In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court held that a federal law that placed some restrictions on corporate campaign expenditures was unconstitutional. In dissent, Justice John Paul Stevens argued that in order to reach this conclusion the majority had purposefully constructed a “newly‐minted First Amendment rule” designed to block any and all congressional attempts to regulate this type of spending. He claimed, in essence, that the Court had trapped Congress in a legislative box—a box that in campaign finance law is known as the media exemption problem.
The problem is this: When attempting to address concerns about corporate campaign expenditures (i.e., corporate political speech), Congress essentially has two options. The first option is to exempt media corporations from campaign expenditure regulations. Yet if Congress does this, then the Court claims that Congress has engaged in unconstitutional speaker discrimination by treating one group of speakers differently from another. The other option, however, is to regulate the campaign expenditures of all corporations, including media corporations. But if Congress tries this approach, the Court accuses it of violating basic press freedoms by interfering with the speech rights of the media. Thus, in the words of Justice Stevens, under the majority’s constitutional framework, Congress is “damned if it does and damned if it doesn’t.”