The Surprising Survival—So Far—of the Corporate Contribution Ban

In Citizens United v. Federal Election Commission,11

the Supreme Court invalidated the longstanding ban on the expenditure of corporate funds in federal election campaigns. In so doing, the Court dismissed outright an argument that had long been the foundation for the restriction of corporate money in election campaigns—that, due to the “substantial aggregations of wealth amassed by the special advantages which go with the corporate form[,]” corporate money poses a distinct threat to the integrity of democracy.22 Instead, viewing corporations as essentially “associations of citizens,”33 Citizens United determined that “the First Amendment does not permit Congress to make . . . categorical distinctions based on the corporate identity of the speaker . . . . Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.”44

The Court’s emphatic language would appear to doom all special restrictions on the use of corporate money in elections—contributions as well as expenditures. After all, in Buckley v. Valeo,55

the Court determined that contributions—that is, money given to a candidate, political party, or political committee to be used in an election—as well as expenditures by a candidate, party, or other campaign participant are protected by the First Amendment. To be sure, contributions are somewhat less protected than expenditures. The Court determined contribution limits are less of a burden on political activity than spending limits,66 and they can be justified by the substantial government interests in preventing corruption and its appearance. Nonetheless, limits on campaign contributions are subject to constitutional scrutiny and, when found to be unduly burdensome or insufficiently justified, have been invalidated.77 If, as Citizens United indicates, there is no constitutional basis for treating the political spending of corporations differently from that of other campaign participants, then corporations, like other campaign participants, should be able to make contributions subject to constitutionally reasonable dollar limits to candidates, political parties, and political committees.

Yet, Citizens United notwithstanding, the 117-year-old federal ban on corporate campaign contributions and similar prohibitions in twenty-one states remain on the books and continue to apply.88

In the fourteen years since Citizens United, at least ten decisions by federal courts of appeals (from six different circuits) or state supreme courts have upheld these federal or state corporate contribution bans.99 The decisions have relied on a pre-Citizens United decision of the Supreme Court, Federal Election Commission v. Beaumont,1010 which upheld the federal corporate contribution ban and, especially, on two of the rationales central to Beaumont—protecting the interests of dissenting shareholders and preventing donors from circumventing the limits on individual contributions by using corporations as conduits. They have also been grounded in the fundamental principle of modern campaign finance doctrine, which Citizens United underscored, that contribution restrictions are subject to a less rigorous standard of review than expenditure restrictions.

It is not clear how long these arguments will continue to have force. In recent cases, the Court has questioned the significance of the anti-circumvention rationale.1111

Citizens United itself rejected shareholder protection as a justification for the corporate spending ban,1212 so that argument’s survival as a justification for restricting corporate contributions turns on the Court’s continued application of a less demanding standard of review to contribution restrictions. Yet, the Court has been ratcheting up review of contribution restrictions even as it has dropped hints that it is considering reconsidering the contribution versus expenditure distinction outright. The Court’s increasing skepticism about campaign finance restrictions generally may ultimately prove fatal to the longstanding corporate campaign contribution ban.

For now, at least, the corporate campaign contribution ban remains a part of campaign finance regulation in federal elections and in nearly half the states. This Article examines the history of corporate contribution regulation, its current status, and its potential future. Part II traces the ban’s statutory and doctrinal development. Part III analyzes how the courts over the last fourteen years have threaded the needle of sustaining the corporate contribution ban notwithstanding Citizens United. Part IV addresses other developments in the Supreme Court’s campaign finance jurisprudence that threaten the survival of the corporate contribution ban. Part V provides brief descriptions of possible alternatives to a corporate contribution ban. Part VI concludes with some speculations about the persistence of the corporate contribution ban.

Concern about the impact of the “money and power of a great corporation” on American democracy can be seen at least as far back as Andrew Jackson’s battle with the Second Bank of the United States,1313

but corporate money in politics did not emerge as a critical issue until the late nineteenth century. Civil service reform constrained the ability of political parties to use patronage to finance their campaigns through assessments on government employees. The rise of the secret ballot further limited the power of the party machines to count on their regular voters, and so contributed to the need for more expensive campaigns to motivate voters.1414 The late nineteenth century was also a period of massive corporate consolidation, producing huge firms in banking, railroads, mining, oil, and manufacturing, with interests in government tax, tariff, and regulatory policies. The combination of the need for new and major sources of campaign revenue in an era of highly competitive elections and large corporations with the resources and the incentive to provide it led to the first significant surge of corporate money into electoral politics.1515 The first laws to restrict corporate money soon followed.

In 1891, Kentucky amended its constitution to ban the use of corporate money to influence any election in the state; that provision is still in the Kentucky constitution.1616

Tennessee, Florida, and Nebraska quickly followed with bans on corporate contributions to candidates and parties.1717 In 1894, New York’s constitutional convention debated whether to adopt a ban on corporate campaign money. Although the measure failed to pass, Elihu Root, a leading corporate lawyer and subsequently Secretary of War and Secretary of State, gave a speech, frequently cited in later Supreme Court decisions, denouncing “the great moneyed corporations of the country . . . the great railroad companies, the great insurance companies, the great telephone companies, the great aggregations of wealth” for using campaign contributions to put politicians in their debt.1818 That was “a debt to be recognized and repaid with the votes of representatives in the legislature and in Congress, or by the action of administrative or executive officers who have been elected in a measure through the use of the money so contributed.”1919

Concern about corporate political influence grew in the aftermath of public reports that President Theodore Roosevelt’s 1904 reelection campaign received more than a million dollars (around $35 million in 2024 dollars) from corporate sources. Then, in 1905, the New York Legislative Investigating Committee (the Armstrong Committee) revealed that New York’s three major insurance committees had contributed hundreds of thousands of dollars to the Republican Party and Republican officeholders in recent elections. The Armstrong Committee hearings confirmed not only the power of corporations to influence the political process but also that the executives of these businesses used corporate donations to benefit themselves rather than their shareholders (or, for the insurance companies, their policyholders) by pushing for new laws that would make it more difficult for policyholders to sue for breach of fiduciary duty.2020

Not only did corporate wealth threaten to overwhelm the political process, but corporate executives were using “other people’s money” for their self-interest.2121

In his 1905 Annual Message to Congress, President Roosevelt inveighed against the “corruption of the flagrant kind which has been exposed[,]” and proclaimed that “[a]ll contributions by corporations to any political committee or for any political purpose should be forbidden by law . . . .”2222

He opened his Sixth Annual Message in 1906 with a similar call: “Let individuals contribute as they desire; but let us prohibit in effective fashion all corporations from making contributions for any political purpose, directly or indirectly.”2323 Shortly thereafter, Congress passed the Tillman Act, which prohibited national banks and federally chartered corporations from contributing to election campaigns at any level, national, state, or local, and prohibited “any corporation whatever” from making contributions in federal elections.2424 Following the Teapot Dome scandal, Congress passed the Federal Corrupt Practices Act of 1925, which, inter alia, expanded the definition of “contribution” to include “anything of value,” thereby picking up corporate loans, in-kind assistance, and the use of corporate facilities.2525 This is essentially the federal corporate contribution ban still on the books today.2626 Many states adopted similar laws. By 1928, twenty-seven states prohibited all corporate contributions, and nine more states prohibited contributions by certain types of corporations, such as banks, regulated public utilities, and insurance companies.2727

Subsequent developments in the legislative restriction of corporate campaign money were a response to the growing political role of labor unions. In the aftermath of the New Deal, unions increasingly engaged in electoral politics, and some members of Congress urged that organized labor had become comparable in power and influence to big business.2828

Labor and business were dueling antagonists, with labor supporting the Roosevelt administration and much of big business giving to Republicans, so there was political symmetry—a “balance in the equities”—in subjecting unions to the same campaign finance restrictions that applied to corporations.2929 In 1943, in the War Labor Disputes Act, Congress banned union contributions in federal elections as a temporary measure for the duration of World War II.3030 The Taft-Hartley Act of 1947 made that ban permanent.3131

Although aimed at unions, the Taft-Hartley Act also applied to corporations. To avoid the wartime ban on union contributions, the Congress of Industrial Organization (CIO) had created an organization named the CIO Political Action Committee or CIO-PAC, the eponymous PAC that is the forerunner of all of today’s PACs. As a separate entity with its own officers and a treasury filled with ostensibly voluntary contributions by union members, the CIO-PAC was not itself a union and, so, not subject to the union contribution ban. Moreover, instead of contributing to candidates it spent money rallying support for the Democratic ticket among union members, other employees, and their families and communities.3232

Congress viewed this activity—what we now call independent spending—as an evasion of the union contribution ban, so the Taft-Hartley Act expanded the ban on union contributions to include union expenditures. In the spirit of corporate-labor parity, it applied the expenditure ban to corporations, too, thus creating the law ultimately invalidated in Citizens United.

The next major development in campaign finance law—the Federal Election Campaign Act of 1971 (FECA)—focused on candidates and parties generally rather than particular sources of campaign funds, but one provision proved to be quite significant for labor and business campaign participation. In the decades after the enactment of Taft-Hartley, labor unions continued to use PACs to engage in elections, but they relied on the uncertain legal foundation that the ban on union campaign spending did not apply to labor PACs because they used only voluntary union member contributions rather than union treasury funds. FECA resolved the issue by providing that a union may establish a “separate, segregated fund”—that is, a PAC—which can spend money in federal elections. The union can use its own funds to pay the costs of administering the PAC and raising funds for it, select the PAC’s personnel, and determine the PAC’s campaign spending decisions. But as long as the PAC uses only funds voluntarily donated for campaign spending rather than union treasury funds, PAC electoral activity is permitted.3333

Again, in the spirit of parity, FECA also legalized PACs for corporations and other associations.3434 Corporate PACs may make contributions from funds voluntarily donated by their executive and administrative personnel and stockholders, and unions can make contributions from funds donated by union members and their families.3535 FECA caps donations by a PAC to a candidate at $5,000 per election, and donations by a person associated with a corporation or union to the corporate or labor PAC at $5,000 per election.3636 Although the statutory ratification of the PAC mechanism was intended to benefit unions, a major consequence was the emergence and explosive growth of corporate, trade association, and other business PACs. In the 2021–22 election cycle, PACs established by corporations, trade associations, and other business groups raised and spent in excess of $650 million in federal elections, compared with the roughly $350 million raised and spent by labor PACs.3737

In Pipefitters Local Union No. 562 v. United States,3838

handed down in 1972 shortly after FECA’s enactment but turning on pre-FECA law, the Supreme Court found the PAC mechanism to be consistent with the legislative purposes driving the restrictions on corporate and labor campaign spending—curbing the power of large corporate and union war chests and protecting the rights of dissenting shareholders and union members. As a PAC’s funds consist solely of voluntary contributions, minority rights are protected, while “the aggregated wealth [Congress] plainly had in mind was the general union treasury—not the funds donated by union members of their own free and knowing choice.”3939 Nor was it a problem that a union determines how its PAC’s funds are spent as long as the money used for campaign purposes consisted of “knowing free-choice donations.”4040

The final step in the evolution of the federal statutes governing corporate electoral activity was the enactment of the Bipartisan Campaign Reform Act of 2002 (BCRA).4141

The two principal goals of BCRA were (i) to close down the so-called “soft money” loophole that enabled political parties to collect contributions that would otherwise violate FECA’s dollar limits and source prohibitions (including the ban on the use of corporate and union treasury funds), and (ii) to curtail the use of so-called “issue advocacy” spending—ads that praise or criticize a candidate but do not expressly call for the election or defeat of that candidate—to avoid the ban on corporate and union independent spending.4242 To deal with the issue advocacy problem, BCRA extended Taft-Hartley’s ban on corporate and union expenditures to a new category of “electioneering communications” consisting of ads that refer to a clearly defined federal candidate—even if they avoid express advocacy—and are broadcast to the candidate’s constituency within a defined pre-election period.4343 This was the provision specifically challenged and invalidated in Citizens United.4444

i.    The pre-Buckley Era

Scarcely any cases dealt with restrictions on corporate campaign activity in the seventy years between the enactment of the Tillman Act and the birth of modern campaign finance jurisprudence in Buckley v. Valeo. Courts treated corporations as artificial creatures with powers limited to the business purposes spelled out in their charters, so that corporate campaign activity was considered ultra vires.4545

In the only case involving a constitutional challenge to the Tillman Act, in 1916, the federal district court easily concluded that “the power of Congress to prohibit corporations of the state from making money contributions in connection with any . . . election [to Congress] appears to follow as a natural and necessary consequence” of Congress’s power to prevent “the concerted use of money” from “corrupting the elector and debauching the election . . . .”4646 The court saw little constitutional difficulty with a prohibition against political activities by corporations, “those artificial beings who are merely the creatures of the law.”4747 In the only pre-Buckley appellate court case dealing with the Taft-Hartley ban on corporate campaign expenditures, the United States Court of Appeals for the Ninth Circuit had no doubt about the constitutionality of the ban, noting the “necessity for destroying the influence over elections which corporations exercise through financial contributions.”4848

In the pre-Buckley era, the Supreme Court discussed the restrictions on corporate campaign money only in cases dealing with unions. In United States v. CIO,4949

the Court found that the ban on union campaign expenditures raised serious First Amendment concerns, which the majority managed to avoid by construing the statute not to apply to what later became known as “internal communications,” that is, electioneering aimed at union members and their families.5050 Four justices would have invalidated the ban under the First Amendment, although they left open whether they would have sustained the application of the ban to corporations, noting the “important legal and economic differences remaining between corporations and unincorporated associations, including labor unions, which justify large distinctions between them in legal treatment.”5151 On the other hand, noting that corporations enjoy some First Amendment protections,5252 they cautioned “it does not follow” from the differences between corporations and unions “that the broadside and blanketing prohibitions here attempted in restriction of freedom of expression and assembly would be valid in their corporate applications.”5353

United States v. Auto Workers5454

considered the indictment of a union for spending treasury funds on television ads endorsing candidates in a congressional election. Justice Frankfurter’s opinion for the Court provided a lengthy, sympathetic, and detailed account—dating back to the post-Civil War era and Elihu Root’s address to the New York Constitutional Convention of 18945555 —of public concern about the concentration of corporate wealth, the “felt threat to economic freedom created by enormous industrial combines[,]”5656 and the decades-long efforts by state and federal governments to control first corporate and then union money in electoral politics. Justice Frankfurter urged that these restrictions were intended to protect “the political process from what [Congress] deemed to be the corroding effect of money employed in elections by aggregated power.”5757 However, despite this apparent endorsement, the Court declined to consider the constitutionality of the statute as the case was on appeal from the dismissal of the indictment and so had not even been tried.5858 Three justices, in an opinion by Justice Douglas, would have invalidated the statute—and not just its application to unions—under the First Amendment.5959

ii.   The Buckley Era

Buckley v. Valeo transformed campaign finance jurisprudence. The Court held for the first time that raising and spending campaign money is protected by the First Amendment’s freedoms of speech and association. The Court determined that (i) campaign spending, in contrast to campaign contributions, enjoys the highest level of constitutional protection;6060

(ii) spending may not be limited to promote political equality;6161 (iii) contribution limits may be justified by the government interests in preventing corruption and the appearance of corruption;6262 (iv) corruption means something like quid pro quo corruption, that is, the exchange of dollars for votes, although it is not as narrow as outright bribery;6363 and (v) independent spending, that is, spending undertaken by an individual or group without prearrangement or coordination with a candidate, is not corrupting.6464 Buckley struck down FECA’s limits on candidate and independent spending but sustained the limits on contributions to candidates, noting that the limits still permitted contributions that can convey a “symbolic expression of support.”6565 Buckley did not address any restrictions specifically aimed at corporations. But under Buckley’s framing of the issues, the Tillman and Taft-Hartley bans on corporate giving and spending would appear to be in trouble—unless there was something special about corporations that either minimized the First Amendment burden or justified the restrictions.

