered the initial amendments – individual contribution limits, candidate expenditure limits –
unconstitutional.
In contrast, Hansen centers his criticism not on possibly ideological logic, but instead on
the Court’s harmonization – that is, establishing consistent regulation and precedent – of
campaign finance law regarding corporations in the Citizens United decision. According to
Hansen, while the Court did harmonize law on the question of the constitutionality of spending
limits placed on corporations, it did so at the expense of amplifying other incoherent aspects of
the Court’s campaign finance jurisprudence. For example, Hansen questions the restrictions
placed on contributions from foreign nationals, along with prohibitions on spending in judicial
races and overall limits on campaign contributions in light of the Citizens United decision.
Hansen maintains that the Citizens United decision will result in further incoherence in the
Court’s campaign finance jurisprudence, as the Court is unlikely to apply this precedent to the
logical extremes of allowing foreign national spending and striking down individual campaign
contribution limits.
Third Group
Those who observe Citizens United, including Levitt, Potter and Jowers, and Ortiz, as a logical
extension of the Court’s previous rulings, explore the relatively small impact of Citizens United
in relation to other case law established in Buckley and First National Bank of Boston v.
Bellotti.12
Potter and Jowers, as well as Levitt, contend that corporate personhood, ruled to be

12
Levitt, Justin. "Confronting the Impact of Citizens United." Yale Law and Policy Review 29, no. 1 (2010): 217-34.
Jowers, Kirk L., and Trevor Potter. "Speech Governed by Federal Election Laws." In The New Campaign Finance

constitutional in the Bellotti case, was essentially a framework for Citizens United and therefore
minimized the impact of Citizens United.13
Levitt recognizes Bellotti as a landmark case for establishing precedent that would
eventually lead to Citizens United: “Within politics federal regulations and many states'
regulations had long prohibited corporations from spending on election-related communications.
Cases before Citizens United, however, cut these regulations to the bone. First National Bank of
Boston v. Bellotti granted corporations the right to spend unlimited treasury funds to support or
oppose ballot initiatives.” Though Levitt interprets Citizens United as consistent with and less
impactful than Bellotti, he still writes that, “Citizens United is written to be a big opinion,
offering bold constitutional pronouncements with thin evidentiary support, and scoffing at both
previous Courts and coordinate federal branches.”14
Analyzing the Scholarship
While it may be accurate to identify party committee actions as precursors to debate and
interpretation within the court system, this paper is concerned with the consistency of those
debates and interpretations, not the preceding factors that caused the courts to intervene. By
addressing and critiquing the means of the scholarship that holds Citizens United as consistent
with existing case law, but agreeing with the ends, the paper will implicitly criticize the
scholarship that observes Citizens United as a departure from previous Court decisions. This is to
say, while Citizens United may not break with previous judicial analysis, it is not the Bellotti
case that most prominently does.

Sourcebook. Washington, D.C.: Brookings Institution Press.
Ortiz, Daniel R. "The First Amendment and the Limits of Campaign Finance Reform." In The New Campaign
13
14

While Levitt argues that Bellotti allowed corporations to utilize general treasury funds in
supporting or opposing ballot initiatives, Bellotti is critical in establishing precedent for Citizens
United. It is true that Bellotti would eventually serve as precedent for enabling the flow of
treasury funds in elections, but money is not the issue. If corporations lacked personhood and the
ability to spend on campaign-related activities, then it would not matter from which funds they
could spend. Furthermore, ballot initiatives are not candidate elections. While a corporation may
have the potential to influence the outcome of a ballot initiative through advertising and other
get-out-the-vote tactics, they cannot influence the substance of the ballot itself. This is not to say
that corporations can corrupt candidates in a quid-pro-quo manner, just that corporate finances
may have an undemocratic influence on candidates.
Here’s an example of non-quid pro quo corruption: Say a politician receives a
comparatively significant contribution from an oil company. Now, while accepting money from
an oil company may not result in a politician voting pro-oil simply due to the contribution, an oil
company would not contribute to an anti-oil candidate. In other words, while accepting money
may not result in corruption, it does enable corporations and wealthy individuals to aid in the
election of candidates they know will already support their interests – a luxury not afforded to
individuals of more modest resources.
While it is true that candidates still need the support of their constituency to win
election15
, it is plausible that money from an outside organization could allow a candidate to
appeal to their constituency, smear the opposition, and ultimately win election without erecting a
platform that explicitly includes supporting the interests of aforementioned outside organization.
In this situation, an outside organization has direct influence in aiding a candidate to election; if

15
Issacharoff, Samuel, and Pamela S. Karlan. "The Hydraulics of Campaign Finance Reform." Texas Law Review
77, no. 7 (1999): 1705.

the candidate would not have won otherwise, it is realistic to assume that the candidate may feel
a certain loyalty or obligation to the outside organization. While this is not quid pro quo
corruption, it is certainly a form of corruption.
In the situation where a candidate may feel a certain sense of loyalty or obligation to an
outside corporation, the candidate has obviously been influenced in an undemocratic manner.
Arguing that the Bellotti decision – allowing corporations to spend general treasury funds on
ballot initiatives that impact their industry – serves as precedent for Citizens United, as Levitt
does, fails to account for the implications of each decision. Ballot initiatives lack the corrupting
influence opportunity that is inherent in a candidate. Once a ballot has been proposed, it’s
content cannot be altered and it’s allegiance cannot be bought. But enabling corporations to
spend on candidate elections swings the door open for potential corrupting influences. A more
appropriate precedent for Citizens United exists in the Wisconsin Right to Life Inc. decision,
which allows for direct corporate advocacy.
Completing Part of the Scholarship
Though the scholarship certainly acknowledges the previous case law leading to Citizens United
or the Bipartisan Campaign Reform Act, most of the scholarship centers on the impact and
aftermath of either event. It is difficult to recognize a single source as comprehensive in fully
explaining previous case law in the context of Citizens United. If successful, this paper will
utilize court decisions and interpretations to serve as a guide in explaining how the Court’s
preference to deregulation in the 1970’s evolved to an inclination towards regulation at the turn
of the century and then eventually returned to deregulation at the later part of the 2000’s. The
final portion of the paper will conclude on whether the Citizens United decision fits within the

