Linda L. Berger

Publication Date


Document Type



When a corporation participates in the public sphere, its participation often takes the form of money. Corporate money must be given to someone to bring corporate participation into being-money to spend on public relations, advertising, or lobbying, or money to spend in a political campaign. Though the form is the same, the Supreme Court has treated these modes of corporate participation very differently. On the one hand, corporate money is seen as speech when it is the means used for corporations to sell products or state positions on issues. On the other, a majority of the Rehnquist-O'Connor Court perceived corporate money spent in election campaigns as the root of evils threatening the political process. ...

This Article will examine rhetorical choices in the debate about how to view corporate participation in election campaigns. Choices among different ways of portraying the target of governmental action affect judicial, lawyerly, and public understanding, reasoning, and evaluation. Competing rhetorical moves appear to lead to different results: the marketplace of ideas in which corporations speak goes unregulated for First Amendment purposes, while the corporate money from which potential evils flow must be regulated to protect the election process. Courts may find it useful to behave as if these outcomes are determined by neutral principles, but it may be only the frame selected that makes it appear to be so.