Two years after Buckley, in First National Bank of Boston v. Bellotti,6666

the Court applied Buckley’s logic to invalidate a Massachusetts state constitutional provision that barred corporate spending with respect to ballot measures. Bellotti made three key points. First, it dismissed the relevance of the corporation’s status as an artificial, as opposed to a natural, person in determining whether the state measure violated the First Amendment. Although a corporation may lack a natural person’s “interest in self-expression[,]”6767 its electioneering is valuable because it can inform voters. From a First Amendment perspective, it’s not the speaker but the speech that matters: the “inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”6868

Second, the Court expressed skepticism about, without flatly rejecting, the traditional argument for the corporate ban that corporate spending threatens the integrity of democratic elections. The Court agreed that the state’s argument that campaign spending by “wealthy and powerful” corporations can “drown out other points of view” and thereby undermine active citizen participation and public confidence in government would be worthy of consideration, but only if there were “record or legislative findings that corporate advocacy threatened imminently to undermine democratic processes . . . .”6969

The Court determined there had been “no showing that the relative voice of corporations has been overwhelming or even significant in influencing referenda in Massachusetts” or posed any threat to public confidence in government, and suggested it was unlikely that such effects could ever be shown.7070 Heavy corporate spending might influence voters’ decisions, but, consistent with Buckley’s analysis, that did not constitute corruption: “the fact that advocacy may persuade the electorate is hardly a reason to suppress it . . . .”7171 Buckley had just rejected the egalitarian argument that the First Amendment permits government to limit the campaign spending of some groups “to enhance the relative voice of others . . . .”7272 In short, equality could not justify restricting spending and quid pro quo corruption was not a concern in a ballot proposition contest.

Third, the Court gave short shrift to the other major longstanding justification for barring corporate spending—protecting the interests of shareholders. Although shareholder protection is “an interest that is both legitimate and traditionally within the province of state law[,]” the corporate spending ban was both overinclusive—it would apply even if all shareholders approved spending—and underinclusive, as it applied only to electioneering and not lobbying, and only to corporations and not other organizations, such as business trusts or unions.7373

Bellotti’s reasoning called into question special restrictions on corporate campaign money, but the Court did not clearly rule out such special restrictions. Bellotti involved a referendum, not an election in which a candidate could be “corrupted,” a point the Court acknowledged in a footnote distinguishing the Massachusetts provision from the “many other state and federal laws regulating corporate participation in partisan candidate elections.”7474

The Court left open the possibility that “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.”7575

Still, the tenor of the opinion—its focus on the speech not the speaker, its dismissal of the traditional concerns about aggregations of corporate wealth and misuse of shareholder funds—did not bode well for the future of the bans on corporate campaign money. Yet, in five cases over the next two decades, the Court repeatedly sustained special restrictions on corporate campaign finance, repeatedly invoking the traditional arguments about corporate wealth and dissenting shareholders.

Just four years after Bellotti, a unanimous Supreme Court, in FEC v. National Right to Work Committee (NRWC),7676

upheld FECA’s provisions limiting whom a corporation could solicit to contribute to its PAC. For most corporations, the permissible solicitation targets are executive and administrative personnel and stockholders; the NRWC was a non-stock corporation, so FEC limited it to the solicitation of “members.” The case primarily concerned the definition of “member,”7777 but the Court also considered and emphatically rejected NRWC’s challenge to the constitutionality of the restriction. In so doing, it resuscitated the two justifications for constraining corporations that Bellotti had dismissed: (i) ensuring that “substantial aggregations of wealth amassed by the special advantages which go with the corporate form . . . should not be converted into political ‘war chests’ which could be used to incur political debts from legislators who are aided by the contributions[,]” and (ii) protecting the “individuals who have paid money into a corporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed.”7878 The Court had no difficulty applying the corporate restrictions to NRWC, a nonprofit political advocacy corporation. It recapitulated the entire “history of the movement to regulate the political contributions and expenditures of corporations and labor unions” from the Tillman Act to the 1925 Federal Corrupt Practices Act, Taft-Hartley, and FECA in concluding “[t]his careful legislative adjustment of the federal electoral laws . . . reflects a legislative judgment that the special characteristics of the corporate structure require particularly careful regulation . . . . [W]e accept Congress’s judgement that it is the potential for such influence that demands regulation.”7979

Four years later, in FEC v. Massachusetts Citizens for Life, Inc. (MCFL),8080

the Court again endorsed the idea that corporate campaign spending poses distinctive dangers that justify its regulation. The Court stressed that corporate resources are:

[n]ot an indication of popular support for the corporation’s political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.8181

81

Id. at 258.Hide

In the end, the majority determined that these concerns did not apply to MCFL, an ideological non-profit. MCFL did not engage in business activities or amass capital in the economic marketplace; its funds came entirely from people who supported the organization’s views. MCFL donors had no economic stake in the corporation that would discourage them from disassociating from it if they disagreed with its electioneering. Nor did MCFL accept any business donations, so there was no danger that business corporations were using it as a conduit.8282

But these reasons for granting MCFL an as-applied exception only underscored the constitutionality of applying the ban to business corporations.

In 1990, in Austin v. Michigan Chamber of Commerce,8383

the Court for the first time clearly sustained the constitutionality of a ban on a corporation’s spending treasury funds—in this case, a Michigan law—to support or oppose a candidate in an election. Drawing on language from Auto Workers, NRWC, and MCFL, the Court found that the traditional argument for barring corporate spending—that the political use of corporate war chests is a threat to democracy—is a compelling justification for banning the use of corporate treasury funds. But the Court had to restructure the argument to fit the Buckley framework. Corporate wealth per se could not justify special limits on corporations because Buckley and Bellotti had ruled out wealth inequality as a basis for limiting campaign money. The problem with corporate money is that (i) corporations derive their wealth from “the unique state-conferred corporate structure . . . such as limited liability, perpetual life, and favorable treatment of the accumulation and distribution of assets” that “facilitates the amassing of large treasuries” (ii) which can then be converted to political uses.8484 This, the Court concluded, fit Buckley’s requirement of corruption. To be sure, consistent with Buckley, independent spending could not be treated as the kind of quid pro quo corruption that was Buckley’s focus. Corporate independent spending is “a different type of corruption in the political arena: 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.”8585 Moreover, the ban on spending corporate treasury funds was “sufficiently narrowly tailored to achieve its goal” because Michigan allowed corporations to create PACs that could engage in independent spending.8686 Corporations could engage in electoral speech if they used funds specifically provided by individuals for that purpose.8787 Nor was the law overbroad because it applied to non-wealthy corporations; legislatures could decide that the potential for abuse resulting from the corporate form was a sufficient basis for regulation.8888 Bellotti was barely acknowledged, with a passing reference to the footnote in that earlier case that had said a legislature might be able to demonstrate that corporate spending poses a danger of real or apparent corruption in candidate elections.8989

