45 Pages Posted: 22 Nov 2004
In the two decades since the United States Supreme Court first held unconstitutional a state ban on corporate political speech concerning ballot initiative measures in First National Bank of Boston v. Bellotti, the importance of the initiative process in state governance has grown remarkably. Over that same period, the Court has unsettled the legal landscape of corporate electoral speech doctrine. In the notable decisions in FEC v. Massachusetts Citizens for Life (MCFL) and Austin v. Michigan Chamber of Commerce, the Court has seemingly undermined the rule and reasoning of Bellotti. The purpose of this article is to assess the Court's doctrinal movement and answer the questions of whether and how far the constitutional law of corporate political speech on ballot initiatives has moved beyond Bellotti.
This article contends that Bellotti rested on three pillars of reasoning: conceptual, evidentiary, and theoretical. Conceptually, the Justices based their judgment of the corporate initiative speech ban on a particular understanding of corruption - one that encompassed only financial quid pro quo deals between candidates and contributors, and hence was inapplicable to ballot measure campaigns. The second pillar was evidentiary, as the Court found the record in that case to lack evidence that corporations exerted a significant influence in ballot elections to justify their silencing. The third pillar was the Court's theoretical approach to the constitutional principle of freedom of speech, which focused on the informational needs of recipients of corporate speech and extended corporate speech rights accordingly. Since Bellotti, each of these three pillars of reasoning have been weakened, modified, or supplemented by developments in both judicial doctrine and electoral politics.
With regard to corruption, the growth of the initiative process, issue advocacy, and the now frequent ties between candidates and ballot measures means that ballot expenditures may in fact pose a risk of financial quid pro quo corruption. Moreover, MCFL and Austin hold that corruption can be found when a corporation uses shareholders' money to support electoral politics they have not agreed to.
The evidentiary basis for the Bellotti Court's decision has also been undermined over the past two decades. In numerous articles, scholars have attempted to show that there is evidence proving that corporations can overwhelm the initiative process. This article contends, however, that these scholars have often settled for data analyses that cannot support the conclusions scholars derive from them. To comprehend the potential for corporate influence over ballot measures requires a broader view of the mechanisms of communication in elections, which can indeed pose a threat of electoral manipulation by large corporate media conglomerates. Moreover, by shifting the definition of corruption in MCFL and Austin, the Court should now focus the evidentiary question on whether a corporation has shareholder consent for its political expenditures in elections.
The theoretical pillar of Bellotti is in need of adjustment to reflect MCFL and Austin's other people's money corruption. This article proposes a theoretical framework to support other people's money corruption based on long-standing principles of political association found in organizational mandatory fees cases (involving union dues, state bar dues, and student fees).
Having established the ways in which doctrine and electoral politics have moved beyond Bellotti, this article consider the impact of these moves on several current corporate electoral influence controversies, including regulation of corporate political action committee fund-raising, bans on corporate financing of PAC administrative expenses, and limitations on corporate soft money contributions to political parties.
Keywords: Campaign finance, constitutional law, corporations, corporate political speech, first amendment, freedom of speech
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