William Van Alstyne Speaks on Citizens United v. FEC

Today, William Van Alstyne, a professor at William and Mary Law, spoke on Citizens United v. FEC, a case heard before the Supreme Court this fall, and he offered his projections as to how this case is likely to be resolved. Van Alstyne pointed out that the case has vast implications for First Amendment rights and could greatly affect corporations’ abilities to become involved in political campaigns.

It is clear that the First Amendment applies to US citizens. What is not clear, however, is to what extent it applies to corporations. The Court has held that a corporate entity is considered a “person” under the Fourteenth and Fifth Amendments; however, the Court has not considered, until now, whether a corporation has rights protected by the First Amendment.

It is important to note, as Van Alstyne points out, that there is a distinction between strictly commercial corporations (like GM) and corporations that are non-profit but advancing ideological principles (like Citizens United). In addition, there is a further distinction between corporations that expend money from their general treasury to advance a cause and those that advance certain causes through PACs (political action committees), which solicit shareholders and others for specific funds.

The plaintiff in this case, Citizens United, is a non-profit organization with an ideological purpose. Most of the funds Citizens United raises come from the contributions made by its own members or from membership dues. However, Citizens United has accepted modest sums of money from a few commercial corporations in the past. The fact that Citizens United has accepted money from some large commercial corporations caused them to fall under the auspices of the campaign reform acts, including the Bipartisan Campaign Reform Act (BCRA).

Generally speaking, the campaign reform acts were put into place to prevent large commercial corporations from being able to contribute a large, disproportionate amount of money towards a particular campaign under the idea that such a contribution would make the democratic process less pure. Another reason why the campaign reform statutes were enacted was the fact that people purchase stocks from a corporation to further their own economic interest – not to make a political statement. The Supreme Court has upheld these campaign reform acts in the past, finding that a commercial corporation contributing money from its treasury to a candidate comes too close to bribery.

The BCRA was an amendment to the campaign reform acts that prevented corporations from airing any television or radio advertisements at certain times of the year, specifically sixty days before a general election and thirty days preceding any primary election. During the 2008 Iowa caucus, for example, there was a blackout period during which corporate funds could not be spent on TV or radio ads for any candidate.

In this case, because Citizens United accepted money from commercial corporations, they were subject to the blackout requirement of BCRA and were forbidden from airing Hillary: The Movie, a film with a negative portrayal of Hillary Clinton, during the general election of 2008. As a result of not being able to show their movie, Citizens United brought suit against the Federal Elections Commission, arguing that the BCRA, as applied, is unconstitutional.

Van Alstyne believes there are three ways the Supreme Court can decide the case: 1) The Court may agree with original plaintiffs and find that the statute, as applied, violates the First Amendment rights of Citizens United; 2) The Court could hold the provisions of the statute void on their face and force Congress to focus the statute much more narrowly on commercial corporations; and 3) The Court could sustain the statute as applied. Van Alstyne argues that because Citizens United is not a commercial organization and only had its film banned because it accepted some money from commercial organizations, the Supreme Court is likely to go with Option 1 and find that the statute, as applied, is a violation of Citizens United’s First Amendment rights.

Obviously, if the court finds the statute unconstitutional as applied, this could have major implications for elections in the United States. Major corporations would be able to spend vast amounts of money on political ads and candidates, potentially confusing voters and skewing the facts. In addition, candidates would feel beholden to their corporate sponsors and may feel obligated to act in the corporations’ interests once elected – not necessarily in the interest of the public. The decision should come be handed down shortly, and it is one that is sure to have a strong effect on our democratic process in the United States.

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