FIRST AMENDMENT LAW REVIEW Volume 9 | Issue 2 Article 4 12-1-2010 The aG me Changer: Citizens United's Impact on Campaign Finance Law in General and Corporate Political Speech in Particular James Jr. Bopp Joseph E. La Rue Elizabeth M. Kosel Follow this and additional works at: http://scholarship.law.unc.edu/falr Part of the First Amendment Commons Recommended Citation James J. Bopp, Joseph E. La Rue & Elizabeth M. Kosel, The Game Changer: Citizens United's Impact on Campaign Finance Law in General and Corporate Political Speech in Particular, 9 First Amend. L. Rev. 251 (2018). Available at: http://scholarship.law.unc.edu/falr/vol9/iss2/4 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in First Amendment Law Review by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE GAME CHANGER: CITIZENS UNITED'S IMPACT ON CAMPAIGN FINANCE LAW IN GENERAL AND CORPORATE POLITICAL SPEECH IN PARTICULAR JAMES BoPP, JR.,* JOSEPH E. LA RUE,**& ELIZABETH M. KoSEL*** TABLE OF CONTENTS Introduction................ ..................... ..... 255 I. The First Amendment was Crafted to Protect Speech. ............. 257 A. The First Amendment protects speech regardless of the speaker's identity ............... ................. 257 B. Other constitutional provisions employ the terms "person" or "citizen," further demonstrating the First Amendment's speech protective purpose ............... 259 C. The First Amendment protects corporate speech..... ..... 260 D. What the Citizens United critics argue and why they are wrong .................................. 262 James Bopp, Jr., B.A., Indiana University, 1970; J.D., University of Florida, 1973; Attorney, Bopp, Coleson & Bostrom, Terre Haute, Ind.; General Counsel, James Madison Center for Free Speech; former Co-Chairman of the Election Law Committee of the Free Speech and Election Law Practice Group of the Federalist Society; Commissioner, National Conference of Commissioners of Uniform State Laws. Mr. Bopp was counsel for the plaintiff in Citizens United v. FederalElection Commission in the district court and prepared their jurisdictional statement upon which the Supreme Court granted review. He has argued six campaign finance and judicial speech cases before the United States Supreme Court. " Joseph E. La Rue received his B.B.L. and B.Th. from Ozark Christian College in 1992 and his J.D. from Notre Dame Law School in 2006. Mr. La Rue is an Attorney with Bopp, Coleson & Bostrom in Terre Haute, Ind. ** Elizabeth M. Kosel received her B.A. from Marquette University in 2004 and her J.D. from Ave Maria School of Law in 2010. Ms. Kosel is an Attorney with Bopp, Coleson & Bostrom in Terre Haute, Ind. 252 FIRST AMENDMENT LA W REVIEW [Vol. 9 II. From Person to Persona Non Grata: The Treatment of Corporations Under Campaign Finance Law from Belotti to McConnell..................264 A. Bellotti held that the First Amendment protects speech, regardless of the speaker ............. ...... 264 1. The Massachusetts Supreme Judicial Court wrongly decided corporations have only limited First Amendment rights ............. ......... 265 2. The United States Supreme Court held that speech may not be regulated simply because the speaker is a corporation............................ 267 B. MCFL suggested that restrictions targeting corporate Political speech might be constitutional ...... ........ 271 1. MCFL was a carve-out exemption to an unconstitutional law................ ........ 274 2. MCFL was a tacit approval of censoring speech of of disfavored speakers.............. ............. 276 C. Austin held that the government may ban corporate independent expenditures because they are made by corporations ............................ ..... 278 1. The corporate speech ban was unconstitutional under Buckleys rule that independent expenditures may not be limited ..... .................... 282 2. The corporate speech ban was unconstitutional under Buckleys rule that speech equalization rationales are constitutionally infirm..........................284 3. The corporate speech ban was unconstitutional under Buckleys rule that First Amendment freedoms are not contingent on the wealth of the speaker........... 284 4. The corporate speech ban was unconstitutional under Bellotti's rule that government may not discriminate against corporate speakers ..... ..... 285 5. The Austin court abandoned its First Amendment precedent because of policy concerns ................. 286 D. Beaumont held that the government may ban corporate contributions because they are made by corporations........... 289 1. The district court held that both the expenditure and contribution bans were unconstitutional as applied to NCRL ..................... ...... 