Subsequently, in FEC v. Beaumont,9090

the Court upheld the application of the Tillman Act’s ban on corporate contributions to a non-profit advocacy organization. The Court recapitulated the century-long history of the regulation of corporations and determined that “the original rationales” for the law still applied.9191 Beaumont restated Austin’s finding that the special state-created advantages provided by the corporate form created the unique danger of “war-chest corruption.”9292 The Court also invoked the interest of shareholders in not having their “money used to support political candidates to whom they may be opposed.”9393 Beaumont added one new justification resulting from FECA’s enactment of a regime of individual contribution limitations—preventing the circumvention of those limits by donors who would use corporations as conduits for individual contributions above the statutory limits.9494 The anti-circumvention justification provided crucial support for the application of the corporate contribution ban to nonprofit advocacy corporations, which, the Court underscored, are “no less susceptible than traditional business companies to misuse as conduits for circumventing the contribution limits imposed on individuals.”9595

Beaumont also determined that Buckley’s lower standard of review for contribution restrictions should apply even though the Tillman Act imposes a flat ban on corporations, not just a dollar limitation. The Court explained that the standard of review was “based on the importance of the ‘political activity at issue’ to effective speech or political association.”9696

Buckley had determined that “restrictions on political contributions” should be “treated as merely ‘marginal’ speech restrictions subject to relatively complaisant review under the First Amendment, because contributions lie closer to the edges than to the core of political expression.”9797 In sustaining FECA’s dollar limits on individual contributions, Buckley had noted that FECA allowed “the symbolic expression of support evidenced” by a contribution under the statutory ceiling,9898 and that would-be donors could also engage in independent spending. Neither option is available to a corporation under the Tillman Act. Nonetheless, Beaumont concluded the ban was still “closely drawn” and not an undue burden because, given the statutory authorization for PACs, the Tillman Act was not a ban at all: “[t]he PAC option allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members.”9999

Shortly after, in McConnell v. FEC,100100

the Court upheld BCRA’s extension of Taft-Hartley’s prohibition on corporate and union independent spending to “electioneering communications”—broadcast ads aired during a defined pre-election period that refer to a candidate by name but do not use the “magic words” of express advocacy.101101 Elihu Root, Theodore Roosevelt, and the long development of the corporate and union restrictions were again invoked.102102 The recent cases reconciling this history with the Buckley framework were all cited.103103 In particular, the Court repeated Beaumont’s point that “the ability to form and administer” PACs ameliorated any constitutional difficulty because PACs provide “corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy.”104104

iii.  Citizens United

Seven years later in Citizens United v. FEC,105105

the Supreme Court reversed course, striking down both BCRA’s extension of Taft-Hartley’s spending ban to electioneering communications and the underlying spending ban itself. Indeed, Citizens United seemingly obliterated the conceptual underpinnings of the Court’s treatment of corporate and union restrictions from NRWC to McConnell. The Court dismissed the claim that FECA’s authorization of corporate PACs means the spending ban is not really a ban.106106 The Court flatly rejected the idea that any special advantages of the corporate form, or the disconnect between a corporation’s ability to amass wealth in the economic marketplace and the extent of popular support for its political ideas, provides a justification for special restrictions on corporate spending.107107 Consequently, “distortion” or “war chest” corruption is simply not “corruption” at all for First Amendment purposes.108108 Although Bellotti had left open the possibility that “Congress might well be able to demonstrate the existence of real or apparent corruption in independent expenditures by corporations to influence candidate elections,” Citizens United shut that down, determining categorically that corporate independent spending, like independent spending generally, does not raise dangers of corruption or appearance of corruption that would justify its restriction.109109

In two short paragraphs, Citizens United also dismissed the dissenting shareholder justification for limiting corporate campaign spending. “[P]otential disagreement” within a corporation could not give the government the power to ban campaign speech.110110

As in Bellotti, the Court concluded that the argument is both overinclusive—the ban applies even when there are no dissenting shareholders—and underinclusive, applying only to campaign spending, and not to other forms of corporate political speech, like lobbying.

Notwithstanding Citizens United, over the last fourteen years multiple courts have sustained federal and state corporate contribution bans in cases involving ideological nonprofit advocacy corporations,111111

small closely-held family-owned corporations,112112 and business corporations.113113 These decisions have relied on the survival of the pre-Citizens United decision in Beaumont as precedent, and on the contention that some of Beaumont’s justifications for the constitutionality of the Tillman Act survive as well.

Lower courts must continue to follow governing Supreme Court precedent even if that precedent has been conceptually undermined by a later Supreme Court case.114114

Although Citizens United’s treatment of corporate campaign participation is fundamentally at odds with Beaumont’s approach, Citizens United did not overrule Beaumont. Indeed, it scarcely mentioned Beaumont. The Citizens United majority referred to Beaumont exactly twice—once to reject the Citizens United dissent’s position that Beaumont had implicitly upheld the federal corporate expenditure ban115115 and once to note that the Beaumont concurring and dissenting opinions had questioned the rationale for the Court’s earlier Austin decision upholding Michigan’s corporate expenditure ban.116116 Moreover, the Supreme Court has continued to decline to reconsider Beaumont, denying the petitions for certiorari filed in six of the appellate court decisions upholding federal or state corporate contribution bans.117117

Moreover, these courts have found that at least some of Beaumont’s reasoning continues to survive as well. To be sure, one strand of Beaumont’s analysis invoked Austin’s concern with corporate “war-chest corruption,”118118

which is clearly now a non-starter given Citizens United’s express overruling of Austin. But Beaumont also relied on three other arguments—the dangers of quid pro quo corruption and its appearance posed by contributions generally, 119119 the use of donations by corporations to circumvent the limits on individual donations to candidates,120120 and the protection of dissenting shareholders.121121

The prevention of quid pro quo corruption and its appearance continues to be the fundamental basis for contribution restrictions, and surely corporate contributions, like contributions from individuals, raise the possibility, or the appearance, of the exchange of donations for political favors. As the Massachusetts Supreme Judicial Court emphasized, “[b]oth history and common sense have demonstrated that when corporations make contributions to political candidates, there is a risk of corruption, both actual and perceived.”122122

The more difficult question is whether the prevention of corruption justifies a complete ban on corporate contributions rather than a dollar limitation; in other words, whether a ban is “closely drawn” to achieve the anti-corruption goal. That question will be addressed after the more “corporation-specific” arguments for a corporate contribution ban—anti-circumvention and shareholder-protection—are examined.

Beaumont was the first corporate limitation case to rely on the anti-circumvention justification, but the argument that some limits on campaign money are justified to prevent the evasion of previously-accepted limits had been sustained in cases involving the limitation of donations to and spending by political parties,123123

and limits on donations to political action committees to prevent the circumvention of the limits on individual donations to candidates.124124 The post-Citizens United Fourth Circuit decision rejecting a challenge to the Tillman Act ban agreed that both “[p]revention of actual and perceived corruption and the threat of circumvention are firmly established government interests that support regulations of campaign financing” and that “Citizens United did not undercut Beaumont’s endorsement of this [anti-circumvention] interest.”125125 The Ninth Circuit agreed that Beaumont’s use of the anti-circumvention argument remains legally sound because, “the anti-circumvention interest is part of the familiar anti-corruption rationale.”126126 The Sixth Circuit also cited to Beaumont’s concern about the use of corporate contributions “as conduits for circumvention of valid contribution limits.”127127

Given the ease with which an individual can create a corporation, donors who hit the limit on individual donations could funnel additional contributions through corporations created for that purpose. A single individual could generate multiple corporations that he or she controls and can use to end-run the cap on donations. Dollar limits on individual donations to a candidate could be rendered meaningless if the individual could proliferate new corporations, each of which could separately donate to the same candidate.

