Citizens United v. Federal Election Commission


Citizens United v. Federal Election Commission
Citizens United v. Federal Election Commission
Seal of the United States Supreme Court.svg
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.C. 2008)[1] 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
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), was a landmark decision by the United States Supreme Court holding that the First Amendment prohibits government from censoring political broadcasts in candidate elections when those broadcasts are funded by corporations or unions. The 5–4 decision originated in a dispute over whether the non-profit corporation Citizens United could air a film critical of Hillary Clinton, and whether the group could advertise the film in broadcast ads featuring Clinton's image, in apparent violation of the 2002 Bipartisan Campaign Reform Act, commonly known as the McCain–Feingold Act in reference to its primary Senate sponsors.[2]

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 decision had upheld provisions of the 2002 act, which prevented the film Hillary: The Movie from being shown on television within 30 days of 2008 Democratic primaries.[1][3]

The Supreme Court reversed the lower court, striking down those provisions of the McCain–Feingold Act that prohibited all corporations, both for-profit and not-for-profit, and unions from broadcasting “electioneering communications.”[2] An "electioneering communication" was defined in McCain–Feingold as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or thirty days of a primary. The decision overruled Austin v. Michigan Chamber of Commerce (1990) and partially overruled McConnell v. Federal Election Commission (2003).[4] McCain–Feingold had previously been weakened, without overruling McConnell, in Federal Election Commission v. Wisconsin Right to Life, Inc. (2007). The Court did uphold requirements for disclaimer and disclosure by sponsors of advertisements. 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.[5]

Contents

Background

The Bipartisan Campaign Reform Act of 2002 (BCRA) (McCain–Feingold Act), 2 U.S.C. § 441b, prohibited corporations and unions from using their general treasury funds to make "electioneering communications" (broadcast ads mentioning a candidate within 30 days of a primary or 60 days of a general election). During the 2004 presidential campaign, Citizens United, a conservative nonprofit 501(c)(4) organization, filed a complaint before the Federal Election Commission (FEC) charging that ads for Michael Moore's film Fahrenheit 9/11, which was critical of the Bush administration's response to the terrorist attacks on September 11, 2001, constituted political advertising and thus could not be aired 60 days before an election or 30 days before a party convention. On August 5, the FEC dismissed the complaint finding no evidence that the movie's ads had broken the law.[6] 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.[7]

In the wake of these decisions allowing the promotion of the documentary Fahrenheit 9/11 during the 2004 campaign, Citizens United sought to run television commercials during the 2008 campaign promoting its political documentary Hillary: The Movie, which is critical of then-Senator Hillary Clinton, and to air the movie on DirecTV.[8] In January 2008, the United States District Court for the District of Columbia ruled that the commercials violated provisions in the Bipartisan Campaign Reform Act of 2002 (McCain–Feingold) restricting "electioneering communications" 30 days before primaries. Though the political action committee claimed that its 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.[9] The Supreme Court docketed the case on August 18, 2008,[10] and heard oral argument on March 24, 2009.[8][11][12] In the course of the original oral argument, then-Deputy Solicitor General Malcolm L. Stewart, representing the FEC, argued that under the Austin decision, 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.[13] Under questioning from the Court, Stewart further argued that under "Austin" the government could ban the distribution of political books over Amazon's Kindle, or prevent a union from hiring a writer to author a political book.[14]

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 and/or McConnell v. Federal Election Commission to decide the case.[15] Justice Stevens noted in his dissent that in its prior motion for summary judgment Citizens United had abandoned its facial challenge to Section 203, with the parties agreeing to the dismissal of the claim. Stevens argued that the Court chose to hear argument on issues the parties had agreed were not to be presented to the Court and that it reached a decision on constitutionality when it could have found for the plaintiffs on narrower grounds.[16]

The case, on reargument, was the first to be heard by Justice Sotomayor and the first case to be argued in the Supreme Court by Solicitor General Elena Kagan. Also arguing before the Court were former Bush solicitor general Ted Olson and First Amendment lawyer Floyd Abrams for Citizens United, and former Clinton solicitor general Seth Waxman defending the statute on behalf of various intervenors that supported the law.[17] Legal scholar Erwin Chemerinsky called it "one of the most important First Amendment cases in years".[18]

