Can governments regulate political speech of corporations through restrictions on independent corporate expenditures? Over the course of the past twenty years, the U.S. Supreme Court constantly increased constitutional protection of corporate speech under the First Amendment and repeatedly struck down regulations on commercial speech as violating the First Amendment. Although the Supreme Court recently held statutory restrictions on corporate expenditures for electioneering communications to violate the right to free speech, it is still controversially discussed whether such restrictions can be upheld under the First Amendment. However, supporters of such restrictions ignore that the First Amendment is written in terms of speech and not of speakers and does not distinguish between different classes of speakers. Thus, restrictions on political speech cannot be justified solely based on the speaker’s corporate identity or its financial ability and inconsistent with the objective of preserving the integrity of the political process. Introduction
TTThe freedom of speech is understood as an essential mechanism of democracy, for the free and public discussion of governmental affairs enables citizens to make informed choices among candidates for office. Owing to fundamental changes in society political views are increasingly expressed through organizations and corporations. In this respect, the protection of corporate speech under the First Amendment is widely recognized. Restrictions on corporate expenditures for political speech reduce the quantity of speech and thus restrict political speech itself. Along these lines, in Citizen United v. Federal Election Commission, the Supreme Court struck down statutory restrictions on corporate expenditures for electioneering communications as violating the First Amendment. However, this decision was widely criticized, in particular President Barak Obama blamed it as “open[ing of] the floodgates for special interests […] to spend without limit in [United States] elections” and contended that American elections should not be “bankrolled by America's most powerful interests”. Notwithstanding the governmental interest in preventing corruption in the electoral process, the First Amendment does not distinguish between different classes of speakers and grants a corporation the same political speech rights as a natural person. To that effect, I intend to assess whether restrictions on corporate expenditures as imposed by the Bipartisan Campaign Reform Act of 2002 (BCRA) can be justified under the First Amendment. The paper has three main parts. To begin with, I quickly analyze in how far the provisions on corporate expenditures contained in the BCRA restrict the right of corporations to free speech under the first amendment. In part II, I examine the main arguments to justify such restrictions on corporate speech and raise some objections against them and finally, in the last part of the paper I examine to which extent the restrictions imposed by the BCRA are narrowly tailored to and consistent with the objectives they intend to achieve.
I. Analysis of the Restraint
The BCRA, prohibited the use of corporate general treasury funds for electioneering communications and only allows expenditures by segregated corporate funds through political action committees (PACs). As PACs are burdensome and expensive to administer they reduce the quantity of speech, for the quantity of speech is limited by financial resources available for the expression of political ideas. Consequently, expenditure restrictions function as a barrier to corporate speech and thereby prevent corporate voices from reaching the public and advising voters and deprive the public of its right to decide which speech and speakers are worthy of consideration. Therefore, restrictions on corporate expenditures also restrict political speech itself. Such restrictions can only be justified if they further a compelling...
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