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9 Yale L. & Pol'y Rev. 236 (1991)
First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance

handle is hein.journals/yalpr9 and id is 244 raw text is: First Amendment Antitrust: The End of Laissez-Faire in Campaign Finance David Colet Judging from the rhetoric of the dissenting Justices, the Supreme Court's decision in Austin v. Michigan Chamber of Commerce,' which upheld limits on corporate campaign speech, marked a revolution in First Amendment jurisprudence. Justice Kennedy branded the majority a censor, and charac- terized the result as the most severe restriction on political speech ever sanctioned by this Court. 2 Justice Scalia warned that by accepting the major- ity's rationale, the First Amendment will ultimately be brought down.' But dissenters' rhetoric, like campaign speech itself, must be taken with a grain of salt. One might ask Justice Kennedy, for example, how a rule requiring corpora- tions to establish a segregated fund of monies voluntarily donated for campaign expenditures is a more severe restriction on political speech than the ten-year prison sentence imposed on Socialist Party leader Eugene Debs for an anti-war speech, upheld by the Supreme Court in Debs v. United States.4 And Justice Scalia's apocalyptic pronouncement comes at least four years too late, as Austin did no more than apply the rationale set forth in Federal Election Commission v. Massachusetts Citizens for Life (MCFL),' a decision which Justice Scalia himselfjoined. Moreover, in holding that corporations' campaign expenditures can be restricted, the Austin decision essentially ratified what Congress has been doing since 1947, when it amended the Federal Corrupt Practices Act to prohibit corporate expenditures in connection with federal electoral campaigns. In fact, Austin was a remarkable decision, but not for the reasons stated by the dissent. Far from marking the beginning of the end of the First Amend- t Associate Professor, Georgetown University Law Center. I would like to thank Peter Byrne, Maura Cantrill, Bill Eskridge, Steve Goldberg, Tom Krattenmaker, Nina Pillard, Mitt Regan, Roy Schotland, Mike Seidman, Adam Thurschwell, Mark Tushnet, and the editors of the YALE LAW & POLICY REvIEW for their comments, criticisms, and contributions. 1. 110 S. Ct. 1391 (1990). 2. Id. at 1425-26. 3. Id. at 1411. 4. 249 U.S. 211 (1919). 5. 107 S. Ct. 616, 630-31 (1986). MCFL involved a constitutional challenge by an ideological nonprofit corporation to a law requiring corporations to establish a separate segregated fund comprised of voluntarily donated money if they sought to make expenditures in federal campaigns. The Supreme Court struck down the restriction as applied to MCFL, but in dicta it essentially approved of the application of the restriction to for-profit corporations. See infra part II.B.3.

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