In 1971, Congress passed the Federal Election Campaign Act to regulate contributions to elections to federal office. Two Senators filed suit, claiming the Act was unconstitutional. The Supreme Court held that campaign finance regulations are not allowed to restrict freedom of speech. Thus, the law could impose limits on the contributions made by individuals to a particular campaign, but expenditures by individuals or groups that merely express support of a candidate could not be limited in the same way.
The Wisconsin Right to Life (WRL), a nonprofit political action committee, sponsored advertisements urging voters to contact two senators to filibuster judicial nominees. The McCain-Feingold Bipartisan Campaign Reform Act of 2002 (BCRA) prohibited the use of corporate funds for political advertisements that aired within 60 days of an election. WRL sued the Federal Election Commission, claiming BCRA was unconstitutional. The Supreme Court agreed, finding that provision of BCRA a violation of the First Amendment as applied to advertisements that do not endorse or oppose a particular candidate. Thus, "issue advertisements" may be aired within 60 days of an election.
In this recent case, the non-profit organization Citizens United challenged the BCRA provision that prohibits corporations from making “electioneering communications” within 30 days of a primary election. Citizens United produced a 90-minute film entitled “Hillary: the Movie,” a documentary that was highly critical of then-presidential candidate Hillary Clinton. The group received money directly from corporations to make the film and thus violated Section 203 of BCRA, which prohibits the use of corporate treasury funds to release candidate-specific communications close to an election. Citizens United challenged the constitutionality of this provision, contending that the limits on corporate support violated the First Amendment.
The Court agreed with Citizens United, holding that Section 203 placed an unconstitutional restriction on corporations’ right to free speech. While the Court upheld federal laws prohibiting corporate contributions made directly to candidates’ election campaigns, it held that corporate funding used to produce speech – including films, commercials, books, and other printed material – is a protected form of political speech. The Court’s decision has been criticized, and proposals have been made in Congress to respond to this decision.