Corporate Campaign Finance PicYesterday’s campaign finance case out of the Supreme Court (Citizens United v. Federal Election Com’n) might have inflicted a devastating blow to the functioning of democracy in the U.S. by giving corporations unlimited power to spend money in elections, but what does it have to do with Proposition 8 and marriage equality, you might ask?  Well, quite a bit as it turns out.  Not only is the lead lawyer in Citizens United, Ted Olson, also the lead lawyer in Perry v. Schwarzenegger, the federal court challenge to Proposition 8.  More to the point is the degree to which issues of disclosure and public accountability are at stake in both these cases – a point clearly not lost on Justice Thomas who has already linked them up explicitly in his opinions in both of these cases.

The Alliance Defense Fund, a conservative Christian legal group that works on a range of religiously fundamental issues, including opposing the rights of same sex couples to marry, filed an amicus brief in the Citizens United case urging the Court to invalidate the “disclaimer and disclosure” part of the election law at issue in the case (see below for what the case was about).  The ADF was concerned that people and organizations that funded conservatively oriented political speech would be harassed for doing so.  They argued in the brief that proponents of Proposition 8 had been terribly harassed after it was disclosed that they had contributed money in support of the Proposition (and in opposition to same sex marriage rights).  Justice Thomas picked up this idea and used the ADF’s Prop 8 harassment examples in his concurrence in the Citizens United case (as Nan Hunter has noted in her blog.)

The notion here is that corporations should have unlimited power to use economic power to influence elections and politicians but should not have to disclose that they are doing so.  Fortunately the majority of the Supreme Court didn’t go for this idea, at least not entirely.  Instead they said the problem of harassment could be taken up on a case-by-case basis.

The fact that Justice Thomas is so concerned about the harassment of financial supporters of conservative causes is interesting, given that the Supreme Court’s previous treatment of the issue mostly addressed efforts by conservatives to harass civil rights organizations, unions, suspected communists, and other leftist organization.  See my earlier posts on this here and here.

And this issue will come up again in the Court soon in the R-71 case, when it will decide whether people who signed Referendum 71 petitions in Washington State should have their names publicly disclosed (Referendum 71 sought to overturn a newly enacted gay rights law).

Here’s a little background to Citizens United:

The case was brought by Citizens United, a conservative organization with a mission of:

restoring our government to citizens’ control. Through a combination of education, advocacy, and grass roots organization, Citizens United seeks to reassert the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security. Citizens United’s goal is to restore the founding fathers’ vision of a free nation, guided by the honesty, common sense, and good will of its citizens.

To further this mission they produced a film, Hillary: The Movie, a Michael Moore-style documentary quite critical of Hilary Clinton and sought to televise it on DirectTV the night before a number of democratic primaries were held in 2008.  The showing of the film was enjoined by a federal judge on the ground that it amounted to a kind of electioneering regulated by federal law.

The issue in the case as it made its way to the Supreme Court involved the constitutionality of federal campaign finance law that did two things: 1) prohibited “corporations and unions from using their general treasury funds to make independent expenditures for speech that is an ‘electioneering communication’ or for speech that expressly advocates the election or defeat of a candidate.” and 2) required that televised electioneering communications funded by anyone other than a candidate must include a disclaimer that ‘_______ is responsible for the content of this advertising.'”  Citizens United felt the film amounted to a kind of speech protected by the first amendment, thus requiring the invalidation of part 1) above, and challenged the legitimacy of the disclosure and disclaimer requirements of 2).


  1. Gender & Sexuality Law Blog » Blog Archive » What's Campaign … http://bit.ly/927JPe

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