Opinion of the Court

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

The majority opinion,[19] authored by Justice Kennedy, found that 2 U.S.C. § 441(b)'s prohibition of all independent expenditures by corporations and unions was invalid and could not be applied to spending such as that in Hillary: The Movie. 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." He 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.[2] The Court overruled Austin v. Michigan Chamber of Commerce, which had previously held that a Michigan campaign finance act 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 that upheld BCRA's extension of the Federal Election Campaign Act's restrictions on independent corporate expenditures to include "electioneering communications".

The Court found that BCRA §§201 and 311 (provisions requiring disclosure of the funder) were valid as applied to the ads for Clinton and to the movie itself.[19]

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".[20]

Chief Justice Roberts wrote to further explicate and defend the court's statement that "there is a difference between judicial restraint and judicial abdication". The Chief Justice argued that there are times during which overruling prior decisions is necessary. Had the 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 jurisprudence. Ultimately, however, Roberts argued that "stare decisis is a doctrine of preservation, not transformation. It counsels deference to make 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.[21] Scalia addressed Justice Stevens's dissent, specifically with regard to the notion that the court's decision was not supported by 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."

Dissents

Justice Stevens, the author of the dissenting opinion.

A dissenting opinion by Justice Stevens[22] 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.[23] 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." The dissent also argued that the Court's holding that BCRA §203 was facially unconstitutional was ruling on a question not brought before it by the litigants, and so claimed that the majority "changed the case to give themselves an opportunity to change the law." 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.

Justice Thomas wrote a separate opinion concurring in all but part IV of the Court's decision (upholding 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.[24]

Subsequent developments

There was a wide range of reactions to Citizens United v. FEC 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".[25]

Republican campaign consultant Ed Rollins opined that the decision adds transparency to the election process and will make it more competitive.[26]

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."[27] During litigation, Citizens United had support from the United States Chamber of Commerce and the National Rifle Association.[25]

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."[28]

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."[29]

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.”[30]

The American Civil Liberties Union filed an amicus brief that supported the decision,[31] 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.[32]

Academics and attorneys

Professor of Law Bradley A. Smith, 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.[33] 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.[34]

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.[35]

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.[28]

The New York Times asked seven academics to opine on how corporate money would reshape politics as a result of the court's decision.[36] 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.[36] 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.”[36] 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".[36]

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.”[37]

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".[38] 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.[39]

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."[40]

Criticisms

Money Isn't Speech and Corporations Aren't People

David Kairys[41]

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".[42] 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".[43] 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[44] 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."[45] 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.[46] 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.[47] Rep. Leonard Boswell introduced legislation to amend the constitution.[48] Senator John Kerry also called for an Amendment to overrule the decision.[49]

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".[50] 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."[45] 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."[50] (In fact, Rehnquist had joined Justices Scalia, Thomas, and Kennedy in dissenting in McConnell v. FEC). Republican Senator Olympia Snowe opined that "Today's decision was a serious disservice to our country."[51]

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." (In fact, 2 U.S.C. 441i, which was not altered by the decision in Citizens United, prohibits all parties from accepting corporate contributions). 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,[52] 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.[53] Pat Choate, Reform Party candidate stated, "The court has, in effect, legalized foreign governments and foreign corporations to participate in our electoral politics."[54]

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".[55]

Academics and attorneys

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."[56]

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.”[57]

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".[58]

Three other scholars writing in the aforementioned New York Times article were critical.[36] 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".[36]

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.[59]

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.[60]

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.[61]

"Move to Amend", a national coalition of hundreds of organizations and over 113,000 individuals was formed in response to the ruling.[62] 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.[63][64]

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."[65] Jonathan Alter called it the "most serious threat to American democracy in a generation".[66] 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.”[67]

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.[68] Keith Olbermann of MSNBC said that with this decision "within ten years every politician in this country will be a prostitute" and compared it unfavorably to Dred Scott v. Sandford, an 1857 case that held that African-Americans could not be citizens.[69]

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.'"[70] 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".[71][72][73]

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.[74][75]

Separate polls by various conservative organizations, including the plaintiff, Citizens United, and the Center for Competitive Politics found support for the decision.[76] In particular, the Center for Competitive Politics poll[77] 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.

