Citizens United v. Federal Election Commission

"Citizens United" redirects here. For conservative political organization, see Citizens United (organization).

Citizens United v. Federal Election Commission
Supreme Court of the United States
Argued March 24, 2009 Reargued September 9, 2009 Decided January 21, 2010
Full case name	Citizens United, Appellant v. Federal Election Commission
Docket nos.	08-205
Citations	558 U.S. [1] (more) 130 S.Ct. 876
Prior history	denied appellants motion for a preliminary injunction 530 F. Supp. 2d 274 (D.D.C. 2008) probable jurisdiction noted U.S.
Argument	Oral argument
Reargument	Reargument
Opinion Announcment	Opinion announcement
Holding
A provision of the Bipartisan Campaign Reform Act prohibiting unions, corporations and not-for-profit organizations from broadcasting electioneering communications within 60 days of a general election or 30 days of a primary election violates the free speech clause of the First Amendment to the United States Constitution. United States District Court for the District of Columbia reversed.
Court membership
Chief Justice John G. Roberts Associate Justices John P. Stevens · Antonin Scalia Anthony Kennedy · Clarence Thomas Ruth Bader Ginsburg · Stephen Breyer Samuel Alito · Sonia Sotomayor
Case opinions
Majority	Kennedy, joined by Roberts, Scalia, Alito; Thomas (all but Part IV); Stevens, Ginsburg, Breyer, Sotomayor (only as to Part IV)
Concurrence	Roberts, joined by Alito
Concurrence	Scalia, joined by Alito; Thomas (in part)
Concur/dissent	Stevens, joined by Ginsburg, Breyer, Sotomayor
Concur/dissent	Thomas

Citizens United v. Federal Election Commission, 558 U.S. 08-205 (2010), 558 U.S. ––––, 130 S.Ct. 876 (January 21, 2010), was a landmark decision by the United States Supreme Court, which held that the First Amendment prohibited the government from restricting political expenditures by corporations and unions. The nonprofit corporation Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act). In a 5-4 split decision, the Court decided that portions of BCRA §203 violated the First Amendment.

The decision reached the Supreme Court on appeal from a January 2008 decision by the United States District Court for the District of Columbia. The lower court complied with BCRA §203 and blocked the film Hillary: The Movie from being shown on television within 30 days of the 2008 Democratic primaries.

The Supreme Court reversed the lower court, striking down those provisions of BCRA §203 that prohibited corporations, nonprofit corporations, and unions from spending on “electioneering communications.” In BCRA §203, Congress defined an "electioneering communication" as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary. The decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003). Although BCRA §203 had previously been weakened in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007), the broad constitutional principles announced in this opinion sparked immediate controversy and backlash. The Court upheld requirements for public disclosure by sponsors of advertisements (BCRA §201 and §311). The case did not involve the federal ban on direct contributions from corporations or unions to candidate campaigns or political parties, which remain illegal in races for federal office.

Background

The Bipartisan Campaign Reform Act of 2002 (known as BCRA or McCain–Feingold Act)—specifically §203, which modified the Federal Election Campaign Act of 1971, 2 U.S.C. § 441b—prohibited corporations and unions from using their general treasury to fund "electioneering communications" (broadcast advertisements mentioning a candidate) within 30 days before a primary or 60 days before a general election. During the 2004 presidential campaign, a conservative nonprofit 501(c)(4) organization named Citizens United filed a complaint before the Federal Election Commission (FEC) charging that advertisements for Michael Moore's film Fahrenheit 9/11, a documentary critical of the Bush administration's response to the terrorist attacks on September 11, 2001, constituted political advertising and thus could not be aired within the 30 days before a primary election or 60 days before a general election. The FEC dismissed the complaint finding no evidence that the movie's advertisements had broken the law. The FEC dismissed a further complaint filed in 2005, holding:

The complainant alleged that the release and distribution of FAHRENHEIT 9/11 constituted an independent expenditure because the film expressly advocated the defeat of President Bush and that by being fully or partially responsible for the film’s release, Michael Moore and other entities associated with the film made excessive and/or prohibited contributions to unidentified candidates. The Commission found no reason to believe the respondents violated the Act because the film, associated trailers and website represented bona fide commercial activity, not “contributions” or “expenditures” as defined by the Federal Election Campaign Act.

In the wake of these decisions, which allowed the promotion of the documentary Fahrenheit 9/11 during the 2004 campaign, Citizens United sought to run television commercials during the 2008 primary campaign to promote its political documentary Hillary: The Movie and to air the movie on DirecTV. The movie was critical of then-Senator Hillary Clinton, and the District Court judge described the movie as an elongated version of a negative 30-second television spot. In January 2008, the United States District Court for the District of Columbia ruled that the television advertisements for Hillary: The Movie violated the BCRA restrictions of "electioneering communications" within 30 days of a primary. Though the political action committee claimed that the film was fact-based and nonpartisan, the lower court found that the film had no purpose other than to discredit Clinton's candidacy for President.

The Supreme Court docketed the case on August 18, 2008 and heard oral argument on March 24, 2009. During the original oral argument, then-Deputy Solicitor General Malcolm L. Stewart (representing the FEC) argued that under Austin v. Michigan Chamber of Commerce, the government would have the power to ban books if those books contained even one sentence expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or union. In response to this line of questioning, Stewart further argued that under Austin the government could ban the digital distribution of political books over the Amazon Kindle or prevent a union from hiring a writer to author a political book.

On June 29, 2009, the Supreme Court issued an order directing the parties to reargue the case on September 9 after briefing whether it might be necessary to overrule Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) and/or McConnell v. Federal Election Commission, 540 U.S. 93 (2003). Justice Stevens noted in his dissent that in its prior motion for summary judgment Citizens United had abandoned its facial challenge of BCRA §203, with the parties agreeing to the dismissal of the claim.

