Breaching a Leaking Dam?: Corporate Money and Elections

Abstract

With a brief order issued at the end of its last term, the Supreme Court dramatically raised the stakes in Citizens United v. FEC. What many had predicted would be a case decided on narrow, technical grounds has now become a possible vehicle for overturning two key campaign finance precedents. By ordering re-argument and supplemental briefing on the issue of whether it should overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, the Court signaled that it was considering breaching the already leaking dam that keeps corporate (and union) funds at least partially out of federal elections.

The first part of this Article places the Citizens United case in context by reviewing the almost 100 years of gradually tightening federal election laws governing the use of corporate funds, including the Court’s decision in Austin that upheld a state election law ban on corporations making certain election-related expenditures. The second part reviews the specific facts and issues raised in Citizens United. The third part then addresses how the Court is likely to answer the new question it has posed. That part concludes that given the stated and likely positions of the current nine Justices, the argument that is most likely to convince a majority of the Court not to overturn Austin is the doctrine of stare decisis, although that result is far from assured. Even stare decisis is unlikely to preserve the relevant portion of McConnell, however. The fourth and final part addresses the potential ramifications if the Court overrules either or both of the precedents it cited, including the new pressure an overruling of Austin would place on seemingly unrelated federal tax laws governing tax-exempt, nonprofit corporations.

Keywords: campaign finance, election law, BCRA, Citizens United v. FEC, WRTL v. FEC, Buckley v. Valeo