Citizens United v. FEC
Citizens United v. Federal Election Commission, 558 U.S. 310, is a landmark decision of the United States Supreme Court regarding campaign finance laws, in which the Court found that laws restricting the political spending of corporations and unions are inconsistent with the Free Speech Clause of the First Amendment to the U.S. Constitution. The Supreme Court's 5–4 ruling in favor of Citizens United sparked significant controversy, with some viewing it as a defense of American principles of free speech and a safeguard against government overreach, and others criticizing it for reaffirming the longstanding principle of corporate personhood, and for allowing large corporations to wield disproportionate political power.
The majority opinion, authored by Justice Anthony Kennedy, held that the prohibition of all independent expenditures by corporations and unions in the Bipartisan Campaign Reform Act violated the First Amendment. The ruling barred restrictions on corporations, unions, and nonprofit organizations from independent expenditures, allowing groups to independently support political candidates with financial resources. In a dissenting opinion, Justice John Paul Stevens argued that the court's ruling represented "a rejection of the common sense of the American people."
Reactions to the decision were sharply divided. Typical were those of Senator Mitch McConnell, who commended the decision, as "an important step in the direction of restoring the First Amendment rights," and of then-president Barack Obama who stated that the decision "gives the special interests and their lobbyists even more power in Washington".
Background
The 2002 Bipartisan Campaign Reform Act of 2002, commonly known as the McCain–Feingold Act or BCRA, prohibited "electioneering communications" paid for by incorporated entities. These were defined as broadcast advertisements mentioning a candidate by name within 30 days of a primary election or 60 days of a general election, and reaching at least 40,000 people in the relevant electorate. During the 2004 presidential campaign, Citizens United, a conservative, non-profit advocacy organization, filed a complaint with the Federal Election Commission charging that advertisements for Michael Moore's film Fahrenheit 9/11, a docudrama critical of the Bush administration's response to the terrorist attacks on September 11, 2001, constituted "electioneering communications" 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 advertisements featuring a candidate within the proscribed time limits had actually been made. Citizens United later produced a documentary Celsius 41.11, highly critical of both Fahrenheit 9/11 and 2004 Democratic presidential nominee John Kerry. The FEC, however, held that showing Celsius 41.11 and advertisements for it would violate the Federal Election Campaign Act, because Citizens United was not a bona fide commercial film maker.In the wake of these decisions, Citizens United sought to establish itself as a bona fide commercial filmmaker before the 2008 elections, producing several documentary films. During the 2008 political primary season, it sought to run three television advertisements to promote its political documentary Hillary: The Movie, a film that was critical of Hillary Clinton, and to air the movie on DirecTV. Based on the FEC's 2004 decision, Citizens United feared that the FEC would hold that its ads and payments for DirectTV violated BCRA--specificially Section 203 which 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 labor unions. Citizens United filed for declaratory and injunctive relief in federal court.
District Court proceedings
In December 2007, Citizens United filed a complaint in U.S. District Court for the District of Columbia challenging the constitutionality of several statutory provisions governing "electioneering communications". It asked the court to declare that the prohibition on corporate and union funding were both facially unconstitutional, and unconstitutional as applied to Hillary: The Movie and the 30-second advertisements for the movie, and to enjoin the Federal Election Commission from enforcing its regulations. Citizens United also argued that the commission's disclosure and disclaimer requirements were unconstitutional as applied to the movie pursuant to the Supreme Court decision in Federal Election Commission v. Wisconsin Right to Life, Inc. and sought to enjoin those requirements.In accordance with Section 403 of the BCRA, a three-judge panel was convened to hear the case. On January 15, 2008, the court denied the Citizens United motion for a preliminary injunction, finding that Citizens United was unlikely to succeed on the merits because the movie had no reasonable interpretation other than as an appeal to vote against Hillary Clinton. It held that the film constituted express advocacy of the election or defeat of a candidate and was not entitled to exemption from the ban on corporate funding of electioneering communications. The court upheld the relevant disclosure provisions on the basis of the Supreme Court decision in McConnell v. FEC, which had found the disclosure requirements of the BCRA constitutional. It distinguished the Wisconsin Right to Life precedent as only addressing speech that was not considered express advocacy of the election or defeat of a candidate.
