Supreme Court and Campaign Finance Reform

Today the US Supreme Court hears re-argument in Citizens United v. Federal Election Commission. The outcome of the case will have a major bearing on future congressional and other elections. The limited issue before the Court is the power of government to bar corporations from using funds from their own treasuries to support or oppose candidates for elected offices. The case involves Hillary The Movie a 90 minute documentary produced by Citizens United, a conservative non-profit research organization. The film, released in advance of the November 2008 presidential election, was highly critical of then-presidential candidate Hillary Clinton.

The case came before the Court in March 2009 after the US District Court for the District of Columbia denied a motion for a preliminary injunction by Citizens United to enjoin the Federal Election Commission (FEC) from enforcing the provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA) against it. In June, the justices decided to hold another session to consider the more important issue of whether to overturn two of its past rulings that limit direct corporate and union financing of campaigns. The Questions Presented includes “Whether a broadcast feature-length documentary movie that is sold on DVD, shown in theaters, and accompanied by a compendium book is to be treated as the broadcast “ads” at issue in McConnell, 540 U.S. at 126, or whether the movie is not subject to regulation as an electioneering communication.” The two US Supreme Court precedents that now limit the amount of corporate and union money in elections are McConnell v. FEC, 540 U.S. 93 (2003) and Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990). The outcome will depend on the willingness of two conservatives, Chief Justice John Roberts and Justice Samuel Alito, to overrule the earlier decisions. Movie supporters argue federal law is wrongly preventing corporations and unions from airing their views.

The NY Times’ Room for Debate section from September 8 titled Free Speech and ‘Hillary: The Movie’ has more discussion on the issues in the case including a section called Gagging Political Criticism written by Brooklyn Law School Professor of Law Joel M. Gora, long-time lawyer for the American Civil Liberties Union. Prof. Gora addresses the three key arguments in favor of continuing government regulation of corporate electioneering:

  • Only people should have free speech, not corporations;
  • Corporations have so much money that they will overwhelm the political process if they can spend it freely criticizing politicians; and
  • Corporate spending on political speech can corrupt our politicians.

Regardless of one’s views on the merits of regulating express candidate advocacy by corporations – the issues of campaign finance regulation and the question currently being addressed by the Court are highly complex. Those formerly in the minority, including Justices Roberts and Alito now have a potential opportunity to re-make the law.

The BLS Library has in its collection these items on the subject of the Bipartisan Campaign Reform Act of 2002:

Legislative History of the Bipartisan Campaign Reform Act of 2002‎ edited by Manz H. William (Call #JK1991 .L44 2003)


Life after Reform: When the Bipartisan Campaign Reform Act Meets Politics, edited by Michael J. Malbin (Call #JK1991 .L54 2003)