Corporate contributions could also facilitate the circumvention of disclosure requirements by enabling a donor to disguise his role in a campaign by creating and putting money in a corporation that contributes to a candidate. In Western Tradition Partnership (WTP), the Montana Supreme Court found that WTP -- despite the word “partnership” in its name, the entity is a corporation — was created “to act as a conduit of funds for persons and entities including corporations who want to spend money anonymously to influence Montana elections.”128128

Often little more than “shadow money mailboxes,”129129  these legal persons can facilitate the evasion of disclosure requirements.

As Ann Ravel, the then-chair of California’s Fair Political Practices Commission (FPPC) and subsequently chair of the FEC, observed, “people are willing to use circuitous routes to avoid telling the voters who is behind campaigns.”130130

Ravel made her statement while announcing the imposition of a record $1 million civil fine as part of the settlement of a case brought by the FPPC and the California Attorney General against two nonprofit corporations that together funneled more than $15 million into a campaign against two ballot propositions on the 2012 California ballot. The money, which ultimately derived from a handful of super wealthy individuals, was channeled from the originating donors to a group called Americans for Job Security, which then transferred the money to the Center to Protect Patients’ Rights (the ballot propositions had nothing to do with patients’ rights) and then on to the Arizona-based Americans for Responsible Leadership and the Iowa-based American Future Fund. These organizations then further transmitted the funds to the Small Business Action Committee and the California Future Fund for Free Markets, which then finally spent them to oppose the ballot measures.131131 It was, as one news account put it, “a daisy chain of organizations” “that operatives took to skirt disclosure obligations.”132132 Similarly, Western Tradition Partnership touted to prospective donors: “‘[W]e’re not required to report the name or the amount of any contribution that we receive. So if you decide to support this program, no politician, no bureaucrat, and no radical environmentalist will ever know you helped make this program possible . . . . You can just sit back on election night and see what a difference you have made.”133133

Shareholder protection is the most uncertain of the remaining Beaumont justifications. Citizens United dismissed that argument as clearly inadequate to justify a ban on corporate independent spending, but the Court’s brief discussion of the shareholder-protection rationale did not consider whether that argument would receive more weight in the context of a restriction on corporate contributions.134134

Some of the recent lower court decisions sustaining corporate contribution bans have referred to the shareholder-protection interest in summarizing the elements of Beaumont that survive Citizens United.135135 Others have explicitly sidestepped this argument, focusing instead on the anti-corruption and anti-circumvention justifications.136136

Shareholder protection has been a justification for limiting corporate spending at least since the revelations of the Armstrong Committee.137137

The argument has been recognized in two Supreme Court cases—NRWC as well as Beaumont. In NRWC, a unanimous Court noted a purpose of the ban is to “protect the individuals who have paid money into a corporation or union for purposes other than the support of candidates from having that money used to support political candidates to whom they may be opposed” and it “agree[d] with the government” that this was a constitutionally sound justification.138138 Beaumont quoted the NRWC language and restated the point.139139 Rejecting the argument would require the Court to repudiate not one but two precedents.

Nor is shareholder protection rooted in the war chest theory of corruption disavowed in Citizens United. That theory was a post-Buckley attempt to preserve the concern that, since the late nineteenth century, has driven efforts to limit corporate electoral participation—that deployment of corporate economic power in the political realm is inherently a threat to the integrity of democratic elections. Buckley’s rejection of wealth inequality as a justification for limiting spending, coupled with Citizen United’s dismissal of the role of “state-created advantages” in empowering corporations means that argument is no longer doctrinally available. Shareholder protection, however, is not based on a theory of state-supported corporate power with respect to elections, but is instead concerned about the protection of shareholders within the corporate framework. Indeed, Citizens United’s recharacterization of a corporation as an “association[] of citizens”140140

is consistent with legislative protection of the rights of those “citizens” within the corporation. Even Citizens United acknowledged that corporate political activity can constitute an “abuse” of the funds of dissenting shareholders, although it determined that in the context of corporate spending, that could be “corrected by shareholders ‘through the procedures of corporate democracy.’”141141

Although ruled out as a basis for banning corporate spending, shareholder protection may still be a sufficiently substantial justification for limiting corporate contributions given the less stringent standard of review applicable to contribution restrictions. Yet, even if the justification remains a substantial one, a ban may still be challenged as not “closely drawn” to achieving the shareholder-protection goal.

Assuming quid pro quo corruption and its appearance, anti-circumvention, and shareholder-protection are substantial government concerns that could justify a ban on corporate contributions, the question becomes whether a ban is “closely drawn,”142142

that is, whether it advances the government’s concern without unduly burdening corporate First Amendment rights. That involves consideration of just how burdensome the restriction is on corporate political participation and on the availability of comparably effective alternatives.

Citizens United ameliorated the burden created by the corporate contribution ban by authorizing corporate independent spending. At least two of the post-Citizens United lower courts that upheld corporate contribution bans have pointed to the availability of independent spending. The Massachusetts Supreme Judicial Court concluded that the state’s ban on corporate contributions is “not ‘a complete ban’” because, due to Citizens United, Massachusetts permits corporations to engage in a significant form of political expression that was not allowed when Beaumont was decided—unlimited independent expenditures.143143

The Ninth Circuit also relied on the availability of independent spending in rejecting a challenge to the City of San Diego’s corporate contribution ban, noting that “[i]n terms of both the fundamental First Amendment interests at stake and actual influence on the political process[,]” limiting the ability of a corporation to contribute to a candidate “pales in significance to its ability to make unlimited independent expenditures.”144144 This is consistent with the Supreme Court’s analysis in Buckley, which pointed to the availability of independent spending in sustaining the constitutionality of limits on individual contributions. The corporate contribution ban was upheld in Beaumont even when corporate spending was not an available alternative. With the corporate spending ban now unconstitutional, the corporate contribution ban is arguably more closely drawn than before.

It can be argued that a contribution ban, like the Tillman Act, is not closely drawn given the availability of a less constitutionally burdensome alternative—dollar limits, like FECA places on individual contributions. That would be a persuasive argument if the only justifications for the corporate contribution ban are the prevention of corruption and the appearance of corruption from corporate donations. However, a limit may not be as effective as a ban at attaining the other reasons the Court recognized in Beaumont—anti-circumvention and shareholder protection. Even small corporate contributions would undermine the anti-circumvention goal by allowing donors who have “maxed out” on their individual contributions to make additional contributions through corporations. Similarly, even small corporate donations would conflict with the interests of dissenting shareholders. A ban, rather than a dollar limit, is closely drawn to protect these interests.

Citizens United suggested that disclosure may be a less burdensome means of protecting the dissenting shareholder interest: “[P]rompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”145145

But disclosure is unlikely to be as effective as a contribution ban in protecting the dissenting shareholder interest. Corporations are not required to disclose their election spending to shareholders. To be sure, many major corporations now voluntarily report on their political activities to their shareholders,146146 but these reports vary considerably in scope, with large companies far more inclined to disclose their donations than smaller ones,147147 and most corporations have no self-imposed reporting policies at all. Election laws generally require the reporting of contributions and expenditures, but these reports are made to public agencies, not to shareholders; moreover, it is the recipients of the contributions, not the donors, who are required to disclose, making it difficult for shareholders to keep track of what their corporations are up to.148148

It is unclear how useful disclosure would be to shareholders. Voluntary corporate disclosures are not timed to elections,149149

and even election law disclosures—though often reported before Election Day—report contributions only after they have occurred. At that point, the damage from the donation of corporate funds to a candidate the shareholder opposes would already be done. A post-disclosure sale of shares might require the shareholder to take a loss or trigger the application of a capital gains tax. Either consequence would operate as a monetary penalty discouraging sale. And, of course, many people do not own shares directly in the corporation that engages in election spending but instead invest through mutual funds or pension plans.150150 Disinvesting would require selling the interest in the mutual fund (thereby potentially disinvesting from dozens of other companies with which the investor has no political quarrel). For many employment-based pension plans, it may not even be possible for the employee- or retiree-investor to change plans.

Nor would disclosure necessarily give shareholders a voice with respect to contribution decisions. The Securities and Exchange Commission (SEC) has required public companies subject to its jurisdiction to place shareholder-initiated resolutions concerning company political spending on the annual meeting proxy statements for a shareholder vote.151151

But under general corporate law principles such a shareholder resolution is only advisory. The closest the shareholders get to having a voice is when they vote for the members of the board of directors, but board elections are only rarely contested. Typically, the board nominates a slate, which it places on the corporation’s proxy card, and the slate runs unopposed. As a result, the exercise of “voice,” like the exercise of exit through sale, to protest corporate election spending is limited.152152 Disclosure would not be an effective alternative means of protecting dissenting shareholders.

In the fourteen years since Citizens United, the Supreme Court has confirmed its skepticism about campaign finance regulation in ways that could ultimately spell the end of the corporate contribution ban.

In McCutcheon v. FEC,153153

the Court invalidated FECA’s aggregate contribution limit, that is, the limit on the total dollar value of contributions an individual could give to all federal candidates, political parties, and PACs in an election cycle. Buckley had upheld the aggregate limit on the theory it prevented circumvention of the just-sustained individual-to-candidate contribution limits.154154 McCutcheon overturned Buckley on this point, noting first that amendments to FECA after Buckley that strengthened limits on individual donations had made circumvention more difficult.155155 Chief Justices Roberts’ plurality opinion expressed considerable doubt that the means donors could use to channel over-the-base-limit donations to candidates through other candidates and committees cited by the government and accepted by the dissent were likely to occur.156156 He proposed “multiple alternatives” to aggregate limits that could address circumvention while imposing a lesser burden on First Amendment rights, while reserving judgment as to whether those proposed less burdensome alternatives would themselves pass constitutional muster.157157

The Court’s rigorous probing of the anti-circumvention argument, its unwillingness to defer to the judgment of Congress and the FEC about whether and how donors and politicians with the incentive to evade contribution restrictions would be able to do so, and its reliance on untested hypothetical alternatives all cast doubt on the continued force of the anti-circumvention justification. The Chief Justice’s rhetoric in particular underscored his doubts about whether anti-circumvention is a constitutionally sufficient justification for campaign finance regulation. In the Chief Justice’s words, the individual-to-candidate contribution limits “themselves are a prophylactic measure.”158158

That is, a campaign contribution is not necessarily corrupt and most campaign contributions are not quid pro quo transactions with candidates. The dollar restrictions on contributions are “preventative,” that is, designed to preclude larger contributions that raise a greater possibility of corruption. “The aggregate limits are then layered on top, ostensibly to prevent circumvention of the base limits. This ‘prophylaxis-upon-prophylaxis approach’ requires that we be particularly diligent in scrutinizing the law’s fit.”159159 For restrictions supported by the anti-circumvention justification, the “closely drawn” component of exacting scrutiny appears to require an especially tight fit.

More subtly, McCutcheon hinted that the traditionally less exacting standard of review for contribution restrictions may be up for reconsideration. Chief Justice Roberts opened his analysis by referring to the “significant energy” spent by the parties and amici “debating whether the line that Buckley drew between contributions and expenditures should remain the law.”160160

Rather than reaffirm Buckley, the plurality opinion determined there was “no need” to revisit Buckley’s contribution versus expenditure distinction, as under its “rigorous” application of the “closely drawn” test, the aggregate contribution restriction was unconstitutional.161161 In his concurring opinion, Justice Thomas would have scrapped the lower standard of review for contribution restrictions and applied strict scrutiny.162162 Without going that far, McCutcheon reaffirmed Citizens United’s message that the “only legitimate governmental interest for restricting campaign finances is preventing corruption and the appearance of corruption” and “only a specific type of corruption – ‘quid pro quo’ corruption”163163 meets the constitutional standard. The Court also stressed that disclosure “often represents a less restrictive alternative to flat bans on certain types or quantities of speech.”164164

The 2022 decision in FEC v. Ted Cruz for Senate165165

also tightened up the review of contribution restrictions, cast doubt on anti-circumvention, and hinted at a possible reopening of the contribution versus expenditure distinction. Cruz addressed a federal rule that limits the ability of a candidate’s campaign committee to repay a loan the candidate made to the committee. Specifically, the law caps the amount of money the committee can repay the candidate from post-election contributions to the committee; there is no limit on repayment to the candidate from contributions made to the committee before the election. As Justice Kagan explained in her dissent, “[t]he theory of the legislation is easy to grasp. Political contributions that will line a candidate’s own pockets, given after his election to office, pose a special danger of corruption.”166166 The contributions may fall under the dollar limitation set by FECA to prevent corruption and its appearance, but they will be used not to pay the costs of the candidate’s campaign but to make a payment to the candidate or, if the candidate is the winner, to an elected officeholder for his or her personal use.

Nonetheless, the Court determined the measure violated the First Amendment. As in McCutcheon, the Court mused about the debate between the parties over whether to apply strict scrutiny or “closely drawn” review before deciding there was no need to resolve the issue—or reaffirm Buckley on this point—because the law failed both standards.167167

The Court reasoned that limiting the repayment of loans to a candidate deters candidates from lending to their campaigns, thus burdening their electoral speech.168168 And, the Court concluded, it was not justified by the “only one permissible ground for restricting political speech: the prevention of ‘quid pro quo’ corruption or its appearance.”169169

As in McCutcheon, the Court focused on the fact that the contributions restricted by the post-election repayment rule are subject to FECA’s dollar limits: “[i]ndividual contributions to candidates for federal office, including those made after a candidate has won the election, are already regulated in order to prevent corruption or its appearance.”170170

So this was another instance of a precautionary restriction added to an already precautionary restriction, and “[s]uch a prophylaxis-upon-prophylaxis approach . . . is a significant indicator that the regulation may not be necessary for the interest it seeks to protect.”171171 The Court determined that the government had failed to provide hard evidence that post-election contributions to repay candidate loans have been a source of corruption.172172 Neither the “common sense” assessment of post-election loan repayment contributions as effectively gifts to winners nor statements by members of Congress to that effect provided sufficient evidence of a danger of corruption or its appearance to satisfy this toughened “closely drawn” standard.173173

Americans for Prosperity Foundation v. Bonta (AFP)174174

is not a campaign finance case, but it has direct implications for the Court’s review of campaign finance disclosure requirements and indirectly for the review of contribution restrictions. AFP involved a challenge by two advocacy organizations, registered as charities in California, to state regulations that require charities to report the identities of the principal donors. The state contended it needed the information in order to efficiently and effectively discharge its obligation to prevent charitable fraud and self-dealing. The plaintiffs, however, urged that the disclosure of donors violated their First Amendment rights and those of their donors by subjecting donors to the possibility of threats and reprisals, thus, making them less likely to contribute.175175

The central question for the Court was the standard of review. In elections cases, including campaign finance cases, the Court had held that the standard of review of disclosure requirements was “exacting scrutiny,” that is, that “there must be a substantial relation between the disclosure requirement and a sufficiently important government interest.”176176

This is the same standard that applies to contribution restrictions. One AFP plaintiff contended the Court ought to apply strict scrutiny and both urged that even if exacting scrutiny remains the standard of review, the Court ought to require that the disclosure requirement be the “least restrictive means”—the test applied by strict scrutiny—for achieving the government’s interest.177177

