Summary

In 2010, the Supreme Court’s decision in Citizens United v. FEC upended the world of campaign finance law as we know it by recognizing for the first time that the political speech of corporations is entitled to the same constitutional protections as political speech by individuals. Reacting to the decision, President Barack Obama chastised the Court in his 2010 State of the Union Address: “[L]ast week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” He continued, “I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people.” In response, Justice Samuel Alito, sitting in the audience with most of his Supreme Court colleagues, mouthed “Not true,” even as much of Congress gave the President a standing ovation for his criticism of the Court.

The visceral interaction between the three branches of government at the 2010 State of the Union Address highlights the uncertainties created by the Court’s deeply divided decision in Citizens United. The five-Justice majority and four-Justice dissent in Citizens United disagreed sharply about fundamental propositions such as whether corporations should receive the same First Amendment rights as living human beings and the scope of the powers of the federal government and the states to root out corruption in our political process.

With the Court currently considering whether to strike down Montana’s century-old law limiting corporate political spending, perhaps without oral argument, and with challenges to long-standing federal restrictions on political contributions by corporations and federal contractors hurtling towards the Supreme Court, the Nation’s system of campaign finance law and the Constitution’s protection of corporate political speech are at a crossroads.