Justice Sotomayor sat on the bench for the first time during the second round of oral arguments. This was the first case argued by then-Solicitor General and future Supreme Court Justice Elena Kagan. Former Bush Solicitor General Ted Olson and First Amendment lawyer Floyd Abrams argued for Citizens United, and former Clinton Solicitor General Seth Waxman defended the statute on behalf of various supporters. Legal scholar Erwin Chemerinsky called it "one of the most important First Amendment cases in years."

Opinions of the Court

Justice Kennedy, the author of the Court's opinion.

Despite the sweeping ruling, the majority opinion was relatively short with less than 30 pages addressing the central holding. Roberts wrote a concurring opinion to address concerns about stare decisis, and Scalia wrote a concurring opinion about the history and meaning of the First Amendment. Thomas wrote separately to announce his disagreement with the majority’s decision not to strike down the mandatory disclosure requirements in BCRA. Stevens wrote a lengthy dissent to analyze the development of First Amendment doctrine and campaign finance restrictions and to rebut the arguments of the majority and concurring opinions.

Justice Kennedy's majority opinion found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment's protection of free speech. The Court considered the financing of Hillary: The Movie to be protected speech. Justice Kennedy wrote:

“

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.

”

Justice Kennedy also noted that since there was no way to distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television and blogs. The Court overruled Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled the part of McConnell v. Federal Election Commission, 540 U.S. 93 (2003), that upheld BCRA's restriction of corporate spending on "electioneering communications." The Court's ruling effectively removed the limit on the amount corporations and unions can spend on "electioneering communications."

In justifying the ruling, the majority announced that the First Amendment must protect corporations and individuals with equal vigor. The majority argued that the First Amendment does not tolerate prohibitions of speech based on the identity of the speaker. Because corporations are groups of individuals, the corporate form must receive the same free speech privileges as individual citizens. Likewise, the majority argued that independent expenditures are a form of speech, and limiting a corporation’s ability to spend money also limits its ability to speak. One of the main changes to First Amendment law, announced by the majority, was the expansion of corporate personhood recognized by the Court.

The majority decided to overrule Austin because that Court allowed different restrictions on speech-related spending based on corporate identity. Additionally, the majority felt that Austin tried to “equalize” speech between different speakers. That case distinguished between corporate and union spending and concluded that corporate expenditures of general treasury money posed the greatest danger, which justified different treatment. The majority argued that the First Amendment purposefully keeps the government from interfering in the “marketplace of ideas” and “rationing” speech, and it is not up to the legislatures or the courts to create a sense of “fairness” by restricting speech.

The majority disliked Austin’s reasoning about the distorting effect of large corporate expenditures and the risk of corruption or the appearance of corruption. The majority argued that the government had no place in determining whether large expenditures distorted an audience’s perceptions. According to the majority, “there is no such thing as too much speech.” The public has a right to have access to all information and to determine the reliability and importance of the information. Additionally, the majority did not believe that reliable evidence substantiated the risk of corruption or the appearance of corruption, and so this rationale did not satisfy strict scrutiny.

The majority opinion relied heavily on the reasoning in Buckley v. Valeo, 424 U.S. 1 (1976), an early First Amendment campaign finance case, and especially First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), where the Court struck down a broad prohibition against independent expenditures from all sources. The majority argued that the logic of those cases applied here, even though BCRA §203 targeted only corporations, non-profit corporations, and unions during a specific time period. Specifically, the majority echoed Bellotti’s rejection of categories based on a corporation's purpose. The majority argued that to grant First Amendment protections to media corporations but not others presented a host of problems, and so all corporations should be equally protected from expenditure restrictions.

The Court found that BCRA §§201 and 311, provisions requiring disclosure of the funder, were valid as applied to the movie advertisements and to the movie itself.

Concurrences

Chief Justice Roberts, with whom Justice Alito joined, wrote separately "to address the important principles of judicial restraint and stare decisis implicated in this case."

The appellant did not address the constitutional issues in the brief or in the questions presented to the Court. The majority asked the appellant to brief the constitutional issues and to return for another round of oral arguments, which Roberts believed was necessary because the case could not be decided on narrower grounds without creating inconsistency and vagueness in the law.

Roberts wrote to explain and defend the Court's statement that "there is a difference between judicial restraint and judicial abdication." Roberts explained why the Court must sometimes overrule prior decisions. Had prior Courts never gone against stare decisis, "segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants." Roberts' concurrence recited a plethora of case law in which the court had ruled against precedent. Ultimately, Roberts argued that "stare decisis...counsels deference to past mistakes, but provides no justification for making new ones."

Justice Scalia joined the opinion of the Court, but also wrote a concurring opinion which was joined by Justice Alito in full and by Justice Thomas in part. Scalia addressed Justice Stevens' dissent, specifically with regard to the original understanding of the First Amendment. Scalia stated that Stevens' dissent was "in splendid isolation from the text of the First Amendment...It never shows why 'the freedom of speech' that was the right of Englishmen did not include the freedom to speak in association with other individuals, including association in the corporate form." He further considered the dissent’s exploration of the Framers’ views about the "role of corporations in society" to be misleading, and even if valid, irrelevant to the text. Scalia principally argued that the First Amendment was written in "terms of speech, not speakers" and that "Its text offers no foothold for excluding any category of speaker." Scalia argued that the Free Press clause was originally intended to protect the distribution of written materials and did not apply to the media per se. This understanding supported the majority’s contention that the Constitution does not allow the Court to separate corporations into media and non-media categories.