The Court did not move all the way to least restrictive means but it did require that the disclosure regulations be “narrowly tailored” to the government’s interest,178178

which is considerably tighter than the prior “substantial relation” test. The Court concluded the state had not shown its disclosure requirement was narrowly tailored to its law enforcement interest as, much as in McCutcheon, the Court pointed to various means that posed less of a burden on constitutional rights for the state to investigate charitable misconduct.179179 Strikingly, the Court did not simply grant an as-applied exception for the plaintiffs, who had introduced evidence that they and their supporters had been subject to harassment. Instead, even without evidence that disclosure posed similar problems for other organizations, the Court declared the disclosure requirement facially unconstitutional because the state had not considered less intrusive means of gathering information about charitable wrongdoing.180180

AFP is not a campaign finance case. Conceivably, as the plaintiffs’ acknowledged, the government interest in campaign finance disclosure is stronger.181181

And it is certainly not a contribution limitation case. But AFP resonates with McCutcheon’s emphasis that restrictions be narrowly tailored. Indeed, it expressly invokes McCutcheon for this point.182182 So, too, AFP tracks McCutcheon and Cruz in placing an increased burden on regulators to justify restrictions that arguably impinge on First Amendment activity. As these cases indicate, even when the Court is nominally applying something less than strict scrutiny it is doing so increasingly strictly, with less deference to previously accepted justifications for regulation. This does not bode well for the future of the corporate contribution ban.

What could replace the corporate contribution ban if it were struck down? This Part explores three possibilities. None would really replace the ban, but each could address some of the concerns that have justified the ban.

One approach is to build on the “pay-to-play” laws that restrict donations from government contractors or other entities that have especially close relationships with government. By one count, fifteen states and multiple local governments either prohibit or tightly limit campaign contributions by, or impose enhanced disclosure requirements on, entities that hold or bid for government contracts and individuals closely associated with them.183183

The United States Court of Appeals for the District of Columbia rejected a constitutional challenge to the federal contractor contribution ban in Wagner v. FEC184184 in 2015. Wagner relied on both the government interest in preventing corruption and its appearance, and a second substantial interest in “protection against interference with merit-based public administration.”185185 In determining that the ban, not just a limit, was closely drawn, the court combined a detailed review of instances of bribery, kickbacks, and other corrupt behavior connected to government contracting186186 with a recognition that “the contracting context greatly sharpens the risk of corruption and its appearance.”187187 As the court noted: 

Unlike the corruption risk when a contribution is made by a member of the general public, in the case of contracting there is a very specific quo for which the contribution may serve as the quid . . . . Moreover, because of that sharpened focus, the appearance problem is also greater: a contribution made while negotiating or performing a contract looks like a quid pro quo, whether or not it truly is.188188

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Other courts that sustained contractor contribution bans or very low limits on contractor donations also relied on histories of corrupt arrangements between contractors and public officials to sustain their determinations that the restrictions were closely drawn to achieve an important government interest.189189

Conversely, where a court found that a ban went too far and applied to donations in settings without evidence of corruption, the ban was invalidated.190190

To be sure, Wagner also relied heavily on Beaumont, as have other appellate court decisions sustaining state laws banning contributions by government contractors.191191

If Beaumont is overturned these decisions could be called into question. Yet, where a government can provide evidence of contractor corruption, Wagner’s common sense understanding that contractor donations raise an especially acute potential for corruption and its appearance and pose a distinct threat to “merit-based public administration” should be sufficient to sustain such pay-to-pay restrictions. Government contractor bans also have the advantage of focusing on a particular type of relationship between donors and government rather than the nature or identity of the donor. That is, they apply to individuals and business entities generally, including partnerships, and other associations, as well as corporations, and so do not rely on currently unacceptable assumptions about the corporate form.192192

At the federal level, additional pay-to-play rules have been applied to certain participants in the municipal finance industry. Rule G-37 of the Municipal Securities Rulemaking Board, adopted in 1994, prohibits brokers, dealers, or municipal securities dealers from engaging in municipal securities business with an issuer within two years of making a campaign contribution to an official of the issuer who can influence the awarding of municipal securities business.193193

More recently, the SEC adopted similar rules for investment advisors and certain officials associated with them, and for placement agents—individuals and firms that investment agents hire to help them secure contracts advising a government entity.194194

In Blount v. SEC,195195

the D.C. Circuit concluded that the MSRB rule was narrowly tailored to preventing the “self-evident[]” “conflict of interest in state and local officials who have power over municipal securities contracts and a risk that they will award the contracts on the basis of benefit to their campaign chests rather than to the governmental entity.”196196 The court rejected the idea that disclosure would have been a less constitutionally burdensome way of achieving the rule’s goals of protecting the bond market from fraud and manipulation and preventing corruption,197197 and found the rule narrowly tailored as it restricted only a narrow range of political activities and only for a limited period of time.198198 Twenty-five years later, in 2019, the D.C. Circuit in New York Republican State Committee v. SEC199199 rejected a similar constitutional challenge to the placement agent pay-to-play ban. The petitioners argued, inter alia, that Blount had been fatally undermined by McCutcheon’s condemnation of “prophylaxis-upon-prophylaxis” regulation.200200 But, noting the evidence of corrupt connections between state officials responsible for pension fund investments and the political contributions they had received, the court concluded that the SEC restriction did in fact closely fit the corruption problem it was intended to address.

Some states have applied the pay-to-play model to donations from certain industries, such as those associated with vice like alcohol,201201

gambling,202202 and cannabis,203203 or those that are highly regulated by the state, such as insurance204204 or banking.205205 Courts have divided over just how much evidence is needed to show that donations from a particular industry present such a distinct and unusual danger of corruption that their donations can be barred.206206 Some jurisdictions have also applied pay-to-play contribution restrictions to lobbyists. Two federal courts of appeals and one state supreme court determined that lobbyist contributions “create special risks of corruption because of the lobbyist’s special role in the legislative system.”207207 By contrast, the Second Circuit decision sustaining Connecticut’s ban on contributions by government contractors invalidated another provision of Connecticut law that would have prohibited contributions by lobbyists. The court explained that “the recent corruption scandals” that justified the contractor ban “had nothing to do with lobbyists” and so there was no concrete basis for singling out contributions by lobbyists for prohibition.208208

Pay-to-play restrictions are far from a complete replacement of a corporate contribution ban. Most corporations are not government contractors or participants in distinctly highly regulated industries. Moreover, pay-to-play restrictions rely on Buckley’s less-than-strict scrutiny of contribution restrictions, which is increasingly uncertain.209209

Still, as Wagner stressed, pay-to-play conceptually focuses on entities that as a group pose a categorically greater danger of making quid pro quo donations—assuming the regulating jurisdiction can demonstrate that the targeted group in fact has a record of engaging in corrupting practices. If so, pay-to-play restrictions may have a chance of survival even if the Court ratchets up the standard of constitutional review of contribution limits.

Citizens United made a point of saying that it did not reach the question of whether there is a compelling government interest “in preventing foreign individuals or associations from influencing our Nation’s political process.”210210

Two years later in Bluman v. FEC,211211 the Court summarily affirmed a three-judge court decision, authored by then-Judge Kavanagh, rejecting a constitutional challenge to the federal statutory ban on foreign financial participation in American elections.212212 As a result, foreign corporations can be—and are—barred from making contributions to candidates in American elections. But what makes a corporation foreign? A corporation incorporated abroad is a foreign corporation, as is one with its principal place of business abroad.213213 An FEC regulation further prohibits foreign nationals from participating in the decision-making process of an American entity with respect to making a contribution or expenditure in an American election. This would bar a foreign officer or director from being involved in a corporation’s campaign finance decisions.214214 However, neither the FECA nor the FEC has addressed whether substantial foreign ownership of an American corporation makes it “foreign” for purposes of the federal ban on foreign financial participation in American campaigns.