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.[78]

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.[66]

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.[79] In April 2010, they introduced such legislation in the Senate and House, respectively.[80] 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.[81]

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".[82]

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.[83][84]

See also

Historical background
  • 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"

Notes

  1. ^ a b "Summary Citizens United v. Federal Election Commission (Docket No. 08-205)". Cornell University School of Law. http://topics.law.cornell.edu/supct/cert/08-205. 
  2. ^ a b c Liptak, Adam (2010-01-21). "Justices, 5-4, Reject Corporate Spending Limit". New York Times. http://www.nytimes.com/2010/01/22/us/politics/22scotus.html. 
  3. ^ Liptak, Adam (2009-08-29). "Supreme Court to Revisit 'Hillary' Documentary". New York Times. http://www.nytimes.com/2009/08/30/us/30scotus.html. 
  4. ^ Hasen, Richard (2010-01-21). "Money Grubbers: The Supreme Court kills campaign finance reform". Slate. http://www.slate.com/id/2242209. 
  5. ^ Carney, Eliza (2010-01-21). "Court Unlikely To Stop With Citizens United". National Journal. http://www.nationaljournal.com/njonline/rg_20100121_2456.php. Retrieved 2010-01-21. [dead link]
  6. ^ FEC finding August 6, 2004
  7. ^ FEC finding August 9, 2005
  8. ^ a b Barnes, Robert (2009-03-15). "'Hillary: The Movie' to Get Supreme Court Screening". The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2009/03/14/AR2009031401603_pf.html. Retrieved 2009-03-22. 
  9. ^ "Memorandum Opinion" (PDF). Citizens United v. Federal Elections Commission. District Court for the District of Columbia. 2008-01-15. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2007cv2240-39. Retrieved 2010-02-01. 
  10. ^ "Docket for 08-205". U.S. Supreme Court. 2008-08-18. http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/08-205.htm. 
  11. ^ Ross, Lee (2009-03-18). "March 24: Hillary Clinton Film Challenged". Fox News. http://www.foxnews.com/story/0,2933,509712,00.html?sPage=fnc/us/supremecourt. Retrieved 2009-03-22. 
  12. ^ Holland, Jesse J. (March 22, 2009). ""Hillary: The Movie" next on Supreme Court docket". Seattle Post-Intelligencer. Associated Press. http://seattletimes.nwsource.com/html/politics/2008901901_nationweek22.html. Retrieved May 10, 2011. 
  13. ^ Liptak, Adam (March 25, 2009). "Justices Seem Skeptical of Scope of Campaign Law". The New York Times: p. A16. 
  14. ^ Smith, Bradley. "The Myth of Campaign Finance Reform". http://www.nationalaffairs.com/publications/detail/the-myth-of-campaign-finance-reform. 
  15. ^ Barnes, Robert (2009-06-30). "Justices to Review Campaign Finance Law Constraints". The Washington Post. http://www.washingtonpost.com/wp-dyn/content/article/2009/06/29/AR2009062903997_pf.html. 
  16. ^ CounterPunch, 4 February 2010, Chucking Precedent at the High Court
  17. ^ "Hillary: The Oral Argument". The Washington Post. http://voices.washingtonpost.com/postpartisan/2009/09/hillary_the_oral_argument.html. 
  18. ^ Liptak, Adam (2009-08-06). "Sotomayor Faces Heavy Workload of Complex Cases". The New York Times. http://www.nytimes.com/2009/08/07/us/politics/07scotus.html. 
  19. ^ a b Syllabus and Majority opinion at the Cornell University Law School Supreme Court Collection site
  20. ^ Roberts opinion at ibid.
  21. ^ Scalia opinion at ibid.
  22. ^ Stevens opinion at ibid.