Justice Thomas wrote a separate opinion concurring in all but the upholding of the disclosure provisions. In order to protect the anonymity of contributors to organizations exercising free speech, Thomas would have struck down the reporting requirements of BCRA §201 and §311 as well, rather than allowing them to be challenged only on a case-specific basis. Thomas's primary argument was that anonymous free speech is protected and that making contributor lists public makes the contributors vulnerable to retaliation, citing instances of retaliation against contributors to both sides of a then recent California voter initiative. Thomas also expressed concern that such retaliation could extend to retaliation by elected officials. Thomas did not consider "as-applied challenges" to be sufficient to protect against the threat of retaliation.

Dissents

Justice Stevens, the author of the dissenting opinion.

A dissenting opinion by Justice Stevens was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. To emphasize his unhappiness with the majority, Stevens took the relatively rare step of reading part of his 90 page dissent from the bench. Stevens concurred in the Court's decision to sustain BCRA's disclosure provisions, but dissented from the principal holding of the majority opinion. The dissent argued that the Court's ruling "threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution." He wrote:

“

A democracy cannot function effectively when its constituent members believe laws are being bought and sold.

”

Justice Stevens also argued that the Court addressed a question not raised by the litigants when it found BCRA §203 to be facially unconstitutional and that the majority "changed the case to give themselves an opportunity to change the law." Because the majority expanded the scope beyond the questions presented by the appellant, a sufficient record for judging the case did not exist. Regardless, the majority referred to “scant evidence” to substantiate the risk of corporate manipulation of elections. Stevens pointed out that the majority did not remand the case for a fact-finding hearing, nor did they consider other compilations of data, such as the Congressional record for justifying BCRA §203. Although the majority explicitly overruled only Austin and a portion of McConnell, the new rules that the Court announced—including the treatment of corporations as people—implicated almost every other major campaign finance case.

Stevens referenced a number of major First Amendment cases that the new holding affected. By reviewing major cases, Stevens wanted to show that the Court had long recognized that to deny Congress the power to safeguard against “the improper use of money to influence the result [of an election] is to deny to the nation in a vital particular the power of self protection.” Burroughs v. United States, 290 U.S. 534 (1934). In Buckley, one of the first cases to apply First Amendment doctrine to a campaign finance statute, the Court struck down portions of a broad prohibition of independent expenditures from any sources, including individuals. In doing so, the Court also recognized a need for “prophylactic” measures for limiting campaign spending and found the prevention of “corruption” to be a reasonable goal for legislation. Additionally, that Court left the door open for carefully tailored future regulation. Even in Bellotti, where a narrow majority overturned a corporate spending prohibition, the Court recognized an interest in preventing corruption—an interest that the Citizens United majority downplayed to “insignificance.” Although the majority echoed many of the Bellotti arguments, their sweeping opinion contradicted the reasoning of other campaign finance cases. Stevens found it telling that the majority, when citing major cases, referenced many of the dissents. A dissenting opinion is not persuasive authority.

According to Stevens, the majority relied not on established constitutional principles but on personal opinions shared by few “outside of the majority” of the Supreme Court. Thus, Stevens feared future instability with First Amendment campaign finance doctrine due to the narrow majority’s controversial views, which the majority of the public and the legislatures do not favor. Stevens pointed out that this ruling called dozens of state and federal laws into question.

Stevens’ dissent rebutted a number of the majority’s central arguments:

First, Stevens argued that the majority failed to recognize the possibility for corruption outside of strict quid pro quo exchanges. According to Stevens, the Court should view the selling of a vote and the selling of access to a politician in exchange for a beneficial expenditure as two points on the same spectrum (instead, the majority separates them into discrete categories). Despite the lack of a developed record in this case, Stevens referenced facts from a previous BCRA challenge to demonstrate how corporations coordinate advertising with candidates in exchange for direct political access.

Stevens used previous cases and empirical data to show that both quid pro quo exchanges and coordinated independent expenditures both result in the same type of corruption. In the past, when striking down a ban on corporate independent expenditures, the Court “never suggested that such quid pro quo debts must take the form of outright vote buying or bribes” (Bellotti). Buckley also acknowledged that large independent expenditures present the same dangers as quid pro quo arrangements. During a previous BCRA §203 challenge, District Court Judge Kollar-Kotelly relied on the testimony of political insiders—who admitted that independent expenditures were a prerequisite for political access—to conclude that large independent expenditures generate more influence than direct campaign contributions. Furthermore, the judge found that corporations could threaten Representatives and Senators with negative advertising to gain unprecedented leverage. Stevens paralleled this evidence of corruption with the recent ruling in Caperton v. A.T. Massey Coal Co., 556 U.S. _ (2009), where the Court decided that $3 million in judicial campaign contributions would unduly influence a state Supreme Court judge. As a result, the Court acknowledged the appearance of corruption and the likelihood of a corrupt result and forced the judge to recuse from the donor’s case. Stevens found it contradictory for the majority to ignore the same risks in legislative and executive elections, and he pointed out that the majority opinion would only exacerbate the problem presented in Caperton because of the number of states with judicial elections and the growing influence of corporate spending in determining who wins.

Second, the majority did not prioritize the need to prevent the appearance of corruption in elections. Earlier cases, dating back to Buckley and Bellotti, recognized the importance of public confidence in democracy. Stevens cited recent data indicating that 80% of the public view corporate independent expenditures as a method used to gain unfair legislative access. Democracy cannot function, Stevens wrote, “when the people believe that laws are being bought and sold.” At one point, Stevens predicted that if the public believes in corporate domination of elections, disaffected voters will stop participating.

