• Supreme Court Restores Corporate Political Speech Rights
  • January 28, 2010 | Authors: Chris Ashby; Lee E. Goodman
  • Law Firm: LeClairRyan - Washington Office
  • The Supreme Court of the United States today struck down federal laws that barred corporations and labor unions from spending general treasury funds to finance advertisements expressly supporting or opposing candidates for federal office (“express advocacy”), or referring to clearly-identified federal candidates that are broadcast in the run-up to primary and general elections (“electioneering communications”).

    The Court’s landmark ruling in Citizens United v. Federal Election Commission overturns 30 years of congressional and judicial restriction of corporate political speech, and establishes a clear First Amendment right for corporations and labor unions to make unlimited independent expenditures in federal elections:

    “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each. * * * We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.”

    For corporations, the implication of Citizens United is a clear right to use general treasury funds to advocate for or against the election or defeat of candidates for President and Congress—or to contribute to other organizations, such as non-profit advocacy groups and trade associations, to do so. Previously, corporations were restricted from engaging in such express advocacy in federal elections, and from even referring to clearly identified federal candidates in certain “blackout periods” before primary and general elections.

    In the wake of Citizens United, many state laws restricting corporate political expenditures likely will be repealed or struck down. Until such time, however, corporations should continue to plan and review state-level political expenditures carefully. Also, and importantly, Citizens United does not overturn other provisions of federal election and campaign finance law. The ban on direct and in-kind corporate contributions to federal candidates remains intact, as do the disclaimer, disclosure and reporting requirements that apply to corporate-funded political advertisements and independent expenditure campaigns.