In a landmark campaign finance opinion released Thursday
morning, the Supreme Court of the United States held that the
government cannot ban corporations from making direct expenditures
from their own funds for speech in support of, or in opposition to,
candidates for elected office. The decision explicitly overturns
decades of precedent allowing such bans, and is effective
The case, Citizens United v. Federal Election
Commission, concerned the ability of a nonprofit corporation
to air advertisements on broadcast and cable television regarding
the availability on video-on-demand of a documentary it had
produced critical of Hillary Clinton. The Federal Election
Commission found such advertisements illegal under the Bipartisan
Campaign Reform Act (commonly known as
"McCain-Feingold"), which prevented such corporate-funded
advertisements from airing within 30 days of the then-pending
presidential primaries. The Court's decision today empowers
corporate speakers to engage in virtually unlimited independent
advertising, across all forms of media, to promote or oppose
federal, state and local candidates for office.
Writing for the Court's 5-4 majority, Justice Anthony
Kennedy held, "The Government may commit a constitutional
wrong when by law it identifies certain preferred speakers. By
taking the right to speak from some and giving it to others, the
Government deprives the disadvantaged person or class of the right
to use speech to strive to establish worth, standing, and respect
for the speaker's voice. The Government may not by these means
deprive the public of the right and privilege to determine for
itself what speech and speakers are worthy of consideration. The
First Amendment protects speech and speaker, and the ideas that
flow from each."
In addition to for-profit and nonprofit corporations, the
decision also expands the speech options for labor unions and other
organizations. The decision further leaves in place disclosure and
disclaimer requirements regarding the sponsors of such
This decision does not, however, affect the existing century-old
ban on direct financial contributions from corporations to federal
candidates or the state-level bans which exist in many
jurisdictions, though it calls their continuing viability into
question. The decision also leaves unresolved the question of
whether foreign-controlled or -dominated corporations will be able
to sponsor such advertising, as Congress has already announced
plans to hold hearings on this and other issues relating to the
The professionals at Cozen O'Connor Public Strategies are
prepared to provide guidance for you on these novel issues.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
We have co-authored an alert with our affiliate government relations consulting group, ML Strategies entitled, "Massachusetts State Legislature Takes Action on Major Employment Reform as Legislative Session Ends"
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