Third, the majority’s decision to overturn Austin results from a failure to recognize the dangers of the corporate form. Austin held that the prevention of corruption, including the distorting influence of a dominant funding source, was a sufficient reason for regulating corporate independent expenditures. In defending Austin, Stevens discussed how the unique qualities of corporations and other artificial legal entities made them dangerous to democratic elections. These legal entities have perpetual life, huge sums of money, limited liability, no ability to vote, no morality, no purpose outside of profit-making, and no loyalty (as foreigners control many corporations). In addition, the state provides corporations with the “special advantage” of channeling thousands of investments into whatever source the officers choose. Therefore, the courts should let the legislatures prevent corporations from abusing these state-granted privileges. Legal entities, Stevens wrote, are not “We the People” for whom our Constitution was established.

Therefore, he argued that corporations and people should not be given interchangeable protections under the First Amendment. The First Amendment protects individual self-expression, self-realization and the communication of ideas. Corporate spending is the “furthest from the core of political expression” protected by the Constitution, Federal Election Commission v. Beaumont, 539 U.S. 146 (2003), and corporate spending on politics should be viewed as a business transaction designed by the officers or the boards of directors for no purpose other than profit-making. Stevens called corporate spending “more transactional than ideological.” Stevens also pointed out that any member of a corporation may spend personal money on promoting a campaign because BCRA §203 only prohibited the use of general treasury money.

Fourth, Stevens rebuts the majority’s central argument: that the prohibition of spending limits guards free speech and allows the general public to receive all available information. Again, Stevens used Austin to argue that corporations “unfairly influence” the electoral process with vast sums of money that few individuals can match, which distorts the public debate. Because an average person in the real world can only receive so much information during a relevant election period, Stevens described “unfair corporate influence” as the ability to outspend everyone else, to push others out of prime broadcasting spots and to dominate the “marketplace of ideas.” This process puts disproportionate focus on this speech and gives the impression of widespread support regardless of actual support (outside of the corporate spender). Thus, this process marginalizes the speech of real people.

Stevens referred to the majority’s favorite quote—that “there is no such thing as too much speech”—as “facile” and a “straw man” argument. Although he recognized its undeniable surface appeal, he called it an incorrect statement of First Amendment law because the Court recognizes numerous exceptions to free speech, such as fighting words, obscenity restrictions, time, place and manner restrictions, etc. Throughout the dissent, Stevens argued that the majority’s “slogan” ignores the premise that too much speech from one source drowns out all other points of view. According to Stevens, there is a reason why corporate spending has a proven track record of determining electoral success regardless of a candidate’s popular support.

Fifth, Stevens criticized the majority’s fear that the government could use BCRA §203 to censor the media. The focus placed on this hypothetical fear made no sense to Stevens because it did not relate to the facts of this case—if the government actually attempted to apply BCRA §203 to the media, the Court could deal with the problem at that time. Yet, Stevens described the majority’s supposed protection of the media as nothing more than posturing. According to Stevens, it was the majority’s new rule, announced in this case, that prohibited a law from distinguishing between “speakers” or funding sources. This new rule would be the only reason why media corporations could not be exempted from BCRA §203. Consequently, legislatures are “damned if they do and damned if they don’t.” If lawmakers exempt media corporations from a regulation, they violate the new rule against classifying speakers based on “corporate identity,” but if lawmakers equally regulate all corporations they violate the Free Press clause of the First Amendment. When noting this problem, Stevens wondered if the majority intended to allow only one option: no regulation at all.

Sixth, the majority failed to give proper deference to the legislature. Stevens predicted that this ruling would restrict the ability of the states to experiment with different methods for decreasing corruption in elections. According to Stevens, this ruling virtually ended those efforts, “declaring by fiat” that people will not “lose faith in our democracy.” Because of the complex interrelated interests at stake, Stevens found this an undesirable area of law for black-and-white rules. Additionally, he found it unsettling that the majority could not provide an example of an acceptable campaign finance restriction to guide future legislation. Stevens argued that no law could survive the scrutiny of the majority’s new paranoid view of a self-serving legislature, passing campaign-spending laws to gain an advantage in retaining a seat (even though no evidence supports this theory).

Seventh, Steven argued that the majority opinion completely ignored the rights of shareholders. A series of cases protects individuals from compelled payment of union dues or corporate fees used to support political speech. Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Because shareholders invest money in corporations, Stevens argued that the law should help to protect shareholders from funding speech that they oppose. Stevens favored the Political Action Committee (PAC), which allowed individual members of a corporation to invest money in a separate fund and which protected the nonparticipating shareholders from choosing between economic investments and political convictions.

Stevens called the majority’s faith in “corporate democracy” an unrealistic method for a shareholder to oppose political funding. A derivative suit is slow, inefficient, risky and potentially expensive. Likewise, shareholder meetings only happen a few times a year, not prior to every decision or transaction. Rather, the officers and boards control the day-to-day spending, including political spending. According to Stevens, the shareholders have few options, giving them “virtually nonexistent” recourse for opposing a corporation’s political spending. Furthermore, most shareholders use investment intermediaries, such as mutual funds or pensions, and by the time a shareholder may find out about a corporation’s political spending and try to object, the damage is done and the shareholder has been forced to fund disfavored speech.

Stevens concluded his dissent:

At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

Subsequent developments

There were a wide range of reactions to the case from politicians, academics, attorneys, advocacy groups and journalists.

Support

Politicians

Senate Republican leader Mitch McConnell, who attended the announcement of the ruling, said the court "struck a blow for the First Amendment".

Republican campaign consultant Ed Rollins opined that the decision adds transparency to the election process and will make it more competitive.

