by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Summer is heating up in DC, as the Supreme Court prepares for a special pre-Term session to determine whether it should overrule key precedents that allow regulation of corporate financial influence in elections. On the last scheduled day of the Court’s term in June, the Court issued an order in Citizens United v. Federal Election Commission setting the case for re-argument on September 9, and requiring the parties to brief the issue of whether the Court should overturn two rulings upholding regulation of corporate (and union) independent spending in candidate elections: Austin v. Michigan Chamber of Commerce and the relevant portion of McConnell v. FEC. Ironically, the last time the Court interrupted its summer recess for a special session was to hear the McConnell case six years ago. Before McConnell, the Court hadn’t returned to DC for a pre-Term summer session since 1974, when the Court in United States v. Nixon ordered former-President Richard M. Nixon to surrender his secret Watergate tapes.

The rarity of a special Supreme Court summer session indicates the high stakes involved in the Court’s decision to reconsider key campaign finance precedent. CAC filed a brief today urging the Court not to take the radical step of reversing these decisions and allowing corporate campaign cash to overwhelm elections. Prevention of improper corporate influence in the electoral process—like the extension of the franchise, anti-discrimination mandates, and the bedrock equality principle of one-person, one-vote—is a pillar of our modern democracy.

Citizens United involves a film, Hillary: The Movie, produced by Citizens United, a conservative, non-profit advocacy group, to coincide with the 2008 presidential primary season. As Justice Breyer observed during oral argument last March, Hillary: The Movie “is not a musical comedy.” The film, which Citizens United sought to make available via cable TV video-on-demand, sharply attacks Hillary Rodham Clinton and her presidential candidacy. Accordingly, the Federal Election Commission (FEC) saw the movie as no different from the standard-issue attack ad—just longer—and considered it subject to campaign finance regulations as an ”electioneering communication.” Under the 2002 McCain-Feingold campaign finance law, the film could not be financed by corporate treasuries or broadcast within 30 days of a primary or 60 days of a general election.

In its initial form, the case was mostly about the extent of Congress’s power to regulate electioneering communications: Citizens United contended that such regulation should be limited to “short broadcast advertisements, which generally target unwilling recipients,” and the FEC countered that length didn’t matter—a feature-length film that relentlessly attacks a candidate is “no different from buying an ‘infomercial’ on a broadcast network . . . [l]ike any other television advertisement, Hillary uses the power of the visual medium to promote a message.” But the case soon turned into a much bigger deal. Citizens United started to emphasize its First Amendment free speech argument and press for a sweeping rejection of congressional authority to regulate campaign spending by corporations, and it seemed at oral argument in March that the conservative Justices were sympathetic to such a broad argument. The extent to which the Court is in fact considering taking this remarkable step became clear when the Court issued its June 29 order requesting the parties to brief and argue the supplemental question of whether it should overrule Austin and parts of McConnell.

In the Austin decision, the Court rejected a First Amendment challenge to the government’s power to bar corporations from using funds from their own treasuries to support or oppose candidates for elected state offices. In the relevant part of McConnell, the Justices upheld a provision of the 2002 campaign finance law that bars corporations and labor unions from using their treasury funds to pay for radio or TV ads, during election season, that refer to a candidate for Congress or the Presidency, and that appear to urge a vote for or against that candidate. CAC filed a “friend of the court” brief in Citizens United today explaining that constitutional first principles support preserving these precedents and the government’s ability to regulate corporate influence in the political process.

Our brief, which was joined by the League of Women Voters, supports government authority to regulate corporate election activities to ensure fair elections for individual citizens. Since our Nation’s founding, our constitutional story has been one of democratic progress, moving American democracy toward broader enfranchisement and more meaningful political participation for American citizens. In the post-Civil War era, reformers began to worry that the quest for political equality could be thwarted by corporate election corruption. By 1888, corporate power in politics had become so overwhelming that President Rutherford Hayes remarked with dismay in his diary that the United States had become “a government of corporations, by corporations, and for corporations.”

Concern that corporations were corrupting elections motivated passage of the Tillman Act of 1907, the first piece of federal corporate campaign finance legislation, as well as the ratification of the Seventeenth Amendment in 1913, which provided for the direct election of U.S. senators (replacing the previous method of selection, pursuant to which state legislators chose U.S. senators). The Seventeenth Amendment imported the Tillman Act’s opposition to corporate election influence into the Constitution. Supporters of direct election of senators, like the supporters of the Tillman Act’s corporate campaign finance regulations, argued that their system would counter the undue effects of large corporations in the election process by preventing special interests from “buying” state legislators’ votes. Accordingly, the idea that government can act to prevent improper corporate influence in elections is not just reflected in more than a century of campaign finance reform, it is woven into the very fabric of our Constitution.

Perhaps even more fundamentally, affording corporations the same right to participate in the political process as individual citizens would elevate corporations far above the place they have occupied in our constitutional system since the Founding. While the text and history of the Constitution show an ever-expanding concern for the rights of individuals to vote and participate in the political process, constitutional text and history do not suggest an intention to treat corporations in the same manner. To the contrary, the Constitution gives federal and state governments broad power to regulate the acts of corporations.

At the Founding, corporations existed at the behest, and by the creation, of the government to serve public purposes, such as supplying transport, water, insurance, or banking facilities. Corporate rights derived from the charter of incorporation, not from the Constitution itself. In fact, corporations are never mentioned in the Constitution, and constitutional text providing individuals with substantive rights and protections makes no sense when applied to artificial corporate entities (for example, corporations don’t enjoy the Fifth Amendment privilege against self-incrimination). In particular, there is nothing in the Constitution to suggest that corporations and individuals should stand on the same footing when it comes to First Amendment rights.

When it rules in Citizens United, the Supreme Court should follow this constitutional text and history in considering whether to maintain limitations on corporate campaign spending. To change course and create a new constitutional right for corporations to make unlimited expenditures in candidate elections would be a highly destructive move that would reverse our centuries-long march of progress toward greater democracy.