Document Type

Article

Publication Date

2007

Abstract

This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign Reform Act of 2002 (BCRA). In McConnell, a majority of the Court severed corporate money from the concepts of corporate speech and political participation in election campaigns and focused instead on corporate money's potential to corrupt lawmakers, buy influence, flood the market, and distort the election process.

Since McConnell, another shift in perspective has occurred. In June 2007, the Supreme Court upheld an as-applied challenge to BCRA, casting doubt on the eventual fate of the holding in McConnell that a pre-election prohibition on electioneering communications funded by corporations and unions did not violate the First Amendment. In McConnell, the Court upheld the ban against a facial challenge, but Wisconsin Right to Life later challenged the provision as applied to the anti-abortion group. The three-judge panel authorized to hear constitutional challenges to BCRA eventually held (2-1) that the ban on electioneering communications violated the First Amendment as applied to the advertisements sponsored by a nonprofit ideological advocacy corporation, and in Federal Election Commission v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007), the Supreme Court agreed (5-4), with Chief Justice John Roberts., Jr., and Justice Samuel Alito, Jr., in the majority. In McConnell, Justice O'Connor, since replaced by Chief Justice Roberts, had supported the ban; Chief Justice William Rehnquist, since replaced by Justice Alito, did not.

This Article illustrates and assesses the rhetorical choices in the debate about how to view corporate participation in election campaigns. Choices among different ways of portraying the target of governmental action affect judicial, lawyerly, and public understanding, reasoning, and evaluation. Competing rhetorical moves appear to lead to different results: the marketplace of ideas in which corporations speak goes unregulated for First Amendment purposes, while the corporate money from which potential evils flow must be regulated to protect the election process. Courts may find it useful to behave as if these outcomes are determined by neutral principles, but it may be only the frame selected that makes it appear to be so.

Publication Citation

58 Mercer L. Rev. 949 (2007)