Advocacy groups

Citizens United, the group filing the lawsuit said, "Today's U.S. Supreme Court decision allowing Citizens United to air its documentary films and advertisements is a tremendous victory, not only for Citizens United but for every American who desires to participate in the political process." During litigation, Citizens United had support from the United States Chamber of Commerce and the National Rifle Association.

Campaign finance attorney Cleta Mitchell, who had filed an amicus curiae brief on behalf of two advocacy organizations opposing the ban, wrote that "The Supreme Court has correctly eliminated a constitutionally flawed system that allowed media corporations (e.g., The Washington Post Co.) to freely disseminate their opinions about candidates using corporate treasury funds, while denying that constitutional privilege to Susie's Flower Shop Inc. ... The real victims of the corporate expenditure ban have been nonprofit advocacy organizations across the political spectrum."

Heritage Foundation fellow Hans A. von Spakovsky, a former Republican member of the Federal Election Commission, said "The Supreme Court has restored a part of the First Amendment that had been unfortunately stolen by Congress and a previously wrongly-decided ruling of the court."

Libertarian Cato Institute analysts John Samples and Ilya Shapiro wrote that restrictions on advertising were based on the idea “that corporations had so much money that their spending would create vast inequalities in speech that would undermine democracy.” However, “to make campaign spending equal or nearly so, the government would have to force some people or groups to spend less than they wished. And equality of speech is inherently contrary to protecting speech from government restraint, which is ultimately the heart of American conceptions of free speech.”

The American Civil Liberties Union filed an amicus brief that supported the decision, saying that "section 203 should now be struck down as facially unconstitutional", though membership was split over the implications of the ruling and its board sent the issue to its special committee on campaign finance for further consideration.

Academics and attorneys

Bradley A. Smith, professor of law at Capital University Law School, former chairman of the FEC, founder of the Center for Competitive Politics and a leading proponent of deregulation of campaign finance, wrote that the major opponents of political free speech are "incumbent politicians" who "are keen to maintain a chokehold on such speech". Empowering "small and midsize corporations—and every incorporated mom-and-pop falafel joint, local firefighters’ union, and environmental group—to make its voice heard" frightens them. In response to statements by President Obama and others that the ruling would allow foreign entities to gain political influence through U.S. subsidiaries, Smith pointed out that the decision did not overturn the ban on political donations by foreign corporations and the prohibition on any involvement by foreign nationals in decisions regarding political spending by U.S. subsidiaries, which are covered by other parts of the law.

Campaign finance expert Jan Baran, a member of the Commission on Federal Ethics Law Reform, agreed with the decision, writing that "The history of campaign finance reform is the history of incumbent politicians seeking to muzzle speakers, any speakers, particularly those who might publicly criticize them and their legislation. It is a lot easier to legislate against unions, gun owners, 'fat cat' bankers, health insurance companies and any other industry or 'special interest' group when they can't talk back." Baran further noted that in general conservatives and libertarians praised the ruling's preservation of the First Amendment and freedom of speech, but that liberals and campaign finance reformers criticized it as greatly expanding the role of corporate money in politics.

Attorney Kenneth Gross, former associate general counsel of the FEC, wrote that corporations relied more on the development of long-term relationships, political action committees and personal contributions, which were not affected by the decision. He held that while trade associations might seek to raise funds and support candidates, corporations which have “signed on to transparency agreements regarding political spending” may not be eager to give.

The New York Times asked seven academics to opine on how corporate money would reshape politics as a result of the court's decision. Three of these wrote that the effects would be minimal or positive: Christopher Cotton, a University of Miami School of Business assistant professor of economics, wrote that “There may be very little difference between seeing eight ads or seeing nine ads (compared to seeing one ad or two). And, voters recognize that richer candidates are not necessarily the better candidates, and in some cases, the benefit of running more ads is offset by the negative signal that spending a lot of money creates. University of California professor of law Eugene Volokh held that the “most influential actors in most political campaigns” are media corporations which “overtly editorialize for and against candidates, and also influence elections by choosing what to cover and how to cover it.” Holding that corporations like Exxon would fear alienating voters by supporting candidates, the decision really meant that voters would hear “more messages from more sources.” Joel Gora, a professor at Brooklyn Law School who had previously argued the case of Buckley v. Valeo on behalf of the American Civil Liberties Union, said that the decision represented "a great day for the First Amendment" writing that the Court had "dismantled the First Amendment 'caste system' in election speech".

Journalists

The Editorial Board of the San Antonio Express-News, criticized McCain–Feingold's exception for media corporations from the ban on corporate electioneering, writing that it “makes no sense” that the paper could make endorsements up until the day of the election but advocacy groups could not. "While the influence of money on the political process is troubling and sometimes corrupting, abridging political speech is the wrong way to counterbalance that influence.”

Anthony Dick in National Review countered a number of arguments against the decision, asking rhetorically, "is there something uniquely harmful and/or unworthy of protection about political messages that come from corporations and unions, as opposed to, say, rich individuals, persuasive writers, or charismatic demagogues?" He noted that "a recent Gallup poll shows that a majority of the public actually agrees with the Court that corporations and unions should be treated just like individuals in terms of their political-expenditure rights". A Gallup poll taken in October 2009 and released soon after the decision showed 57 percent of those surveyed agreed that contributions to political candidates are a form of free speech and 55 percent agreed that the same rules should apply to individuals, corporations and unions. Sixty-four percent of Democrats and Republicans believed campaign donations are a form of free speech.

Chicago Tribune editorial board member Steve Chapman wrote "If corporate advocacy may be forbidden as it was under the law in question, it's not just Exxon Mobil and Citigroup that are rendered mute. Nonprofit corporations set up merely to advance goals shared by citizens, such as the American Civil Liberties Union and the National Rifle Association, also have to put a sock in it. So much for the First Amendment goal of fostering debate about public policy."

