Today’s Free Speech, Tomorrow’s Campaign-Finance “Loophole”

J. Justin Wilson
J. Justin Wilson · July 30, 2009

Arlington, Va.—To ensure that today’s free speech is not tomorrow’s “loophole” to be closed with more campaign-finance regulation—and to end existing bans on speech about politics—the U.S. Supreme Court must return to First Amendment principles and overturn two cases that permit bans on political speech by corporations.  That is according to a friend-of-the-court brief filed today by the Institute for Justice in Citizens United v. Federal Election Commission.  The brief is available here.

“After 30 years of campaign-finance regulation, it is now clear that all roads lead to censorship,” said Steve Simpson, the lead Institute for Justice attorney on the brief.  “The history of campaign-finance law marks the steady erosion of First Amendment rights, and it is naïve to believe this erosion will stop at the regulation of ads or films.  The Court should reverse this trend by returning to first principles and eschewing the regulation of political speech, regardless of the speaker or the message.”

In June, the Court ordered new arguments in the case for September 9 to consider whether to overturn Austin v. Michigan Chamber of Commerce and part of McConnell v. FECAustin upheld a ban on “express advocacy,” speech that explicitly supports or opposes a candidate, by corporations, and McConnell (by upholding McCain-Feingold’s prohibition of “electioneering communications”) extended that ban to include corporations’ broadcast speech that merely mentions a candidate in the months before an election.

IJ’s brief traces the history of campaign-finance law, showing how regulations grew from contribution limits to bans on express advocacy to bans on merely mentioning candidates at the wrong time—and beyond.  At each turn, as in this case, the government and regulation advocates have claimed that free speech is safe and alternative avenues of communication exist.

Yet, as the brief explains, “[E]very incremental advance in campaign-finance laws has laid the foundation for the next advance, with the result that today’s ‘alternative avenue of communication’ inevitably becomes tomorrow’s loophole.”

This regulatory expansion threatens more speech than just broadcast ads or films, such as Citizens United’s Hillary: The Movie:  “The notion that we have reached an end point—that, having banned corporate-funded advertisements and now films that identify a candidate at the wrong time, the government will not turn next to books, websites, magazines, and newspapers that do the same thing or more—is not merely naïve:  it flies in the face of the last three decades of campaign-finance law.”

Indeed, the government admitted in the first oral argument in this case that if it can ban a film, it can ban books.  And not even media are safe.  In McConnell, the Court referred to McCain-Feingold’s exemption for print and Internet communications as a “legislative choice,” and the Austin majority noted that, as IJ’s brief puts it, “the media’s exemption from restrictions on corporate speech is discretionary, not mandatory.”

“With Austin and McConnell in place, there is no principled constitutional basis to exempt media corporations from the speech bans that apply to all other corporations,” said IJ Senior Attorney Bert Gall, who helped write the Institute’s brief.

In fact, in the wake of McConnell, 10 states passed electioneering communications laws that apply to speech in a larger range of media, such as print and Internet communications, and more speech over longer periods of time than the federal law.  Five states already had similar laws.  IJ’s brief points to a study by Duke University political scientist Michael Munger that finds that these laws indirectly ban speech by imposing regulatory hurdles that many civic groups lack the resources to meet.  That study is available at

IJ’s brief finds the Supreme Court complicit in this erosion of First Amendment rights to speak freely about politics:  “That [banning books] is an open question suggests something has gone terribly awry with this Court’s First Amendment jurisprudence.”

and McConnell contributed to the problem, in part, by violating two fundamental First Amendment principles, permitting suppression of speech based on its content and on the identity of the speaker:  “A corporate speaker can use its treasury funds to communicate about everything except candidates for office, their positions on the issues, and whether or not they deserve election or defeat.  And discrimination against corporations is allowed by virtue of the fact that they are corporations.”

There are more than 5.8 million for-profit corporations and 1.4 million nonprofit groups in America with diverse viewpoints.  As IJ’s brief notes, the corporate form of organization provides many Americans an opportunity to associate with others for common ends, including political advocacy, “Thus, the ironic result of Austin’s fairness rationale is that it ultimately shuts thousands of Americans out of meaningful participation in the political process.”  

“Politicians’ endless quest to circumvent the First Amendment has led to the perverse result that the most effective political speech is also the most heavily regulated,” said Simpson.  “Overturning Austin and McConnell is a critical first step to restoring robust constitutional protections for free speech.”

IJ’s brief concludes, “For too long, the First Amendment has been an afterthought in campaign-finance cases, as the government and often this Court have placed concern for circumventing campaign-finance laws above the concern that those laws were circumventing the First Amendment.  . . .  To leave unrepaired any longer the damage [Austin and McConnell] have inflicted means continued erosion of the freedom of speech and, ultimately, the demise of the First Amendment.”

The Institute for Justice defends First Amendment rights and challenges campaign-finance laws nationwide.  In May, the Institute secured a federal court ruling striking down Florida’s electioneering communications law, and IJ previously won a ruling in the Washington Supreme Court that stopped an attempt to regulate media commentary as “in-kind” political contributions.  IJ is currently challenging laws in Colorado that suppress speech about ballot issues by grassroots groups and nonprofit organizations, as well as Arizona’s “Clean Elections” law for funding political campaigns with taxpayer dollars.  For more information, visit