canon of campaign finance law or if it exists as an outlier to modern interpretation. Previous
scholarship focuses on the coherence of Citizens United regarding future campaign finance
reform, not past. This paper will further break from scholarship by identifying Federal Election
Committee v. Wisconsin Right to Life Inc. – not Bellotti – as the landmark Court decision from
which Citizens United is a consistent decision. Analyzing previous case law to establish
precedent for Citizens United and the framework for the contemporary domestic campaign
finance system is the method in which the paper will further the scholarship.
ARCHIVES AND SOURCES
Clearly, the aforementioned seven Supreme Court cases are critical in regards to gaining insight
on the Court’s campaign finance decision-making process. Both the majority decisions in these
cases, as well as the written dissents, provide the reasoning as to why the Court opted to further
regulate or deregulate campaign finance. Furthermore, a similar background on decision-making
is offered through the lower courts decisions, as it delivers an opportunity to analyze reasoning
that potentially conflicts with the Supreme Court - even if the holdings were similar - as well as
to determine if the Supreme Court’s decision-making was consistent with lower circuits or if it
overturned previous legal thinking. Researching the oral arguments presented in these Supreme
Court cases also offers additional insight as to why regulation may have been overturned or
extended. In short, the Supreme Court cases, and all the information involved with the process
and eventual decision, including appeals, provide robust primary sources that detail the reasoning
behind decisions, which will certainly aid in attempting to explain the unraveling of campaign
finance regulation within the Courts.

Additionally, it will be valuable to examine any Congressional legislation attempting to
regulate, or deregulate, campaign finance during this period. For the purpose of this paper, the
only legislation of importance is the Bipartisan Campaign Reform Act, otherwise known as the
McCain-Feingold Act, passed in 2002. This is the cornerstone legislation during the span of this
paper as it represents a desire of Congress, and in theory, the people, to thrust campaign finance
towards increased regulation. Although the Supreme Court upheld the law the very next year, a
series of decisions from the Court eventually overturned the legislation later in the decade. This
presents a detailed opportunity to review the gap in constitutional interpretation between
Congress and the 2007 Court, as well as between the 2003 Court and 2007 Court. Observing the
general discourse – including Congressional records regarding introduction and subsequent
debate – surrounding the initial passage of this legislation, as well as the Court’s reasoning for
upholding and then eventually rendering the legislation unconstitutional, will display a stepping
stone in campaign finance law that ultimately leads to Citizens United.
To discern the motives and mood of rhetoric and general discourse around this
legislation, the paper will take into account public relations campaigns surrounding and
promoting, or criticizing, the legislation. This includes studying interviews with Congressional
members, such as McCain, Feingold, or other co-sponsors of the bill, to understand the
Congress’ reasoning for passing a bill that was clearly viewed as constitutional, at least by most,
at the time. Further outlets of expression involve any related memos, congressional records, press
releases, press conferences, op-eds, public opinion polls regarding campaign finance law, etc.
In general, these primary sources will allow the paper to examine various methods of
legal thinking surrounding campaign finance. To determine why the Court has swung from
regulation to deregulation, and vice-versa, it is critical to first understand how the Court and

Congress interprets the First Amendment in regards to campaign finance and free speech and to
note any alterations made in legislation or interpretation that may potentially lead to such swings.
Locating Potential Sources
There are numerous agencies in Washington, D.C. that collect records on Supreme Court cases;
this paper will attempt to identify the most valuable archives.
The National Archives contains records of Supreme Court cases ranging from 1772-1997
– this includes general decisions, motions, and appeals.16
Supreme Court cases utilized by this
paper within this period include: Buckley v. Valeo (1976), First National Bank of Boston v.
Bellotti (1978), and Austin v. Michigan Chamber of Commerce (1990). Buckley of importance as
it is considered to be the foundation of modern campaign finance law; the decision upheld limits
on individual contributions to campaigns but struck down limits on expenditures by candidates
and individuals.17
The next case, Bellotti, struck down laws that previously barred corporations
from contributing to ballot initiative measures.18
Finally, Austin upheld spending limits on
corporations in candidate elections, claiming that there was no correlation between public
support and corporations political views.19
To access the decisions for the remainder of the cases, the online Cornell Law database
will be utilized - the database includes syllabi, opinions, and dissents for Supreme Court cases.20
Cornell Law will serve as the archive for cases including: McConnell v. Federal Election
Commission (2003), Federal Election Commission v. Wisconsin Right To Life Inc. (2007), Davis

16
Archives. “Records of the Supreme Court of the United States”, http://www.archives.gov/research/guide-fed-
records/groups/267.html
17
BUCKLEY v. VALEO, 424 U.S. 1 (1976)
18
FIRST NATIONAL BANK OF BOSTON v. BELLOTTI, 435 U.S. 765 (1978)
19
AUSTIN v. MICHIGAN CHAMBER OF COMMERCE, 494 U.S. 652 (1990)
20
Cornell. “Archive of cases”, https://www.law.cornell.edu/supremecourt/text/home#resources

v. Federal Election Commission (2008), and the eventual Citizens United v. Federal Election
Commission (2010) decision. McConnell is a landmark decision in that it upheld the Bipartisan
Campaign Reform Act, citing that issue advocacy advertisements were constitutionally banned,
as most issue advertisements were the functional equivalent of express advocacy.21
Wisconsin
Right To Life Inc. ushered in the allowance of issue advertisements by successfully arguing for
more lenient interpretations of issue advertisements; in other words, unless absolutely no
reasonable interpretation for an advertisement existed other than it expressly advocated for the
election or defeat of a candidate, then it was allowed to broadcast within 30 days of a primary
and 60 days of a general election.22
The two immediately aforementioned cases, in addition to
Davis, encompass the reversal of the Bipartisan Campaign Reform Act – which was previously
upheld by the Court. Davis ruled that the Bipartisan Campaign Reform Act, specifically the
‘Millionaires Amendment’, unconstitutionally hindered a candidate’s First Amendment rights by
limiting the funds used by wealthier candidates.23
In addition to researching the decisions, opinions, and dissents, it will be valuable to scan
the oral arguments of these cases for supplementary insight into the successes and failures of
certain legal arguments made by the attorneys. This will provide access to make a reasonable
determination of how and why the Court rejected, or accepted, a given argument – making it
possible to account for given swings in Court behavior. The Supreme Court website houses
records of all oral arguments from 2000-present, while the Supreme Court library contains the

