Liberal election lawyers are calling "bold and dangerous" and a "potential blockbuster" a brief filed by former Solicitor General Ted Olson on behalf of Citizens United in a Federal election case currently before the U.S. Supreme Court. Citizens United produced a critical film about Hillary Clinton during the presidential election, and marketed it as a commerical venture a la Michael Moore. Regulators didn’t like the idea and Citizens United couldn’t get a court to agree with them that their film should not be subject to Federal Election Commission regulation, such as the ban on corporate funding in any federal election. Now the issue of whether such an activity is an illegal "corporate" expenditure in a Federal election is one of several issues to be decided by the nation’s highest court.
The liberal pro-regulation lawyers are concerned that the Citizens United case might be a basis for the Roberts Court, which has proven itself to be deregulatory-oriented in First Amendment/election law cases, to overturn the case of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which established that the government can ban corporate spending in elections. The theory in regulating such contributions is that they are potentially "corrupting." Such bans, however, are hardly uniform. California allows corporate contributions to candidates, and unlimited corporate spending on ballot initiatives. But a California candidate for Congress cannot accept a corporate contribution. Critics of such limitations cite the important First Amendment rights of free speech and association as trumping such regulation. And Supreme Court Chief Justice Roberts’ own opinion in an important case last year stated that in close calls in election-related cases, one should "err in favor of the First Amendment."
A copy of the Olson brief is attached.