Citizens United v. Federal Election Commission (2010)

Citizens United v. Federal Election Commission is a 2010 Supreme Court case regarding the constitutionality of portions of the 2002 Bipartisan Campaign Reform Act (BCRA), also known as the McCain-Feingold Act. Initially, the case raised the relatively narrow issue of whether or not the BCRA permitted a nonprofit group to air a film critical of Hillary Clinton during the Democratic presidential primary; however, a divided court overturned the previous precedent, ruling that portions of the BCRA were unconstitutional infringements on free speech. The decision had far-reaching implications, with many analysts arguing that the ruling resulted in the creation of so-called super political action committees (PACS) and the record-breaking sums spent in the 2012 election cycle. Critics of the ruling note that although super PACS are required by law to report the sources of their funding, they may accept donations from 501(c)(4) social welfare organizations, which are not legally required to disclose the names of their donors. This arrangement has resulted in large amounts of so-called dark money being funneled to super PACs, with high-dollar donors effectively shielding their identities from both the Federal Elections Commission and the public.

The BCRA and Issue Ads

Legal Challenges to BCRA

After President George W. Bush signed the BCRA in March 2002, it was subject to immediate legal challenge by more than 80 individuals and interest groups, including Kentucky Senator Mitch McConnell and the National Rifle Association. These plaintiffs argued that the restrictions on electioneering communications constituted an infringement on their freedom of speech. Subsequently, in December 2003, the Supreme Court decided McConnell v. Federal Election Commission; in a 5–4 decision, the Court upheld the BCRA, holding that the government had a legitimate interest in instituting regulations that prevented the corruption of the election process.

Background of the Citizens United Case

In 2008, the BCRA was again subject to a legal challenge. During the 2008 Democratic primary contest between Hillary Clinton and Barack Obama, Citizens United, a conservative advocacy group, produced a film critical of Clinton. The group planned to air the film, titled Hillary: The Movie, on DIRECTV and sought to purchase a series of 30-second television spots to advertise the documentary. The Federal Election Commission (FEC), however, found that the ads for the film constituted electioneering communications as defined by the BCRA; as a result, the FEC prohibited Citizens United from advertising the film while the Democratic presidential primary process was ongoing. Citizens United challenged the decision in U.S. District Court for the District of Columbia, arguing that the documentary was incorrectly classified as an electioneering communication; the court sided with the FEC, and Citizens United then appealed to the Supreme Court.

The Supreme Court Decision

Oral arguments for the case took place in March 2009. Theodore Olson, the attorney for Citizens United, requested that the Court make a narrow ruling. More precisely, he did not challenge the constitutionality of the BCRA but rather asked that the Court find that the advertisements in question were exempt from the BCRA’s regulations. The U.S. government argued that advertisements were correctly classified as electioneering communications.

After the oral arguments, five of the nine justices favored the statutory arguments made by Citizens United and agreed that the BCRA did not apply to the film. Justice Anthony Kennedy and Chief Justice John Roberts, however, favored a more expansive ruling, which would declare sections of the BCRA unconstitutional. Such a ruling would not only overrule the precedent set in McConnell v. FEC but also address an issue not raised by the plaintiffs in the oral arguments. Facing resistance from the four dissenting justices, Roberts elected to schedule a reargument of the case; this time, the Court asked both sides to present arguments regarding the constitutionality of the BCRA.

The reargument took place in September 2009; during the second set of oral arguments, the lawyers for Citizens United made two claims. First, they argued that corporations have the same free speech rights as individuals; in this view, the BCRA’s restrictions on electioneering communications by corporations violated the First Amendment to the U.S. Constitution. Second, the plaintiffs argued that the BCRA’s requirement that the group disclose its donors was also a violation of free speech.

The Justices issued their decision in January 2010. In a 5–4 ruling, the majority applied the standard of strict scrutiny to the BCRA’s provisions and found that its restrictions on political speech were unconstitutional. The opinion, written by Justice Kennedy, and joined by Justices Roberts, Anontin Scalia, Clarence Thomas, and Samuel Alito, endorsed the idea that corporations and unions, as associations of individuals, had the same First Amendment rights as did individual citizens. The majority, however, rejected that argument that the BCRA’s disclosure requirements were unconstitutional.

Impact of the Case

The ruling in the case made it legal for associations, such as unions and corporations, to directly fund political advertisements that advocated for a particular candidate. The Citizens United ruling, as well as a series of subsequent lower court decisions, facilitated the creation of super PACs; these fundraising groups allowed individuals and corporations to contribute unlimited sums of money for direct candidate advocacy, so long as the group did not directly coordinate with a candidate. After the ruling, the super PACs proliferated, and the subsequent 2012 presidential election became the most expensive in history at that time, with outside groups spending three times the amount in 2012 than they did in 2008. The 2016 election cycle also broke records, with the super PACS spending more than $1 billion on issue advocacy, nearly doubling the record set in 2012.

Kelly McHugh and Meagan Hebel

See also Bill of Rights ; Corporate Personhood ; Republican Party

Further Readings

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

Garrett, R. Sam. “Campaign Finance Policy After Citizens United v. Federal Election Commission: Issues and Options for Congress.” Congressional Research Service Report (February 18, 2010). (Accessed October 2017).

Hasen, Richard, L. “Citizens United and the Illusion of Coherence.” Michigan Law Review, v.109 (2011).

La Raja, Raymond J. and Brian F. Schaffner. “The Effects of Campaign Finance Spending Bans on Electoral Outcomes: Evidence From the States About the Potential Impact of Citizens United v. FEC.” Electoral Studies, v.33 (2014).

Levitt, Justin. “Confronting the Impact of Citizens United.” Yale Law and Policy Review, v.29 (2010).

McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

Toobin, Jeffrey. “Money Unlimited: How Chief Justice John Roberts Orchestrated the Citizens United decision.” The New Yorker (May 21, 2012). (Accessed July 2014).