21
McCONNELL, UNITED STATES SENATOR, et al. v. FEDERAL ELECTION COMMISSION et al., 540 U.S.
93 (2003)
22
FEDERAL ELECTION COMMISSION v. WISCONSIN RIGHT TO LIFE, 551 U.S. 449 (2007)
23
DAVIS v. FEDERAL ELECTION COMMISSION, 554 U.S. 724 (2008)

remainder of the oral arguments.24
Also, the online Oyez Project, from Chicago-Kent Law, has a
database of oral arguments for most Supreme Court cases.25
Additionally, the Office of the Solicitor General with the Department of Justice provides
an online resource for researching briefs submitted by the Solicitor General from 1982-present.26
This archive will offer an integrated source for studying and understanding the governments’
argument in a majority of the Supreme Court cases covered in this paper, which will again
permit a window into why the Court rejected, or accepted, a given argument. The website of the
American Bar Association contains analysis of cases to be reviewed by the Supreme Court prior
to oral arguments from 2003-present – the site also has merit and amicus briefs spanning a
similar time period.27
Access to this analysis will display the summary the Court was exposed to
and may offer insight as to why the Court decided a certain way.
The Library of Congress will be utilized in order to observe the Bipartisan Campaign
Reform Act and surrounding discourse. The Library will serve as an archive to access not only
the legislation, but also interviews and oral history of the act.28
Furthermore, the Library also
contains print records and briefs of the Supreme Court from 1832-present and oral arguments
from 1979-present.29
Additional information regarding the discourse surrounding the legislation
will be found through scholarly databases such as LexisNexis.
Accessible Archives

24
supremecourt.gov. “Oral Arguments,” last modified May 2, 2015,
http://www.supremecourt.gov/oral_arguments/oral_arguments.aspx
25
Oyez. “Cases” http://www.oyez.org/cases
26
justice.gov. “Supreme Court Briefs,” http://www.justice.gov/osg/supreme-court-briefs
27
American Bar Association. “Archived Issues,”
http://www.americanbar.org/publications/preview_home/preview_archives.html
28
Library of Congress. “Search results for ‘Bipartisan Campaign Reform Act,’”
http://www.loc.gov/search?new=true&q=bipartisan+campaign+reform+act
29
Library of Congress. “Resources for Locating Records and Briefs of the U.S. Supreme Court,”
http://www.loc.gov/law/help/sct-records.php

The entirety of the previously mentioned archives are accessible – in person, unless noted as
online in preceding section – except for the Supreme Court Library, to which access is only
granted to attorneys, members of Congress, and their legal staff.30
Although the Library of
Congress contains a majority of the materials required for this paper, it is likely that all archives
will be utilized in some fashion as the remaining archives not only offer varying types of briefs
and analysis, but may also fill potential gaps in the Library of Congress’ records or provide a
more specialized insight. While this is not an exhaustive collection of archives, those mentioned
should deliver a sufficient level of resources to broadly cover the period. It is anticipated that
various archives may overlap, but, again, this will only serve to further an understanding of the
topic and contribute a more nuanced interpretation of the topic. If there is any criticism of the
research methods, it may be that the archives regarding general discourse surrounding the
Bipartisan Campaign Reform Act are not yet fully developed. This is warranted, but, with the
comparatively recent timeframe of the legislation and availability of powerful academic search
engines, this is not viewed to be a hindrance to the paper.
SOURCE ANALYSIS AND BACKGROUND
The history of campaign finance law at the Supreme Court begins with Buckley v. Valeo, the
cornerstone decision within the topic. In 1974, Congress passed the Federal Election Campaign
Act, which established individual contribution limits and set an expenditure limit for candidates.
In 1976, Senator Buckley (R-NY) challenged the law as a hindrance on free speech and the First
Amendment. The major holdings resulting from the Court’s decision struck down overall limits
on candidate spending, while upholding individual contribution limits. The Court justified

30
supremecourt.gov. “Locating Court Documents and Information,”
http://www.supremecourt.gov/faq_documents.aspx#faqdocument2

restrictions on individual contributions by stating the government has a legitimate interest in,
“the prevention of corruption and the appearance of corruption spawned by the real or imagined
coercive influence of large financial contributions on candidates' positions and on their actions if
elected to office.”31
In doing so, the Court rejected the plaintiffs’ argument that, “contribution
limitations must be invalidated because bribery laws and narrowly drawn disclosure
requirements constitute a less restrictive means of dealing with 'proven and suspected quid pro
quo arrangements.’”32
Based on the rhetoric employed in the decision, it is clear that at this
moment the Court viewed individual contributions, particularly those of substantial financial
amounts, as potentially corrupting influences. With this being said, the Court struck down overall
limits on candidate expenditures, reasoning that, “expenditure ceilings impose direct and
substantial restraints on the quantity of political speech.”33
Buckley v. Valeo appears to indicate
that while money is a necessity for political speech – a desirable good in a democracy – it is
imperative that individual contributions are limited as to not be a corrupting influence.
Two years later, the Court heard First National Bank of Boston v. Bellotti. In this case,
the First National Bank of Boston was prohibited from contributing to a state initiative relating to
tax policy and subsequently sued. The Court ruled that the Massachusetts statute violated First
Amendment rights and held that corporations had the right to spend on ballot initiative
campaigns as, “commercial speech is accorded some constitutional protection not so much
because it pertains to the seller's business as because it furthers the societal interest in the 'free
flow of commercial information.’”34
A dissent argued that while the question of free speech as it
applies to corporate political speech was novel to the Court, Congress and over thirty states had

