FEC v. Wisconsin Right to . . . Petition?: A Comment on FEC v. Wisconsin Right to Life
Stanford Law School
Stanford Law Review, Vol. 61, p. 443, 2008
FEC v. Wisconsin Right to Life, Inc. (WRTL)1 is the Supreme Court's latest attempt to extricate grassroots advocacy by nonprofit corporations from the morass of political broadcast restrictions under the Bipartisan Campaign Finance Reform Act (BCRA). As with the many cases preceding it, the standard pronounced by the Court in WRTL is deceptively straightforward: a political broadcast is an "electioneering communication" that may be proscribed "only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The Court held this axiom true notwithstanding the identity of the advertisement's sponsor because "the corporate identity of a speaker does not strip corporations of all free speech rights [under the First Amendment]." The question the Court should have addressed is whether the nonprofit corporate identity of a speaker entitles such corporations to speech rights under the Petition Clause rather than the Free Speech Clause of the First Amendment.
The Framers thought that nonprofit corporations were entitled to exemptions based upon their status as nonprofits. During the First Congress, a nonprofit Quaker corporation seeking to abolish slavery led Congress to consider whether the First Amendment of the United States Constitution permitted the group to rely upon mass media and public opinion to effect grassroots advocacy through electoral pressure. Although Congress was deeply divided on the slavery question, Congress's failure to proscribe the Quakers' grassroots lobbying efforts suggests that they believed that the Petition Clause of the First Amendment protected the Quakers' actions because providing for nonprofit corporate political speech necessarily favored the general welfare of the United States.
The next time the Court is faced with the issue of restrictions on nonprofit corporate political speech, the Court should consider adopting an originalist perspective by adjudicating these corporate political speech claims under the Petition Clause. To date, all for-profit corporate political speech claims are considered antitrust questions subject to Petition Clause restraints, while nonprofit corporate political speech questions are considered campaign finance questions subject to Free Speech Clause restraints. Coupling both types of corporate political speech under the Petition Clause would reunite the Court's for-profit and nonprofit corporate political speech doctrines. An originalist perspective also has the virtue of being a principled basis for decision making, which could help stabilize jurisprudence in this area of election law.
Number of Pages in PDF File: 16
Keywords: FEC v. Wisconsin Right to Life, petition clause, first amendment, free speech, campaign finance, BCRA, political speech, electioneering, benjamin franklin, corporate speech, Wisconsin Right to Life, FECAccepted Paper Series
Date posted: March 14, 2009
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