Criticisms

American politicians

President Barack Obama stated that the decision "gives the special interests and their lobbyists even more power in Washington — while undermining the influence of average Americans who make small contributions to support their preferred candidates". Obama later elaborated in his weekly radio address saying, "this ruling strikes at our democracy itself" and "I can't think of anything more devastating to the public interest". On January 27, 2010, Obama further condemned the decision during the 2010 State of the Union Address, stating that, "Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."

Democratic senator Russ Feingold, a lead sponsor of the 2002 Bipartisan Campaign Reform Act, stated "This decision was a terrible mistake. Presented with a relatively narrow legal issue, the Supreme Court chose to roll back laws that have limited the role of corporate money in federal elections since Teddy Roosevelt was president." Representative Alan Grayson, a Democrat, stated that it was "the worst Supreme Court decision since the Dred Scott case, and that the court had opened the door to political bribery and corruption in elections to come. Democratic congresswoman Donna Edwards, along with constitutional law professor and Maryland Democratic State Senator Jamie Raskin, have advocated petitions to reverse the decision by means of constitutional amendment. Rep. Leonard Boswell introduced legislation to amend the constitution. Senator John Kerry also called for an Amendment to overrule the decision.. On December 8, 2011, Senator Bernie Sanders proposed the Saving American Democracy Amendment, which would reverse the court's ruling.

Republican Senator John McCain, co-crafter of the 2002 Bipartisan Campaign Reform Act and the party's 2008 presidential nominee, said "there's going to be, over time, a backlash ... when you see the amounts of union and corporate money that's going to go into political campaigns". McCain was "disappointed by the decision of the Supreme Court and the lifting of the limits on corporate and union contributions" but not surprised by the decision, saying that "It was clear that Justice Roberts, Alito and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to BCRA." He pointed out that "Justice Rehnquist and Justice O'Connor, who had taken a different position on this issue, both had significant political experience, while Justices Roberts, Alito and Scalia have none." Republican Senator Olympia Snowe opined that "Today's decision was a serious disservice to our country."

Sanda Everette, co-chair of the Green Party, stated that "The ruling especially hurts the ability of parties that don't accept corporate contributions, like the Green Party, to compete." Another Green Party officer, Rich Whitney, stated "In a transparently political decision, a majority of the US Supreme Court overturned its own recent precedent and paid tribute to the giant corporate interests that already wield tremendous power over our political process and political speech."

Ralph Nader, a lawyer who placed third in the popular vote in the last three presidential elections, condemned the ruling, saying that "With this decision, corporations can now directly pour vast amounts of corporate money, through independent expenditures, into the electoral swamp already flooded with corporate campaign PAC contribution dollars." He called for shareholder resolutions asking company directors to pledge not to use company money to favor or oppose electoral candidates. Pat Choate, Reform Party candidate stated, "The court has, in effect, legalized foreign governments and foreign corporations to participate in our electoral politics."

International

Ambassador Janez Lenarčič, speaking for the Organization for Security and Co-operation in Europe's election body, which has overseen over 150 elections, stated that the ruling may adversely affect the organization's two commitments of "giving voters a genuine choice and giving candidates a fair chance" in that "it threatens to further marginalize candidates without strong financial backing or extensive personal resources, thereby in effect narrowing the political arena".

Academics and attorneys

“	Money Isn't Speech and Corporations Aren't People	”
—David Kairys

The constitutional law scholar Laurence H. Tribe wrote that the decision "marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent" and pointed out that "Talking about a business corporation as merely another way that individuals might choose to organize their association with one another to pursue their common expressive aims is worse than unrealistic; it obscures the very real injustice and distortion entailed in the phenomenon of some people using other people’s money to support candidates they have made no decision to support, or to oppose candidates they have made no decision to oppose."

Former supreme court Justice Sandra Day O’Connor criticized the decision only obliquely, but warned that “In invalidating some of the existing checks on campaign spending, the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”

Richard L. Hasen, professor of election law at Loyola Law School, argued that the ruling "is activist, it increases the dangers of corruption in our political system and it ignores the strong tradition of American political equality". He also described Justice Kennedy's "specter of blog censorship" as sounding more like "the rantings of a right-wing talk show host than the rational view of a justice with a sense of political realism".

Kathleen M. Sullivan, professor at Stanford Law School and Steven J. Andre, adjunct professor at Lincoln Law School, argued that two different visions of freedom of speech exist and clashed in the case. An egalitarian vision skeptical of the power of large agglomerations of wealth to skew the political process conflicted with a libertarian vision skeptical of government being placed in the role of determining what speech people should or should not hear.

Three other scholars writing in the aforementioned New York Times article were critical. Heather K. Gerken, Professor of Law at Yale Law School wrote that "The court has done real damage to the cause of reform, but that damage mostly came earlier, with decisions that made less of a splash." Michael Waldman, director of the Brennan Center for Justice at N.Y.U. School of Law, opined that the decision "matches or exceeds Bush v. Gore in ideological or partisan overreaching by the court" and Fred Wertheimer, founder and president of Democracy 21 considered it "a disaster for the American people".

Subsequent research by John Coates, Professor of Law at Harvard Law School, has shown that corporations with weaker, less shareholder-friendly corporate governance have been more likely to engage in corporate political activity, and spend more when they do.

Professors Lucian Bebchuk at Harvard Law School and Richard Squire at Columbia Law School argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, that these decisions may carry special expressive significance from shareholders, and that as a result of the Citizens United decision, new laws providing shareholders with a greater role in determining how corporate money is spent on political activity would be beneficial to shareholders.

Advocacy groups

A year after the decision, the liberal advocacy group Common Cause asked the Department of Justice to investigate conflicts of interest on the part of two of the Justices in the majority. The organization said that Thomas's wife was the founder and president of Liberty Central, a conservative political advocacy group that would be empowered to accept corporate contributions to run campaign advertisements, and that Scalia and Thomas had participated in political strategy sessions organized by David H. Koch and Charles G. Koch, who stood to "benefit from the decision" by taking advantage of the rights upheld by the Court.

"Move to Amend", a national coalition of hundreds of organizations and over 113,000 individuals was formed in response to the ruling. It is seeking legislation or amendment that would restrict corporations and corporate interest groups from excessive influence in elections and lawmaking. A primary objective is to abolish corporate personhood and to hold corporations accountable to the public. The organization has local chapters in many states and sponsors public awareness activities.

Journalists

The New York Times stated in an editorial, "The Supreme Court has handed lobbyists a new weapon. A lobbyist can now tell any elected official: if you vote wrong, my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election." Jonathan Alter called it the "most serious threat to American democracy in a generation". The Christian Science Monitor wrote that the Court had declared “outright that corporate expenditures cannot corrupt elected officials, that influence over lawmakers is not corruption, and that appearance of influence will not undermine public faith in our democracy.”

Some journalists and politicians reacted strongly to the decision. An online media journal Veterans Today called for the "immediate arrest" of the justices voting in the majority for treason. Keith Olbermann of MSNBC said that with this decision "within ten years every politician in this country will be a prostitute" and compared it to Dred Scott v. Sandford, an 1857 case that held that African-Americans could not be citizens, specifically calling the Citizens United decision worse than Dred Scott.

Super PACs

Citizens United paved the way for the creation of independent expenditure political action committees, sometimes dubbed Super PACs. These organizations may accept unlimited contributions from individuals, unions, and corporations (both for profit and not-for-profit) for the purpose of making independent expenditures. The Court majority wrote that, for purposes of establishing a "compelling government interest" of corruption sufficient to justify government limitations on political speech, "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption." Accordingly, lower courts, most notably the D.C. Circuit Court in Speechnow.org v. Federal Election Commission (see campaign finance evolution in 2010#speechnow.org v fec), held that groups could pool contributions and make expenditures in support of or opposition to a candidate provided that the expenditures were made independently of a campaign or a candidate. The effectiveness of this system remains a hot topic in American politics.

In order to satirize the current system of campaign finance law, Stephen Colbert decided to run in the 2012 Republican Primary funded by fellow comedian Jon Stewart’s Super PAC. During the mock campaign, Colbert and Stewart went on the air together and without directly speaking to one another they demonstrated the artificial nature of the new campaign rules, which allow separate PAC entities to raise unlimited money as long as the campaign does not directly speak with the PAC, although the campaign may speak to the PAC through other indirect means and former campaign staff can run the PAC. At one point during the 2012 Republican Primary season, Colbert’s Super PAC had the largest number of small donor contributions of all 300 Super PAC’s registered with the Federal Election Commission, even though it had the least amount of total money.

In 2011, just 22 donors provided the money for half of all Super PAC funding ($67 million). As of the first quarter of 2012, only 196 donors provided 80% of all Super PAC funding. In one high profile example, a casino mogul single-handedly funded a large portion of Newt Gingrich’s primary campaign with $25 million of donations to the dominant Super PAC.

The Wesleyan Media Project reported that interest-group sponsored advertising increased by 1600% between the 2008 election season and the 2012 election season (Citizens United was decided in 2010).

A number of partisan organizations, including Karl Rove's influential Crossroads Grassroots Policy Strategies, imitated Citizens United and registered as tax-exempt 501c4 groups (defined as groups promoting “social welfare”). These organizations do not have to post donor lists every three months the way Super PACs do, which has led to large secret donations and spending.

In 2010-2011, corporations and corporate-funded Super PACs submitted legislation to Congress and state legislatures across the country. Many of the Republican-controlled state legislatures passed identical bills, pre-written by corporations and corporate-funded Super PACs, including voter identification and registration bills that could minimize Democratic voter turnout. Additionally, many of the states passed identical tax laws, which advantaged the corporate authors.

Media coverage

Political blogs

Most blogs avoided the theoretical aspects of the decision and focused on more personal and dramatic elements, including the Barack Obama-Samuel Alito face-off during the President's State of the Union address.^{[citation needed]} There, President Obama argued that the decision "reversed a century of law" (strictly, the federal ban on corporate and union expenditures dates from 1947) and that it would allow "foreign corporations to spend without limits in our elections," during which Justice Alito, in the audience, perceivably mouthed the words “not true.” This event was extensively commented by most political bloggers, with a big chunk of the coverage concentrated on whether or not foreign corporations would be able to make substantial political contributions in US elections. "In 1910, Congress enacted the Federal Corrupt Practices Act. See 36 Stat. 822. The disclosure requirements of the Federal Corrupt Practices Act were upheld by the Supreme Court in Burroughs v. United States, 54 U.S. 287 (1934), as a Constitutional exercise of Congressional power to prevent corruption in elections: 'The power of Congress to protect the election . . . from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress…. Congress reached the conclusion that public disclosure of political contributions, together with the names of contributors and other details, would tend to prevent corrupt use of money to affect elections. The verity of this conclusion reasonably cannot be denied.'" Citizens United clearly impugned a century of jurisprudence that affirmed the constitutionality of legislative checks and oversight of election financing, i.e. the power of congress to regulate and protect the electoral process.