31
32

33
34

already approved the constitutional permissibility of restrictions on political speech and that the
Court should not ignore such consensus by government institutions – “state’s regulatory interest
were themselves derived from the First Amendment.”35
While various scholars conclude that Bellotti established the framework for Citizens
United by forming a precedent for corporate political speech and spending, this fails to account
for the inherent differences between ballot initiatives and candidate elections. Spending on ballot
initiatives is political speech with no potential corrupting influences; while financial incentive
may sway a candidate, it can’t sway the content of a ballot. In this case, it appears the state has
no legitimate interest in, “the prevention of corruption and the appearance of corruption spawned
by the real or imagined coercive influence of large financial contributions,” as stated in Buckley.
While Bellotti may be recognized as a legal precedent to Citizens United, the decision can’t
definitively serve as a logical precursor to Citizens United, as the corrupting influences that are
apparent in candidate elections simply don’t exist with ballot initiatives; perhaps this false
equality given from ballot initiatives to candidate elections could be added to the incoherent
aspects argument regarding the Court’s campaign finance jurisprudence proposed by Hansen.36
In 1990, Austin v. Michigan Chamber of Commerce, a case regarding the legality of a
Michigan law barring corporations from using general treasury funds for political expenditures,
was decided by the Court. In the ruling, which upheld the constitutionality of such restrictions,
the decision recognized a compelling government interest in preventing a, “different type of
corruption in the political arena: the corrosive and distorting effects of immense aggregations of
wealth that are accumulated with the help of the corporate form and that have little or no

35
36
Hansen, Richard L. "Citizens United and the Illusion of Coherence." Michigan Law Review 109, no. 9 (2011):
581-623.

correlation to the public's support for the corporation's political ideas. Corporate wealth can
unfairly influence elections when it is deployed in the form of independent expenditures.”37
This
rhetoric from the Austin decision, coming twenty years prior to Citizens United, eerily
foreshadows the impending formation of PAC’s and subsequent undisclosed corporate spending
in elections. The language, which explicitly recognizes the potential corrupting influence of
unregulated corporate spending on candidate elections, is seemingly disregarded by the Citizens
United majority, which ruled to allow corporations to engage in electioneering communications
using general treasury funds.
This decision was overturned by Citizens United twenty years after, but, as will be
discussed, the Court fails to adequately address why the government no longer has such a
legitimate interest in preventing corporate wealth from influencing elections or provide reason
for why the correlation of public support with corporate political views is no longer relevant.
When passed in 2002, the Bipartisan Campaign Reform Act sought to address concerns
regarding the increased role of soft money by barring national political party committees from
raising or spending funds – whether it be for state/local elections and/or issue discussion – not
subject to federal limits as well as to define “electioneering communications” as any
advertisement that mentions a federal candidate within 30 days of a primary and 60 days of a
general election and to prohibit any corporations, including non-profits, for funding these
broadcasts. The legislation also contained language restricting national political party
committees from “express advocacy” on behalf of a candidate in the form of “issue
advertisements” or “coordinated expenditures”. Though issue advertisements traditionally
mentioned a federal candidate by name in relation to a specific issue, the advertisements would

37

not advocate the explicit election or defeat of a candidate and therefore previously fell outside
the purview of the Federal Election Campaign Act.
This legislation, which passed the House 240-189, the Senate 60-40, and was
subsequently signed into law by President Bush, is explicit in its concern for barring corporations
from engaging in political speech when in proximity to an election. Instead of prohibiting
express candidate advocacy by corporations, the bill extends the restrictive scope even farther
and prohibits corporations from even mentioning a federal candidate. While Citizens United
officially overturns the mentioned provisions in this legislation, it is Wisconsin Right to Life Inc.
that effectively renders the Bipartisan Campaign Reform Act dead.
Before the Wisconsin Right to Life Inc. decision, Senator Mitch McConnell (R-KY)
argued in McConnell v. Federal Election Commission (2003) that the bill infringed on First
Amendment rights and the case was eventually appealed to the Supreme Court. The Court, in a
5-4 decision, ruled that, as soft money was used mostly for driving voter registration and poll
attendance instead of crafting a political message, the Bipartisan Campaign Reform Act
minimally restricted free speech and was constitutional. Furthermore, the decision, written by
Justices Sandra Day O’Connor and John Paul Stevens, maintained that the restrictions were
constitutional as the federal government had a legitimate interest in precluding, “both the actual
corruption threatened by large financial contributions and...the appearance of corruption”38
that
might result from those donations. Furthermore, the decision goes on to claim that, as, “money,
like water, will always find an outlet,”39
government has a compelling interest in legislation that
prevents corporations from circumventing contribution limits through broadcasts such as issue

38
93 (2003)
39
93 (2003)

advertisements. With this, the Court rejects the argument that the legislation was too broad and
regulates activity (issue advertisements) that have not been proved to cause corruption under the
assumption that issue advertisements were “the functional equivalent of express advocacy.”40
The dissent in this decision mentions that the upholding of this legislation drives, “speakers to
abandon their own preference for speaking through parties and organizations.”
While this decision is in blatant contrast with – and will eventually be overruled by –
what the Court will later decide in Wisconsin Right to Life Inc., there never appears to be
sufficient reason provided in the text of the decision as to how and why the government no
longer has a compelling interest in prohibiting the broadcast of issue advertisements and
preventing corporations from circumventing campaign finance law; the purpose of restricting
corporations from directly contributing to candidates is to avoid the appearance of corruption
and/or actual corruption. By enabling corporations to engage in express advocacy and contribute
unlimited amounts to candidate-sponsored PAC’s, the line between political speech and direct
contributions is at the very least blurred, if not entirely abolished.
In a 2007 decision, Wisconsin Right to Life Inc., a non-profit advocacy corporation,
desired to broadcast advertisements appealing to voters to oppose filibusters of judicial nominees
within the restricted 30 and 60 day blackout periods. The group argued that, as the
advertisements related to a pending issue in Congress and failed to advocate for the election or
defeat of a candidate, the federal government has no compelling interest to restrict the
broadcasts. Though a federal court initially ruled that McConnell v. FEC contained language that
prohibited not only a facial challenge to this portion of the Bipartisan Campaign Reform Act, but
also an “as applied” exception challenge and accordingly dismissed the case. In constitutional

