The Uncertain Future of the Corporate Contribution Ban

Concern about the role of corporate money in democracy has been a longstanding theme in American politics. In the late nineteenth century, the states began to adopt laws restricting the use of corporate funds in elections. The first permanent federal campaign finance law – the Tillman Act of 1907 – targeted corporations by prohibiting federally-chartered corporations from making contributions in any election and prohibiting all corporations from making contributions in federal elections. Subsequently amended, continued, and strengthened by the Federal Corrupt Practices Act of 1925, the Taft-Hartley Act of 1947, the Federal Election Campaign Act of 1971, and the Bipartisan Campaign Reform Act of 2002, the federal ban on the contribution of corporate funds to federal candidates, political parties, and political committees that contribute to federal candidates is still on the books. Twenty-one states also prohibit corporate contributions to candidates in state elections. This Article explores the current constitutional status of the corporate campaign contribution ban. Part II provides a brief history of corporate campaign finance restrictions, including an analysis of the Supreme Court’s case law dealing with the campaign finance rules applicable to corporations before Citizens United. Part III assesses Citizens United and its implications for the prohibition on corporate campaign contributions. Part IV evaluates the shareholder-protection rationale. Part V examines the anti-corruption argument in light of McCutcheon’s more restrictive analysis of that justification for campaign finance regulation. Part VI concludes