Renzulli Law Firm

Recent Supreme Court Decision on Political Speech by Corporations

On January 21, 2010, the United States Supreme Court issued its decision in Citizens United v. Federal Election Commission. This decision struck down the prohibition contained in the 2002 Bipartisan Campaign Reform Act of 2002 (also known as the McCain-Feingold Act) that barred corporations from using general treasury funds to engage in an “electioneering communication,” which was broadly defined as any broadcast cable or satellite communication that refers to a clearly identified candidate for federal office that is made within thirty days before a primary or sixty days before a general election on the basis that it violated the First Amendment’s protection of freedom of speech. The Court held that the prohibition on electioneering communications chilled corporations’ right to free speech because it essentially required them to obtain advance permission from the Federal Election Commission to engage in speech mentioning a candidate for federal office, during the time frames that such speech was relevant, to avoid the possible prosecution for a federal felony.

The decision also had the effect of declaring the provision in 2 U.S.C. § 441b, that barred corporations from expressly advocating the election or defeat of any candidate for federal office through any form of media, to be an unconstitutional violation of the First Amendment. As a result of this decision, corporations may now make “independent expenditures” of funds from their general treasuries to expressly advocate the election or defeat of a candidate for federal office, as well as engage in speech that refers to a clearly identified candidate for federal office immediately prior to an election. The requirement that corporations include disclaimers and disclosures regarding who paid for the electioneering communication was upheld, and the restriction on corporations making direct contributions to candidates remains unaffected by the decision. Although this decision had the result of overruling the 1990 decision in Austin v. Michigan Chamber of Commerce and the 2003 decision in McConnell v. Federal Election Commission, which had upheld restrictions on political speech by corporations, it simply reinstated Supreme Court jurisprudence on the First Amendment rights of corporations as it had existed prior to 1990.

For additional information on how the Supreme Court’s decision in the Citizens United case has affected your corporation’s ability to engage in political speech, please contact Scott C. Allan.

Attachments:
Decision in Citizens United v. Federal Election Commission	944 Kb

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