Corporate Speech

1. Com 505
Corporate Political Speech

2. Constitutional Purposes of the First Amendment
• “To encourage the exchange of ideas/info so the citizens
can shape public opinion”
-Stephen Breyer, U.S. Supreme Court Justice
• Our democracy is built on principles of “liberty”
• LIBERTY
– (1) Freedom from government coercion (liberty at risk when
laws restrict speech directly related to shaping public opinion)
– (2) Freedom to participate in government itself (reading the
First Amendment to maintain democratic decision-making
institutions); to promote active participation in collective power.

3. Campaign Finance Issues
• Concerns with campaign finance arise out of the
explosion of campaign costs
• Is money ($$) speech? (Some claim it is!)
• Expenditure of $$$ enables speech! This
expenditure is often necessary to communicate a
message.
• On average,
– TV spots cost $10,000 per minute
– In the U.S., a campaign for a U.S. Congressional seat
requires about $1 million
• In the UK, about $15,000
• In Canada, about $45,000

4. Campaign Finance Issues
• 99% of eligible voters in U.S. donate less than $200
– Small % donate over $120,000
• So what are the concerns with the few who give
large amounts to campaigns?
– The idea/perception that big donors have “special
access” to candidates and can influence them.
– This leads to less public confidence AND less
political participation!

5. Citizens United v. FEC (2010)

6. Campaign Finance Cont’d
• Fundamental Question: How and to what extent does
the First Amendment permit the legislature to
impose limits on the amounts individuals AND
orgs/parties can contribute to campaigns?
• CITIZENS UNITED v. F.E.C.
• Background: Prior to this case ruling, the courts had held
that corporate political speech may be regulated and
prohibited in federal elections.
• Holding: Corporations, acting independent of any
candidate, have the same free speech rights to speak in
federal elections as individuals, to speak
independently, to take out radio/tv ads.

7. Citizens United v. F.E.C.
• So political spending is a form of protected speech
under the First Amendment, and the government may
not keep corporations or unions from spending money to
support or denounce individual candidates in elections.
• While corporations or unions may not give money
directly to campaigns, they may seek to persuade the
voting public through other means, including tv/radio
ads.
• BUT, disclosure is constitutional; it doesn't limit your
right to speak, but it informs the public of who is doing
the speaking.

8. First Amendment Concerns
• So campaign finance laws should be drafted in a manner
that fosters public confidence and maintain the
integrity of the political process …
• But after Citizens United, do we have greater public
confidence in the political process?

9. McCutcheon v. FEC (2014)

10. McCutcheon v. FEC (2014)
• McCutcheon challenged these aggregate limits claiming
they violate the First Amendment because “they burden
protected political speech.”
• The District Court held that the gov may justify the
aggregate limits as a means of preventing corruption or
the appearance of corruption

11. McCutcheon v. F.E.C.
• Issue here involves aggregate limits on the amount an
individual may contribute to all federal candidates,
parties and PACs combined.
• Previously, a donor could contribute $2,600 per election
to federal candidates, with an overall limit of $48,600 to
all candidates within 2-yr period.
• After McCutcheon, the USSC (5-4 ruling) struck down
these aggregate limits, so a donor could now potentially
give each federal candidate across the country up to
$2,600.