40
93 (2003)

law, a facial challenge is a challenge to a statute in which the plaintiff alleges that the entirety of
a given legislation is unconstitutional, and therefore void. It is contrasted with an as-applied
challenge, which alleges that a particular application of a statute is unconstitutional. However, in
2007 the Supreme Court reversed and remanded the challenge to the lower courts to determine if
an “as applied” exception challenge was warranted for Wisconsin Right to Life Inc..
On remand, the Federal Election Commission argued that advertisements that air in such
close proximity to an election should be assumed to have the intent of unconstitutionally
influencing an election. Specifically, the Commission told the Supreme Court that these
advertisements were “sham issue advertisements” and would have a direct impact on Senate
elections in Wisconsin. In response, Wisconsin Right to Life Inc. claimed that the advertisements
were genuinely issue advertisements and therefore the federal government lacked a compelling
interest adequate to supersede the free speech interest of the First Amendment. In another 5-4
decision, the Supreme Court rejected the direct impact argument of the Federal Election
Commission, not only holding that such a precedent would be burdensome and inconsistent but
also would, “unquestionably chill a substantial amount of political speech.”41
Rather, the
Supreme Court opted to establish a test that would restrict issue advertisements as the
“…functional equivalent of express advocacy only if the ad is susceptible of no reasonable
interpretation other than as an appeal to vote for or against a specific candidate.”42
Neither the
federal interest in attempting to limit corruption nor the interest in curbing the distorting effects
of corporate wealth in elections was sufficient to override the rights of corporations to expend
their positions on public issues through advertisements. Though the Bipartisan Campaign
Reform Act provisions restricting “electioneering communications” were technically left in tact,

41
Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)
42

the decision deeply gutted the law and essentially returned the state of regulation back to
subjecting only speech expressly advocating for the election or defeat of a candidate to limits and
prohibitions on political financing. Thus began the death of the Bipartisan Campaign Reform Act
and a swing towards deregulation.
While the holding offers a degree of insight into the decision-making process of the
Supreme Court, the opinions of McConnell v. Federal Election Commission and Federal
Election Commission v. Wisconsin Right to Life Inc. seem to be irreconcilable. In McConnell, the
Court strongly declared issue advertisements as unconstitutional. But in Wisconsin Right to Life
Inc., the Court seems to completely disregard this sentiment. The text of the Wisconsin Right to
Life Inc. advertisement is as follows:
[Wedding scene]
PASTOR: And who gives this woman to be married to this man?
BRIDE'S FATHER: Well, as father of the bride, I certainly could. But instead, I'd like to share a
few tips on how to properly install drywall. Now you put the drywall up...
VOICE-OVER: Sometimes it's just not fair to delay an important decision. But in Washington,
it's happening. A group of Senators is using the filibuster delay tactic to block federal judicial
nominees from a simple "yes" or "no" vote. So qualified candidates don't get a chance to serve.
It's politics at work, causing gridlock and backing up some of our courts to a state of emergency.
Contact Senators Feingold and Kohl and tell them to oppose the filibuster.
Visit: BeFair.org
Paid for by Wisconsin Right to Life (befair.org), which is responsible for the content of this
advertising and not authorized by any candidate or candidates committee.43
While there is clearly no express advocacy component in this advertisement – which
would pass the test established in Wisconsin Right to Life Inc. – the broadcast appears to be an
issue advertisement that would be previously barred from the Bipartisan Campaign Reform Act
and the subsequent upholding of the constitutionality of the bill in McConnell. In the dissent,

43

which was joined by three other Justices, David Souter wrote that:
“Congress determined, in 2002, that corporate and union expenditures for fake issue ads devoid
of magic words should be regulated using a narrow definition of “electioneering communication”
to reach only broadcast ads that were the practical equivalents of express advocacy. In 2003, this
Court found the provision free from vagueness and justified by the concern that drove its
enactment… In sum, any Wisconsin voter who paid attention would have known that
Democratic Senator Feingold supported filibusters against Republican presidential judicial
nominees, that the propriety of the filibusters was a major issue in the senatorial campaign, and
that WRTL along with the Senator’s Republican challengers opposed his reelection because of
his position on filibusters. Any alert voters who heard or saw WRTL’s ads would have
understood that WRTL was telling them that the Senator’s position on the filibusters should be
grounds to vote against him. Given these facts, it is beyond all reasonable debate that the ads are
constitutionally subject to regulation under McConnell.”44
In the majority opinion, Chief Justice Roberts maintained that the only speech regarding
politicians and political issues that Congress can constitutionality prohibit from broadcast are
those that can be described as, “express advocacy or its functional equivalent.”45
Additionally,
Justice Roberts notes that it would be inappropriate, and would more importantly chill political
speech, to subject advertisements and speakers to an investigation regarding the motive of an
advertisement. The only factor that could be constitutionally judged was the content of the
advertisement itself.
The Justices in the majority of Wisconsin Right to Life Inc. established a framework that
would only ban advertisements that are, “…susceptible of no reasonable interpretation other than

