a current and founding board member of the Mackinac Center, was vindicated by
the U.S. Supreme Court's recent decision in Citizens United v. Federal Election
Commission, which held that the First Amendment allows corporations and unions
to engage in political speech through independent expenditures.
The First Amendment
explicitly states that "Congress shall make no law ... abridging the freedom of
speech," but from time to time, Congress has seen fit to enact a number of
campaign finance laws that do just that.
Perhaps the most
important of campaign speech cases was Buckley v. Valeo, decided in 1976. The
Supreme Court in that case drew a distinction between direct contributions to a
candidate and independent expenditures. Agreeing with Congress's concern over
quid pro quo corruption (or the appearance of it), the Court upheld a limit on
direct contributions to candidates and struck down a limit on the amount that
could be used for independent expenditures.
Soon thereafter, in
First National Bank of Boston v. Bellotti, the Supreme Court struck down a
state law that sought to prohibit corporations from making independent
expenditures related to a ballot initiative.
With these cases in
mind, the Michigan Chamber of Commerce sought to challenge a state ban on
independent corporate expenditures. The Chamber hired McLellan and developed a
test case, which eventually became the 1990 case of Austin v. Michigan Chamber
of Commerce. It is a testimony to the esteem in which McLellan was held that he
was entrusted with arguing Austin before the U.S. Supreme Court despite not
having argued so much as a traffic ticket at that point in his career.
But in Austin, in a 6-3
decision, the Supreme Court developed a new justification for limiting free speech:
an anti-distortion principle. It was claimed that corporations could flood the
airwaves and alter the debate.
It took 19 years, but
the U.S. Supreme Court realized its error in limiting corporate expenditures in
the Citizens United case. Until that ruling, the law criminally banned
independent corporate expenditures for certain periods before an election. The
court noted that if corporate restrictions were upheld, then Congress could ban
books or newspapers published by corporations during those periods as well.
Recognizing the particular importance of political speech in our democracy, the
Supreme Court, while upholding disclosure and disclaimer requirements,
overturned Austin and held that corporations and unions could make independent
expenditures. The result was the restoration of First Amendment protections to
a large segment of Americans.
McClellan was not the
Mackinac Center's only tie to the case. Brad Smith, a scholar who authored one
of the Center's earliest studies, was also instrumental in this free speech
fight. Smith, who was a Federal Elections Commissions chairman, opened up the
nonprofit Center for Competitive Politics to promote the deregulation of
campaign finance. CCP filed two amicus briefs in Citizens United, and Smith
signed on to another amicus brief. His academic work was cited by the Supreme
Court majority opinion.