Citizens United v. Federal Election Commission
|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|
|Citations||558 U.S. 50 (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 128 S. Ct. 1471 (2008).|
|Opinion Announcment||Opinion announcement|
|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.|
|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|
|U.S. Const. amend. I|
Citizens United v. Federal Election Commission, 558 U.S. 50 (2010), was a landmark United States Supreme Court case in which the Court held that the First Amendment prohibited the government from restricting independent 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 or “BCRA”). In a 5–4 decision, the Court held that portions of BCRA §203 violated the First Amendment.
The decision reached the Supreme Court on appeal from a July 2008 decision by the United States District Court for the District of Columbia. Section 203 of BCRA 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, and prohibited such expenditures by corporations and unions. The lower court held that §203 of BCRA applied and prohibited Citizens United from advertising the film Hillary: The Movie in broadcasts or paying to have it shown on television within 30 days of the 2008 Democratic primaries. The Supreme Court reversed, striking down those provisions of BCRA that prohibited corporations (including nonprofit corporations) and unions from spending on “electioneering communications”.
The decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003). The Court, however, 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.
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 after finding no evidence that broadcast advertisements for the movie and featuring a candidate with the proscribed time limits had actually been made. The FEC later dismissed a second complaint which argued that the movie itself constituted illegal corporate spending advocating the election or defeat of a candidate, which was illegal under the Taft-Hartley Act of 1947 and the Federal Election Campaign Act Amendments of 1974. In dismissing that complaint, the FEC found that:
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, Citizens United sought to establish itself as a bona fide commercial film maker, producing several documentary films between 2005 and 2007. By early 2008, it sought to run television commercials to promote its latest political documentary Hillary: The Movie and to air the movie on DirecTV. The movie was highly critical of then-Senator Hillary Clinton, with the District Court describing 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.
Before the Court
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.
According to a 2012 article in The New Yorker by Jeffrey Toobin, the Court expected after oral argument to rule on the narrow issue that had originally been presented. At the subsequent conference among the justices after oral argument, the vote was 5–4 in favor of Citizens United being allowed to show the film. The justices voted the same as they had in Federal Election Commission v. Wisconsin Right to Life, Inc., a similar 2007 case, where Anthony Kennedy had cast the deciding vote.
Chief Justice John Roberts, per the privilege of that office when in the majority, was in charge of assigning the majority opinion, and chose to do it himself. His opinion restricted itself narrowly, holding that the BCRA allowed the showing of the film. A draft concurrence by Kennedy argued that the court could and should have gone much further. The other justices in the majority began agreeing with Kennedy, and convinced Roberts to reassign the writing and allow Kennedy’s concurrence to instead become the majority opinion.
On the other side, John Paul Stevens, the most senior justice in the minority, assigned the dissent to David Souter, who announced his retirement from the Court while he was working on it. The final draft went beyond critiquing the majority. Toobin described it as “air[ing] some of the Court’s dirty laundry,” accusing Roberts of having manipulated Court procedures to reach his desired result—an expansive decision that changed decades of election law but ruled on issues neither party to the litigation had presented.
Roberts was concerned that Souter’s dissent, likely to be his last opinion for the Court, could “damage the Court’s credibility.” He agreed with the minority to withdraw the opinion and schedule the case for reargument. However, when he did, the “Questions Presented” to the parties were more expansive, touching on the issues Kennedy had identified. According to Toobin, the eventual result was therefore a foregone conclusion from that point on, since the same majority had supported it. Toobin’s account has been criticized for drawing conclusions unsupported by the evidence in his article. 
On June 29, 2009, the last day of the term, the Court issued an order directing the parties to re-argue the case on September 9 after briefing whether it might be necessary to overrule Austin and/or McConnell v. Federal Election Commission to decide the case. 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
The majority opinion, written by Justice Kennedy, was relatively short, less than 30 pages, and in many respects the dissenting opinions of Justices Kennedy and Scalia in Austin v. Michigan State Chamber of Commerce and McConnell v. Federal Election Commission actually provide a more complete picture of the majority’s thinking. Chief Justice Roberts wrote a concurring opinion to address concerns about stare decisis, and Justice Scalia wrote a concurring opinion about the history and meaning of the First Amendment. Justice Thomas wrote separately to announce his disagreement with the majority’s decision not to strike down the mandatory disclosure requirements in BCRA. Justice 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 majority 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’s opinion for the majority also noted that since the First Amendment (and the Court) do not 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, 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 that portion of McConnell that upheld BCRA’s restriction of corporate spending on “electioneering communications”. The Court’s ruling effectively freed corporations and unions to spend money both on “electioneering communications” and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties).
The majority argued that the First Amendment protects associations of individuals as well as individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. Corporations, as associations of individuals, therefore have speech rights under the First Amendment. Because spending money is essential to disseminating speech, as established in Buckley v. Valeo, limiting a corporation’s ability to spend money unconstitutionally limits the ability of its members to associate effectively and to speak on political issues.