Election law blogs

On specialized blogs, the Citizens United v. FEC ruling increased traffic by about tenfold for a few days. Traffic also change in quality terms; a disproportionately large and diverse set of websites linked to their posts about the ruling, when compared to other topics addressed by these specialized blogs.

Opinion polls

ABC-Washington Post poll results.

An ABC-Washington Post poll conducted February 4 to 8, 2010, showed that 80% of those surveyed opposed (and 65% strongly opposed) the Citizens United ruling which the poll described as saying "corporations and unions can spend as much money as they want to help political candidates win elections". Additionally, 72% supported "an effort by Congress to reinstate limits on corporate and union spending on election campaigns".

A Gallup Poll conducted in October 2009, after oral argument, but released after the Supreme Court released its opinion, found that 57 percent of those surveyed “agreed that money given to political candidates is a form of free speech” and 55 percent agreed that the “same rules should apply to individuals, corporations and unions.” However, in the same poll respondents by 52% to 41% prioritized limits on campaign contributions over protecting rights to support campaigns and 76% thought the government should be able to place limits on corporation or union donations.

Separate polls by various conservative organizations, including the plaintiff, Citizens United, and the Center for Competitive Politics found support for the decision. In particular, the Center for Competitive Politics poll found that 51% of respondents believed that Citizens United should have a right to air ads promoting Hillary: The Movie, although only 22% of the respondents had heard of the case.

Further court rulings

In December 2011, the Montana Supreme Court in Western Tradition Partnership, Inc. v. Attorney General of Montana upheld that state's law limiting corporate contributions. Examining the history of corporate interference in Montana government that led to the Corrupt Practices Law, the majority decided that the state still had a compelling reason to maintain the restrictions. It ruled that these restrictions on speech were narrowly tailored and withstood strict scrutiny and thus did not contradict Citizens United. James C Nelson, dissenting, agreed with the majority in disdain for Citizens United, saying "Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creatures of government". At the same time he argued that Citizens United indeed took precedence. Such a refusal to abide by a higher court's ruling is rare. As Montana justices are elected, not appointed, Slate's Dahlia Lithwick calls this "an early judicial campaign ad".

In February 2012, the Supreme Court blocked the Montana Supreme Court’s decision. Justices Ginsburg and Breyer released a short statement, urging the Court to revisit Citizens United and “to consider whether, in light of the huge sums of money currently deployed to buy candidate’s allegiance, Citizens United should continue to hold sway.” The justices asked the Court to pay attention to the empirical evidence of corruption caused by the new unlimited spending, a problem that the majority downplayed in their opinion.

Legislative responses

Legislative impact

The New York Times reported that 24 states with laws prohibiting or limiting independent expenditures by unions and corporations would have to change their campaign finance laws because of the ruling.

Senator Dick Durbin (D-IL) proposed that candidates who sign up small donors receive $900,000 in public money. Others proposed that laws on corporate governance be amended to assure that shareholders vote on political expenditures.

In February 2010, Senator Charles E. Schumer of New York, immediate past Chairman of the Democratic Senatorial Campaign Committee, and Representative Chris Van Hollen of Maryland, Chairman of the Democratic Congressional Campaign Committee, outlined legislation aimed at undoing the decision. In April 2010, they introduced such legislation in the Senate and House, respectively. On June 24, 2010, H.R.5175 (The DISCLOSE Act) passed in the House of Representatives but failed in the Senate. It would have required additional disclosure by corporations of their campaign expenditures. The law, if passed, would also have prohibited political spending by U.S. companies with twenty percent or more foreign ownership, and by most government contractors.

The DISCLOSE Act included exemptions to its rules given to certain special interests such as the National Rifle Association and the American Association of Retired Persons. These gaps within the proposal attracted criticism from lawmakers on both political parties. "They are auctioning off pieces of the First Amendment in this bill... The bigger you are, the stronger you are, the less disclosure you have," said Republican Congressman Dan Lungren of California. Democratic Congressman Adam Schiff of California commented, "I wish there had been no carve-outs".

The DISCLOSE Act twice failed to pass the U.S. Senate in the 111th Congress, in both instances reaching only 59 of the 60 votes required to overcome a unified Republican filibuster.

See also

• 2009 term opinions of the Supreme Court of the United States
• Corporate personhood
• David Bossie
• Issue advocacy ads
• Murray Hill Incorporated

Historical background

• Santa Clara County v. Southern Pacific Railroad, 1886 Supreme Court decision that held that corporations are entitled to some of the protections provided to individuals in the Fourteenth Amendment.
• Tillman Act of 1907, banned corporations' contributions to political parties or candidates for any federal election campaigns
• Taft Hartley Act of 1947, banned expenditures by corporations and unions in connection with general and primary federal elections
• Federal Election Campaign Act of 1971 put $1000 limits on expenditure by people, including candidates for election
• Buckley v. Valeo, 424 U.S. 1 (1976) struck down limits on political candidates' own personal expenditures as unconstitutional
• First National Bank of Boston v. Bellotti, 435 U.S. 765 (1977) struck down a state law which criminalized corporations spending money for advertising their views before a state referendum
• Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) upheld a Michigan law that prohibited corporations but not unions from using funds for individual expenditures
• Bipartisan Campaign Reform Act of 2002, prohibited "electioneering communication" by corporations unless from a segregated PAC fund
• McConnell v. Federal Election Commission, 540 U.S. 93 (2003) upheld regulation of "electioneering communication"

External links

• Court documents.
• Oral Argument Transcript, PDF
• Text of Supreme Court decision, PDF
• Text of Supreme Court decision, HTML
• Seligman, Joel, "Is The Corporation The Person? Reflections on Citizens United v. Federal Election Commission", speech May 6, 2010; with thanks by Seligman to John Field for assistance.