44
45

as an appeal to vote for or against a specific candidate.”46
But in McConnell the Court declared
issue advertisements – which the Justices recognized were not explicitly advocating for election
or defeat – to be unconstitutional. The Courts’ opinion declares that the Wisconsin Right to Life
Inc. commercial is a genuine issue advertisement, and there is certainly nothing that overtly
attempts to sway the voter in the text. Elections are not even mentioned. In the dissent, Justice
Souter mentions that, “Throughout the 2004 senatorial campaign, WRTL made no secret of its
views about who should win the election and explicitly tied its position to the filibuster issue. Its
PAC issued at least two press releases saying that its “Top Election Priorities” were to “Re-elect
George W. Bush” and “Send Feingold Packing!””47
Clearly, Wisconsin Right to Life Inc. had
intent beyond opposing judicial filibusters; yet the Court announced in Wisconsin Right to Life
Inc. that introducing intent into deciding constitutionality would prove too convoluted.
The following year, the Court heard another case – Davis v. FEC – regarding campaign
finance. Although this decision is comparatively less significant, it represents the Courts’ non-
interest in providing a level financial playing field in candidate elections. The challenge was
brought forth by a wealthy candidate, Jack Davis, who claimed the “Millionaires’ Amendment”
of the Bipartisan Campaign Reform Act was unconstitutional in that it violated the First
Amendment and the Equal Protection principle of the Fifth Amendment. The “Millionaires’
Amendment” essentially increased contribution limits for candidates if they are competing
against individuals that put a significant amount of their personal funds towards their campaign.
In Buckley, the Court struck down overall expenditure limits on candidates and allowed
candidates to “vigorously and tirelessly,” advocate for election. The “Millionaires’ Amendment”

46
47
Democracy 21. “Democracy 21 Urges Democratic Congressional Leaders to Disassociate Themselves from
Constitutional Challenge to McCain-Feingold,” http://www.democracy21.org/archives/issues/bcra-and-other-
campaign-finance-laws/democracy-21-urges-democratic-congressional-leaders-to-disassociate-themselves-from-
constitutional-challenge-to-mccain-feingold/

didn’t cap expenditures of wealthy candidates, but it did effectively impose a punishment for
utilizing substantial funds of personal wealth in an election by increasing their oppositions’
contribution limits. The Court, which ruled in favor of Davis, held that the government had no
compelling interest in limiting the funds of wealthy candidates; in fact, the Court proposed that
reliance on personal funds actually reduced the risk of corruption. While the Federal Election
Commission argued that a level playing field was legitimate government interest, the Court
responded that this rationale had already been struck down in Buckley.
While this decision is consistent with previous decisions, it is noteworthy that the Court,
by explicitly rejecting a level financial playing field, implicitly rejected the concept of a level
playing field regarding quantity of political speech; clearly, the wealthier candidate can afford
more political speech. This lack of interest in an egalitarian election system is a precursor of
decisions to come in Citizens United.
In a 2010 decision, the non-profit Citizens United sought to broadcast an advertisement
for a film that was critical of then (and now) presidential candidate Hillary Clinton within the
restricted periods – thirty days before a primary and sixty days before a general – established by
the Bipartisan Campaign Reform Act. While a lower court determined that the film had no
purpose other than to derail and discredit Clintons’ presidential campaign, the non-profit
maintained that the broadcast was fact-based and nonpartisan.
The Court ruled that the First Amendment prohibited the federal government from
restricting independent political expenditures by a non-profit corporation and held that
corporations could utilize general treasury funds for direct advocacy of a candidate, thus
overturning Austin and provisions in the Bipartisan Campaign Reform Act. The decision
essentially allowed for corporations to now engage in electioneering communications and put

their general treasury funds towards doing so. According to the majority opinion, the First
Amendment protects associations of people and does not discriminate on the identity of the
speaker; thus, corporations, as associations of people, were protected under the First
Amendment. As Buckley determined that money was critical in disseminating political speech,
restricting the ability of a corporation to spend is akin to inhibiting the ability of members’ to
successfully associate and speak on political issues, and is therefore unconstitutional.
In a lengthy dissent, Justice Stevens wrote that the decision, “threatens to undermine the
integrity of elected institutions across the Nation. The path it has taken to reach its outcome will,
I fear, do damage to this institution. A democracy cannot function effectively when its
constituent members believe laws are being bought and sold.”48
Though Justice Stevens holds
that the Court improperly changed the questions presented by the appellate in order to provide
themselves with the opportunity to alter the law, his substantive argument centers on precedent
established in Buckley. Justice Stevens acknowledges that Buckley struck down overall
expenditure limits, but claims the decision still recognizes “prophylactic” measures – upholding
limits on individual contributions – and found the avoidance of corruption to be a legitimate goal
of Congress and the Court.
Within the Citizens United decision, the opinion states, “Bellotti did not address the
constitutionality of the State’s ban on corporate independent expenditures to support candidates.
In our view, however, that restriction would have been unconstitutional under Bellotti ’s central
principle: that the First Amendment does not allow political speech restrictions based on a
speaker’s corporate identity.”49
The majority elects not to acknowledge that the Bellotti decision

48
Citizens United v. Federal Election Commission, No. 08-205, 558 U.S. 310 (2010)
49

did not in fact bar restrictions on, “political speech…based on a speaker’s corporate identity.”50
Instead, the Bellotti decision simply held that, “corporate speech is protected by the First
Amendment only when it pertains directly to the corporation's business interests.”51
When a
corporation engages in candidate elections, they inherently engage in debates over social rights,
foreign policy, economic platforms, environmental conservation, etc. Surely most corporations
could invent creative arguments as to why these policy areas hold implications on their business
interests, but the reality is these implications are not direct in all policy areas.
The Citizens United opinion goes on to criticize the Austin decision, which upheld
corporate spending limits on the basis of the lack of correlation between public opinion and a
corporation’s political views; “Yet media corporations accumulate wealth with the help of the
corporate form, the largest media corporations have “immense aggregations of wealth,” and the
views expressed by media corporations often “have little or no correlation to the public’s
support” for those views. Austin , 494 U. S., at 660. Thus, under the Government’s reasoning,
wealthy media corporations could have their voices diminished to put them on par with other
media entities.”52
In this instance, the Court maintains that as media corporations obtain
corporate wealth and are allowed to operate within candidate elections, corporations must too be
allowed to do so, as both entities hold views that, “have little or no correlation to the publics’
support.”53
But don’t corporations obtain their corporate wealth through establishing an audience
that can be assumed to support the political stances of the media organization? Liberals generally
don’t consume Fox News and conservatives typically don’t tune-in to MSNBC. Media
organizations generate wealth through audience size and audience make-up presumably