Some states and local governments have sought to fill the gap with laws addressing foreign corporate spending in their elections.215215

Their definitions of what makes a corporation foreign have sometimes been quite aggressive, providing that very small percentages of foreign ownership render a corporation “foreign” or “foreign-influenced.”216216 The recently-enacted Minnesota Fair Campaign Practices Act defines a “foreign-influenced corporation,” prohibited from making contributions and independent expenditures in Minnesota elections, as a corporation or limited liability company in which a single foreign investor controls one percent or more of the entity’s voting shares or other ownership interest, two or more foreign investors together have five percent of the share or ownership interest, or a single foreign investor “participates directly or indirectly in the corporation’s decision-making process with respect to [its] political activities in the United States.”217217 Given the uncertainty of what share of corporate stock may be owned by foreign investors at any given time, Minnesota, like other jurisdictions that have sought to prohibit foreign corporate participation, requires the corporation to certify to the state’s campaign finance regulator that it is not “foreign-influenced” within the meaning of the statute each time it makes a contribution.

In December 2023, a federal district court issued a preliminary injunction barring enforcement of the Minnesota law.218218

Acknowledging that a one percent foreign owner “could exercise influence” over corporate decision-making, the court determined that the state had failed to show any evidence that “minority foreign shareholders have even once exercised influence or control over a corporation’s election expenditures in Minnesota or elsewhere.”219219

In February 2024, the Maine federal district court issued a preliminary injunction against the enforcement of that state’s recently adopted ban on campaign spending by “foreign government-influenced” entities.220220

The Maine law defined “foreign government-influenced entity” broadly to include: (i) a foreign government; (ii) an entity in which a foreign government or foreign government-owned entity “[h]olds, owns, controls, or otherwise has direct or indirect beneficial ownership of 5% or more” of “applicable ownership interests”; or (iii) an entity in which a foreign government or foreign government-owned entity “[d]irects, dictates, controls or directly or indirectly participates in the decision-making process” of the entity with respect to decisions concerning campaign contributions and expenditures.221221 The court concluded that although under Bluman Maine has a compelling government interest in limiting foreign government influence in candidate elections,222222 the law was not narrowly tailored.

The five percent foreign ownership threshold was overbroad. It “would prohibit a substantial amount of protected speech” and seemed “arbitrarily chosen.”223223

The inclusion of foreign government-owned entity participation in the domestic entity’s campaign finance decision-making was also held to “cast[] an overly broad net,” as the implementing regulations proposed by the state left open the possibility that a domestic entity would be restricted “not based on its own conduct, but based on unsolicited communications from a foreign government-owned entity even when no actual influence is shown.”224224

These two decisions are certainly not the last word in the effort to regulate foreign or foreign-influenced corporations. But they confirm that although in principle foreign corporations can be barred from participating in United States elections, defining what makes a corporation foreign is far from clear and that aggressive efforts to find define foreign influence risk being struck down as an excessive restriction on corporate election participation.

Citizens United placed great weight on disclosure as the appropriate means of regulating corporate participation in elections, contending that “disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”225225

As previously discussed, disclosure would be less effective than a contribution ban in protecting the interests of dissenting shareholders,226226 but disclosure could at least partially advance the interest in shareholder protection as well as anti-corruption and anti-circumvention goals. Effective disclosure of corporate campaign activity could also play an important role in educating the public and voters as well as shareholders about the role corporations play in elections. The increasing willingness of some corporations to report their political activities to their shareholders may signal a recognition within the business community of shareholder concern about corporate campaign money. However, the scope of voluntary corporate disclosure varies considerably,227227 and many corporations do not make any disclosures at all.228228 Voluntary corporate disclosure is unlikely to provide effective disclosure.

In 2011, the Committee on Disclosure of Corporate Political Spending submitted a petition for rulemaking to the SEC asking “that the Commission develop rules to require public companies to disclose to shareholders the use of corporate resources for political activities.”229229

Although the petition ultimately garnered at least 1.2 million comments,230230 SEC action has been repeatedly stymied by Congressional budget riders which bar the SEC from using its funds to “finalize, issue, or implement any rule, regulation, or order regarding the disclosure of political contributions, contributions to tax exempt organizations, or dues paid to trade associations.”231231 Even if the hurdle of Congressional opposition to SEC regulation is overcome, a corporate political disclosure rule would require the resolution of multiple complex questions of what types of political spending must be disclosed, when (and how often) should disclosure occur, how the disclosed information should be made available to shareholders, and enforcement in the event of non- or false disclosure. The existing voluntary disclosure resolutions can provide some guidance for the resolution of these questions, but the variation in their requirements indicates these issues may not be easy to resolve.

Government-mandated disclosure would also raise constitutional issues. The Supreme Court has consistently supported campaign finance disclosure, including, most prominently, in Citizens United itself.232232

However, the Court’s recent decision in AFP v. Bonta suggests it may be on the verge of tightening up its review of disclosure requirements.233233 A requirement that corporations disclose their contributions would depart from traditional campaign finance regulation by requiring disclosure by donors rather than the recipients of those donations who then turn them into campaign expenditures. Moreover, a disclosure requirement for corporate political spending—but not other forms of corporate spending—would be subject to the contention that it is a content-based regulation of corporate speech, subject to strict judicial scrutiny. On the other hand, any requirement that corporations disclose their contributions to their shareholders would likely apply to contributions already subject to public disclosure, thus minimizing any new constitutional burden.

Given the Congressional blockade against SEC action on corporate disclosure, it would be premature, and well beyond the scope of this article, to consider the constitutional issues that would be raised by a corporate contribution disclosure requirement. Suffice it to say that at least in the near term, disclosure is unlikely to be an effective replacement for the corporate contribution ban should that ban be held unconstitutional.

What accounts for the surprising survival—so far—of the corporate contribution ban? It is a mystery. The corporate contribution ban is almost entirely out-of-sync with modern campaign finance doctrine. Corporations, recharacterized as “associations of citizens,”234234

can no longer be treated as a distinctive threat to the integrity of the democratic process. Campaign spending by corporations is constitutionally protected and part of the campaign finance system. Yet the ban continues to be a part of federal campaign finance law and the laws of twenty-one states.

For most corporations, it may not matter. Given the availability of both the PAC option and independent spending—along with issue advocacy, general voter education campaigns, and lobbying—corporations have ample opportunities to make their interests known and their voices heard in the political process.

However, this is not a completely satisfactory answer. As Citizens United pointed out, setting up a PAC entails administrative costs and requires the solicitation of donations from corporate personnel.235235

It would be cheaper just to make a donation from corporate treasury funds. Although independent spending can be helpful to candidates, most candidates would rather have contributions to their campaigns so they can control how the money is used. Public advocacy and lobbying are certainly crucial ways for corporations to advance their political agendas, but advocacy efforts and especially lobbying often benefit from accompanying campaign contributions.

Nor is it clear why the Supreme Court has declined to address the issue. The Court has denied certiorari in at least six corporate contribution cases since 2010.236236

Perhaps the blowback from Citizens United has discouraged the Court from taking on corporate campaign finance cases; indeed, it has heard relatively few campaign finance cases of any kind in the last ten years.237237

On the other hand, this would likely not be a hard issue for the current Court. In the nearly two decades since Chief Justice Roberts and Justice Alito joined the Court, the Court has consistently ruled against every challenged campaign finance rule—federal or state, statute or regulation. Two of those cases, Citizens United and McCutcheon, overruled campaign finance precedents, so Beaumont would not be much of a barrier to action if the Court decided to take up the issue.

So, judicial inaction remains a mystery, and the corporate contribution ban surprisingly continues to survive—for now.