Hastings Constitutional Law Quarterly


Susan W. Dana


The U.S. Supreme Court held in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), that it is constitutional to restrict independent expenditures by corporations on behalf of political candidates because corporations can use wealth accumulated in the economic marketplace unfairly to distort the political marketplace of ideas. The Ninth Circuit has recently been asked to extend this "political marketplace" theory to state referendum and initiative campaigns in a case from Montana challenging restrictions on corporate spending on ballot measure campaigns. This article analyzes Austin's political marketplace theory, and concludes that although the theory can logically apply to ballot measure campaigns, the theory itself is unconstitutional and bad policy.