50

51

52

53

correlates with the media organizations political views. If this holds, then wealth does in fact
correlate with public support in the case of media organizations. However, when an individual
frequents ‘Company X’ to purchase a non-political good or service, they typically do so without
regard to the political views of ‘Company X’. Media organizations are in the business of
disseminating political opinions and these opinions are widely accessible and known by the
public. The same cannot be said for other corporations and the Court errs in equating the
correlation between public support and wealth of media organizations to non-political
corporations.
The Citizens United decision is essentially justified through the idea that, “First
Amendment standards, however, “must give the benefit of any doubt to protecting rather than
stifling speech.” WRTL , 551 U. S., at 469 (opinion of Roberts , C. J.)”54
; an idea solidified
within the Wisconsin Right to Life Inc. holding, as demonstrated by the quote above pulled by the
Justices of the Citizens United opinion. This notion of giving political speech the “benefit of the
doubt”, seems to stem neither from some public mandate nor from an idea that there are
sufficient safeguards to prevent potential corrupting corporate influence, but rather from an
ideological shift in the Court – the result of Justices leaving and entering the Court.
In 2005, Chief Justice Roberts was nominated by President Bush and confirmed to his
current position. In 2006, Justice O’Connor retired and was replaced by another Bush appointee,
Justice Alito. Where Justice O’Connor tended towards regulation, Chief Justice Roberts and
Justice Alito leaned the opposite direction. In the 2003 McConnell decision, Justice O’Connor
voted in favor of sustaining the Bipartisan Campaign Reform Act, a position that was upheld by
the Court. In the 2007 Wisconsin Right to Life Inc. holding that effectively rendered the
Bipartisan Campaign Reform Act toothless, Chief Justice Roberts wrote the opinion of the Court

54

and was joined by one other Justice – Justice Alito. Both the McConnell and Wisconsin Right to
Life Inc. rulings were decided by a 5-4 margin.
In the McConnell decision, as aforementioned in this paper, Justice O’Connor wrote the
opinion stating that the restrictions on corporate soft-money contributions – made to political
parties and/or PAC’s – were constitutional as the federal government had a legitimate interest in
precluding, “both the actual corruption threatened by large financial contributions and…the
appearance of corruption”55
that might result from those donations; as, “money, like water, will
always find an outlet,”56
government has a compelling interest in legislation that prevents
corporations from circumventing contribution limits through broadcasts such as issue
advertisements. Clearly, Justice O’Connor viewed corporate contributions as a potential
corrupting influence and placed it upon the Court to address such corruption.
Within the opinion of Wisconsin Right to Life Inc. – written by Chief Justice Roberts and
joined by Justice Alito – the Court holds that, “ Looking beyond the content of WRTL’s ads, the
FEC and intervenors argue that several “contextual” factors prove that the ads are the equivalent
of express advocacy. First, appellants cite evidence that during the same election cycle, WRTL
and its Political Action Committee (PAC) actively opposed Senator Feingold’s reelection and
identified filibusters as a campaign issue. This evidence goes to WRTL’s subjective intent in
running the ads, and we have already explained that WRTL’s intent is irrelevant in an as-applied
challenge. Evidence of this sort is therefore beside the point, as it should be—WRTL does not
forfeit its right to speak on issues simply because in other aspects of its work it also opposes

55
93 (2003)
56
93 (2003)

candidates who are involved with those issues.”57
With this, the Court implicitly decides to allow
corporations to engage in direct advocacy without spending limits on issue advertisements that
largely serve to circumvent direct contribution limits.
The Chief Justice does not attempt to claim that Wisconsin Right to Life Inc. is not
participating in direct advocacy, just that it is irrelevant. The opinion goes on to state that,
“Enough is enough… we give the benefit of the doubt to speech, not censorship.”58
This is
essentially the mantra of Wisconsin Right to Life Inc. and Citizens United; nothing has changed
regarding the potential corrupting influence of corporate contributions between McConnell and
Wisconsin Right to Life Inc. other than the ideological differences between Justices O’Connor
and Alito – the 5-4 decision towards regulation in McConnell swings to a 5-4 decision towards
deregulation in Wisconsin Right to Life Inc. The Wisconsin Right to Life Inc. opinion justifies
giving the benefit of the doubt to speech and not censorship by claiming, “The First
Amendment’s command that “Congress shall make no law . . . abridging the freedom of speech”
demands at least that.”59
But laws exist that abridge the freedom of speech regarding fighting
words, libel, slander, the invasion of privacy etc. Chief Justice Roberts never claims that the
Wisconsin Right to Life Inc. advertisements aren’t direct advocacy, just that their intent is
irrelevant; it’s unclear why the Chief Justice believes the Court cannot abridge the freedom of
speech when both Court’s before him have done so to eliminate potential corrupting influences
in candidate elections (Austin, McConnell) as well as Congress (Bipartisan Campaign Reform
Act, fighting words, libel, etc.).
Once the Court decided that political speech must be given the benefit of the doubt over
censorship –as it did in Wisconsin Right to Life Inc. – the Citizens United holding was a forgone

