10
or defeat of a federal candidate. The Court has permitted
those expenditure limits on the ground that they restrain the
“corrosive and distorting effects of immense aggregations of
wealth that are accumulated with the help of the corporate
form and that have little or no correlation to the public’s
support for the corporation’s political ideas.” Austin, 494
U.S. at 660; see also McConnell, 540 U.S. at 204-05; but see
First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77
(1978); Buckley, 424 U.S. at 48-49.6
To sum up so far: In reconciling the competing interests,
the Supreme Court has generally approved statutory limits on
contributions to candidates and political parties as consistent
with the First Amendment.
The Court has rejected
expenditure limits on individuals, groups, candidates, and
parties, even though expenditures may confer benefits on
candidates. And the Court has upheld limits on for-profit
corporations’ and unions’ use of their general treasury funds
to make campaign contributions to candidates or political
parties or to make expenditures for activities expressly
advocating the election or defeat of federal candidates.
B
This case does not involve regulation of candidates,
parties, or for-profit corporations. Rather, this case concerns
6
The Supreme Court is presently considering whether to
overrule Austin (and McConnell’s reliance on it) to the extent
Austin permitted the Government to limit for-profit corporations’
and unions’ expenditures. See Citizens United v. FEC, No. 08-205
(S. Ct. reargued Sept. 9, 2009); cf. Austin, 494 U.S. at 702
(Kennedy, J., dissenting) (“Today’s decision abandons [Buckley’s]
distinction and threatens once-protected political speech.”). The
regulations at issue here violate the First Amendment with or
without Austin on the books. See infra note 11.