The majority overruled Austin because that decision allowed different restrictions on speech-related spending based on corporate identity. Additionally, the majority argued that Austin was based on an “equality” rationale – trying to equalize speech between different speakers – that the Court had previously rejected as illegitimate under the First Amendment in Buckley. The Michigan statute at issue in Austin had distinguished between corporate and union spending, prohibiting the former while allowing the latter. The “Austin” Court, over vigorous dissent by Justices Scalia, Kennedy, and Sandra Day O’Connor, had held that such distinctions were within the legislature’s prerogative. In Citizens United v. Federal Election Commission, however, 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 also criticized Austin’s reasoning that the “distorting effect” of large corporate expenditures constituted a risk of corruption or the appearance of corruption. Rather, the majority argued that the government had no place in determining whether large expenditures distorted an audience’s perceptions, and that the type of “corruption” that might justify government controls on spending for speech had to relate to some form of “quid pro quo” transaction: “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 and principles of the landmark campaign finance case of Buckley and First National Bank of Boston v. Bellotti, in which the Court struck down a broad prohibition against independent expenditures by corporations in ballot initiatives and referenda. 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.
Roberts wrote to further explain and defend the main opinion’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, for example, “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.
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”. He argued that the majority had expanded the scope beyond the questions presented by the appellant and that therefore a sufficient record for judging the case did not exist. Stevens argued that at a minimum the Court should have remanded the case for a fact-finding hearing, and that the majority did not consider other compilations of data, such as the Congressional record for justifying BCRA §203.
Stevens referenced a number of major First Amendment cases to argue 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). After recognizing that in Buckley v. Valeo the Court had struck down portions of a broad prohibition of independent expenditures from any sources, Stevens argued that nevertheless Buckley recognized the legitimacy of “prophylactic” measures for limiting campaign spending and found the prevention of “corruption” to be a reasonable goal for legislation. Consequently, Stevens argued that Buckley left the door open for carefully tailored future regulation. Although the majority echoed many of the arguments in First National Bank of Boston v. Bellotti, Stevens argued that the majority opinion contradicted the reasoning of other campaign finance cases — in particular, Austin v. Michigan State Chamber of Commerce and McConnell v. Federal Election Commission — and found it telling that the majority, when citing such cases, referenced many of the dissents.
Stevens’ lengthy dissent specifically sought to address 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). Stevens referenced facts from a previous BCRA challenge to argue that contributors gain favorable political access, a point not contested by the majority but considered by the majority to be insufficient justification for limiting speech rights.
Stevens argued that in the past, even 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, he claimed, also acknowledged that large independent expenditures present the same dangers as quid pro quo arrangements. Using the record from a previous BCRA §203 challenge, he argued that independent expenditures were sometimes a factor in gaining political access and concluded that large independent expenditures generate more influence than direct campaign contributions. Furthermore, Stevens argued that corporations could threaten Representatives and Senators with negative advertising to gain unprecedented leverage. Stevens supported his argument by citing Caperton v. A.T. Massey Coal Co., 556 U.S. _ (2009), where the Court held that $3 million in independent expenditures in a judicial race raised sufficient questions about a judge’s impartiality to require the judge to recuse himself in a future case involving the spender. Stevens argued that it was 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 increased spending in judicial races.
Second, Stevens argued that the majority did not place enough emphasis on 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. Stevens predicted that if the public believes that corporations dominate elections, disaffected voters will stop participating.
Third, Stevens argued that the majority’s decision failed 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, he argued, have perpetual life, the ability to amass large sums of money, limited liability, no ability to vote, no morality, no purpose outside of profit-making, and no loyalty. Therefore, he argued, the courts should permit legislatures to regulate corporate participation in the political process.
Legal entities, Stevens wrote, are not “We the People” for whom our Constitution was established. Therefore, he argued, they should not be given speech protections under the First Amendment. The First Amendment, he argued, 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, he argued, citing 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 only prohibited the use of general treasury money.
Fourth, Stevens attacked the majority’s central argument: that the prohibition of spending guards free speech and allows the general public to receive all available information. Stevens argued, relying on Austin, 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 others, to push others out of prime broadcasting spots and to dominate the “marketplace of ideas”. This process, he argued, puts disproportionate focus on this speech and gives the impression of widespread support regardless of actual support. Thus, this process marginalizes the speech of other individuals and groups.
Stevens referred to the majority’s argument that “there is no such thing as too much speech” as “facile” and a “straw man” argument. 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” ignored the possibility that too much speech from one source could “drown out” other points of view.
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. 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. Stevens and the majority conceptualize the First Amendment’s protection of “the press” quite differently. Stevens argues that the “Press” is an entity, which can be distinguished from other persons and entities which are not “press”. The majority opinion viewed “freedom of the press” as an activity, applicable to all citizens or groups of citizens seeking to publish views.
Sixth, Stevens claimed that 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. Stevens argued that the majority’s view of a self-serving legislature, passing campaign-spending laws to gain an advantage in retaining a seat, coupled with “strict scrutiny” of laws, would make it difficult for any campaign finance regulation to be upheld in future cases.