57
58
59

conclusion. While Citizens United enabled corporations and unions to freely spend from their
general treasury funds to finance independent expenditures related to campaigns, it is the
Wisconsin Right to Life Inc. decision that provided the groundwork for ensuring corporations the
right to political speech; Citizens United simply allowed corporations to spend more money on
political speech. One may argue that enabling corporations to spend from general treasury funds
is more damaging – in that it has a higher potential corrupting influence – than purely allowing
corporations the right to issue advertisements, but it is the allowance of that political speech that
represents a more authentic break in constitutional analysis at the Court level.
Bellotti – which has been cited by various scholars as a precedent for Citizens United –
provided an economic justification for corporate personhood, stating, “commercial speech is
accorded some constitutional protection not so much because it pertains to the seller's business as
because it furthers the societal interest in the 'free flow of commercial information.’”60
But for
reasons argued in preceding sections of this paper, the implications of allowing corporate
spending in ballot initiatives only pertaining directly to the business interests of the corporation
should not be equated with corporate spending in candidate elections. While the political
justifications – “enough is enough”, “give the benefit of the doubt to speech, not censorship”61
–
are unsatisfying based on Court and Congressional precedent, this theoretical stance taken in
Wisconsin Right to Life Inc. positions Citizens United as a forgone conclusion. If the Court views
corporate political speech as legitimate speech worth protecting, then there exists no reason to
expect the Court to limit the independent spending of corporations in areas they wouldn’t
regulate for individuals outside of direct contributions. Wisconsin Right to Life is a true departure
from previous Court rulings; Citizens United is a byproduct of that decision.

60
61

CONCLUSION
Citizens United is a controversial decision that arguably contradicts numerous precedents
established by the Court; in Buckley - while upholding individual contribution limits – the Court
recognized that the government has a compelling interest in, “the prevention of corruption and
the appearance of corruption spawned by the real or imagined coercive influence of large
financial contributions on candidates' positions and on their actions if elected to office.”62
In
Austin the Court again recognizes a legitimate government interest in preventing a, “different
type of corruption in the political arena: the corrosive and distorting effects of immense
aggregations of wealth that are accumulated with the help of the corporate form and that have
little or no correlation to the public's support for the corporation's political ideas. Corporate
wealth can unfairly influence elections when it is deployed in the form of independent
expenditures.”63
Yet in the Citizens United decision the Court seems to be only focused on
protecting rights to political speech under the First Amendment, never minding the fact that
precedent had already been established to curtail such speech as it relates to preventing potential
corrupting influences.
With this being said, it is Wisconsin Right to Life Inc. that these complaints could first be
applied to. In Wisconsin Right to Life Inc., the Court ruled that provisions in the Bipartisan
Campaign Reform Act would, “unquestionably chill a substantial amount of political speech.”64
Again, the Court seemed to regard the decisions made in Buckley and Austin as irrelevant. By
allowing corporations the right to political speech akin to that of an individual – as was
essentially allowed for in Wisconsin Right to Life Inc. – of course the Court would eventually

62
63
64

rule that financial restraints on political speech regarding a corporation would be as
unconstitutional as they would be if placed on an individual.
Furthermore, the Court announced in Wisconsin Right to Life Inc. that the law would not
be concerned with the intent of an advertisement, solely the content; and in Citizens United the
Court enabled corporations to engage in direct advocacy while leaving in place bans that prohibit
corporations from direct contributions to candidates, implying that direct contributions from
corporations could still be considered a potential corrupting influence. In both of these instances,
the Court seems either unaware or unconcerned with the real-life implications of these rulings.
While the Court was obviously aware of the express advocacy for President Bush and
against Senator Feingold being undertaken by Wisconsin Right to Life Inc., the majority still
opted to allow issue advertisements to be broadcast, ignoring the issue advertisements are “the
functional equivalent of express advocacy,”65
sentiment echoed in McConnell. In effect, the
Wisconsin Right to Life Inc. ruling allowed for express advocacy by corporations who could use
issue advertisements as a proxy.
In Citizens United the Court allowed for corporations to use general treasury funds on
express advocacy, but left in place bans on direct corporations, again to prevent the appearance
of potential– or actual – corruption. But allowing for corporations to utilize general treasury
funds to engage in express advocacy has effectively enabled corporations to directly contribute
to candidates through political action committees, which are legal so far as they are independent
and not coordinated with the candidate they advocate for; this has simply not happened.
Consider the political action committees representing numerous 2016 presidential
candidates. Rand Paul’s political action committee – America’s Liberty – is headed by Jesse

65
93 (2003)

Benton who, besides serving as Ron Paul’s (Rand’s father) top strategist on two presidential
campaigns and Rand’s advisor on his Senate campaign, is married to Rand Paul’s niece. Scott
Walker’s political action committee Unintimitaded employs Keith Gilkes – Walker’s former
campaign manager and Chief of Staff. Right to Rise – the political action committee supporting
Jeb Bush – expects to hire Mike Murphy who is a long-time Bush advisor and was integral to
locking down the big 2016 donors for Jeb Bush. Not only are these political action committees
not independent, their staff displays that they don’t even bother with attempting to portray a
sense of independence and distance from their respective candidates.
The Federal Election Committee must improve on and actually enforce regulations
barring political action committees from coordinating with candidates; otherwise corporations
can effectively directly give unlimited amounts of contributions to candidates through their
political action committee. In the cornerstone campaign finance decision, the Court explicitly
sought an ability to enable government in, “the prevention of corruption and the appearance of
corruption spawned by the real or imagined coercive influence of large financial contributions on
candidates' positions and on their actions if elected to office.”66
The current state of political
action committees appears to reside in that notion.
Though the Citizens United decision appears to provide corporations with a greater
ability to engage in potentially corrupting financial action, Wisconsin Right to Life Inc. grants
corporations the protection of political speech under the First Amendment and is the root of the
proliferation of corporate activity within political speech. Further efforts concerned with limiting
the influence of corporate political speech on candidate elections should focus on altering the
Wisconsin Right to Life Inc. decision, which would likely nullify substantial portions of Citizens
United. If you can’t engage in political speech, you can’t spend money on it. Campaign finance

66

law remains a contentious political issue and, with numerous attempts to alter the state of
regulation – from the Hatch Amendment attempting to repeal Citizens United to the Empowering
Citizens Act seeking to implement a matching funds public financing system for congressional
candidates – the issue seems well-positioned to encompass a significant amount of public and
congressional debate in the coming years.

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