  23. ^ McElroy, Linda (January 22, 2010). "Citizens United v. FEC in plain English". SCOTUSblog. http://www.scotusblog.com/2010/01/citizens-united-v-fec-in-plain-english/. Retrieved October 4, 2011. "Finally, unusual detail number four. Justice Stevens read his dissent (or some of it – if he had read all ninety pages, we'd still be in Court) from the bench." 
  24. ^ Thomas opinion at ibid.
  25. ^ a b Stohr, Greg (January 21, 2010). "Corporate Campaign Spending Backed by U.S. High Court". Bloomberg. http://www.bloomberg.com/apps/news?pid=20601110&sid=aU.fsorJbt3E. 
  26. ^ Rollins, Ed (2010-01-22). "Another shock to the Washington system". CNN. http://www.cnn.com/2010/OPINION/01/21/rollins.campaign.rules.obsolete/index.html. Retrieved 2010-01-26. 
  27. ^ "Statement from David N. Bossie". Citizens United Blog. 2010-01-21. http://citizensunited.org/blog.aspx?entryid=8225648. Retrieved 2010-01-22. 
  28. ^ a b "Who is helped, or hurt, by the Citizens United decision?". The Washington Post. 2010-01-24. http://www.washingtonpost.com/wp-dyn/content/article/2010/01/22/AR2010012203874.html?hpid=opinionsbox1. 
  29. ^ Dinan, Stephen (2010-01-21). "Divided court strikes down campaign money restrictions". The Washington Times. p. 2. http://www.washingtontimes.com/news/2010/jan/21/divided-court-strikes-down-campaign-money-restrict/?page=2. 
  30. ^ Samples, John; Shapiro, Ilya (2010-01-21). "Free Speech for All". Cato Institute. http://www.cato.org/pub_display.php?pub_id=11159. 
  31. ^ "Citizens United v. Federal Election Commission", American Civil Liberties Union, July 29, 2009, retrieved June 27, 2011
  32. ^ Goldstein, Joseph (2010-01-24). "ACLU May Reverse Course On Campaign Finance Limits After Supreme Court Ruling". New York Sun. http://www.nysun.com/national/aclu-may-reverse-course-on-campaign-finance/86899/. Retrieved 2010-01-26. 
  33. ^ Smith, Bradley (2010-01-25). "The Citizens United Fallout, Democrats plan to redouble their efforts to stifle corporate free speech". City Journal. http://www.city-journal.org/2010/eon0125bs.html. 
  34. ^ Smith, Bradley (2010-01-27). "President Wrong on Citizens United Case". National Review. http://corner.nationalreview.com/post/?q=ZTVkODZiM2M0ODEzOGQ3MTMwYzgzYjNmODBiMzQzZjk=. 
  35. ^ Baran, Jan Witold (2010-01-25). "Stampede Toward Democracy". The New York Times. http://www.nytimes.com/2010/01/26/opinion/26baran.html. 
  36. ^ a b c d e f "How Corporate Money Will Reshape Politics: Restoring Free Speech in Elections". The New York Times blog. 2010-01-21. http://roomfordebate.blogs.nytimes.com/2010/01/21/how-corporate-money-will-reshape-politics. Retrieved 2010-01-21. 
  37. ^ "High court ruling protects speech". San Antonio Express-News Editorial Board. Hearst Newspapers. 2010-01-26. http://www.mysanantonio.com/opinion/82636522.html. Retrieved 2010-01-26. 
  38. ^ Dick, Anthony (2010-01-25). "Defending Citizens United". National Review. http://bench.nationalreview.com/post/?q=NTk4OTA4YzlkMDg5ZmQyMWQ3OTFiZjM4OWIxMmYxNGI=. 
  39. ^ Fabian, Jordan (2010-01-23). "Poll: Public agrees with principles of campaign finance decision". The Hill. http://thehill.com/blogs/blog-briefing-room/news/77629-poll-public-agrees-with-principles-of-campaign-finance-decision. Retrieved 2010-01-24. 
  40. ^ Chapman, Steve (2010-01-24). "Free speech, even for corporations". Chicago Tribune Opinion. http://www.chicagotribune.com/news/opinion/ct-oped-0124-chapman-20100122,0,1729158.column. Retrieved 2010-01-24. 