On July 18, 2008, the District Court ruled that Section 203 of the BCRA prohibited Citizens United from paying to have the film shown on television within 30 days of the 2008 Democratic primaries. It also ruled, however, that Citizens United could broadcast the advertisements for the film as they fell in the "safe harbor of the FEC's prohibition regulations".
In accordance with the special rules in BCRA, Citizens United appealed the District Court decision directly to the U.S. Supreme Court.
Arguments before the Supreme Court
Arguments before the Supreme Court began on March 24, 2009. During the original oral argument, Deputy Solicitor General Malcolm L. Stewart argued that under Austin v. Michigan Chamber of Commerce in 1990, the government would have the power to ban books if those books contained content expressly advocating the election or defeat of a candidate and were published or distributed by a corporation or labor union. 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 an author to write a political book.Justice Kennedy later explained how "all of us are concerned with money in politics". However, he was shocked that "the government of the United States... argued before the Supreme Court... that if there was an upcoming political campaign... and a book was being published... and it was critical of a candidate, that could stop publication".
According to a 2012 retrospective article in The New Yorker by Jeffrey Toobin, the court planned to rule on the narrow question that had originally been presented: Can Citizens United show the film? At the 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.
Chief Justice John Roberts wrote the initial opinion of the court, holding that BCRA allowed the showing of the film. A draft concurring opinion by Justice Anthony Kennedy argued that the court should have gone much further. The other justices in the majority agreed with Kennedy's reasoning, and convinced Roberts to reassign the writing and allow Kennedy's concurrence to become the majority opinion. The senior justice in the minority, Justice John Paul Stevens, assigned the dissenting opinion to David Souter. Souter completed the task shortly before retiring from the court. According to Toobin, Souter's dissent went beyond critiquing the majority to air "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 and ruled on issues neither party to the litigation had presented. According to Toobin, Roberts agreed to withdraw the opinion and schedule the case for re-argument. When he did, the questions presented to the parties were, however, more expansive, touching on the issues Kennedy's opinion had identified.
The court issued an order directing the parties to re-argue the case on September 9, 2009, with a discussion of whether it might be necessary to overrule Austin and/or McConnell v. FEC to decide the case. The re-argument was one of the first attended by Justice Sonia Sotomayor, who had replaced Souter in the interim. It was also the first case argued by then-Solicitor General and future Supreme Court Justice Elena Kagan. Former Solicitor General Ted Olson and First Amendment lawyer Floyd Abrams argued for Citizens United, and another former 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".
Opinion of the court
On January 21, 2010, the court issued a 5–4 decision in favor of Citizens United that struck down the BCRA restrictions on independent political expenditures by corporations as violations of the First Amendment, in a reversal of the District Court opinion.Majority opinion
The majority opinion was written by the moderate Justice Anthony Kennedy, who chose to align with the more conservative justices. The court held that BCRA Section 203's prohibition of all independent political expenditures by corporations and unions violated the First Amendment's protection of free speech. As 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." Kennedy also noted that because the First Amendment does not distinguish between media and other corporations, the BCRA restrictions improperly allowed Congress to suppress political speech in newspapers, books, television, and blogs. Consequently, "There is no such thing as too much speech."The court overturned the 1990 precedent Austin v. Michigan Chamber of Commerce, which had held that a state law that prohibited corporations from using money to support or oppose candidates in elections did not violate the Constitution. The majority 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 in which politicians favored corporations from whom they received donations. The court also overruled a portion of the 2003 precedent McConnell v. FEC that upheld the BCRA restriction of corporate spending on electioneering communications.
The majority also held that the free press clause of the First Amendment protects associations of individuals in addition to 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 free speech rights under the First Amendment. Because spending money is essential to disseminating speech, as established in the 1976 precedent Buckley v. Valeo, limiting a corporation's ability to spend money is unconstitutional by limiting the ability of its members to associate effectively and to speak on political issues. The court's opinion relied heavily on Buckley and First National Bank of Boston v. Bellotti, in which it struck down a broad prohibition of independent expenditures by corporations in ballot initiatives and referendums. The majority argued that the First Amendment purposefully keeps the government from "rationing" speech and interfering in the marketplace of ideas, and it is not up to legislatures or courts to create a sense of "fairness" by restricting speech.
On the other hand, the court found that BCRA Sections 201 and 311, which require disclosure of information of the funders of such speech, were valid as applied to the movie advertisements and to the movie itself. The majority ruled for the disclosure of the sources of campaign contributions, saying that: