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L. Paige Whitaker Legislative Attorney - page 19 / 31





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Legislative Options After Citizens United v. FEC: Constitutional and Legal Issues

[T]he Austin majority undertook to distinguish wealthy individuals from corporations on the ground that “[s]tate law grants corporations special advantages—such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets.” 494 U.S. at 658-659. This does not suffice, however, to allow laws prohibiting speech. “It is rudimentary that the State cannot exact as the price of those special advantages the forfeiture of First Amendment rights.” 108

It is therefore questionable under this line of cases whether general or broad-based restrictions on independent expenditures for political speech and advocacy of all private individuals, firms, associations, or corporations could be instituted as a “condition” to receiving a federal grant or a federal contract. It is noted that under current federal law, a government contractor is prohibited from making a campaign “contribution.”109 Under the theory that campaign contributions to candidates have a significant potential for quid pro quo corruption, the Supreme Court, in overturning the corporate campaign independent “expenditure” prohibition, left intact the limitation on such corporate campaign “contributions.” Campaign contributions to candidates or parties (and their potential for corrupting influences) have been clearly distinguished by the Supreme Court from independent campaign “expenditures.” Such independent expenditures in campaigns are afforded greater First Amendment protection as speech, and are apparently not subject to the same considerations of potential corruption or corrupting influence because of the absence of pre-arrangement or coordination with the candidate or the candidate’s campaign:

The Buckley Court recognized a “sufficiently important” government interest in “the prevention of corruption and the appearance of corruption.” Id., at 25; see id., at 26. This followed from the Court’s concern that large contributions could be given “to secure a political quid pro quo.” Ibid.

The Buckley Court explained that the potential for quid pro quo corruption distinguished direct contributions to candidates from independent expenditures. The Court emphasized that “the independent expenditure ceiling ... fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id., at 47-48, because “[t]he absence of prearrangement and coordination ... alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate,” id., at 47. 110

The Court then concluded in Citizens United:

Limits on independent expenditures ... have a chilling effect extending well beyond the Government’s interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question.


For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance ofcorruption. 111





Id. at 34-35, citing Austin, 494 U.S. at 680 (Scalia, J. dissenting). 2 U.S.C. § 441c. Citizens United, slip op. at 29. Citizens United, slip op. at 41-42 (emphasis added).

Congressional Research Service


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