  41. ^ David Kairys (January 22, 2010). "Money Isn't Speech and Corporations Aren't People". Slate. http://www.slate.com/articles/news_and_politics/jurisprudence/2010/01/money_isnt_speech_and_corporations_arent_people.html. Retrieved November 8, 2011. 
  42. ^ "Obama Criticizes Campaign Finance Ruling". CNN Political Ticker. Turner Broadcasting System, Inc.. 2010-01-20. http://politicalticker.blogs.cnn.com/2010/01/21/obama-criticizes-campaign-finance-ruling. Retrieved 2010-01-22. 
  43. ^ Superville, Darlene (2010-01-23). "President Blasts Supreme Court Over Citizens United Decision". The Huffington Post. http://www.huffingtonpost.com/2010/01/23/obama-weekly-address-vide_n_434082.html. Retrieved 2010-01-23. 
  44. ^ This has been argued to refer to the Tillman Act of 1907 and/or a 1912 Montana voter initiative that banned corporate contributions to state campaigns, and subsequent campaign finance laws like the 1947 Taft-Hartley Act, brookings.edu, blogs.wsj.com. Others suggested that he paraphrased a sentence in Justice Stevens' dissent: "[t]he Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)." jurist.law.pitt.edu
  45. ^ a b Hunt, Kasie (2010-01-21). "John McCain, Russ Feingold diverge on court ruling". Politico.com. http://www.politico.com/news/stories/0110/31810.html. 
  46. ^ Baumann, Nick (2010-01-22). "Grayson: Court's Campaign Finance Decision "Worst Since Dred Scott"". Mother Jones. Mother Jones and the Foundation for National Progress. http://motherjones.com/mojo/2010/01/grayson-courts-campaign-finance-decision-worst-dredd-scott. Retrieved 2010-01-26. 
  47. ^ "Group Calls For Constitutional Amendment to Overturn High Court’s Campaign Finance Ruling". The Public Record. 2010-01-21. http://pubrecord.org/multimedia/6674/congresswoman-professor-movement/. Retrieved 2010-01-26. 
  48. ^ Hancock, Jason (2010-01-21). "Boswell pushes constitutional amendment to overturn SCOTUS ruling". The Iowa Independent. http://iowaindependent.com/26145/boswell-pushes-constitutional-amendment-to-overturn-scotus-ruling. Retrieved 2010-01-26. 
  49. ^ Crabtree, Susan (2010-02-02). "Sen. Kerry backs changing Constitution to deal with Supreme Court decision". The Hill. Capitol Hill Publishing Corp.. http://thehill.com/homenews/senate/79289-kerry-backs-changing-constitution-to-deal-with-scotus-decision. Retrieved 2010-02-06. 
  50. ^ a b Amick, John (2010-01-24). "McCain skeptical Supreme Court decision can be countered". The Washington Post. http://voices.washingtonpost.com/44/2010/01/mccain-skeptical-supreme-court.html?wprss=44. 
  51. ^ "Snowe troubled by U.S. Supreme Court ruling to remove limits on corporate and union spending in political campaigns" (Press release). United States Senate. 2010-01-21. http://snowe.senate.gov/public/index.cfm?FuseAction=PressRoom.PressReleases&ContentRecord_id=52d6486c-802a-23ad-4fb5-e34d8249a594. Retrieved 2010-01-26. 
  52. ^ Nader, Ralph (2010-01-22). "Time to Reign in Out-of-Control Corporate Influences on Our Democracy". http://www.nader.org/index.php?/archives/2168-Time-to-Reign-in-Out-of-Control-Corporate-Influences-on-Our-Democracy.html. 
  53. ^ Nader, Ralph (2010-01-22). "The Supremes Bow to King Corporation". CounterPunch. http://www.counterpunch.org/nader01222010.html. 
  54. ^ "Decision May Mean More Foreign Cash". Politico.com. 2010-01-21. http://www.politico.com/news/stories/0110/31845.html. Retrieved 2010-01-22. 
  55. ^ "Head of OSCE election body concerned about U.S. Supreme Court ruling on election spending" (Press release). Warsaw: Office for Democratic Institutions and Human Rights. 2010-01-22. http://www.osce.org/odihr/item_1_42468.html. Retrieved 2010-01-26. 
  56. ^ Tribe, Laurence (2010-01-24). "What Should Congress Do About Citizens United? An analysis of the ruling and a possible legislative response". SCOTUSblog. http://www.scotusblog.com/2010/01/what-should-congress-do-about-citizens-united/. 
  57. ^ Liptak, Adam (2010-01-26). "O’Connor Mildly Criticizes Court’s Campaign Finance Decision". The Caucus Blog. New York Times Company. http://thecaucus.blogs.nytimes.com/2010/01/26/oconnor-mildly-criticizes-courts-campaign-finance-decision/?hp. 
  58. ^ Slate.com
  59. ^ Coates, John (2010). Corporate Governance and Corporate Political Activity: What Effect Will Citizens United Have on Shareholder Wealth?. Harvard Law and Economics Discussion Paper No. 684. SSRN 1680861. 
  60. ^ Bebchuk, Lucian A.; Jackson, Robert J., Jr. (2010). "Corporate Political Speech: Who Decides?". Harvard Law Review 124 (1): 83–117. http://www.harvardlawreview.org/media/pdf/vol_12401bebchuk_jackson.pdf. 
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  62. ^ JULY 6, 2011 Ocean Beach Rag
  63. ^ Movement to Abolish Corporate Personhood Gaining Traction Thursday, July 14, 2011 Boulder Weekly
  64. ^ Move to Amend website
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  66. ^ a b Alter, Jonathan (2010-02-01). "High Court Hypocrisy: Dick Durbin's got a good idea". Newsweek (Newsweek, Inc.). http://www.newsweek.com/id/232147. Retrieved 2010-01-27. 
  67. ^ "A Bad Day for Democracy". The Christian Science Monitor. http://www.csmonitor.com/Commentary/Opinion/2010/0122/Supreme-Court-s-campaign-ruling-a-bad-day-for-democracy. Retrieved 2010-01-22. 
  68. ^ Duff, Gordon (2010-01-22). "Call for Immediate Arrest of Five Supreme Court Justices for Treason". Veterans Today. http://www.veteranstoday.com/2010/01/22/call-for-immediate-arrest-of-5-supreme-court-justices-for-treason/. Retrieved 2010-01-22. 
  69. ^ Olbermann, Keith (2010-01-21). "U.S. Government for Sale". Countdown with Keith Olbermann] (MSNBC). http://www.msnbc.msn.com/id/34981476/. Retrieved 2010-01-22. 
  70. ^ Siglman, Joel. "Reflections on Citizens United". http://www.rochester.edu/president/memos/2010/citizens-united.html. Retrieved 2011-04-21. 
  71. ^ Washington Post-ABC News poll of Feb 4–8, 2010.
  72. ^ Gary Langer, In Supreme Court Ruling on Campaign Finance, the Public Dissents, ABC News, February 17, 2010.
  73. ^ Dan Eggan, Poll: Large majority opposes Supreme Court's decision on campaign financing, The Washington Post, February 17, 2010.
  74. ^ Lydia Saad, Public Agrees With Court: Campaign Money Is "Free Speech" but have mixed views on other issues at heart of new Supreme Court ruling, Gallup, January 22, 2010
  75. ^ Jordan Fabian, Poll: Public agrees with principles of campaign finance decision, The Hill, January 23, 2010.
  76. ^ Citizensunited.org
  77. ^ Campaignfreedom.org
  78. ^ Urbina, Ian (2010-01-22). "24 States' Laws Open to Attack After Campaign Finance Ruling". New York Times. http://www.nytimes.com/2010/01/23/us/politics/23states.html. Retrieved 2010-01-23. 
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  81. ^ Thehill.com
  82. ^ "Who's exempted from 'fix' for Supreme Court campaign finance ruling?". Christian Science Monitor. June 25, 2010. http://www.csmonitor.com/USA/Politics/2010/0625/Who-s-exempted-from-fix-for-Supreme-Court-campaign-finance-ruling. 
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