The US Supreme Court's 5–4 ruling in Citizens United v. Federal Election Commission, 558 U.S. ___ ( 2010 ), struck down a federal statutory restriction on independent political expenditures by associations, corporations, and labor unions. The restriction was held to violate the First Amendment.
In January 2008, Citizens United, a nonprofit advocacy group, distributed a ninety-minute documentary film titled Hillary: The Movie that criticized then–Democratic US Senator Hillary Clinton. Citizens United also wished to advertise the film and make it available through videoon-demand within thirty days of the 2008 primary elections. Fearing they might be exposed to civil and criminal penalties under the Bipartisan Campaign Reform Act of 2002 (BCRA), Citizens United sought federal-court relief against the Federal Election Commission (FEC), which enforces BCRA.
Section 203 of BCRA prohibits associations, corporations, or labor unions from funding “electioneering communications” from their general treasuries within thirty days of a primary and sixty days of a general election. An electioneering communication is any “broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal office” and is “publicly distributed” so as to be accessible to “50,000 or more persons in a State where” an election will be held within thirty or sixty days. Sections 201 and 311 of BCRA require disclosure of an organization's donors and a disclaimer if the federal candidate supported by a communication did not authorize it. Citizens United argued that these sections of BCRA are unconstitutional. The Supreme Court voided the restriction on electioneering communications but upheld BCRA's disclosure and disclaimer rules.
The majority opinion, written by Justice Anthony Kennedy, held that the First Amendment protects the speech of both individuals and associations of individuals, and prohibits government from infringing speech because of a speaker's identity. The First Amendment “'has its fullest and most urgent application’ to speech uttered during a campaign for political office.” The majority also noted that citizens “concentrate on elections only in the weeks immediately before they are held.”
Because expending money is protected speech, as decided in Buckley v. Valeo, 424 U.S. 1 ( 1976 1990 ), which upheld a state law that prohibited corporations from using general treasury funds to support or oppose candidates. The decision also overruled the part of McConnell v. Federal Election Commission, 540 U.S. 93 ( 2003 ), that sustained BCRA's prohibition of corporate spending on electioneering communications.
The majority cited First National Bank of Boston v. Bellotti, 435 U.S. 765 ( 1978 ), as a precedent. Bellotti voided a broad ban on independent corporate expenditures on ballot initiatives and referendums. The majority further maintained that government cannot grant First Amendment protections to media corporations but not other corporations.
The majority criticized the idea that large corporate spending has a “distorting effect” on politics and risks corrupting the political process. The government, said the majority, lacks authority to decide whether large expenditures distort citizens' perceptions. Furthermore, a blanket ban on corporate expenditures for the purpose of preventing big corporations from dominating election communications disadvantages the 75 percent of corporations that have less than $1 million in receipts per year as well as the many small citizen associations that expend small amounts of money on electioneering. Regarding corruption, opined the majority, government can restrict speech on corruption grounds only for “quid pro quo” transactions, that is, when there is an actual exchange of favors.
Justice Stevens wrote the dissent, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. The dissent argued that the majority improperly expanded the case's scope beyond the questions presented to it. The Court should have remanded the case for fact-finding. The dissent also criticized the majority for failing to recognize the legitimacy of “prophylactic” statutes enacted to prevent corruption in political life. “Our lawmakers,” said the dissenters, “have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”
The dissent argued that the majority ruling did not consider that corruption can occur outside of quid pro quo transactions and that even if expenditures do not buy favorable votes, big spenders get more access to elected officials and can threaten officials with negative ads. Furthermore, the mere “appearance of corruption” discourages citizens from voting. The dissent also held that large corporate spending could dominate the marketplace of ideas and push other voices out of prime-time broadcasting slots. The majority's assertion that “there is no such thing as too much speech” fails to acknowledge that too much speech from a single source could “drown out” other speech.
The dissent also argued that corporations pose a special danger to democracy because they are perpetual entities having limited liability, no loyalty, and no purpose beyond profit-making. Compared to most individuals, the dissent argued, they can spend huge amounts of money. Additionally, media corporations protected under freedom of the press can be distinguished from other corporations; hence, the majority's fear that BCRA could be used to censor the media is unfounded. The dissent also contended that the majority ignored the rights of shareholders who might not wish to fund speech they dislike.
Finally, the dissent said the majority failed to give due deference to legislative findings and judgments about money and corruption in politics. The majority's ruling will, moreover, stifle state and federal experimentation with campaign-finance regulation.
Citizens United is controversial. Opinions about it mirror today's political polarization. Generally, liberals condemn the ruling as a major violation of constitutional precedent that will give big corporations undue political influence and vastly increase corruption. Conservatives support the ruling as an expansion of speech freedom and citizens' ability to organize for political expression.
The two sides also talk past each other. While the Court majority emphasized small, closely held private and nonprofit corporations, the dissent highlighted large publicly held corporations. While opponents contend that large corporate expenditures could buy elections, proponents argue there is little evidence that such spending does buy elections. Furthermore, challengers to incumbents often need to spend considerably more to be competitive. US Senator Eugene McCarthy ( 1916–2005 ), an anti–Vietnam War Democrat who impelled President Lyndon B. Johnson to quit his 1968 reelection bid, opposed campaign-finance restrictions because his campaign was launched by twelve well-off individuals who contributed a total of $1 million.
Regardless of opinion, Citizens United and other court rulings, as well as Barack Obama's rejection of public financing for his 2008 presidential campaign, have dismantled key campaign-finance policies stemming from the Watergate experience.
SEE ALSO Buckley v. Valeo ; Campaign Finance Laws ; Kennedy, Anthony M. ; Political Party ; Regulation of Federal Elections .
Collins, Ronald K. L., and David Skover. When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment. Oak Park, IL: Top Five Books, 2014.
Post, Robert C. Citizens Divided: Campaign Finance Reform and the Constitution. Cambridge, MA: Harvard University Press, 2014.
Samples, John. The Fallacy of Campaign Finance Reform. Chicago: University of Chicago Press, 2006.