291 20111 CITIZENS UNITED 253 2. The court of appeals affirmed the district court's decision .............. ................... 293 3. The Supreme Court reversed, thereby allowing the government's ban of corporate contributions ........ 293 4. The Supreme Court's Beaumont decision was poorly reasoned and wrongly decided ............... 295 a. The interests in preventing corruption and and protecting dissenting shareholders are inapplicable to advocating corporation's speech ............... ............. 295 b. The PAC-option had already been rejected to protect speech rights ....... ................ 298 c. Strict scrutiny should have been applied to section 441's ban on political speech and association ................... ...... 301 i. Law compelling corporations to employ PACs to engage in First Amendment activity are subject to strict scrutiny ........ 302 ii. Laws restricting contributions are subject to strict scrutiny ....... ..... 303 a. Buckley evaluated the challenged contribution limits under strict scrutiny................. ..... 303 b. Contribution bans must be evaluated under strict scrutiny ........ ..... 307 d. The Court accepted a public distrust of corporate contributions as adequate justification for banning them ........................ 308 E. McConnell held that the government may ban corporate electioneering communications because they are made by corporations .......................................310 III. Wisconsin Right to Life: The Return to a Focus on Speech in First Amendment jurisprudence..................................312 IV. Citizens United: The "Return[] to the Principle Established in Buckley and Bellotti that the Government May Not Suppress Political Speech on the Basis of the Speaker's Corporate Identity ............ .......... ................... 316 A. The government may not discriminate among speakers....... 322 254 FIRST AMENDMENT LAW REVIEW [Vol. 9 B. There is no inherent danger in the corporate form................ 325 C. The interest in preventing financial quid pro quo is only cognizable interest for restricting speech and association ....................................... 325 D. Bans on political speech are not permissible remedies.........327 E. PACs cannot speak for their connected corporations............328 F. Law burdening speech are subject to strict scrutiny.............. 330 G. In the First Amendment context, courts owe no deference to the remedy government chooses to alleviate problems...................... .............. 331 V. Citizens United's Implications for Campaign Finance Law: "More Speech, Not Less, Is the Governing Rule."............331 A. Citizens United explicitly holds that it is unconstitutional to require corporations to employ PACs to speak or associate................................... 332 B. Citizens United necessarily means that it is unconstitutional to limit contributions to committees making independent expenditures........... .................. 338 C. Contribution limits burden speech and therefore must be evaluated under strict scrutiny ............... ...... 340 1. Contributions are political speech... ... ............... 341 2. "Law imposing burdens on political speech must be evaluated under strict scrutiny ..... .......... 344 3. While contribution limits may be permissible, bans are not ....................... ....... 347 D. Citizens United's holding and reasoning demands that Beaumont be reconsidered and overruled...........................348 1. Citizens United's holding demands that Beaumont be reconsidered and overruled ............. ..... 349 2. Citizens United's reasoning demands that Beaumont be reconsidered and overruled ......... ......... 350 a. Beaumont impermissibly allowed the government to discriminate among speakers .... 351 b. Beaumont impermissibly found a corruption interest in the corporate form........ ....... 352 c. Beaumont impermissibly ruled that corporations could speak and associate through their PACs ............................ 353 2011] CITIZENS UNITED 255 d. Beaumont failed to apply strict scrutiny to the corporate contribution ban .......................... 355 3. Citizens United's rejection on the interests Beaumont relied upon demands that Beaumont be reconsidered and overruled ............................. 356 a. Beaumont relied upon the antidistortion interest, which Citizens United invalidated ..... 356 b. Beaumont relied upon the shareholder protection interest, which Citizens United invalidated.......................... 359 c. Beaumont relied upon anti-influence interest, which Citizens United invalidated ..... 359 d. Beaumont relied upon the anti-circumvention interest, which Citizens United discredited..... 360 Conclusion