Wisconsin Right to Life in a Nutshell.
on Jun 25, 2007 at 1:37 pm
I fully agree with Rick and Rick on the landmark nature of the case, except that in my (somewhat idiosyncratic) view it will in the future be more importantly viewed as a sea-change with respect to corporate speech rights than as a case upending the First Amendment’s general treatment of campaign finance regulation. Here’s the short version:
For fully 60 years, since the Taft-Hartley Act of 1947, federal law has required that if corporations wish to engage in activities designed to affect federal elections, they must use funds that donors have specifically designated for such purposes, rather than using corporate treasury funds, which include substantial sums from shareholders who might not wish their money to be used for such electoral designs. (A similar source requirement has also been imposed on labor unions during the same 60-year period.)
That restriction on the sources for funding corporate speech was sometimes honored more often in the breach, but nevertheless it was the governing law for most of the past six decades, especially after the Court upheld the constitutionality of an analogous state law in the 1990 Austin decision. Beginning in 1996, corporations and unions began to circumvent the restriction with impunity by purporting to engage in “issue-related” speech that ostensibly was not designed to affect elections, but that quite manifestly had the purpose and, more importantly, the effect of doing just that. BCRA closed this loophole, and the Court’s decision in McConnell preserved the 60-year-old rule.
Today’s decision in effect eviscerates that 60-year-old rule for all practical purposes — it overrules Austin in all but name, and for the first time in 60 years establishes a constitutional regime in which corporations are entitled to the same First Amendment protections as individuals, notwithstanding that, as the Court stressed in Austin, corporations’ “voice” in public debate is magnified considerably by virtue of numerous advantages that state law provides to such artificial entities.
That is to say: This is a very good day for the speech rights of corporations, and for the ability of government officials to engage in speech that favors religion — but not such a good day for the speech rights of students who would “celebrate” drug use rather than debate whether it should be lawful.