Seventh, Stevens argued that the majority opinion ignored the rights of shareholders. A series of cases protects individuals from legally compelled payment of union dues 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 likewise help to protect shareholders from funding speech that they oppose. The majority, however, argued that ownership of corporate stock was voluntary, and that unhappy shareholders could simply sell off their shares if they did not agree with the corporation’s speech. Stevens also argued that Political Action Committees (PACs), which allow individual members of a corporation to invest money in a separate fund, are an adequate substitute for general corporate speech and better protect shareholder rights. The majority, by contrast, had argued that most corporations are too small and lack the resources and raw number of shareholders and management staff necessary to cover the compliance, accounting, and administrative costs of maintaining a PAC. In this dispute, the opposing views essentially discussed differing types of entities: Stevens focused his argument on large, publicly held corporations, while the justices in the majority, and particularly Justice Scalia’s concurring opinion, placed an emphasis on small, closely held corporations and non-profits.
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 funded 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.
Correspondingly, Stevens and the other dissenting justices would have upheld the constitutionality of BCRA §203 and its restriction against advertising and broadcasting “Hillary: The Movie” within 30 days of the primary election on the grounds that the movie was produced and distributed by a corporate entity.
There was a wide range of reactions to the case from politicians, academics, attorneys, advocacy groups and journalists.
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”.
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.”
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.” Republican Senator Olympia Snowe opined that “Today’s decision was a serious disservice to our country.”
Although federal law after Citizens United v. Federal Election Commission still prohibited corporate contributions to all political parties, 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 presidential elections of 2000, 2004, and 2008, 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, former Reform Party candidate for Vice President, stated, “The court has, in effect, legalized foreign governments and foreign corporations to participate in our electoral politics.”
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||”|
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, whose opinions had changed from dissenting in Austin v. Michigan State Chamber of Commerce to co-authoring (with Stevens) the majority opinion in McConnell v. Federal Election Commission twelve years later, 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”.
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”.
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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. 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 received extensive comment from political bloggers, with a substantial amount 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.’”
Election law blogs
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On specialized blogs, the Citizens United 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.
An ABC–Washington Post poll conducted February 4–8, 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. The poll also found that only 22 percent had heard of the case.
Further court rulings
The case had a foreshadowing antecedent in a headnote in Santa Clara County v. Southern Pacific Railroad Company.
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 v. Federal Election Commission. James C Nelson, dissenting, agreed with the majority that Citizens United was incorrectly decided but argued that Citizens United nonetheless applied and precluded the Court’s decision. 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 while authorizing the parties to file cert petitions. 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 Court is expected to hear the appeal in the October 2012 term, unless it summarily reverses the decision based on the cert briefs.
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”.
A trimmed back version of the DISCLOSE Act was reintroduced in both the House and Senate in 2012 but is not expected to pass.
The legislatures of California, Hawaii and New Mexico have passed resolutions calling for the decision to be overturned. In addition, California is also planning on calling a constitutional convention to pass an amendment that would repeal the decision.
Some have argued for a constitutional amendment to overrule the decision. Move to Amend, a coalition formed in response to the ruling, seeks to amend the Constitution to abolish corporate personhood, the stripping corporations of all rights under the Constitution. 
 Citizens United and super PACs
Citizens United v. Federal Election Commission has often been credited (or blamed) for the creation of “super PACs“, political action committees which make no contributions to candidates or parties and so can accept unlimited contributions from individuals, corporations, and unions. Certainly, the holding in Citizens United 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”, helped affirm the legal basis for super PACs However, it took another decision by the U.S. Court of Appeals for the District of Columbia Circuit, Speechnow.org v. Federal Election Commission, to actually authorize the creation of super PACs. While Citizens United held that corporations and unions could make independent expenditures, a separate provision of the Federal Election Campaign Act, at least as long interpreted by the Federal Election Commission, held that individuals could not contribute to a common fund without it becoming a PAC. PACs, in turn, were not allowed to accept corporate or union contributions of any size or to accept individual contributions in excess of $5000. In Speechnow.org, the D.C. Circuit, sitting en banc, held 9–0 that in light of Citizens United, such restrictions on the sources and size of contributions could not apply to an organization that made only independent expenditures in support of or opposition to a candidate, but not contributions to a candidates campaign. The effectiveness of this system remains a hot topic in American politics. See Political Action Committee.
In addition to indirectly providing support for the creation of super PACs, Citizens United allowed incorporated 501(c)(4) public advocacy groups (such as the National Rifle Association or Sierra Club, or the group Citizens United itself) and trade associations to make expenditures in political races. Such groups may not, under the tax code, have a primary purpose of engaging in electoral advocacy. These organizations must disclose their expenditures, but unlike super PACs they do not have to include the names of their donors in their FEC filings. A number of partisan organizations, such as Karl Rove‘s influential conservative Crossroads Grassroots Policy Strategies or the liberal 21st Century Colorado, have since registered as tax-exempt 501c4 groups (defined as groups promoting “social welfare”) and engaged in substantial political spending. This has led to claims of large secret donations, and questions about whether such groups should be required to disclose their donors.[who?] Historically, such non-profits have not been required to disclose their donors or names of members. See National Association for the Advancement of Colored People v. Alabama.