Argument: PACs are insufficient enablers of organizational speech

Issue Report: Corporate free speech


Citizens United vs. Federal Election Commission 5-4 Majority Opinion of the Court: “Section 441b is a ban on corporate speech notwithstand-ing the fact that a PAC created by a corporation can still speak. See McConnell, 540 U. S., at 330–333 (opinion of KENNEDY, J.). A PAC is a separate association from the corporation. So the PAC exemption from §441b’s expendi-ture ban, §441b(b)(2), does not allow corporations to speak. Even if a PAC could somehow allow a corporation tospeak—and it does not—the option to form PACs does not alleviate the First Amendment problems with §441b. PACs are burdensome alternatives; they are expensive toadminister and subject to extensive regulations. For example, every PAC must appoint a treasurer, forward donations to the treasurer promptly, keep detailed records of the identities of the persons making donations, preservereceipts for three years, and file an organization statementand report changes to this information within 10 days.See id., at 330–332 (quoting MCFL, 479 U. S., at 253– 254).

And that is just the beginning. PACs must file detailed monthly reports with the FEC, which are due at different times depending on the type of election that is about to occur:

“‘These reports must contain information regardingthe amount of cash on hand; the total amount of re-ceipts, detailed by 10 different categories; the identifi-cation of each political committee and candidate’s au-thorized or affiliated committee making contributions, and any persons making loans, providing rebates, re-funds, dividends, or interest or any other offset to op-erating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggre-gating over $200 have been made; persons to whomloan repayments or refunds have been made; the totalsum of all contributions, operating expenses, out-standing debts and obligations, and the settlement terms of the retirement of any debt or obligation.’” 540 U. S., at 331–332 (quoting MCFL, supra, at 253– 254).
PACs have to comply with these regulations just tospeak. This might explain why fewer than 2,000 of themillions of corporations in this country have PACs. See Brief for Seven Former Chairmen of FEC et al. as Amici Curiae 11 (citing FEC, Summary of PAC Activity1990–2006, online at 20071009pac/sumhistory.pdf); IRS, Statistics of Income: 2006, Corporation Income Tax Returns 2 (2009) (hereinaf-ter Statistics of Income) (5.8 million for-profit corporationsfiled 2006 tax returns). PACs, furthermore, must exist before they can speak. Given the onerous restrictions, a corporation may not be able to establish a PAC in time tomake its views known regarding candidates and issues in a current campaign.