Citizens United v. Federal Election Commission (2010) Petitioner: Citizens United Respondent: Federal Election Commission Petitioner s Claim: That the Bipartisan Campaign Reform Act violates the First Amendment by prohibiting unions, corporations and notfor-profit organizations from broadcasting election-related communications within sixty days of a general election or thirty days of a primary election. Chief Lawyer for Petitioner: Theodore B. Olson Chief Lawyer for Respondent: Elena Kagan Justices for the Court: Samuel Alito Jr., Anthony Kennedy (writing for the Court), John G. Roberts Jr., Antonin Scalia, Clarence Thomas Justices Dissenting: Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, John Paul Stevens Date of Decision: January 21, 2010 Decision: Ruled in favor of Citizens United, reasoning that clause 203 of the Bipartisan Campaign Reform Act represents an undue violation of the First Amendment right to free speech. Significance: The Court s decision was widely celebrated by nonprofit political advocacy groups of all political affiliations, as it permits for much broader campaign financing and financial support of political candidates. 943
As the tone of political elections grew more shrill with the passing of each term, two U.S. senators, John McCain of Arizona and Russell Feingold of Wisconsin, focused their efforts on legislation that would impose some limits on communications broadcast during election campaigns. Their efforts culminated in the 2002 Bipartisan Campaign Reform Act (BCRA), also known as the McCain-Feingold Act. Under its provisions, corporations and unions were prohibited from using treasury funds to make electioneering communication or for independent expenditures, defined as speech that expressly advocated the election or defeat of a candidate when made independently of a candidate s campaign. Hillary: The Movie Citizens United was a conservative nonprofit organization that wanted to run television commercials promoting and previewing its critical film of U.S. senator Hillary Clinton of New York, who was a 2008 Democratic presidential hopeful. They planned to broadcast ads featuring her image in violation of the BCRA. When the U.S. District Court for the District of Columbia upheld the BCRA provision that would prohibit the showing of the film within thirty days of the 2008 Democratic primaries, Citizens United appealed to the U.S. Supreme Court. Its argument was that political spending is a form of free speech, which is protected under the First Amendment. The government cannot legally keep corporations or unions from spending money to support or denounce candidates in elections. Although they may be prohibited from giving money to campaigns directly, they can try to persuade the voting public via other methods, including advertising. Limits? What limits? To the surprise of nearly everyone, the Supreme Court ruled in a 5 4 vote that companies corporate funds could be used to pay for electioneering communications to support or oppose individual candidates. This decision overturned decades of legislation that restricted the role of corporations in political campaigns. In the majority opinion, Justice Anthony 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. Thus, corporations have the same rights as individuals in regard 944 Supreme Court Drama, 2nd Edition
to political speech. This was a reversal of the ban put in place in 1947 that prohibited corporations from using profits to endorse or oppose political candidates. Justice Kennedy addressed that decades-old ruling and called it unconstitutional: When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves. The ruling was considered far-reaching by political experts, as it likely applied to labor unions as well as corporations, though they were not explicitly mentioned in the opinion. The decision also overruled laws in more than twenty other states limiting corporate expenditures in local political campaigns. What once was, isn t The Court concluded that a large portion of the BCRA was unconstitutional, an event which in itself is not unusual. What made the ruling startling to many was the fact that the Supreme Court had just declared the act constitutional just six years prior to the 2010 ruling. The provision of the act that the Court did uphold was the one that required corporations to disclose the source of the funding. But even that decision was overturned merely six months after the case was heard in Supreme Court, when Citizens United argued to the Federal Election Commission that it did not have to reveal its donors because it primarily produces films, which makes it amediaorganizationratherthanapoliticalactivistgroup. Citizens United leader David Bossie, who also produced Hillary: The Movie, subject of the Supreme Court case Citizens United v. Federal Election Commission. AP IMAGES/EVAN VUCCI. Dissenting voices With the exception of Justice Clarence Thomas, all those who dissented agreed with the decision to sustain the disclosure provisions. What they Supreme Court Drama, 2nd Edition 945
U.S. senators John McCain and Hillary Clinton attend the premiere of the World War II film The Great Raid. Clinton was the subject of the Supreme Court case Citizens United v. Federal Election Commission, which also involved legislation cosponsored by McCain. BROOKS KRAFT/CORBIS. disagreed with was the general path taken to reach the conclusion. Justice John Paul Stevens wrote the dissent and stated, 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. Reaction to the ruling Reaction to the landmark ruling ran the entire spectrum. Republican politicians were happy to have the First Amendment upheld, as were some advocacy groups like the National Rifle Association and the U.S. Chamber of Commerce. Some academics agreed that the decision would provide the American public with more information from a greater 946 Supreme Court Drama, 2nd Edition
variety of sources during elections, though the average person might not notice the difference. Democrats generally saw the ruling as a step backward. U.S. representative Alan Grayson of Florida went so far as to call the decision the worst Supreme Court decision since the Dred Scott case. Members of the more minor political parties like the Reform Party and the Green Party lamented the ruling for the way it infringes upon those parties ability to compete since they do not accept corporate contributions. Campaign reform groups denounced the opinion for its arrogance and worried about potential effects of the law. Other academics warned that the law increased the risk of corruption in an already corrupt political system. For more information Barnes, Robert, and Dan Eggen. Supreme Court Rejects Limits on Corporate Spending on Political Campaigns. Washington Post, January 22, 2010. http://www.washingtonpost.com/wp-dyn/content/article/2010/01/21/ AR2010012104866.html (accessed on December 21, 2010). Baumann, Nick. Grayson: Court s Campaign Finance Decision Worst Since Dred Scott. Mother Jones, January 22, 2010. http://motherjones.com/ mojo/2010/01/grayson-courts-campaign-finance-decision-worst-dredd-scott (accessed on December 21, 2010). Leonnig, Carol. FEC: Citizens United Conservative Group Doesn t Have to Disclose Donors. Washington Post, June 10, 2010. http://voices.washingtonpost.com/44/2010/06/fec-citizens-united-doesnt-hav.html (accessed on December 21, 2010). von Spakovsky, Hans. Citizens United v. FEC: A Landmark Decision in Favor of Free Speech. The Heritage Foundation: The Foundry. http://blog.heritage. org/2010/01/21/citizens-united-v-fec-a-landmark-decision-in-favor-of-freespeech/ (accessed on December 21, 2010). Supreme Court Drama, 2nd Edition 947